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HomeMy WebLinkAbout01-7078WHITE 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, Plaintiff Vo BALANCED CARE CORPORATION 1215 Manor Drive Mechanicsburg, PA 17055, Defendant COURT OF COMMON PLEAS, OF CUMBERLAND COUNTY PENNSYLVANIA 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 with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the court without 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 vl 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. North Penn Legal Services 168 E. 5th Street Bloomsburg, PA 17815 Phone: (570) 784-8760 DOC#: 1257509 vl 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 THIS IS NOT AN ARBITRATION MATTER. Attorneys for Plaintiff PENNSYLVANIA BCC PROPERTIES, INC. One SeaGate, Suite 1500 P.O. Box 1475 Toledo OH 43603, Plaimiff BALANCED CARE CORPORATION 1215 Manor Drive Mechanicsburg, PA 17055, Defendant COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA No. ~1- 707d' 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. 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 i 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 Plaintiff leased the Leased Property, as defined 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. I Th~ Complaint is based upon four lease guaranties and two loan guaranties. Each of the six guaranties are attached as Exhibits. However, the four Lease Agreements and the two Loan Agreements referenced herein, including the Notes, are not attached because they are too voluminous and Defendant has a copy of each of these documents. Doc#: 1257500 vl 10. As a result of Loyalsock's defaults under the Loyalsock Lease, the Loyalsock Lease has been te,minated 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 Plaintiff leased 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 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 Cominuing 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 vl under which Plaintiff leases the 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 perfo~,,ance 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, the right to notice and all suretyship and other similar defenses. Under the express te~ms 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 commence this action against Balanced Care on each of the six (6) guaranties. Doc#: 1257500 vi COUNT I (Loyalsock Loan Guaranty) 31. Plaintiff incorporates herein by reference the avesments set forth in paragraphs 1 through 30 above as if said avetYfsents 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 avenslents 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#: 1257500vl WHEREFORE, Plaintiff demands judgment in its favor and against Balanced Care as follows: (a) (b) (c) for an award on the Loyalsock Lease Guaranty in an amount that cannot 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; for an award of reasonable attorney's fees, costs of suit and litigation expenses; and 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) (b) 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 1, 2001 until the said amount is paid in full, including the period following the entry of judgment; for an award of reasonable attorney's fees, costs of suit and litigation expenses; and Do~#: 1257500vl (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 det¢cmined 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 Guaranty in an amount that cannot yet be detecniined 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 and further relief as this Court deems just and appropriate. COUNT V (Bloomsburg Lease Guaranty) 39. Plaintiff incorporates herein by reference the ave~'ments set forth in paragraphs 1 through 38 above as if said ave.~ents were set forth in full. 40. Under the Bloomsburg Loyalsock Lease Guaranty, Balanced Care owes Plaintiff an amount that cannot yet be determined but is in excess of $16,000.00, plus interest, attorneys' fees, expenses and costs of suit. Doc#: 1257500 vi WHEREFORE, Plaintiff demands judgment in its favor and against Balanced Care as follows: (a) for an award on the Bloomsburg Lease Guaranty in an amount that cannot yet be determined but is in excess of $16,000.00, 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 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 amoum 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) (b) (c) 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 any and all other amounts which accrue and are owed under the subject lease hereinafter; for an award of reasonable attorney's fees, costs of suit and litigation expenses; and for such other and further relief as this Court deems just and appropriate. Respectfully submitted, Doc#: 1257500 vi WHITE AND WILLIAMS LLP Dated: December 17, 2001 teven E. Ostrow, Esquire Dawn L. Vahey, Esquire Attorneys for Plaintiff Doc#: 1257500 vl 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. Erin C. Ibele Exhibit 1 UNCONDITIONAL AND CONTINUING GUARANTY _ .. ~ ~.~u~ 31 2000 (the "Effective Date") is made eilecuve as oi,octou~.t , - THIS GUARANTY ' . ,,, - ~ ..... r PENNSYLVANIA BCC by BALANCED CARE CORPO TION ( Guarantor ), m ~avu~ of Pennsylvania PROPERTIES, 1NC. a corporation organized under the laws of the Commonwealth ("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 FCI 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 ("L6ase") with Financial Care Investors of Loyalsock, LLC ("Borrower" or '~renant"), 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 fi.om 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 p. aym.ent of any Credit or any guaranties of any Credit, and all other agreements, fights, or interests ~nsunng 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\hc riXloyals ockL1 oan .guaranly 11t22/00 Guarani_. Guarantor unconditionally guarantees the prompt payment when due of the Credit and th--e performance of the Loan Obhgat~ons and shall mdemmfy 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) Cavity. 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) Con____~acSs. 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 Len__~der; ~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 Relevance on Information from Lender. Guarantor [1] warrants that Guarantor has not relied on any information about the Borrower, tl~e 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 Secu,n_'ty; [3]warrants that Guarantor has had ample opportunity to investigate Borrower, Borrower 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 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. I 1/22100 -2- cl6hcri\loyal sock~loan.guaranlY (e) _lqo Ins~olvency. 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. Wa___iver_s. Without notice to or consent of Guarantor, Lender may do or. refrain from doing anything affecting anY Credit or any Security including the following: [al granting or not granting any indulgences to anyone liable for payment of the Credit or any Security; [bi failing to get or to perfect any Security; Ici failing to get an enforceable agreement to repay the Credit; [dj releasing any Security or anyone or any property from liability for payment of the Credit; changing the Loan Agreement or any agreement relating to the Credit or any Security including, leiof interest payable thereon; If] extending the time for payment of the without limitation, anY change in the schedule or manner for the payment of any Credit and any increase or decrease in the rate exercising any right or remedy, Credit including extending the time beyond the term of the Note; [g] including, without limitation, taking a deed in lieu of foreclosure; [hi 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 Iii 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 fight 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 Securi~, Etc. Guarantor's liability under this guaranty shall not be affected by Iai any default in any document concerning any Credit or Security when accepted by Lender or arising any time thereafter; [bi the unenforceability of or defect in any Security or document relating to any Credit; Ici any decline in the value of any Security; Id] Lender's failure to obtain any Security or to perfect Lender's security interest therein; or [el 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. W__~ver of Surety~s Defenses. GUARANTOR WAIVES ALL SURETYSItlP AND OTHER SIMILAR DEFENSES. 6. Uncon~ditional 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 11122100 -3- clr~hcnXl oyal sock\l oan.guaranl'] 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. ~Obli~_ation_. 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 Ia] ~sent and future debts and obligations of Borrower to Guarantor (the "Indebtedness") including but not limited to Iii salary, bonuses, and other payments pursuant to any [ii] fees, reimbursement of expenses and other payments pursuant to any employment arrangement; [iii] principal and interest pursuant to any Indebtedness; independent contractor arrangement; [iv] distributions payable to any shareholders or general or limited partners of Borrower; and Iv] lease payments pursuant to any leasing arrangement; and lb] 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 Iii after 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 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 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 thc 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. ! 1/22/00 -4- cl~hcri\loyal sock\l oan .guaranty 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 §8. 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 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 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 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 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 uch a ent or distribution and give acquittance therefor and to file for collect and receive every s P-yin ......... e or in the name of Guarantor or clams and take such other proceedings, m cenoer s own 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 §8 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 I 1122100 -5- clr'uhc ri\l oyals oc k~l oan · guaranty 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 necessap] 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 or liability 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) Financi~al 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) C__ertificate. 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 retum 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, · . ' uarantor bv or through anY of Lender's officers, agents, attorneys or records, and financial data of G. , e_'__ ,:~ tn time. Lender may examine, inspect, and m. ake accountants, at all reasonable times Wa .aura m,~,-),- -;---,~- --~onable times and from time to tame, · oks and ottaer recoms at an ~v~ · extracts from Guarantor s bo r ,~d re~ardin~ confidentiality of such mformataon. subject, however, to any agreements made by ~v.._er o ~ (e) Co___venants_. Guarantor covenants that all fman. cial st~at.,e_m_2tt; ;ff Guarantor furnished Lender will present fairly in all material aspects of Guarantor as oxm~ ua s the statements and will be prepared in accordance with' generally accepted accounting principles applied on a basis consistently maintained throughout the period involved. I 1122100 -6- ¢i ~hcri\l oyal sec k\l oan-guamnlY 10. Financial Covenants. maintain for each fiscal $35,000,000.00. (a) Net Worth. Throughout the term of the Loan, Guarantor shall quarter a Net Worth and equity capitalization of not less than (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 mount 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 Conveyance. 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, convey or otherwise transfer, directly or indirectly, all or substantially all of the 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, that the foregoing restriction shall not apply to any transfer of assets made after Guarantor's death (if an 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 and 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~hcfi~loyalsock\loan.guamnty -7- I 1/22/00 15. Termination; Revocation. Subject to reinstatement pursuant to §16, 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 fi.om Borrower of any sum due to the Lender is rescinded or must otherwise be restored or retumed by the Lender on the insolvency, bankruptcy, dissolution, liquidation or reorganization of the 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 pemfitting 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 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 immediately pay the unpaid balance of the Credit. 17. Governing Law. This guaranty shall be governed by and construed in 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. Enforceability. 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 by 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 any one 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 of Default (as defined in the Loan Agreement) has actually occurred or has been declared and thereafter cured, including, but not limited to, clr~hcn~loyalsock\loan.guaranty -8- I 1/22/00 Iai attorney's fees and paralegal fees; Ih] the fees and expenses of any litigation, administrative, bankruptcy, insolvency, receivership or any other similar proceeding; [c] court costs; [dj the expenses of Lender, its employees, agents, and witnesses in preparing for litigation and for lodging, travel, and attendance at pretrial heatings, 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 U.S. mail or one business day after deposit with the ovemight 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. 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, 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. clrLhcn'Xl oyal sockXloan.guaranty -9- 11/22/00 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~loyal sock\loan.guaranty - ] 0- l ]/22/00 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 clrgacri\loyal sockXloan.guaranty - 1 1 - 11/22/00 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 Iii 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 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: clr~hcn'Xl oya) sock\loan.gaamnty ~ 12- 1 Exhibit 2 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 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 Loyalsock, LLC, a Delaware limited liability company ('~renant"), 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 ~e 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. Guaranty. 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. G/legal/lorie/take outs - hcrt/LoyalsockJunconditional and continuing lease guaranty Ioyalsock.v2 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 l.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 Information from l.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 Insolvency. 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- 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. Waivem. Without notice to or consent of Guarantor, Landlord may do or refrain fi.om 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; [dj 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; [fi applying any funds received fi.om 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 [gl 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. Defeem in .qecnrity: 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; [dj 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 Tenant, Guarantor, or anyone liable for any Security or the start of insolvency proceedings by or against any such person or entity; [fi 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; [hi 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 fi.om 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; Iii 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 gnreW'~ Defen.qe~q.. SURETYSHIP AND OTHER SIMILAR DEFENSES. GUARANTOR WAIVES ALL 6. 1 lneonditional 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, -3- 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 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 and shall be deemed modified in accordance with the terms of such action, whether or not Guarantor has notice of such action. 8. Subrzrdinalian. Guarantor subordinates to and postpones in favor of the Credit and Security [al 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 Tenant; and [vi 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 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 assignment or transfer is made expressly subject to this guaranty. -4- 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 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 fights 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 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 §8 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 assignment of the Guarantor where necessary), for application on any of the -5- 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. Financial ,qta/ements. (a) Financial ~qtatement.q. 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 ("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 form of Exhibit A. (C) Tax Retnrn.q. Guarantor shall deliver to Landlord the federal tax return of Guarantor for each year within 15 days after the filing of the retum. 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 lnfnrmatinn. 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, attorneys or accountants, at all reasonable times and fi'om 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- (e) Covenants. Guarantor covenants.that ail financial statements of Guarantor fumished Landlord will present fairly in ail material respects the fmanciai 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. Financial Covenants. (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) Current Ratio. Guarantor shail 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 F. a2fi~ Ratio. 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 ail 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 Conveyance. Guarantor shail 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, convey or 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 shail constitute an Event of Default under the Lease and shall be deemed to be a fzaudulent 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 t~om such assets to payment of the Credit, whether matured or unmatured. 12. Laaae~ZXlyJ:naa~. Throughout the te~ln of the Lease, Guarantor shall comply with all requirements and covenants of the Lease expressly applicable to Guarantor, including, without limitation, §§ 14.5, 14.6, 14.9 and Article 23. 13. Snh.qequent 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. Succe~qgors: 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. -7- 15. Termination; Revocation. Subject to reinstatement pursuant to §16, 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. Suz3&v_al. 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. ~. This guaranty shall be govemed by and construed in accordance with the internal laws of the State 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. F. nforceahility. 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 by 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 any one 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 fights 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 thereafler cured, including, but not limited to, [a] attorney's fees and paralegal fees; [bi the fees and expenses of any litigation, administrative, bankruptcy, insolvency, receivership or any other similar proceeding; [c] court costs; [dj 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 Ici consulting fees and expenses incurred by Landlord in connection with any litigation. -8- 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 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. Amendment. 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. 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. .IIIRLqDICTION AND VENIIE. 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. WAIVER OF JIIRY 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. -9- 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 Robin L. Barber Senior Vice President- Legal Counsel and Assistant Secretary Tax ID No.: 25-1761898 -10- EXHIBIT A: GUARANTOR'S CERTIFICATE 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 audited or unaudited and anmml or a2mrterly, and if eon~cflidated~ so state] financial statements of Guarantor [ii 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 CORPORATE/PARTNERSHIP LIMITED LIABILITY COMPANY GUARANTOR: By: Title: 3/14/99 Exhibit 3 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, INC., a corporation organized under the laws of the Commonwealth of Pennsylvania ("Lender"). RECITALS 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 FCI 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 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 Guar~mtor and Guarantor has detc~rmined 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 cormection 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 p~rsonal 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~cri\l eba non\loan.gt~aranty 11/22/00 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 hamdess 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 that Guarantor has read this guaranty, the Note, the Loan Agreement, and all other docnments in connection with the Loan; and [11] acknowledges that Guarantor understands and agrees to Guarantor's obligations under this guaranty. (d) No Reliance on Infonnation 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, Borrower'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 affaim, 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\lcbanon\loan.guaranty -2- 11/22/00 (e) No Insolvency. 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: [al granting or not granting any indulgences to anyone liable for payment of the Credit or any Security; [bi failing to get or to perfect any Security; lc] failing to get an m~forceable agreement to repay the Credit; [dj releasing any Security or anyone or any property from liability for payment of the Credit; [el 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; [fi extending the time for payment of the Credit including extending the time beyond the term of the Note; [gl exercising any right or remedy, including, without limitation, taking a deed in lieu of tbreclosure; [hi 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 Security, Etc. Guarantor's liability under this guaranty shall not be affected by Iai 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; Ici 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 SureB,'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 Bon-ower or exhausts any of its rights or remedies clrB~zri\leba non\loan.gua ranty -3- ! 1/22100 against Borrower, any other Guarantor, others, or other Security. Guarantor shall not have any fight 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 Iai 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, reimbnrsement 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 Iv] lease payments pursuant to any leasing arrangement; and [bi 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 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 o t' 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 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 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 assels 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\hcriXlebanon\loan.gtmramy -4- I I/22/00 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 {}8. 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 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 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 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 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 attomey, 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 {}8 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 clrhhcfi\lebanonkloan.guaranly -5~ 11/22/00 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 or liability herennder so long as there is any claim of Lender against Borrower arising out of the Credit which has not been perJbnne& 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, m lieu of providing the financial statements described above, concurrently deliver to Landlord such reports as are delivered to the SEC pursuant to applicable securities laxvs. (b) Certificate. With each delivery of financial statements, Guarantor shall also provide to Lender a Certificate in the form of Exhibit A. (c) T~ 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 retum 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. Gnarantor 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. Gnarantor shall give Lender access to all books, records, and financial data of Guarantor by or through any of Lender's officers, agents, attorneys 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 fairy 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. clr\hcrfilebanon~Joan.guaranty -6- 11/22/00 10. Financial Covenants. maintain for each $35,000,000.00. (a) Net Worth. fiscal quarter a Net Throughout the term of the Loan, Guarantor shall Worth and equity capitalization of not less than (b) Current Ratio. Gnarantor 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 fights 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 Conveyance. Guarantor slmll not sell, convey, pledge, encumber or otherwise transfer any ownership interest in Balanced Cm-e 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 interes~ in Borrower now owned or hereafter acquired, without the prior written consent of Lender. ~vhich consent shall not be unreasonably withheld. Guarantor shall not sell, give, convey or otherwise transfer, directly or indirectly, all or substantially all of the 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, that the foregoing restriction shall not apply to any transfer of assets made after Guarantor's death (if an 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 transtEr, Lender 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. 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 ?aranty 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%cri\lebanon\loan.guaranty -7- 11/22/00 15. Termination; Revocation. Subject to reinstatement pursuant to §16, 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 Gnarantor 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 of the 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 o f 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 insoh, ency law, 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 immediately pay the unpaid balance of the Credit. 17. Goveming Law. This guaranty shall be governed by and construed in accordance with the internal laws of the Commonwealth of Pennsylvania, without giving effect to the conflict of laws roles 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 o f 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 circtnnstances, 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 by Lender. No lbrbeamnce 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 any one 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 of Defimlt (as defined in the Loan Agreement) has actually occurred or has been declared and thereafter cured, including, but not limited to, cl~hcfi~lebanon\loan.guaranty -8- I 1/22/00 [al attorney's fees and paralegal fees; [b] the fees and expenses of any litigation, administrative, bankruptcy, insolvency, receivership or any other similar proceeding; Icl court costs; Id] the expenses of Lender, its employees, agents, and witnesses in preparing for litigation and for lodging, travel, and attendance at pretrial heatings, depositions, and trials; and [el 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 gnaranty 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-EXCI~USIVE JURISDICTION AND VENUE OF ANY STATE OR FEDERAL COURT HAVING JURISDICTION OVER LUCAS COUNTY, OHIO OR LEBANON 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 UN1TED 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. clrXhcri\lebanon\l oan.guara nly -9- 11/22/00 27. WAIVER OF JURY TRIAL. TO THE FULLEST EXTENT PERMITI'ED 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] cl r\hcn~lebanon\loan.gua rainy - ] 0- 11/22/00 IN WITNESS WHEREOF, Gnarantor executes and delivers to Lender this Unconditional and Continuing Guaranty effective as of the Effective Date. Address: iBALANCED CARE CORPORATION 1215 Manor Drive Mechanicsburg, Pennsylvania 17055 By: Robin L. Barber Senior Vice President- Legal Counsel and Assistant Secretary clr~hcn'qebanonqoan.guaranty - ] l - 11/22/00 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 gnnual 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 Continuing Guaranty made by Guarantor in favor of Lender ("Guaranty"). 3. To the best of my knowledge, Bon-ower 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 witB 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 defanlt, has occurred nnder the Guaranty. Executed this __ day of ., CORPORATE/PARTNERSHIP LIMITED LIABILITY COMPANY GUARANTOR: By: Title: clr\hcnAleba non\loan .guaranty - ] 2- 11122100 Exhibit 4 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 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 fi.om 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. Guaranty_ 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 hamdess 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 temps. G/legal/lot/e/take outs - hcrt/forms/unconditional and continuing lease guaranty Lebanon.v2 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 l,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 Information from l ,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 fxom 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 Insolvency_ 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- 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; Id] 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; [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 [gl 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: Ftc_ Guarantor's liability under this guaranty shall not be affected by [a] any default in any document conceming 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 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 discharge of Tenant in any creditor's, receivership, bankruptcy, other insolvency proceedings, or other proceedings; [hi 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 .qure~'s Defenses_ SURETYSHIP AND OTHER SIMILAR DEFENSES. GUARANTOR WAIVES ALL 6. 1 lnconditional 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, -3- regardless of whether or not Landlord fa'st 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 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 ail renewals, amendments, extensions, consolidations, modifications, increases and reductions of the Lease Documents and the Credit. Guarantor's liability under this guaranty shail not be reduced or cancelled by any such action and shall be deemed modified in accordance with the temps of such action, whether or not Guarantor has notice of such action. 8. Suitor_d/nation. 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 [ii 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 Tenant; and [v] lease payments pursuant to any leasing arrangement; and [bi 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 [ii 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 commence~nent 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 ail 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 temi "Tenant" shail 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 matured. 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 shail 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 shail 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 ail 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 shail 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 -4- 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 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 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 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 §8 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 assignment of the Guarantor where necessary), for application on any of the -5- 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. Financial ~qtatem ent~q. (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. 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. C°) Certificate. With each delivery of financial statements, Guarantor shall also provide to Landlord a Certificate in the form of Exhibit A. (c) Tax Remm~q~ 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, 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- (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 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) and equity capitalization of at least $35,000,000. (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 F.a?ity Ratio. 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 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 Conveyance. 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, convey or 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. l,ease 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, §§ 14.5, 14.6, 14.9 and Article 23. 13. ,qnhsequent Guarantie.q_ 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; F. tc. 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- 15. Termination; Revncation~ Subject to reinstatement pursuant to §16, this guaranty shall automatically temdnate 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. Samfiyal. 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. Governing I.aw. This guaranty shall be govemed by and construed in accordance with the internal laws of the State 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. Enforceability. 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 by l,andlord 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 any one 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 Expen~qes. 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, [al attomey's fees and paralegal fees; [bi 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 heatings, depositions, and trials; and [el consulting fees and expenses incurred by Landlord in connection with any litigation. -8- 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 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 comer. 23. Amendment. 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. Connterparts. 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. IIIRIRDICTION AND VENI~. 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, 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. WArv-V.r OF _lllrY 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. -9- 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 Robin L. Barber Senior Vice President- Legal Counsel and Assistant Secretary Tax ID No.: 25-1761898 -10- EXHIBIT 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 audited or unaudited and annual or a2mrterly, and if cnnsolid~ted, so state] financial statements of Guarantor Ii] 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 , __ CORPORATE/PARTNERSHIP LIMITED LIABILITY COMPANY GUARANTOR: By:. Title: 3/14/99 Exhibit 5 UNCONDITIONAL AND CONTINUING LEASE GUARANTY THIS GUARANTY is made effective as of /Haccla i~ . ., 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"). RECITALS A. Landlord is granting to Balanced Care at Bloomsburg II, Inc., a corporation organized under the laws of the State of Delaware ("Tenant"), a lease of the 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 t0 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. GuaranW. Guarantor unconditionally guarantees the prompt payment when due of the Credit and the perfom~ance of the Lease Obligations and shall indemnify Landlord and hold Landlord ha,mless 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~cri\bloomsburg\guaranty 3/14~99 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, cleliver and perform this guaranty. · Co) .Con.tracts. Guarantor w~ants 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 Landlord; Waivers. Guarantor [1] 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 [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 conceming 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 conceming Tenant, the Security, and this guaranty fi'om 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 Insolvency. 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 an~ount 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 clr\hcriXbloomsburg\guaranty -2- 3/14/99 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: Iai granting or not granting any indulgences to anyone liable for payment of the Credit or any Security; lb] failing to get or to perfect any Security; [c] failing to get an enforceable agreement to repay the Credit; Id] releasing any Secxn'i~y or anyone'r~r vary ln~perty f~mn tiabitity'fcn'p'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 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 [al any default in any document conceming any Credit or Security when accepted by Landlord or arising any time thereafter; [bi the unenforceability of or defect in any Security or document relating to any Credit; [c] any decline in the value of any Security; [dj 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 Tenant, Guarantor, or anyone liable for any Security or the start of insolvency proceedings by or against any such person or entity; [fi 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; [hi 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; [ii 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 Suretg'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 clr',hcri\bloomsburg\guaranty -3- 3/14199 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 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 aclion 'and 'slral'l 'be deemed'modified-in a~:cordanee '~th .the ferms .ofsuch action, whether or not Guarantor has notice of such action. 8. Subordination. Guarantor subordinates to and postpones in favor of the Credit and Security Iai any present and future debts and obligations of Tenant to Guarantor (the "Indebtedness") including but not limited to [ii 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 Tenant; and Iv] lease payments pursuant to any leasing arrangement; and [bi 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 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 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\hcri\bloomsburg\guaranty -4- 3/14/99 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 such action or proceeding, 'Landlord 'is hereby authorized and empowered in ils 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 xvhatever 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 attomey, 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 {}8 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 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 clrhhcri\bloomsburg\guaranty -5- 3/14199 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, -fi-such original is-necessary in order to .enable Landlord .to tak~ any action-penn~R~:d 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 fi.om 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 an~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. 00) Certificate. With each delivery of financial statements, Guarantor shall also provide to Landlord a Certificate in the fozm 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 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, attomeys 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\hcn'\bloomsburg\guaranty -6- 3/14/99 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 .eqaivaleaztso£at.l~asl$5,00O,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 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 Conveyance. 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, convey or otherwise transfer, directly or indirectly, all or substantially all of the assets of Guarantor to any person ('q'ransferee"). 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 fi'audulent 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 fi.om 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, §§ 14.5, 14.6, 14.9 and Article 23. 13. Subsequent Guaranties. No subsequent guaranty to Landlord by Guarantor shall supersede or temfinate 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 §16, 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. clrkhcfi~bloomsburg\guaranty -7- 3/14/99 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 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 lhe 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. t7. Go-vemi, n.g Law. TMs guaranty shall-be governed ,by and ,const.med in 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. Enforceability. 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 by 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 any one 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, Ia] attorney's fees and paralegal fees; [bi the fees and expenses of any litigation, administrative, bankruptcy, insolvency, receivership or any other similar proceeding; [c] court costs; [dj the expenses of Landlord, its employees, agents, and wimesses in preparing for litigation and for lodging, travel, and attendance at pretrial heatings, depositions, and trials; and [e] consulting fees and expenses incurred by Landlord in connection with any litigation. 22. Notice. 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, Suit~ 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\hcr~bloormburg\guaranty -8- 3/lad99 '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 Landlord. Alt references to this guaranty, whether in this guaranty or any other document or instrument, shall be deemed to incorporate all an~endments, 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 instnunent. 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 MAI£ 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] c lr~hcri\blooreaburg\guaran ty -9- 3/I 4/99 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 Title: Robin I Assistant Secretary Tax ID No.: 25-1761898 clr~cri~loomsburg\guaranty - I 0- 3/i 4/99 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 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 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 ~°mpiianee 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~ARTNERSHIP LIMITED LIABILITY COMPANY GUARANTOR: By: Title: ch'\hcn'Xbl oomsburg\guaranty 3/14/99 Exhibit 6 UNCONDITIONAL AND CONTINUING LEASE GUARANTY THIS GUARANTY is made effective as of ~rdn l~ , 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 Peunsylvania ("Landlord"). RECITALS 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 determined that Guarantor will benefit fi.om 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 fi.om 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. Guaranty. 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~cn'X.saxonburg~guaranty 3/14]99 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. 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 [1] 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 furore 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 [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 infmmation 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 Insolvency. 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 cir~agriksax onburg\guaranty -2- 3114/99 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: [al granting or not granting any indulgences to anyone liable for payment of the Credit or any Security; [bi failing to get or to perfect any Security; [c] failing to get an enforceable agreement to qepay tide. CredO; -[d]..~eloae~g ar~y ,$oc, uri~t ~. an.yoae~ or ar~y .prel~,-'lS'-.f~om-liability 4'or ~p~}ym~.~f the Credit; [el 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 [gl 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; [bi 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 Tenant, Guarantor, or anyone liable for any Security or the start of insolvency proceedings by or against any such person or entity; [fi 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; [hi 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; [ii 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 [mi any reorganization, merger, consolidation, combination, or sale of substantially all the assets of Tenant. 5. Waiver of Surety's Defense~s. 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 clrkhcn'Xsax°nburg\guarantY -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 of the 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 .empxelled by.a~y ~,¢h.ac~ion.p_.~.shall .ba.deemenLmodi~-d.ia.ac~oorda~3e ~4t~.~-terms.of-~eh action, whether or not Guarantor has notice of such action. 8. Subordination. Guarantor subordinates to and postpones in favor of the Credit and Security [al any present and future debts and obligations of Tenant to Guarantor (the "Indebtedness") including but not limited to Ii] 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 Tenant; and Iv] lease payments pursuant to any leasing arrangement; and [bi 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 Ii] 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 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 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~,hcn'k~xonburg'~gu aran ty -4- 3/14/99 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 such a~tion or proceeding,"Lanttiorfi is'hereby atlthorized an~t 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 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 necessmy or advisable for the enfomement 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, instmrnent or proceeds which are subject to the subordination contained in the first paragraph of this §8 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 tho 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 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~hcriksaxonburg\guaranty - 5 - 3/I 4/99 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, -ff.s~ach .original .is .nee~s~y.in =ord~-¢o'~nabte 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 fi.om 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 pemonal 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 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 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 affaim 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 fi.om Guarantor's books and other records at all reasonable times and fi.om time to time, subject, however, to any agreements made by Landlord regarding confidentiality of such information. (e) Covenants. Guarantor covenants that all financial stat...ents of Guarantor furnished Landlord will present fairly in all material respects the financial condition of Guarantor as clr~hcn'k~axonbur g\gu aranty -6- 3/14/99 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 {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 Conveyance. Guarantor shall not sell, convey, pledge, encumber or otherwise l~ansfer 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, convey or 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 finudulent 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 fi.om 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, §§ 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 §16, 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\hcfiksaxonburg\guaranty -7- 3/I 4/99 : 16. Suvvival. 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. 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. Enforceability. 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 by Landlord. No forbearance by Landlord in exemising 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 any one or more occasions shall operate as a waiver of such right on any other occasion; and no single or partial exercige 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 fight, power, or privilege. Landlord's rights under this guaranty are cumulative and not exclusive of any rights or remedies that Landlord may othenvise 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 fights 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, Iai 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; [dj 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 [el 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 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 c lr~cnXsax onburgXguaranty -~- 3/14/99 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 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 IURISDICTION AND VENUE OF ANY STATE OR FEDERAL COURT HAVING JURISDICTION OVER LUCAS COUNTY, OHIO 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 COIqTROVERSY 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 VOLUNTARII.y 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] drh'~n'Xsaxonburg\guaranty -9- ~a4/99 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 Title: Robin L. Barber Assistant Secretary Tax ID No.: 25-1761898 cl6hcanMaxonburgkguaranty - 10- 3/I 4F)9 EXHIBIT A:' GUARANTOR'S CERTIFICATE Report Period: Commencing. and ending Lease: Lease made by Pennsylvania BCC Properties, Inc. (',Landlord") to Balanced Care at Saxonburg, Inc. ("Tenanf') guaranteed by Balanced Care Corporation ("Guarantor") I hereby certify to Landlord as follows: 1. The attached [specify audited or unaudited and annual or quarterly, and if consolidated, so state] financial statements of Guarantor Ii] 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, Ct~ent 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 notic6 or both would constitute a default, has occurred under the Lease Docments. 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: chShcn'~a onbmrg~gu ar anty 3/14/99 SHERIFF'S RETURN - REGULAR CASE NO: 2001-07078 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERL~ND PENNSYLVANIA BCC PROPERTIES IN VS BALANCED CARE CORPORATION BRYAN WARD , Sheriff or Deputy Sheriff of Cumberland County, Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon BALANCED CARE CORPORATION the DEFENDANT , at 1155:00 HOURS, on the 20th day of December at 1215 MANOR DRIVE 2001 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 18.00 Service 7.80 Affidavit .00 Surcharge 10.00 .00 35.80 Sworn and Subscribed to before me this ~ day of ~,~ .LO~ ~.~ A.D. ~ ~rothonotary ' So Answers: R. Thomas Kline 12/26/2001 WHITE AND WILLIAMS 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 PENNSYLVANIA BCC PROPERTIES, INC. One SeaGate, Suite 1500 P.O. Box 1475 Toledo OH 43603, Plaintiff BALANCED CARE CORPORATION 1215 Manor Drive Mechanicsburg, PA 17055, Defendant Attorneys for Plaintiff COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA No. 2001-07078P pRAECIPE TO DISCONTINUE ACTION TO THE PROTHONOTARY: Kindly discontinue without prejudice the above-captioned action pursuant to Pa.R.Civ. P. 229(a). Dated: February 26, 2002 WHITE AND WILLIAMS Steven E. Ostrow, Esquire Doe#: 1277037 vi 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 PENNSYLVANIA BCC PROPERTIES, INC. One SeaGate, Suite 1500 P.O. Box 1475 Toledo OH 43603, Plaintiff BALANCED CARE CORPORATION 1215 Manor Drive Mechanicsburg, PA 17055, Defendant Attorneys for Plaintiff COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA No. 2001-07078P CERTIFICATE OF SERVICE I, Dawn L. Vahey, Esquire, hereby certify that on February 26, 2002 1 caused a true and 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: Dated: February 26, 2002 BALANCED CARE CORPORATION 1215 Manor Drive Mechanicsburg, PA 17055 Vahey, Esquire /~ Dawn L. WHITE AND WILLIAMS LLP ~ 1800 One Liberty Place Philadelphia, PA 19103 Telephone: (215) 864-6808