Exhibit 10.5
NINTH AMENDMENT AGREEMENT
This NINTH AMENDMENT AGREEMENT (this "Amendment"), dated as of
January 4, 2002, among Balanced Care Corporation, a Delaware corporation (the
"Company"), VXM Investments Limited, a Cayman Islands corporation ("VXM"), HR
Investments Limited, a Cayman Islands corporation, and RH Investments Limited, a
Cayman Islands corporation (each, a "Lender" and collectively, the "Lenders"),
and VXM, as agent for the Lenders (in such capacity, the "Agent"), amends the
Bridge Loan Agreement, dated as of April 4, 2001, among the parties hereto, as
previously amended pursuant to the Amendment Agreement, dated as of June 12,
2001, among the parties hereto, as further amended pursuant to the Second
Amendment Agreement, dated as of July 6, 2001, among the parties hereto, as
further amended pursuant to the Third Amendment Agreement, dated as of August 8,
2001, among the parties hereto, as further amended pursuant to the Fourth
Amendment Agreement, dated as of September 6, 2001, among the parties hereto, as
further amended pursuant to the Fifth Amendment Agreement, dated as of October
4, 2001, among the parties hereto, as further amended pursuant to the Sixth
Amendment Agreement, dated as of October 29, 2001, among the parties hereto, as
further amended pursuant to the Seventh Amendment Agreement, dated as of
November 19, 2001, among the parties hereto, as further amended pursuant to the
Eighth Amendment, dated as of December 11, 2001 (as so amended and as may be
further amended, modified or supplemented from time to time, the "Loan
Agreement"). Capitalized terms used and not otherwise defined herein shall have
the meanings ascribed to them in the Loan Agreement.
WHEREAS, the Company has informed the Agent of its desire to amend
the Loan Agreement to provide for (i) additional funds to be loaned to it
pursuant thereto, and (ii) an extension of the Maturity Date thereunder; and
WHEREAS, the Company will execute and deliver such other documents
and instruments necessary to carry out the terms of the Loan Agreement.
NOW, THEREFORE, for valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, and subject to the fulfillment of
the conditions set forth below, the parties hereto agree as follows:
SECTION 1. AMENDMENTS TO LOAN AGREEMENT.
1.1 The definition of "Loan Commitment" set forth in the Loan
Agreement is hereby amended and restated to read in its entirety as follows:
"'Loan Commitment' means an aggregate amount equal to up to
$38,928,524."
1.2 The table set forth in Section 2.1 of the Loan Agreement is
hereby deleted and replaced in its entirety with the following:
Advance Date: Amount of Loan:
April 4, 2001 $26,003,524
May 1, 2001 $ 750,000
May 30, 2001 $ 1,100,000
June 12, 2001 $ 1,250,000
July 6, 2001 $ 600,000
August 8, 2001 $ 700,000
September 6, 2001 $ 500,000
September 25, 2001 $ 300,000
October 4, 2001 $ 1,200,000
Not later than $ 900,000
October 31, 2001
November 19, 2001 $ 450,000
December 11, 2001 $ 525,000
Not later than up to $1,650,000
January 31, 2002
Not later than 3 up to $3,000,000
days prior to the
Maturity Date
1.3 Section 3.2 of the Loan Agreement is hereby amended by deleting
therefrom the date "January 31, 2002" and replacing it with "February 28, 2002."
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SECTION 2. MISCELLANEOUS.
2.1 The Company represents and warrants to the Agent
that:
(a) The Company has the corporate power and authority to execute,
deliver and carry out the terms and provisions of this Amendment and the
transactions contemplated hereby and has taken or caused to be taken all
necessary corporate action to authorize the execution, delivery and performance
of this Amendment and the transactions contemplated hereby;
(b) No consent of any other person (including, without limitation,
shareholders or creditors of the Company), and no action of, or filing with, any
governmental or public body or authority is required to authorize, or is
otherwise required in connection with the execution, delivery and performance of
this Amendment;
(c) This Amendment has been duly executed and delivered on behalf of
the Company by a duly authorized officer, and constitutes a legal, valid and
binding obligation of the Company enforceable in accordance with its terms,
subject to bankruptcy, reorganization, insolvency, moratorium and other similar
laws affecting the enforcement of creditors' rights generally and the exercise
of judicial discretion in accordance with general principles of equity; and
(d) The execution, delivery and performance of this Amendment will
not violate any law, statute or regulation, or any order or decree of any court
or governmental instrumentality, or conflict with, or result in the breach of,
or constitute a default under any contractual obligation of the Company.
2.2 Except as herein expressly amended, the Loan Agreement is
ratified and confirmed in all respects and shall remain in full force and effect
in accordance with its terms.
2.3 All references to the Loan Agreement in the Loan Agreement, the
Security Documents and the other documents and instruments delivered pursuant to
or in connection therewith shall mean such agreements as amended hereby and as
each may in the future be amended, restated, supplemented or modified from time
to time.
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2.4 The Company hereby irrevocably and unconditionally ratifies and
confirms in favor of the Agent and the Lenders the grant of a security interest
in the Collateral contained in the Security Documents, which security interest
shall continue in full force and effect without interruption and which shall
continue to be applicable to all of the Company's obligations under the Loan
Agreement as amended hereby.
2.5 This Amendment may be executed by the parties hereto
individually or in combination, in one or more counterparts, each of which shall
be an original and all of which shall constitute one and the same agreement.
2.6 Delivery of an executed counterpart of a signature page by
telecopier shall be effective as delivery of a manually executed counterpart.
2.7 This Amendment shall be governed by, and construed and
interpreted in accordance with, the laws of the State of New York.
2.8 The parties hereto shall, at any time and from time to time
following the execution of this Amendment, execute and deliver all such further
instruments and take all such further action as may be reasonably necessary or
appropriate in order to carry out the provisions of this Amendment.
* * * * *
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THE COMPANY:
BALANCED CARE CORPORATION
By:/s/Xxxxx X. Xxxxxx
Name:Xxxxx X. Xxxxxx
Title:Senior Vice President
and Legal Counsel &
Assistant Secretary
THE LENDERS:
VXM INVESTMENTS LIMITED, as
Lender
By:/s/X.X. Xxxxxxxx
Name:X.X. Xxxxxxxx
Title:Director
HR INVESTMENTS LIMITED
By:/s/X.X. Xxxxxxxx
Name:X.X. Xxxxxxxx
Title:Director
RH INVESTMENTS LIMITED
By:/s/X.X. Xxxxxxxx
Name:X.X. Xxxxxxxx
Title:Director
THE AGENT:
VXM INVESTMENTS LIMITED, as
Agent
By:/s/X.X. Xxxxxxxx
Name:X.X. Xxxxxxxx
Title:Director
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