Exhibit 10.20
AMENDED, RESTATED AND CONSOLIDATED AFFILIATED
PARTY SUBORDINATION AGREEMENT
THIS AGREEMENT is made as of the 14th day of March, 2002 by and among
(i) BALANCED CARE TENANT (MT), INC., a Delaware corporation, having its
principal place of business at 0000 Xxxxx Xxxxx, Xxxxxxxxxxxxx, Xxxxxxxxxxxx
00000 (the "Lessee"), (ii) BALANCED CARE CORPORATION, a Delaware corporation,
having its principal address at 0000 Xxxxx Xxxxx, Xxxxxxxxxxxxx, Xxxxxxxxxxxx
00000 (the "Guarantor"); (iii) BCC DEVELOPMENT AND MANAGEMENT CO., a Delaware
corporation, having its principal address at 0000 Xxxxx Xxxxx, Xxxxxxxxxxxxx,
Xxxxxxxxxxxx 00000 (the "Developer"); (iv) BALANCED CARE AT XXXXXXXX, INC., a
Delaware corporation, BALANCED CARE AT BLYTHEVILLE, INC., a Delaware
corporation, BALANCED CARE AT LEWISBURG, INC., a Delaware corporation, BCC AT
LIMA, INC., a Delaware corporation, BALANCED CARE AT DILLSBURG, INC., a Delaware
corporation, BALANCED CARE AT XENIA, INC., a Delaware corporation, BCC AT
CHIPPEWA, INC., a Delaware corporation, BALANCED CARE AT KINGSPORT, INC., a
Delaware corporation, BALANCED CARE AT CHESTERFIELD, INC., a Delaware
corporation, BALANCED CARE AT HENDERSONVILLE, INC., a Delaware corporation,
BALANCED CARE AT KNOXVILLE, INC., a Delaware corporation and BALANCED CARE AT
POCAHONTAS, INC., a Delaware corporation, each having a principal address at
0000 Xxxxx Xxxxx, Xxxxxxxxxxxxx, Xxxxxxxxxxxx 00000 (collectively, the
"Managers") and (v) all other Affiliates (as such term is defined in the "Lease"
as hereinafter defined) of the Lessee, the Guarantor and/or the Managers which
hereafter enter into Interaffiliate Agreements (as hereinafter defined) with the
Lessee (all of the parties referred to in the foregoing clauses (i), (ii),
(iii), (iv) and (v) are hereinafter collectively referred to as the "Affiliated
Parties"); and (vi) MEDITRUST ACQUISITION COMPANY II LLC, a Delaware limited
liability company, having a principal address at 000 Xxxxx Xxxxxx, Xxxxxxx
Xxxxxxx, Xxxxxxxxxxxxx 00000 (the "Lessor").
W I T N E S S E T H
WHEREAS, the Lessor is the holder of the landlord's interest under
those certain twelve (12) Facility Lease Agreements more particularly described
in EXHIBIT A attached hereto (collectively, the "Existing Leases");
WHEREAS, the Lessee, the Guarantor, the Developer, the Managers, IPC
Advisors S.A.R.L, the Lessor and La Quinta TRS, Inc. are parties to that certain
Option, Settlement and Release Agreement dated February 6, 2002 (the "Option
Agreement"), pursuant to which, among other things, (i) the Lessee and the
Lessor agreed to amend, restate and consolidate the Existing Leases pursuant to
that certain Master Facility Lease Agreement of even date herewith to be
executed simultaneously herewith by and between the Lessor and the Lessee (the
"Lease") and (iii) the Lessee, the Guarantor, the Developer and the Managers
agreed to execute and deliver this Agreement as additional security for the
Obligations (as defined under the Lease);
WHEREAS, all of the Third Party Lessees (as defined under the Option
Agreement) have been merged into the Lessee with the Lessee being the surviving
entity (collectively, the "Mergers");
WHEREAS, pursuant to the Option Agreement, Balanced Care at Xxxxxxxx,
Inc. (the "Potomac Point Lessee") has assigned its interest under the Potomac
Point Lease Documents (as defined in the Option Agreement) to the Lessee, and
the Lessee has assumed the Potomac Point Lessee's obligations under the Potomac
Point Lease Documents (the "Potomac Point Assignment");
WHEREAS, as a consequence of the Mergers and the Potomac Point
Assignment, the Lessee is the holder of the tenant's interest under the Existing
Leases and is party to and bound by the agreements listed on EXHIBIT B attached
hereto (collectively, the "Existing Subordination Agreements"), which Existing
Subordination Agreements provide additional security for the obligations under
the Existing Leases; and
WHEREAS, in connection with the amendment, restatement and
consolidation of the Existing Leases, the parties hereto have agreed that the
Existing Subordination Agreements be amended, restated and consolidated;
NOW, THEREFORE, in consideration of the mutual covenants hereinafter
contained and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged by the parties hereto, which consideration
includes (a) the Lessor's agreement to enter into the Option Agreement and grant
the Option Right (as defined under the Option Agreement) to the Buyer, (b) the
Lessor's agreement to the "IPC/BCC Release" and the "BCC Release" (as such terms
are defined under the Option Agreement)
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and (c) the Lessor's agreement, notwithstanding the Existing Defaults (as
defined under the Option Agreement), to consent to the Stock Transfers (as
defined under the Option Agreement), the parties hereto agree to amend and
restate the Existing Subordination Agreements in their entirety and to that end
agree that this Amended, Restated and Consolidated Affiliated Party
Subordination Agreement shall be deemed effective as of the date hereof, shall
supersede the Existing Subordination Agreements in their entirety and shall be
referred to herein as the "Agreement". The parties hereto further agree as
follows:
1. Background
1.1 Capitalized Terms. All capitalized terms used herein and not
expressly defined herein shall have the same meanings ascribed to such terms in
the Lease.
1.2 Interaffiliate Agreements. The Affiliated Parties have entered into
or may enter into agreements of any kind or nature, whether written or oral
(including, without limitation, management agreements, financing arrangements
and shareholder agreements) with the Lessee (such agreements are hereinafter
collectively referred to as the "Interaffiliate Agreements"), including, without
limitation, the Current Management Agreements.
1.3 Affiliated Party Debt. All fees, indebtedness, interests,
liabilities, and obligations of the Lessee to any of the Affiliated Parties,
whether now existing or hereafter arising, under the Interaffiliate Agreements
are hereinafter referred to collectively as the "Affiliated Party Debt". Without
limiting the foregoing, the term "Affiliated Party Debt" shall be deemed to
include (i) all dividends, distributions and other payments of any kind or
nature hereafter made or paid by the Lessee to any of its partners or
shareholders, (ii) any payment hereafter made by the Lessee in connection with
any loan from or to any of the Affiliated Parties, (iii) any equity investment
hereafter made by the Lessee in any Affiliate or Subsidiary and (iv) the
indebtedness, liabilities and obligations of the Lessee to the Managers under
the Current Management Agreements.
2. Subordination
2.1. Subordination of Affiliated Party Debt. The payment of any and all
of the Affiliated Party Debt is hereby expressly subordinated and made junior to
the payment and performance of
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all of the Obligations to the extent and in the manner set forth herein.
2.2. Payments and Receipts. Until the Lease Obligations shall have been
completely paid and performed, the Lessee shall not make, and the Affiliated
Parties shall not receive, accept or retain any direct or indirect payment or
reduction (whether by way of loan, setoff, declaration of any dividend,
distribution of cash or property or otherwise) in respect to the principal of,
or premium or interest on, the Affiliated Party Debt, if, on the date such
payment would (but for the terms hereof) be payable to and received by any of
the Affiliated Parties pursuant to any of the Interaffiliate Agreements (each of
which such dates shall be hereinafter referred to as a "Affiliated Party Debt
Payment Date"):
(i) after giving effect to such payment, the Lessee shall be
unable to comply with any of the Lease Obligations;
(ii) a default or breach of condition continuing beyond all
applicable notice and/or grace periods under any of the Lease Documents
(hereinafter referred to as a "Lease Default") shall have occurred, shall be
continuing and shall not have been specifically waived in writing by the Lessor,
whether or not the Lessor has exercised any right or remedy under the Lease
Documents with respect thereto or if such a Lease Default shall not be
continuing on any Affiliated Party Debt Payment Date, but the Lessor (pursuant
to any of the Lease Documents) shall have commenced to exercise any right and
remedy under the Lease Documents with respect thereto and such exercise shall
not have been specifically rescinded in writing by the Lessor; or
(iii) an event which with the giving of notice or the passage
of time or both shall constitute a Lease Default shall have occurred, shall be
continuing and shall not have been specifically waived in writing by the Lessor.
2.3 Bankruptcy and Insolvency. In the event of any voluntary or
involuntary insolvency, bankruptcy, receivership, custodianship, readjustment of
debt, arrangement, composition, assignment for the benefit of creditors or other
similar proceeding relative to the Lessee or any of the Lessee's property, then
and in any such event:
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(i) all of the Obligations shall first be paid in full before
any payment or distribution of any character, whether in cash, securities,
obligations or other property, shall be made in respect to the Affiliated Party
Debt;
(ii) any payment or distribution of any character, which would
otherwise (but for the terms hereof) be payable or deliverable in respect of the
Affiliated Party Debt (including, without limitation, any payment or
distribution of any other indebtedness of the Lessee being subordinated to the
Affiliated Party Debt), shall be paid or delivered directly to the Lessor until
all of the Obligations shall have been paid in full, and the Affiliated Parties
or any other holders of the Affiliated Party Debt irrevocably authorize, empower
and direct all receivers, custodians, trustees, liquidators, conservators, and
others having authority with respect to the Leased Property (or any portion
thereof) to effect all such payments and deliveries;
(iii) upon the written request of the Lessor, the Affiliated
Parties shall prove, enforce and endeavor to obtain payment of the aggregate
outstanding amount of all unpaid Affiliated Party Debt payments due and payable,
or thereafter becoming due and payable from the Lessee to the Affiliated
Parties, and shall turn over to the Lessor in precisely the form received, any
payment of any kind or character on account of such Affiliated Party Debt for
application to the payment of the Obligations. In the event that the Affiliated
Parties shall fail to take any such action requested by the Lessor, the Lessor
as attorney-in-fact for the Affiliated Parties, with full power of substitution,
may take such action on behalf of the Affiliated Parties, but for the use and
benefit of the Lessor. This power of attorney, being coupled with an interest,
shall be irrevocable until all of the Lease Obligations are fully paid and
performed and shall not be affected by any disability or incapacity which any of
the Affiliated Parties may suffer and shall survive the same. The power of
attorney conferred on the Lessor by the foregoing provisions is provided solely
to protect the interests of the Lessor and shall not impose any duty on the
Lessor to exercise any such power, and neither the Lessor nor such
attorney-in-fact shall be liable for any act, omission, error in judgment or
mistake of law, except as the same may result from its gross negligence or
wilful misconduct; and
(iv) the Affiliated Parties or any other holder of the
Affiliated Party Debt shall execute and deliver to the Lessor all
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such further instruments confirming the authorization referred to in the
foregoing clauses (ii) and (iii), and any powers of attorney specifically
confirming the rights of the Lessor arising hereunder, and all such proofs of
claim, assignments of claim and other instruments and shall take all such other
actions as may be requested by the Lessor in order to enable the Lessor to
enforce any and all claims upon or in respect of such Affiliated Party Debt and
to collect and give any and all payments or distributions which may be payable
or deliverable at any time upon or with respect to such Affiliated Party Debt.
2.4. Application of Payments. If, notwithstanding the provisions of
this Agreement, any payment or distribution of any character (whether in cash,
securities or other property) or any security shall be received by any of the
Affiliated Parties in contravention of the terms of this Agreement, and before
all of the Obligations shall have been paid and performed in full, such payment,
distribution or security shall be held in trust for the benefit of and shall be
paid over or delivered and transferred to, the Lessor for application to the
payment of all of the Lease Obligations remaining unpaid, until all of the Lease
Obligations shall have been paid in full.
2.5 Obligations of the Lessee to Affiliated Parties. Except to the
extent provided in this Agreement that the Affiliated Party Debt may not be
payable, be paid or be retained, nothing contained herein shall impair, as
between the Lessee and the Affiliated Parties, the obligations of the Lessee,
which are absolute and unconditional, to pay to the Affiliated Parties the
Affiliated Party Debt, as and when the same shall become due and payable in
accordance with the terms thereof (and retain the same), or prevent the
Affiliated Parties, upon default with respect to the Affiliated Party Debt, from
exercising all rights, powers, and remedies otherwise provided therein or by
applicable law, all subject to the rights of the Lessor hereunder.
3. Continued Effectiveness of this Agreement.
3.1. Changes in Lease Documents, Etc. The terms and provisions of this
Agreement, the subordination effected hereby, the rights of the Lessor, and the
obligations of the Affiliated Parties arising hereunder shall not be affected,
modified or impaired in any manner or to any extent by:
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(i) any renewal, replacement, amendment, extension,
substitution, revision, consolidation, modification or termination of any of the
Lease Documents and/or any of the Related Party Agreements;
(ii) the validity or enforceability of any such documents
referred to in clause (i) above;
(iii) the release, sale, exchange or surrender, in whole or in
part, of Collateral;
(iv) any exercise or nonexercise of any right, power or remedy
in respect of the Obligations; or
(v) any waiver, consent, release, indulgency, extension,
renewal, modification, delay or other action, inaction or omission in respect of
the Obligations, now existing or hereafter arising, all whether or not the
Affiliated Parties shall have had notice or knowledge of any of the foregoing
and whether or not they shall have consented thereto.
3.2. Transferees. In the event of any sale, assignment, disposition or
other transfer of the Affiliated Party Debt, the Affiliated Parties shall cause
the transferee thereof to execute and deliver to the Lessor an agreement
(substantially identical with this Agreement) providing for the continued
subordination of the Affiliated Party Debt to the Obligations as provided herein
and for the continued effectiveness of all of the rights of the Lessor arising
under this Agreement; provided, however, that notwithstanding the delivery of
such an agreement, the Lessor shall not be deemed to have waived its right to
consent to any assignment, transfer, amendment or alteration of the
Interaffiliate Agreements pursuant to the terms of the Lease Documents.
4. Interaffiliate Agreements.
4.1. Termination of Interaffiliate Agreements. Notwithstanding anything
to the contrary contained in the Interaffiliate Agreements, the Affiliated
Parties hereby agree that after the occurrence of any Lease Default, the Lessor
may terminate all or any one or more of the Interaffiliate Agreements, upon
written notice to the Affiliated Parties, in the event that:
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(i) the Lessor elects to take possession (directly or through
a nominee) of all or any portion of the Leased Property by reason of the
exercise of the rights and remedies granted to the Lessor under any of the Lease
Documents; or
(ii) the Lessor elects to terminate the Lease pursuant to the
terms of any of the Lease Documents.
In the event of a termination of any one or more of the Interaffiliate
Agreements pursuant to the provisions hereof, neither the Lessor nor any such
nominee shall have any liabilities or obligations whatsoever with respect to the
Affiliated Party Debt or any portion thereof (whether past due or which would
have become due and payable if such Interaffiliate Agreements had not been
terminated) or any other duties, covenants, agreements or obligations of the
Lessee under any of the Interaffiliate Agreements.
4.2 Changes in Interaffiliate Agreements, Etc. Each of the Affiliated
Parties agrees that it shall not transfer or assign any Interaffiliate Agreement
or any interest therein, directly or indirectly, or consent to the transfer or
assignment of any Interaffiliate Agreement or any such interest by any party
thereto, without the prior written consent of the Lessor, in each instance,
which consent shall not be unreasonably withheld; provided, however, that the
Lessor's consent shall not be required for any transfer or assignment of any
Interaffiliate Agreement to another Affiliate of the Lessee as long as such
other Affiliate has executed this Agreement or executes and delivers to the
Lessor an agreement substantially identical to this Agreement.
5. Representations, Warranties and Covenants.
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The Lessee and the other Affiliated Parties each represent and warrant
to, and covenant and agree with the Lessor, that: (i) each Affiliate of the
Lessee that is a party to any Interaffiliate Agreement in effect as of the date
hereof is a party to this Agreement; (ii) a true and correct copy of each
written Interaffiliate Agreement entered into after the date hereof shall be
provided to the Lessor within ten (10) days after its execution and in the event
that any party to any Interaffiliate Agreement (whether written or oral) entered
into after the date hereof is not a party to this Agreement as of the date
hereof, the Affiliated Parties agree to cause such party to agree to be bound by
the terms of this Agreement, pursuant to an instrument in form and substance
acceptable to the Lessor, as fully and effectively as if such party constituted
one of the Affiliated Parties specifically named herein as of the date hereof;
and (iii) no written Interaffiliate Agreement shall be amended except by written
instrument and a true and correct copy of each instrument which is hereafter
entered into amending any Interaffiliate Agreement shall be provided to the
Lessor within ten (10) days after its execution.
6. Lease Documents.
Each of the Affiliated Parties acknowledges that it has received copies
of the Lease Documents and hereby agrees to be bound by and to fully comply with
the terms and conditions contained therein, as the same may be applicable to the
Affiliated Parties (either directly or as a result of the Affiliated Parties'
duties, obligations, covenants and agreements under the Interaffiliate
Agreements).
7. Indemnification.
The Affiliated Parties shall and hereby jointly and severally agree to
indemnify and hold the Lessor harmless from and against all obligations,
liabilities, losses, costs, claims, expenses, fines, penalties and damages
(including ,without limitation, attorneys' fees and expenses and court costs)
which the Lessor may reasonably incur (i) by reason of this Agreement and (ii)
in connection with the Interaffiliate Agreements (including, without limitation,
all claims and demands which may be asserted against the Lessor by reason of any
alleged obligation or undertaking on its part to perform or discharge any of the
terms, covenants or agreements contained in the Interaffiliate Agreements)
(collectively, the "Indemnified
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Losses"). Notwithstanding anything to the contrary contained herein, the
Indemnified Losses shall not include any obligations, liabilities, losses,
costs, claims, expenses, fines, penalties or damages arising solely as a result
of the Lessor's gross negligence or willful misconduct.
The Affiliated Parties shall defend the Lessor against any claim or
litigation involving the Lessor for the same, with counsel approved by the
Lessor, and should the Lessor incur any such obligation, liability, loss, cost,
expense, fine, penalty or damage, then the Affiliated Parties shall reimburse
the Lessor for such amounts upon demand, and upon the failure of the Affiliated
Parties so to do, the Lessor, at its option, may declare the Lease Obligations
immediately due and payable. Notwithstanding anything to the contrary contained
herein, the Lessor shall have the option of conducting its own defense with
counsel of its own choice, but at the expense of the Affiliated Parties.
The foregoing indemnification agreement shall also include all costs
reasonably incurred by the Lessor in connection with the enforcement of said
indemnification agreement. Any amounts owed to the Lessor under this Section
shall be a demand obligation and to the extent permitted under applicable law,
shall be added to the Lease Obligations and, if not paid within ten (10) days
after demand, shall thereafter, to the extent permitted by applicable law, bear
interest at the Overdue Rate until the date of payment.
The provisions of this Section shall survive the complete payment and
performance of the Obligations and the expiration or earlier termination of the
Lease.
8. Conflict.
In the event of any conflict between any term, covenant or condition of
this Agreement and any term, covenant or condition of the Interaffiliate
Agreements, or any documents executed in connection therewith or the
indebtedness evidenced thereby, the provisions of this Agreement shall control
and govern.
9. Notice.
Any notice, request, demand, statement or consent made hereunder shall
be in writing and shall be deemed duly given if
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personally delivered, sent by certified mail, return receipt requested, or sent
by a nationally recognized commercial overnight delivery service with provisions
for a receipt, postage or delivery charges prepaid, and shall be deemed given
when postmarked or placed in the possession of such mail or delivery service and
addressed as follows:
If to the Affiliated Balanced Care Corporation
Parties: 0000 Xxxxx Xxxxx
Xxxxxxxxxxxxx, Xxxxxxxxxxxx 00000
Attn: President
With copies to: Balanced Care Corporation
0000 Xxxxx Xxxxx
Xxxxxxxxxxxxx, Xxxxxxxxxxxx 00000
Attn: General Counsel
Xxxxxxxxxxx & Xxxxxxxx
Xxxxx X. Xxxxxx Building
000 Xxxxxxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000-0000
Attn: Xxxxxx Xxxxxxxx, Esq.
If to the Lessee: Balanced Care Tenant (MT), Inc.
0000 Xxxxx Xxxxx
Xxxxxxxxxxxxx, Xxxxxxxxxxxx 00000
Attn: President
With copies to: Balanced Care Corporation
0000 Xxxxx Xxxxx
Xxxxxxxxxxxxx, Xxxxxxxxxxxx 00000
Attn: General Counsel
Xxxxxxxxxxx & Xxxxxxxx
Xxxxx X. Xxxxxx Building
000 Xxxxxxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000-0000
Attn: Xxxxxx Xxxxxxxx, Esq.
If to the Lessor: Meditrust Acquisition Company II LLC
000 Xxxxx Xxxxxx
Xxxxxxx Xxxxxxx, Xxxxxxxxxxxxx 00000
Attn: President
With copies to: Meditrust Acquisition Company II LLC
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000 Xxxxx Xxxxxx
Xxxxxxx Xxxxxxx, Xxxxxxxxxxxxx 00000
Attn: General Counsel
Xxxxxx, XxXxxxxxx & Fish, LLP
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000-0000
Attn: Xxxxxxxx Xxxxxxx, Esq.
or at such other place as any of the parties hereto may from time to time
hereafter designate to the others in writing. Any notice given to any of the
Affiliated Parties by the Lessor at any time shall not imply that such notice or
any further or similar notice was or is required.
10. Priority.
This Agreement is intended to establish relative rights and priorities
between the Lessor and the Affiliated Parties.
11. Governing Law.
This Agreement shall in all respects be governed, construed, applied
and enforced in accordance with the laws of the Commonwealth of Massachusetts.
To the maximum extent permitted by applicable law, the Affiliated
Parties hereby submit to the jurisdiction of the courts of the Commonwealth of
Massachusetts and the United States District Court for the District of
Massachusetts, as well as to the jurisdiction of all courts from which an appeal
may be taken from the aforesaid courts, for the purpose of any suit, action or
other proceeding arising out of, or with respect to any of the Lease Documents,
the negotiation and/or consummation of the transactions evidenced by the Lease
Documents, the Lessor's relationship with any member of the Leasing Group in
connection with the transactions evidenced by the Lease Documents and/or the
performance of any obligation or the exercise of any remedy under any of the
Lease Documents and expressly waive any and all objections they may have as to
venue in any of such courts.
12. Term.
This Agreement shall remain in full force and effect so long as the
Lease Obligations remain undischarged or unsatisfied in
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any respect. The Affiliated Parties agree that an affidavit, certificate, letter
or statement of any officer, agent or attorney of the Lessor indicating that any
part of the Lease Obligations remains outstanding shall be deemed prima facie
evidence of the validity, effectiveness and continuing force of this Agreement
and any Person may and is hereby authorized to rely thereon. Upon the complete
payment and performance of the Lease Obligations, this Agreement shall be deemed
terminated without further action and shall thereupon be of no further force or
effect.
13. Further Assurances.
At any time and from time to time, upon request by the Lessor, the
Affiliated Parties shall promptly make, execute and deliver, or cause to be
made, executed and delivered, to the Lessor and, where appropriate, cause to be
recorded and/or filed (and from time to time thereafter to be re-recorded and/or
refiled) at such time and in such offices and places as shall be deemed
desirable by the Lessor (in its reasonable discretion), any and all such other
and further amendments, assignments, instruments of further assurance,
certificates and other documents as the Lessor may, in its sole and absolute
discretion, deem desirable to (A) enable the Lessor to convey all or any portion
of the Leased Property, (B) assign the Lease and/or any of the other Lease
Documents or any portion of the Lessor's interest in any or all of the same, (C)
enable the Lessor to enter into participation agreements with respect to all or
any portion of the Obligations or (D) effectuate, complete or perfect, or to
continue and preserve the rights and remedies of the Lessor and/or the
obligations of any of the Affiliated Parties under this Agreement and/or any of
the other Lease Documents, including, without limitation, any document requested
in order to preserve the security interests created under the Lease Documents as
first priority security interests in the Collateral; provided, however, that no
such additional document or other instrument requested by the Lessor hereunder
shall increase the Obligations (except as to the costs and expenses reasonably
incurred by the Lessor in connection with the items referred to in the foregoing
clause (D)). Any failure by the Affiliated Parties to comply with any request
pursuant to this Section within twenty (20) days after such request is made by
the Lessor, shall be an Event of Default hereunder and upon such Event of
Default, the Lessor may make, execute, record, file, re-record and/or refile any
and all such amendments, assignments,
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instruments, certificates, and documents for and in the name of the Affiliated
Parties and the Affiliated Parties each hereby appoint the Lessor as their
attorney-in-fact, with full power of substitution, to take such actions (on
their behalf and in their name) as the Lessor, in its sole and absolute
discretion, may deem necessary or desirable to effectuate the intent of this
Section. This power of attorney, being coupled with an interest, shall be
irrevocable until all of the Obligations are fully paid and performed and shall
not be affected by any disability or incapacity which any of the Affiliated
Parties may suffer and shall survive the same. The power of attorney conferred
on the Lessor pursuant to the provisions of this Section is provided solely to
protect the interests of the Lessor and shall not impose any duty on the Lessor
to exercise any such power, and neither the Lessor nor such attorney-in-fact
shall be liable for any act, omission, error in judgment or mistake of law,
except as the same may result from its gross negligence or willful misconduct.
14. Successors and Assigns; Joint and Several Liability.
The terms and provisions of this Agreement shall be (i) binding on the
Affiliated Parties and their respective heirs, executors, administrators, legal
representatives, successors and assigns and any Affiliates of the Lessee, now or
hereafter existing, and (ii) inure to the benefit of the Lessor, any other
Person who may now or hereafter hold any interest in the Lease or any of the
other Lease Documents and their respective successors, assigns and participants;
provided, however, that, without limiting any of the other provisions of any of
the other Lease Documents, in the event that more than fifty percent (50%) of
the legal or beneficial interest in an Affiliated Party shall have been sold to
a purchaser which is not an Affiliated Party or an Affiliate of an Affiliated
Party and such Affiliated Party shall no longer be controlled by an Affiliated
Party or an Affiliate of an Affiliated Party, then the obligation of the Lessee
and such Affiliate hereunder with respect to Affiliated Party Debt shall cease
with respect to Affiliated Party Debt first incurred by such Affiliated Party
following such sale. Notwithstanding the foregoing, except as specifically
permitted under this Agreement or Section 19.4 of the Lease, the Affiliated
Parties shall not, individually or together, assign or otherwise transfer this
Agreement or any of their respective rights or obligations hereunder without the
express written consent of the Lessor, in each instance, which consent may be
withheld in the Lessor's sole
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and absolute discretion. All of the obligations of the Affiliated Parties
hereunder shall be joint and several.
15. General Provisions; Rules of Construction.
The provisions set forth in Article 23 and Sections 2.2, 16.8 through
16.10, 24.2 through 24.10 and 24.12 of the Lease are hereby incorporated by
reference, mutatis, mutandis, and shall be applicable to this Agreement as if
set forth in full herein.
[REMAINDER OF THE PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement
under seal on the day and year first above written.
AFFILIATED PARTIES:
WITNESSES: BALANCED CARE TENANT (MT), INC., a
Delaware corporation
/s/Xxxxxxxx X. Xxxxxx
Name: Xxxxxxxx X. Xxxxxx
/s/Xxxxx X. Xxxxxx By:/s/Xxxxx X. Xxxxxx (SEAL)
Name: Xxxxx X. Xxxxxx Name: Xxxxx X. Xxxxxx
Title: Vice President and
Secretary
WITNESSES: BALANCED CARE CORPORATION, a
Delaware corporation
/s/Xxxxxxxx X. Xxxxxx
Name: Xxxxxxxx X. Xxxxxx
/s/Xxxxx X. Xxxxxx By:/s/Xxxxx X. Xxxxxx (SEAL)
Name: Xxxxx X. Xxxxxx Name: Xxxxx X. Xxxxxx
Title: Senior Vice President,
Legal Counsel, and
Assistant Secretary
WITNESSES: BCC DEVELOPMENT AND MANAGEMENT CO.,
a Delaware corporation
/s/Xxxxxxxx X. Xxxxxx
Name: Xxxxxxxx X. Xxxxxx
/s/Xxxxx X. Xxxxxx By:/s/Xxxxx X. Xxxxxx (SEAL)
Name: Xxxxx X. Xxxxxx Name: Xxxxx X. Xxxxxx
Title: Vice President and
Secretary
-16-
WITNESSES: BALANCED CARE AT XXXXXXXX, INC.,
a Delaware corporation
/s/Xxxxxxxx X. Xxxxxx
Name: Xxxxxxxx X. Xxxxxx
/s/Xxxxx X. Xxxxxx By:/s/Xxxxx X. Xxxxxx (SEAL)
Name: Xxxxx X. Xxxxxx Name: Xxxxx X. Xxxxxx
Title: Vice President and
Secretary
WITNESSES: BALANCED CARE AT BLYTHEVILLE, INC.,
a Delaware corporation
/s/Xxxxxxxx X. Xxxxxx
Name: Xxxxxxxx X. Xxxxxx
/s/Xxxxx X. Xxxxxx By:/s/Xxxxx X. Xxxxxx (SEAL)
Name: Xxxxx X. Xxxxxx Name: Xxxxx X. Xxxxxx
Title: Vice President and
Secretary
WITNESSES: BALANCED CARE AT LEWISBURG, INC.,
a Delaware corporation
/s/Xxxxxxxx X. Xxxxxx
Name: Xxxxxxxx X. Xxxxxx
/s/Xxxxx X. Xxxxxx By:/s/Xxxxx X. Xxxxxx (SEAL)
Name: Xxxxx X. Xxxxxx Name: Xxxxx X. Xxxxxx
Title: Vice President and
Secretary
WITNESSES: BCC AT LIMA, INC., a Delaware corporation
/s/Xxxxxxxx X. Xxxxxx
Name: Xxxxxxxx X. Xxxxxx
/s/Xxxxx X. Xxxxxx By:/s/Xxxxx X. Xxxxxx (SEAL)
Name: Xxxxx X. Xxxxxx Name: Xxxxx X. Xxxxxx
Title: Vice President and
Secretary
-17-
WITNESSES: BALANCED CARE AT DILLSBURG, INC.,
a Delaware corporation
/s/Xxxxxxxx X. Xxxxxx
Name: Xxxxxxxx X. Xxxxxx
/s/Xxxxx X. Xxxxxx By:/s/Xxxxx X. Xxxxxx (SEAL)
Name: Xxxxx X. Xxxxxx Name: Xxxxx X. Xxxxxx
Title: Vice President and
Secretary
WITNESSES: BALANCED CARE AT XENIA, INC.,
a Delaware corporation
/s/Xxxxxxxx X. Xxxxxx
Name: Xxxxxxxx X. Xxxxxx
/s/Xxxxx X. Xxxxxx By:/s/Xxxxx X. Xxxxxx (SEAL)
Name: Xxxxx X. Xxxxxx Name: Xxxxx X. Xxxxxx
Title: Vice President and
Secretary
WITNESSES: BCC AT CHIPPEWA, INC., a Delaware corporation
/s/Xxxxxxxx X. Xxxxxx
Name: Xxxxxxxx X. Xxxxxx
/s/Xxxxx X. Xxxxxx By:/s/Xxxxx X. Xxxxxx (SEAL)
Name: Xxxxx X. Xxxxxx Name: Xxxxx X. Xxxxxx
Title: Vice President and
Secretary
WITNESSES: BALANCED CARE AT KINGSPORT, INC.,
a Delaware corporation
/s/Xxxxxxxx X. Xxxxxx
Name: Xxxxxxxx X. Xxxxxx
/s/Xxxxx X. Xxxxxx By:/s/Xxxxx X. Xxxxxx (SEAL)
Name: Xxxxx X. Xxxxxx Name: Xxxxx X. Xxxxxx
Title: Vice President and
Secretary
-18-
WITNESSES: BALANCED CARE AT CHESTERFIELD, INC.,
a Delaware corporation
/s/Xxxxxxxx X. Xxxxxx
Name: Xxxxxxxx X. Xxxxxx
/s/Xxxxx X. Xxxxxx By:/s/Xxxxx X. Xxxxxx (SEAL)
Name: Xxxxx X. Xxxxxx Name: Xxxxx X. Xxxxxx
Title: Vice President and
Secretary
WITNESSES: BALANCED CARE AT HENDERSONVILLE, INC.,
a Delaware corporation
/s/Xxxxxxxx X. Xxxxxx
Name: Xxxxxxxx X. Xxxxxx
/s/Xxxxx X. Xxxxxx By:/s/Xxxxx X. Xxxxxx (SEAL)
Name: Xxxxx X. Xxxxxx Name: Xxxxx X. Xxxxxx
Title: Vice President and
Secretary
WITNESSES: BALANCED CARE AT KNOXVILLE, INC.,
a Delaware corporation
/s/Xxxxxxxx X. Xxxxxx
Name: Xxxxxxxx X. Xxxxxx
/s/Xxxxx X. Xxxxxx By:/s/Xxxxx X. Xxxxxx (SEAL)
Name: Xxxxx X. Xxxxxx Name: Xxxxx X. Xxxxxx
Title: Vice President and
Secretary
WITNESSES: BALANCED CARE AT POCAHONTAS, INC.,
a Delaware corporation
/s/Xxxxxxxx X. Xxxxxx
Name: Xxxxxxxx X. Xxxxxx
/s/Xxxxx X. Xxxxxx By:/s/Xxxxx X. Xxxxxx (SEAL)
Name: Xxxxx X. Xxxxxx Name: Xxxxx X. Xxxxxx
Title: Vice President and
Secretary
-19-
WITNESSES: LESSOR:
MEDITRUST ACQUISITION COMPANY II LLC,
a Delaware limited liability company
/s/Xxxxxxx X. Xxxxxx
Name: Xxxxxxx X. Xxxxxx
/s/Xxxxx X. XxXxxxx By:/s/Xxxxxxx Xxxxxx (SEAL)
Name: Xxxxx X. XxXxxxx Name: Xxxxxxx Xxxxxx
Title: Secretary
-20-
