Exhibit 10.8.3
AMENDED AND RESTATED
HEALTH CENTER RESIDENT LOANS ESCROW AGREEMENT
(THE CHESTNUT PARTNERSHIP)
This AMENDED AND RESTATED HEALTH CENTER RESIDENT LOANS ESCROW AGREEMENT
("Agreement") is made effective as of July 18th, 1996, by and between THE
CHESTNUT PARTNERSHIP, a Maryland general partnership (the "Partnership"), and
THE FIRST NATIONAL BANK OF MARYLAND, a national banking association (the "Escrow
Agent").
This Agreement amends and restates the Health Center Resident Loans
Escrow Agreement for Blakehurst dated August 2, 1993 between the Partnership and
Maryland National Bank, the Previous Escrow Agent (the "Prior Agreement")
relating to the escrowing of resident loans. The Partnership and Escrow Agent
wish by this Agreement to supersede and replace the Prior Agreement.
RECITALS:
WHEREAS, the Partnership is the sponsor of a life-care retirement
community known as Blakehurst (the "Community") located in Towson, Maryland.
WHEREAS, this Agreement applies to all Return of Capital residency
agreements ("Residency Agreement(s)"), as amended from time to time, which may
be entered into between the Partnership and any resident of Blakehurst
("Resident"); and
WHEREAS, in order to protect a Resident of Blakehurst who has
transferred to the community's health center (the "Community Health Center") and
who has released his/her apartment for reoccupancy, the parties desire to enter
into this Agreement. This Agreement sets forth the terms under which certain
deposits will be made with the Escrow Agent for the purpose of maintaining an
escrow account (the "Escrow Account") to secure Loan (as hereinafter defined)
payments when a Resident is assigned to the Community Health Center and releases
his/her apartment for reoccupancy.
NOW, THEREFORE, in consideration of these premises and mutual promises
herein set forth, the parties agree as follows:
1. PRIOR AGREEMENT. All loans held by the Previous Escrow Agent
pursuant to the Prior Agreement shall become subject to the terms of this
Agreement.
2. LOAN. In accordance with Section 9.4 of the Residency Agreements,
the Partnership shall deposit an amount equal to the amount of the Resident's
loan (the "Loan"), upon the Resident's transfer to the Community Health Center,
release of the Resident's apartment, and reoccupancy of the apartment by a new
resident. Such deposit will be specifically identified with the Resident's Loan,
although the funds will be maintained jointly with other similar deposits held
in escrow for all residents of the Community Health Center whose apartments have
been released and reoccupied.
3. PERMITTED ENCUMBRANCES. Any deposit in the Escrow Account will be
subject only to those encumbrances ("Permitted Encumbrances") to which the
deposit was subject at the time it is deposited in the Escrow Account.
4. ESCROW ACCOUNT. The Escrow Agent shall maintain all such deposits
made to the Escrow Account separate and apart from any other funds of the
Partnership, and deposits will be specifically indentified with the Resident's
Loan. The Partnership will be entitled to all earnings on such deposits, as
provided in paragraph 7.2 of this Agreement. Earnings from such Escrow Account
will be used by the Partnership only for purposes related to the Community.
5. INVESTMENTS. The Escrow Agent shall invest all amounts held by it
from time to time in such obligations of the United States or its agencies (or
in shares of a registered investment company, including those of the Escrow
Agent or its affiliates, which holds a portfolio of such securities) or in such
certificates of deposit, savings accounts, or other savings or investment
securities as the Partnership may from time to time direct in writing.
6. REPORTS. The Escrow Agent agrees, upon the request of the
Partnership, to issue a statement indicating the status of the Escrow Account
maintained by the Escrow Agent pursuant to this Agreement. In any event, Escrow
Agent agrees to provide monthly reports to the Partnership, which shall include
a summary of all additions to and disbursements from the Escrow Account during
the current period, and which shall provide details of the investments
comprising the balance in the Escrow Account as of the end of the current
period.
7. DISBURSEMENTS. The Escrow Agent shall release any amounts then held
by it in the Escrow Account in accordance with the following terms:
7.1 DISBURSEMENT TO RESIDENT. In order to cause a disbursement
from the Escrow Account pursuant to this paragraph 7.1, the Partnership
shall deliver written notice to the Escrow Agent and shall provide a
copy of such written notice to the Resident or the Resident's estate or
trust at the same time that it is provided to the Escrow Agent. The
written notice shall contain the following: (1) a statement that the
Residency Agreement has been cancelled; (2) the date of such
cancellation; (3) the amount of the Loan; (4) the amount of setoff, if
any, for amounts owed to the Partnership by the Resident, and the basis
upon which the Partnership is owed such setoff amounts; (5) the amount
payable to the Resident or the Resident's estate or trust; (6) the
specific name of the Resident or person or entity representing the
Resident's estate or trust to whom disbursement is to be made, with
direction as to the manner of delivery of the disbursement to be
employed, which may include delivery to the Partnership for immediate
delivery to the Resident or the Resident's estate or trust; and (7) a
certificate of an officer of the Partnership that such payment does not
contravene any agreement to which the Partnership is a party or by
which it is bound. The Escrow Agent shall, on the tenth (10) business
day after receipt of such notice, disburse to the Resident or the
Resident's estate or trust, an amount equal to the amount of the Loan
less the amount of setoff, and shall disburse to the Partnership an
amount equal to the setoff, unless the Escrow Agent has received notice
in writing from the Resident or the Resident's estate or trust
disputing the amount to be disbursed. If a notice is received by the
Escrow Agent from the Resident or the Resident's estate or trust that a
dispute exists with respect to the amount to be disbursed to the
Resident or the Resident's estate or trust, and/or to the Partnership,
the Escrow Agent shall pay all amounts associated with any dispute into
any federal or state court located in Baltimore County, Maryland, to be
disbursed thereafter as the Partnership and the Resident or the
Resident's estate or trust may agree, by notice to the Escrow Agent as
signed by both parties, or as the Court may determine. The Escrow Agent
shall promptly provide the Partnership with written notice of any
disbursement pursuant to this paragraph 7.1.
7.2 DISBURSEMENTS TO PARTNERSHIP. All rights to any earnings
on funds held in the Escrow Account shall inure to the benefit of the
Partnership, and the Escrow Agent shall release to the Partnership any
earnings held in the Escrow Account within ten (10) days after the end
of each month. In accordance with Section 9.4 of the Residency
Agreements, such earnings will be used by the Partnership only for
purposes related to the Community.
7.3 ESCROW AGENT'S RECORDS. If the records of the Escrow Agent
do not conform to the records of the Partnership, the records of the
Escrow Agent shall control.
8. DUTIES. The Escrow Agent undertakes to perform only such duties as
are expressly set forth herein and no implied duties or obligations shall be
inferred or otherwise imposed upon or against the Escrow Agent. The Escrow Agent
may act in reliance upon any writing, notice (under paragraph 7 or otherwise) or
instrument under signature which it, in good faith, believes to be genuine; may
assume the validity, accuracy, and completeness of any statement or assertion
contained in any such writing, notice or instrument; and may assume that any
person purporting to give any writing, notice, advice, or instruction in
connection with the provisions hereof has been duly authorized to do so. The
Escrow Agent shall not be liable in any manner for the sufficiency or
correctness as to form or manner of execution or validity of any instrument
deposited with or delivered to the Escrow Agent hereunder, nor as to the
identity, authority, or right of any person executing the same. The duties of
the Escrow Agent hereunder shall be limited to the safekeeping of the deposits
and other money, instruments, or other documents received by it as Escrow Agent
and for its investment and for disposition of the same in accordance with this
Agreement and other written instructions accepted by the Escrow Agent from the
Partnership.
9. INDEMNITY. The Partnership hereby agrees to indemnify the Escrow
Agent and hold it harmless from any and all claims, liabilities, losses,
actions, suits, or proceedings at law or in equity, or any other expenses, fees,
or charges of any character or nature, which it may incur or with which it may
be threatened by reason of its acting as Escrow Agent under this Agreement,
unless caused by the Escrow Agent's willful misconduct or gross negligence; and
in connection therewith, to indemnify the Escrow Agent against any and all
expenses, including attorneys' fees and the cost of defending any action, suit,
or proceeding or resisting any claim.
10. TERMINATION. The Escrow Agent may resign or be terminated upon the
earlier of thirty (30) days' written notice thereof to the other party, or five
(5) business days from the date of appointment of a successor escrow agent.
Promptly upon notice of resignation of the Escrow Agent, the Partnership shall
appoint a successor Escrow Agent. The Escrow Agent shall deliver any funds in
the Escrow Account either to a successor escrow agent or, if there is any
dispute with respect thereto, or if no successor escrow agent has been
appointed, to any federal or state court in Baltimore County, Maryland. The
successor escrow agent shall also be required to have its principal place of
business in Maryland. If a successor escrow agent is not appointed within the
30-day period, the Escrow Agent may petition a court of competent jurisdiction
to name a successor. Until a successor escrow agent has been appointed, the
Escrow Agent shall be discharged of all of its duties hereunder save to assign
the funds in the Escrow Account to a successor escrow agent.
11. FEES. In consideration of the services rendered by the Escrow Agent
hereunder, the Partnership agrees to pay to the Escrow Agent its usual and
customary fees for services as Escrow Agent, including reimbursement for any
expenses, disbursements and advances, and reasonable attorneys fees, incurred by
it in connection with the carrying out of its duties hereunder. Fees for any
additional or extraordinary services may be agreed upon by the Partnership and
the Escrow Agent.
12. EMPLOYMENT OF COUNSEL. The Escrow Agent may engage counsel (who may
be counsel to the Partnership) and may rely upon counsel in connection with any
matter under this Escrow Agreement.
13. ESCROW AGENT'S LIEN. The Escrow Agent shall have a lien, with right
of payment prior to payment of any other amounts payable hereunder upon, and the
Partnership hereby grants a security interest to the Escrow Agent in, all moneys
in the Escrow Agent's possession hereunder, for all charges, advances, fees,
costs and expenses incurred by the Escrow Agent.
14. GOVERNING LAW. This Agreement shall be construed according to the
laws of the State of Maryland.
15. AMENDMENTS. The parties to the Agreement may amend this Agreement
at any time upon thirty (30) days' prior written notice thereof, provided,
however, no amendment shall (i) diminish or otherwise affect the rights and
protections of the Escrow Agent (ii) require any additional duties of the Escrow
Agent, without its written consent.
16. NOTICES. Any notices required by this Agreement shall be addressed
to the party to whom such notice is intended to be given by facsimile
transmission followed by notification by first class mail at the addresses
below; addresses may be changed by notice to each of the other parties.
16.1 If addressed to the Escrow Agent: The First National Bank of
Maryland
Corporate Trust Department
P.O. Box 1596, Banc 101-591
Xxxxxxxxx, XX 00000
Attn: Xxx Xxxxx, Corp.
Trust Executive
16.2 If addressed to the Partnership: The Chestnut Partnership
c/o Chestnut Village, Inc.
000 Xxxxxx Xxxxxx
Xxx Xxxxxx, XX 00000
Attn: President
IN WITNESS WHEREOF, the parties have executed this Amended and Restated
Health Center Resident Loans Escrow Agreement as of the date first hereinabove
set forth.
THE CHESTNUT PARTNERSHIP THE FIRST NATIONAL BANK OF
MARYLAND
Blakehurst Joint Venture, by
Chestnut Village, Inc., a General Partner
By: /s/ Xxxxxx X. Xxxx By: /s/ Xxxxxx X. Xxxxx
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West Joppa Road Limited Partnership,
a General Partner
By: /s/ X.X. Xxxxxx
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The Chestnut Real Estate Partnership, by
Blakehurst Joint Venture, a General Partner
By: /s/ Xxxxxx X. Xxxx
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