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EXHIBIT 10.128
AGREEMENT TO ENTER INTO MASTER LEASES,
TERMINATION OF LEASES AND AFFIRMATION OF GUARANTIES
This AGREEMENT TO ENTER INTO MASTER LEASES, TERMINATION OF
LEASES AND AFFIRMATION OF GUARANTIES (this "Agreement") is entered into as of
June 26, 2000 (the "Reference Date") by and between LANDLORDS, TENANTS,
GUARANTORS and MANAGERS (each as identified and defined in the Recitals below).
R E C I T A L S
A. The entities identified on Schedule 1 as the Migratory
Landlords (collectively, the "Migratory Landlords") and the entities identified
on Schedule 1 as the Migratory Tenants (collectively, the "Migratory Tenants")
are parties to those certain Lease and Security Agreements identified on
Schedule 3 as the Migratory Leases (collectively, as amended, modified, revised
or restated prior to the Reference Date, the "Migratory Leases") pursuant to
which the Migratory Landlords lease to the Migratory Tenants the respective
"Premises" as defined in the respective Migratory Leases (collectively, the
"Migratory Premises"). Pursuant to Management Agreements (the "Migratory
Management Agreements") between the Migratory Tenants and the entities
identified on Schedule 1 as the Migratory Managers (collectively, the "Migratory
Managers"), the Migratory Managers manage and operate the Migratory Premises for
the Migratory Tenants. The obligations of the Migratory Tenants under the
Migratory Leases are guaranteed by the entities identified on Schedule 1 as the
Migratory Guarantors (collectively, the "Migratory Guarantors") pursuant to
Lease Guaranties in favor of the Migratory Landlords (collectively, as amended,
modified, revised, restated or affirmed prior to the Reference Date, the
"Migratory Guaranties").
B. The entity identified on Schedule 2 as the Cumberland
Landlord (the "Cumberland Landlord") and the entities identified on Schedule 2
as the Cumberland Tenants (collectively, the "Cumberland Tenants") are parties
to those certain Lease and Security Agreements identified on Schedule 3 as the
Cumberland Leases (collectively, as amended, modified, revised or restated prior
to the Reference Date, the "Cumberland Leases") pursuant to which the Cumberland
Landlord leases to the Cumberland Tenants the respective "Premises" as defined
in the
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respective Cumberland Leases (collectively, the "Cumberland Premises"). Pursuant
to Management Agreements (the "Cumberland Management Agreements") between the
Cumberland Tenants and the entities identified on Schedule 2 as the Cumberland
Managers (collectively, the "Cumberland Managers"), the Cumberland Managers
manage and operate the Cumberland Premises for the Cumberland Tenants. The
obligations of the Cumberland Tenants under the Cumberland Leases are guaranteed
by the entities identified on Schedule 2 as the Cumberland Guarantors
(collectively, the "Cumberland Guarantors") pursuant to Lease Guaranties in
favor of the Cumberland Landlord (collectively, as amended, modified, revised,
restated or affirmed prior to the Reference Date, the "Cumberland Guaranties").
C. The Migratory Landlords and the Cumberland Landlord are
collectively referred to herein as the "Landlords"; the Migratory Tenants and
the Cumberland Tenants are collectively referred to herein as the "Tenants"; the
Migratory Managers and the Cumberland Managers are collectively referred to
herein as the "Managers"; the Migratory Guarantors and the Cumberland Guarantors
are collectively referred to herein as the "Guarantors"; the Tenants, the
Managers and the Guarantors are collectively referred to as the "Tenant
Parties"; the Migratory Leases and the Cumberland Leases are collectively
referred to herein as the "Existing Leases"; the Migratory Premises and the
Cumberland Premises are collectively referred to herein as the "Premises"; the
Migratory Management Agreements and the Cumberland Management Agreements are
collectively referred to herein as the "Management Agreements"; and the
Migratory Guaranties and the Cumberland Guaranties are collectively referred to
herein as the "Existing Guaranties."
D. Balanced Care Corporation, a Delaware corporation ("BCC"),
is the record and beneficial owner of all of the capital stock of the Managers,
and the Managers are the record and beneficial owners of all of the equity and
other interests of the Tenants. The Tenants and BCC have advised the Landlords
of a proposed transaction (as described on Exhibit B, the "Transaction")
involving BCC that, if consummated, would constitute a significant
reorganization of the financial and organizational structure of BCC and other
Tenant Parties, resulting in a Change in Control (as defined in the Existing
Leases) of BCC under the Existing Leases. In the absence of the Landlords'
consent, consummation of the Transaction, and the resulting Change in Control of
BCC, would constitute an Event of Default (as defined in the Existing Leases)
under the Existing
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Leases. The Tenants and BCC have, therefore, requested that the Landlords'
consent to the Transaction.
E. The Landlords have advised the Tenants and BCC that they
are unwilling to consent to the Transaction unless, and will only consent to the
Transaction if, among other things, Tenants, Managers and Guarantors enter into
this Agreement, pursuant to which, among other things, (1) the Migratory Leases
will be terminated, the Migratory Landlords and the Migratory Tenants will enter
into a new lease (the "Migratory Master Lease") for the collective Migratory
Premises, and the Migratory Guarantors will provide a guaranty (the "Migratory
Master Guaranty") to Migratory Landlords guarantying the Migratory Tenants'
performance under the Migratory Master Lease, (2) the Cumberland Leases will be
terminated, the Cumberland Landlord and the Cumberland Tenants will enter into a
new lease (the "Cumberland Master Lease" and, together with the Migratory Master
Lease, the "Master Leases") for the collective Cumberland Premises, and the
Cumberland Guarantors will provide a guaranty (the "Cumberland Master Guaranty"
and, together with the Migratory Master Guaranty, the "Master Guaranties") to
Cumberland Landlord guarantying the Cumberland Tenants' performance under the
Cumberland Master Lease, and (3) the Tenant Parties provide the other
acknowledgements, covenants, representations, warranties and affirmations
contained herein, including those set forth in Section 4, all as more
particularly set forth herein.
A G R E E M E N T
NOW, THEREFORE, in consideration of the foregoing Recitals
(which by this reference are incorporated herein), and of other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereby agree as follows:
1. Master Leases. Concurrently with the execution of this
Agreement, (a) the respective Landlords and Tenant Parties thereunder shall
execute and deliver the Master Leases, in the forms attached as Exhibit A, and
(b) the applicable Tenant Parties thereunder shall execute and deliver the
Master Guaranties. The respective Tenant Parties' execution of the Master Leases
and the Master Guaranties, and the satisfaction of any contingencies to the
legal effectiveness of the Master Leases, are conditions precedent to Landlords'
obligations, agreements and consents under this Agreement, including those set
forth in Sections 2(a) and 8. The Master Leases and Master Guaranties shall
become effective as provided in Section 5.
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2. Termination of Existing Leases.
(a) Upon satisfaction of all conditions precedent set
forth in this Agreement to the effectiveness of this Section 2(a), and
expressly subject to the provisions of Section 2(b), the respective
obligations, liabilities and responsibilities of the Tenants under the
Existing Leases, to the extent that the same would have accrued on or
after the Effective Date (as defined below), shall terminate and be of
no further force or effect.
(b) Notwithstanding the foregoing Section 2(a), the
Tenants shall not be released from and shall remain obligated for, and
the Landlords expressly reserve their respective rights in connection
with: (1) all claims, demands, causes of action and indemnities, and
all other rights with respect to, any breach of, or default or Event of
Default by, any of the Tenants under any of the Existing Leases based
on or arising from any act or omission committed prior to the Effective
Date, irrespective of whether any of the Landlords have knowledge of
such act or omission prior to the Effective Date; (2) any duty,
obligation, indemnity, representation or warranty that is expressly
stated in any of the Existing Leases to survive the termination
thereof; and (3) the indemnities set forth in Sections 3.4 and 25 of
each of the Existing Leases. Nothing contained in this Section 2(b)
shall, upon the effectiveness of such consent in accordance with the
provisions of this Agreement, vitiate the consent granted under Section
8.
3. Affirmation of Existing Guaranties. By their execution of
this Agreement, the Guarantors acknowledge, agree and affirm that their
respective obligations under the Existing Guaranties shall continue in full
force and effect with respect to the matters described in Section 2(b), and all
such matters are expressly deemed to by "Guaranteed Obligations" as defined in
Section 1 of each of the Existing Guaranties.
4. Recognition of Master Lease; Waiver of Certain Rights. The
Tenant Parties acknowledges that the Landlords are agreeing to consent to the
Transaction as an accommodation to the Tenant Parties and that the Landlords
would be unwilling to do so in the absence of the respective acknowledgements,
representations, warranties and affirmations made by the Tenant Parties herein,
including those set forth in this Section 4. As a condition precedent to
Landlords' obligations, agreements and consents under this Agreement, including
those set forth in
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Sections 2(a) and 8, each of the Tenant Parties, to the extent permitted by law,
therefore:
(a) Agrees with, acknowledges and is forever estopped
from asserting to the contrary that the statements set forth in the
first sentence of this Section 4 are true, correct and complete;
(b) Agrees, acknowledges and is forever estopped from
asserting to the contrary that each Master Lease is a new and de novo
lease, separate and distinct from any and all of the Existing Leases;
(c) Agrees, acknowledges and is forever estopped from
asserting to the contrary that each Master Lease is a single lease
pursuant to which the collective Premises (as defined in each Master
Lease) are demised as a whole to the applicable Tenants;
(d) Agrees, acknowledges and is forever estopped from
asserting to the contrary that if, notwithstanding the provisions of
this Agreement, either Master Lease were to be determined or found to
be in any proceeding, action or arbitration under state or federal
bankruptcy, insolvency, debtor-relief or other applicable laws to
constitute multiple leases demising multiple properties, such multiple
leases could not, by the debtor, trustee or any other party, be
selectively or individually assumed or rejected; and
(e) Forever knowingly waives and relinquishes any and
all rights under or benefits of the provisions of the Federal
Bankruptcy Code section 365 (11 U.S.C. Section 365), or any successor
or replacement thereof or any analogous state law, to selectively or
individually assume or reject the multiple leases comprising each
Master Lease following a determination or finding in the nature of that
described in Section 4(d).
5. Effective Date. Provided that all other conditions
precedent to the effectiveness of this Agreement and the Landlords' obligations
hereunder have then been satisfied, the terminations effected pursuant to
Section 2(a), the consent granted pursuant to Section 8, and the effectiveness
of the Master Leases and Master Guaranties shall automatically occur as of July
1, 2000 (the "Effective Date").
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6. Representations and Warranties. In order to further induce
Landlords to consent to the Transaction and to enter into this Agreement and the
Master Leases, the respective Tenant Parties hereby make the following
representations and warranties, the accuracy and completeness of which on both
the Reference Date and Effective Date are conditions precedent to Landlords'
obligations under this Agreement:
(a) Each of the Tenants represent and warrant that,
except to extent as may be terminated pursuant to Section 2(a), the
respective Existing Lease to which it is party is in full force and
effect.
(b) Each of the Tenants and, to the extent the
respective obligations thereunder are the responsibility of the
respective Managers, each of the Managers, represent and warrant, to
the extent of its respective actual knowledge, that no Event of Default
has occurred and is continuing, nor does any state of fact exist that
with the giving of notice or the passing of time or both would
constitute an Event of Default, nor has any breach of or inaccuracy in
any representation or warranty occurred, under the respective Existing
Lease to which the applicable Tenant is party. Without limitation of
the foregoing, each of the Tenants and, to the extent such respective
obligations are the responsibility of the respective Managers, each of
the Managers, represent and warrant, to the extent of its respective
actual knowledge, that the respective Tenant, Manager or Premises, as
applicable, is in full compliance with the requirements under Sections
5.2 (except with respect to the Akron Parcel (as defined in the
Migratory Master Lease)), 5.3 (except with respect to the Akron
Parcel), 5.5 and 23 of the respective Existing Lease to which it is
party.
(c) Each of the Tenants represents and warrants that:
(1) it is a duly formed and validly existing
limited liability company under the laws of the State of
Delaware, in good standing in such State, with the full power
and authority to conduct its business as described in the
Master Lease to which it will be party and to enter into,
deliver and perform its obligations under such Master Lease;
(2) the execution, delivery and performance of
the Master Lease to which it will be party:
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(A) have been duly authorized by all necessary action on the
part of such Tenant, and that such Master Lease has been or
will be on or before the Reference Date duly executed and
delivered by such Tenant, (B) do not and will not (i) violate
the operating or limited liability company agreement or other
charter and organizational documents of such Tenant, (ii)
violate, breach or result in a default under any other
agreement binding upon such Tenant, (iii) breach or otherwise
violate any existing obligation of or restriction on such
Tenant under any order, judgment or decree of any state or
federal court, or (iv) violate any state or federal statute,
rule or regulation applicable to such Tenant or to the
Premises demised to it under the respective Master Lease to
which it is party;
(3) no order, consent, permit or approval of any
state or federal governmental authority is required for the
execution, delivery and performance by such Tenant of the
Master Lease to which it is party;
(4) the Master Lease to which it will be party
will constitute, as of the Effective Date, the legally valid
and binding obligation of such Tenant, enforceable against
such Tenant in accordance with its terms, except as the same
may be limited by laws relating to creditor's rights and
general principles of equity.
(d) BCC represents and warrants that (1) the
representations and warranties contained in the Environmental
Indemnities are true, correct and complete, and (2) the Environmental
Indemnities remain, and will remain following the effectiveness of the
Master Leases, in full force and effect and will inure to the benefit
of the Landlords under the respective Master Leases. As used herein
"Environmental Indemnities" means, collectively, those Environmental
Indemnification Agreements executed by BCC in favor of one or more of
the entities comprising Landlord at the times of the acquisition by
Landlord of the various real properties comprising the Premises.
(e) Each of the Guarantors represents and warrants
that the respective Existing Guaranty to which it is party is in full
force and effect and that no default of or breach under such Existing
Guaranty has occurred and is
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continuing, nor does any state of fact exist that with the giving of
notice or the passing of time or both would constitute such a default
or breach.
(f) Each of the Guarantors represents and warrants
that:
(1) it is a duly organized and validly existing
corporation under the laws of the State of Delaware, in good
standing in such State, with the full power and authority to
conduct its business as described in the Master Guaranty to
which it will be party and to enter into, deliver and perform
its obligations under such Master Guaranty;
(2) the execution, delivery and performance of
the Master Guaranty to which it will be party: (A) have been
duly authorized by all necessary corporate action on the part
of such Guarantor, and that such Master Guaranty has been or
will be on or before the Reference Date duly executed and
delivered by such Guarantor, (B) do not and will not (i)
violate the articles or certificate of incorporation or other
charter and organizational documents of such Guarantor, (ii)
violate, breach or result in a default under any other
agreement binding upon such Guarantor, (iii) breach or
otherwise violate any existing obligation of or restriction on
such Guarantor under any order, judgment or decree of any
state or federal court, or (iv) violate any state or federal
statute, rule or regulation applicable to such Guarantor;
(3) no order, consent, permit or approval of any
state or federal governmental authority is required for the
execution, delivery and performance by such Guarantor of the
Master Guaranty to which it is party;
(4) the Master Guaranty to which it will be
party will constitute, as of the Effective Date, the legally
valid and binding obligation of such Guarantor, enforceable
against such Guarantor in accordance with its terms, except as
the same may be limited by laws relating to creditor's rights
and general principles of equity.
(g) Each of the Tenant Parties represents and
warrants that all of the ALF (as defined in the Master
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Lease), healthcare and other licenses and permits necessary for the
operation of the Premises (except with respect to the Akron Parcel) in
accordance with the requirements of the Existing Leases (prior to their
termination), the Master Leases (upon their effectiveness) and
applicable law have been duly issued, are valid and in full force and
effect, and will remain so upon consummation of the Transaction and
thereafter upon any acquisition of securities in BCC by any entity in
the LMR Group (as defined in the Master Leases) without the need of any
further notice, action, or consent or approval to, by or on behalf of
any entity.
(h) The acceptance by Landlords of any representation
or warranty herein, irrespective of whether made to such person's
"actual knowledge" or otherwise, shall not, in any event, estop or
otherwise impair Landlords from pursuing any right or obtaining any
remedy with respect to the breach of such representation or warranty or
the existence of a state of fact other than that as represented.
7. Closing and Post-Closing Matters.
(a) Rent and Other Amounts Under Existing Leases. As
a condition precedent (or, to the extent any such amount is due and
payable after the Effective Date, subsequent) to the Landlords'
obligations, agreements and consents hereunder, the respective Tenants
shall pay on or before the Effective Date (or by the date due
thereafter) all rent and other amounts then due and owing under the
Existing Leases.
(b) Evidence of Authority. As a condition precedent
to the Landlord's obligations, agreements and consents hereunder, the
Tenant Parties shall provide to the Landlords such certificates and
other evidence as Landlords may reasonably require with respect to the
authority and authorization of the Tenant Parties to enter into the
respective transactions contemplated by this Agreement, the Master
Lease and the Master Guaranties and the incumbency and authority of
those persons acting on their respective behalfs.
(c) Impound. As a condition subsequent to the
Landlords' obligations, agreements and consents hereunder, the
respective Tenants shall deposit with the respective Landlords on or
before the thirtieth (30th) day after the
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Effective Date such amounts as may be required such that, together with
all impounds due under Section 3.6 of the respective Master Lease prior
to such date, Landlords shall have on deposit by the next date upon
which any payment of real property taxes to be paid by Landlord is due,
an amount sufficient to pay such taxes in full.
(d) Management Agreements. As a condition subsequent
to the Landlords' obligations, agreements and consents hereunder, each
of the Managers (except with respect to the Akron Parcel) shall,
promptly after the Effective Date, execute and deliver to the Landlords
a Collateral Assignment of and/or Subordination of Management
Agreement, in form and substance reasonably acceptable to the
Landlords, pursuant to which such Manager collaterally assigns or
subordinates, as applicable, its interest in the respective Management
Agreement to the Landlords or the Landlords' interest in the respective
Master Lease, as applicable.
(e) Transaction Costs. As a condition subsequent to
the Landlords' obligations, agreements and consents hereunder, the
Tenant Parties shall pay, promptly upon receipt of invoices therefor,
all of the Landlords' costs and expenses associated with the
transactions contemplated herein, including the fees and expenses of
the Landlords' outside counsel and bankruptcy counsel.
(f) Security Deposits. The security deposits
currently held by the Landlords under the Existing Leases shall
continue to be held by the Landlords and applied against the security
deposits to be posted by the respective Tenants under Section 11 of the
Master Lease. As a condition subsequent to the Landlords' obligations,
agreements and consents hereunder, the respective Tenants shall deliver
to the Landlords on or before the date required therefor a letter of
credit in compliance with the provisions of Section 11 of the Master
Lease.
(g) Title Policies. The Landlords and the respective
Tenant Parties shall use their best efforts to cause the applicable
title insurance companies promptly after the Effective Date to issue to
the Landlords such endorsements to the Landlords' existing policies of
title insurance for the Premises as the Landlords may reasonably
require in connection with the transactions contemplated herein.
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(h) UCC Filings. The Landlords and the respective
Tenant Parties shall use their best efforts to cause to be filed or
recorded promptly after the Effective Date such new financing
statements and fixture filings and terminations or amendments of
existing financing statements and fixture filings as the Landlords may
reasonably require in connection with the Master Leases.
(i) Memoranda of Leases. The Landlords and the
respective Tenant Parties shall use their best efforts to cause to be
filed or recorded promptly after the Effective Date such memoranda or
notices of the Master Leases and such terminations of existing
memoranda or notices of the Existing Leases as the Landlords may
reasonably require in connection with the Master Leases.
(j) Master Investment Agreements. Landlords and
certain of the Tenant Parties or Affiliates thereof are parties to that
certain First Series Master Investment Agreement made effective as of
March 27, 1998 and that certain Second Series Master Investment
Agreement made effective as of June 26, 1998 (collectively, the
"Investment Agreements"). Landlords and the applicable Tenant Parties,
on behalf of themselves and their applicable Affiliates, agree that (a)
as of the Effective Date, Section 5 of each of the Investment
Agreements shall be terminated and of no further force or effect, and
(b) Landlords and Tenant Parties shall, promptly after the Effective
Date, mutually cooperate in good faith to determine if the Investment
Agreements and the Development Agreements referenced therein and other
related agreements should be completely terminated and, upon such
determination if made, shall terminate the Investment Agreements, the
Development Agreements and the other related documents, as applicable.
(k) Rights of First Refusal. Landlords and Tenant
Parties acknowledge that, as of the Reference Date, certain of the
Tenant Parties hold rights of first refusal to purchase respective
portions of the Premises. Landlords and the Tenant Parties shall,
promptly after the Effective Date, mutually cooperate in good faith to
determine if such rights of first refusal, or any recorded memoranda or
notice thereof, should be amended, modified or restated to preserve
such rights of first refusal in light of the transactions contemplated
herein and, upon such determination if made, shall act accordingly.
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8. Consent to Transaction. Subject to satisfaction of all
conditions precedent to their obligations hereunder and to such consent, the
Landlords hereby consent to the Transaction.
9. Miscellaneous.
(a) To the fullest extent permitted by applicable
law, each of the parties hereby waives any rights to trial by jury in
any action, proceedings or counterclaim brought by any of the parties
against any of the other in connection with any matter whatsoever
arising out of or in any way connected with this Agreement.
(b) If any party brings any action to interpret or
enforce this Agreement, or for damages for any alleged breach hereof,
the prevailing party in any such action shall be entitled to reasonable
attorneys' fees and costs as awarded by the court in addition to all
other recovery, damages and costs.
(c) In the event any part or provision of this
Agreement shall be determined to be invalid or unenforceable, the
remaining portion of this Agreement shall nevertheless continue in full
force and effect.
(d) This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all of
which shall constitute one and the same agreement.
(e) This Agreement shall be binding upon and inure to
the benefit of each of the parties and their respective successors in
interest and assigns.
(f) The recitals and exhibits, schedules, addenda and
other attachments to this Agreement are hereby incorporated into this
Agreement and made a part hereof.
(g) The titles and headings of sections of this
Agreement are intended for convenience only and shall not in any way
affect the meaning or construction of any provision of this Agreement.
(h) Each of the parties has been represented by
counsel and this Agreement has been freely and fairly negotiated.
Consequently, all provisions of this Agreement shall be interpreted
according to their fair meaning and shall not be strictly construed
against any party.
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References herein to the plural number shall include the singular, and
vice versa, unless expressly provided to the contrary. The expression
"includes" or "including" or the like shall be deemed to mean "includes
without limitation" or "including without limitation" or the like.
(i) This Agreement shall be governed by and construed
in accordance with the internal laws of the State of California without
regard to the conflict of laws rules of such State.
(j) All notices and demands, certificates, requests,
consents, approvals, and other similar instruments under this Agreement
shall be in writing and shall be sent by personal delivery or by either
(1) United States certified or registered mail, return receipt
requested, postage prepaid, or (2) Federal Express or similar generally
recognized overnight carrier regularly providing proof of delivery,
addressed as follows:
To any Tenant Party:
c/o Balanced Care Corporation
0000 Xxxxx Xxxxx
Xxxxxxxxxxxxx, XX 00000
Attention: Legal Department
Facsimile: (000) 000-0000
With Copy To:
Xxxxxxxxxxx & Xxxxxxxx, LLP
Xxxxx X. Xxxxxx Building
000 Xxxxxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxxxx Xxxxxxxx
Facsimile: (000) 000-0000
To any Landlord:
Nationwide Health Properties, Inc.
000 Xxxxxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx Xxxxx, XX 00000-0000
Attention: Xxxx X. Xxxxx
Facsimile: (000) 000-0000
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With Copy To:
O'Melveny & Xxxxx LLP
000 Xxxxxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx Xxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxx, Esq.
Facsimile: (000) 000-0000
Any notice so given by mail shall be deemed to have been given
as of the date of delivery (whether accepted or refused) established by U.S.
Post Office return receipt or the overnight carrier's proof of delivery, as the
case may be, whether accepted or refused. Any such notice not so given shall
deemed given upon receipt of the same by the party to whom the same is to be
given. Any party hereto may designate a different address for itself by notice
to the other party in accordance with this Section 9(j).
(k) This Agreement is a fully integrated agreement
and reflects the entire agreement of the parties with respect to the
subject matter hereof and may not be contradicted by any prior or
contemporaneous oral or written agreement, statement or other evidence.
(l) Any legal action (including any arbitration or
mediation) with respect to this Agreement and any action for
enforcement of any judgment with respect thereto shall be brought in
Orange County, California, and by execution and delivery of this
Agreement each of the parties hereby accepts for itself the exclusive
jurisdiction of the courts (or arbitrators or mediators, as applicable)
of such county and state.
[Signatures begin on next page.]
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IN WITNESS WHEREOF, the Landlords and the Tenant Parties have
caused their duly authorized representatives to enter into this Agreement as of
the date first above written.
"MIGRATORY LANDLORDS":
NATIONWIDE HEALTH PROPERTIES,
INC., a Maryland corporation
WITNESS:
/s/ Xxxx X. Xxxxxxx By: /s/ Xxxx Xxxxx
Name: Xxxx X. Xxxxxxx Name: Xxxx Xxxxx
Title: Vice President
MLD DELAWARE TRUST,
a Delaware business trust
WITNESS:
/s/ Xxxx Xxxxx By: /s/ Xxxx X. Xxxxxxx
Name: Xxxx Xxxxx Name: Xxxx X. Xxxxxxx
Title: As Trustee Not Individually
"MIGRATORY TENANTS":
C&G HEALTHCARE AT TALLAHASSEE,
L.L.C., a Delaware limited
liability company
WITNESS:
/s/ Xxxxxxxx X. Xxxxxx By: /s/ Xxxxx X. Xxxxxx
Name: Xxxxxxxx X. Xxxxxx Name: Xxxxx X. Xxxxxx
Title: Vice President and
Secretary
C&G HEALTHCARE AT PENSACOLA,
L.L.C., a Delaware limited
liability company
WITNESS:
/s/ Xxxxxxxx X. Xxxxxx By: /s/ Xxxxx X. Xxxxxx
Name: Xxxxxxxx X. Xxxxxx Name: Xxxxx X. Xxxxxx
Title: Vice President and
Secretary
Schedule 3-1
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ELDER CARE OPERATORS OF YORK, LLC,
a Delaware limited liability
company
WITNESS:
/s/ Xxxxxxxx X. Xxxxxx By: /s/ Xxxxx X. Xxxxxx
Name: Xxxxxxxx X. Xxxxxx Name: Xxxxx X. Xxxxxx
Title: Vice President and
Secretary
ELDER CARE OPERATORS OF
LAKEMONT FARMS, LLC,
a Delaware limited liability
company
WITNESS:
/s/ Xxxxxxxx X. Xxxxxx By: /s/ Xxxxx X. Xxxxxx
Name: Xxxxxxxx X. Xxxxxx Name: Xxxxx X. Xxxxxx
Title: Vice President and
Secretary
ELDER CARE OPERATORS OF HILLIARD,
LLC, a Delaware limited liability
company
WITNESS:
/s/ Xxxxxxxx X. Xxxxxx By: /s/ Xxxxx X. Xxxxxx
Name: Xxxxxxxx X. Xxxxxx Name: Xxxxx X. Xxxxxx
Title: Vice President and
Secretary
ELDER CARE OPERATORS OF AKRON,
LLC, a Delaware limited liability
company
WITNESS:
/s/ Xxxxxxxx X. Xxxxxx By: /s/ Xxxxx X. Xxxxxx
Name: Xxxxxxxx X. Xxxxxx Name: Xxxxx X. Xxxxxx
Title: Vice President and
Secretary
Schedule 3-2
17
"MIGRATORY MANAGERS":
BALANCED CARE AT TALLAHASSEE,
INC., a Delaware corporation
WITNESS:
/s/ Xxxxxxxx X. Xxxxxx By: /s/ Xxxxx X. Xxxxxx
Name: Xxxxxxxx X. Xxxxxx Name: Xxxxx X. Xxxxxx
Title: Vice President and
Secretary
BALANCED CARE AT PENSACOLA, INC.,
a Delaware corporation
WITNESS:
/s/ Xxxxxxxx X. Xxxxxx By: /s/ Xxxxx X. Xxxxxx
Name: Xxxxxxxx X. Xxxxxx Name: Xxxxx X. Xxxxxx
Title: Vice President and
Secretary
BALANCED CARE AT YORK, INC.,
a Delaware corporation
WITNESS:
/s/ Xxxxxxxx X. Xxxxxx By: /s/ Xxxxx X. Xxxxxx
Name: Xxxxxxxx X. Xxxxxx Name: Xxxxx X. Xxxxxx
Title: Vice President and
Secretary
BALANCED CARE AT LAKEMONT FARMS,
INC., a Delaware corporation
WITNESS:
/s/ Xxxxxxxx X. Xxxxxx By: /s/ Xxxxx X. Xxxxxx
Name: Xxxxxxxx X. Xxxxxx Name: Xxxxx X. Xxxxxx
Title: Vice President and
Secretary
BALANCED CARE AT XXXXXXXX, INC.,
a Delaware corporation
WITNESS:
/s/ Xxxxxxxx X. Xxxxxx By: /s/ Xxxxx X. Xxxxxx
Name: Xxxxxxxx X. Xxxxxx Name: Xxxxx X. Xxxxxx
Title: Vice President and
Secretary
Schedule 3-3
18
BALANCED CARE AT AKRON, INC.,
a Delaware corporation
WITNESS:
/s/ Xxxxxxxx X. Xxxxxx By: /s/ Xxxxx X. Xxxxxx
Name: Xxxxxxxx X. Xxxxxx Name: Xxxxx X. Xxxxxx
Title: Vice President and
Secretary
"MIGRATORY GUARANTORS":
BALANCED CARE CORPORATION,
a Delaware corporation
WITNESS:
/s/ Xxxxxxxx X. Xxxxxx By: /s/ Xxxxx X. Xxxxxx
Name: Xxxxxxxx X. Xxxxxx Name: Xxxxx X. Xxxxxx
Title: Senior Vice President,
Legal Counsel and
Assistant Secretary
BALANCED CARE AT TALLAHASSEE, INC.,
a Delaware corporation
WITNESS:
/s/ Xxxxxxxx X. Xxxxxx By: /s/ Xxxxx X. Xxxxxx
Name: Xxxxxxxx X. Xxxxxx Name: Xxxxx X. Xxxxxx
Title: Vice President and
Secretary
BALANCED CARE AT PENSACOLA, INC.,
a Delaware corporation
WITNESS:
/s/ Xxxxxxxx X. Xxxxxx By: /s/ Xxxxx X. Xxxxxx
Name: Xxxxxxxx X. Xxxxxx Name: Xxxxx X. Xxxxxx
Title: Vice President and
Secretary
Schedule 3-4
19
BALANCED CARE AT YORK, INC.,
a Delaware corporation
WITNESS:
/s/ Xxxxxxxx X. Xxxxxx By: /s/ Xxxxx X. Xxxxxx
Name: Xxxxxxxx X. Xxxxxx Name: Xxxxx X. Xxxxxx
Title: Vice President and
Secretary
BALANCED CARE AT LAKEMONT FARMS,
INC., a Delaware corporation
WITNESS:
/s/ Xxxxxxxx X. Xxxxxx By: /s/ Xxxxx X. Xxxxxx
Name: Xxxxxxxx X. Xxxxxx Name: Xxxxx X. Xxxxxx
Title: Vice President and
Secretary
BALANCED CARE AT XXXXXXXX, INC.,
a Delaware corporation
WITNESS:
/s/ Xxxxxxxx X. Xxxxxx By: /s/ Xxxxx X. Xxxxxx
Name: Xxxxxxxx X. Xxxxxx Name: Xxxxx X. Xxxxxx
Title: Vice President and
Secretary
BALANCED CARE AT AKRON, INC.,
a Delaware corporation
WITNESS:
/s/ Xxxxxxxx X. Xxxxxx By: /s/ Xxxxx X. Xxxxxx
Name: Xxxxxxxx X. Xxxxxx Name: Xxxxx X. Xxxxxx
Title: Vice President and
Secretary
"CUMBERLAND LANDLORD":
NATIONWIDE HEALTH PROPERTIES, INC.,
a Maryland corporation
WITNESS:
/s/ Xxxx X. Xxxxxxx By: /s/ Xxxx Xxxxx
Name: Xxxx Xxxxxxx Name: Xxxx Xxxxx
Title: Vice President
Schedule 3-5
20
"CUMBERLAND TENANTS":
C&G HEALTHCARE AT HAGERSTOWN,
L.L.C., a Delaware limited
liability company
WITNESS:
/s/ Xxxxxxxx X. Xxxxxx By: /s/ Xxxxx X. Xxxxxx
Name: Xxxxxxxx X. Xxxxxx Name: Xxxxx X. Xxxxxx
Title: Vice President and
Secretary
ELDER CARE OPERATORS OF BRISTOL,
LLC, a Delaware limited liability
company
WITNESS:
/s/ Xxxxxxxx X. Xxxxxx By: /s/ Xxxxx X. Xxxxxx
Name: Xxxxxxxx X. Xxxxxx Name: Xxxxx X. Xxxxxx
Title: Vice President and
Secretary
C&G HEALTHCARE AT XXXXXXX CITY,
L.L.C., a Delaware limited
liability company
WITNESS:
/s/ Xxxxxxxx X. Xxxxxx By: /s/ Xxxxx X. Xxxxxx
Name: Xxxxxxxx X. Xxxxxx Name: Xxxxx X. Xxxxxx
Title: Vice President and
Secretary
ELDER CARE OPERATORS OF
MURFREESBORO, LLC, a Delaware
limited liability company
WITNESS:
/s/ Xxxxxxxx X. Xxxxxx By: /s/ Xxxxx X. Xxxxxx
Name: Xxxxxxxx X. Xxxxxx Name: Xxxxx X. Xxxxxx
Title: Vice President and
Secretary
Schedule 3-6
21
C&G HEALTHCARE AT TEAY'S VALLEY,
L.L.C., a Delaware limited
liability company
WITNESS:
/s/ Xxxxxxxx X. Xxxxxx By: /s/ Xxxxx X. Xxxxxx
Name: Xxxxxxxx X. Xxxxxx Name: Xxxxx X. Xxxxxx
Title: Vice President and
Secretary
"CUMBERLAND MANAGERS":
BALANCED CARE AT HAGERSTOWN, INC.,
a Delaware corporation
WITNESS:
/s/ Xxxxxxxx X. Xxxxxx By: /s/ Xxxxx X. Xxxxxx
Name: Xxxxxxxx X. Xxxxxx Name: Xxxxx X. Xxxxxx
Title: Vice President and
Secretary
BALANCED CARE AT BRISTOL, INC.,
a Delaware corporation
WITNESS:
/s/ Xxxxxxxx X. Xxxxxx By: /s/ Xxxxx X. Xxxxxx
Name: Xxxxxxxx X. Xxxxxx Name: Xxxxx X. Xxxxxx
Title: Vice President and
Secretary
BALANCED CARE AT XXXXXXX CITY,
INC., a Delaware corporation
WITNESS:
/s/ Xxxxxxxx X. Xxxxxx By: /s/ Xxxxx X. Xxxxxx
Name: Xxxxxxxx X. Xxxxxx Name: Xxxxx X. Xxxxxx
Title: Vice President and
Secretary
BALANCED CARE AT MURFREESBORO,
INC., a Delaware corporation
WITNESS:
/s/ Xxxxxxxx X. Xxxxxx By: /s/ Xxxxx X. Xxxxxx
Name: Xxxxxxxx X. Xxxxxx Name: Xxxxx X. Xxxxxx
Title: Vice President and
Secretary
Schedule 3-7
22
BALANCED CARE AT TEAY'S VALLEY,
INC., a Delaware corporation
WITNESS:
/s/ Xxxxxxxx X. Xxxxxx By: /s/ Xxxxx X. Xxxxxx
Name: Xxxxxxxx X. Xxxxxx Name: Xxxxx X. Xxxxxx
Title: Vice President and
Secretary
"CUMBERLAND GUARANTORS":
BALANCED CARE CORPORATION,
a Delaware corporation
WITNESS:
/s/ Xxxxxxxx X. Xxxxxx By: /s/ Xxxxx X. Xxxxxx
Name: Xxxxxxxx X. Xxxxxx Name: Xxxxx X. Xxxxxx
Title: Senior Vice President,
Legal Counsel and
Assistant Secretary
BALANCED CARE AT HAGERSTOWN, INC.,
a Delaware corporation
WITNESS:
/s/ Xxxxxxxx X. Xxxxxx By: /s/ Xxxxx X. Xxxxxx
Name: Xxxxxxxx X. Xxxxxx Name: Xxxxx X. Xxxxxx
Title: Vice President and
Secretary
BALANCED CARE AT BRISTOL, INC.,
a Delaware corporation
WITNESS:
/s/ Xxxxxxxx X. Xxxxxx By: /s/ Xxxxx X. Xxxxxx
Name: Xxxxxxxx X. Xxxxxx Name: Xxxxx X. Xxxxxx
Title: Vice President and
Secretary
Schedule 3-8
23
BALANCED CARE AT XXXXXXX CITY, INC.,
a Delaware corporation
WITNESS:
/s/ Xxxxxxxx X. Xxxxxx By: /s/ Xxxxx X. Xxxxxx
Name: Xxxxxxxx X. Xxxxxx Name: Xxxxx X. Xxxxxx
Title: Vice President and
Secretary
BALANCED CARE AT MURFREESBORO,
INC., a Delaware corporation
WITNESS:
/s/ Xxxxxxxx X. Xxxxxx By: /s/ Xxxxx X. Xxxxxx
Name: Xxxxxxxx X. Xxxxxx Name: Xxxxx X. Xxxxxx
Title: Vice President and
Secretary
BALANCED CARE AT TEAY'S VALLEY,
INC., a Delaware corporation
WITNESS:
/s/ Xxxxxxxx X. Xxxxxx By: /s/ Xxxxx X. Xxxxxx
Name: Xxxxxxxx X. Xxxxxx Name: Xxxxx X. Xxxxxx
Title: Vice President and
Secretary
Schedule 3-9
24
SCHEDULE 1
Migratory Landlords, Tenants, Managers and Guarantors
"Migratory Landlords":
1. Nationwide Health Properties, Inc., a Maryland corporation
2. MLD Delaware Trust, a Delaware business trust
"Migratory Tenants":
1. C&G Healthcare at Tallahassee, L.L.C., a Delaware limited liability
company
2. C&G Healthcare at Pensacola, L.L.C., a Delaware limited liability
company
3. Elder Care Operators of York, LLC, a Delaware limited liability company
4. Elder Care Operators of Lakemont Farms, LLC, a Delaware limited
liability company
5. Elder Care Operators of Hilliard, LLC, a Delaware limited liability
company
6. Elder Care Operators of Akron, LLC, a Delaware limited liability
company
"Migratory Managers":
1. Balanced Care at Tallahassee, Inc., a Delaware corporation
2. Balanced Care at Pensacola, Inc., a Delaware corporation
3. Balanced Care at York, Inc., a Delaware corporation
4. Balanced Care at Lakemont Farms, Inc., a Delaware corporation
5. Balanced Care at Xxxxxxxx, Inc., a Delaware corporation
6. Balanced Care at Akron, Inc., a Delaware corporation
"Migratory Guarantors":
1. Balanced Care Corporation, a Delaware corporation
2. Balanced Care at Tallahassee, Inc., a Delaware corporation
3. Balanced Care at Pensacola, Inc., a Delaware corporation
4. Balanced Care at York, Inc., a Delaware corporation
5. Balanced Care at Lakemont Farms, Inc., a Delaware corporation
6. Balanced Care at Xxxxxxxx, Inc., a Delaware corporation
7. Balanced Care at Akron, Inc., a Delaware corporation
Schedule 1-1
25
SCHEDULE 2
Cumberland Landlord, Tenants, Managers and Guarantors
"Cumberland Landlord":
1. Nationwide Health Properties, Inc., a Maryland corporation
"Cumberland Tenants":
1. C&G Healthcare at Hagerstown, L.L.C., a Delaware limited liability
company
2. Elder Care Operators of Bristol, LLC, a Delaware limited liability
company
3. C&G Healthcare at Xxxxxxx City, L.L.C., a Delaware limited liability
company
4. Elder Care Operators of Murfreesboro, LLC, a Delaware limited liability
company
5. C&G Healthcare at Teay's Valley, L.L.C., a Delaware limited liability
company
"Cumberland Managers":
1. Balanced Care at Hagerstown, Inc., a Delaware corporation
2. Balanced Care at Bristol, Inc., a Delaware corporation
3. Balanced Care at Xxxxxxx City, Inc., a Delaware corporation
4. Balanced Care at Murfreesboro, Inc., a Delaware corporation
5. Balanced Care at Teay's Valley, Inc., a Delaware corporation
"Cumberland Guarantors":
1. Balanced Care Corporation, a Delaware corporation
2. Balanced Care at Hagerstown, Inc., a Delaware corporation
3. Balanced Care at Bristol, Inc., a Delaware corporation
4. Balanced Care at Xxxxxxx City, Inc., a Delaware corporation
5. Balanced Care at Murfreesboro, Inc., a Delaware corporation
6. Balanced Care at Teay's Valley, Inc., a Delaware corporation
Schedule 2-1
26
SCHEDULE 3
Migratory Leases and Cumberland Leases
"Migratory Leases":
1. Tallahassee, FL
Lease and Security Agreement dated June 26, 1998 between Nationwide Health
Properties, Inc., a Maryland corporation, as Landlord, and C&G Healthcare at
Tallahassee, L.L.C., a Delaware limited liability company, as Tenant, for
Outlook Pointe facility at Tallahassee, Xxxx County, Florida, as amended
modified and revised prior to the Reference Date
2. Pensacola, FL
Lease and Security Agreement dated June 26, 1998 between Nationwide Health
Properties, Inc., a Maryland corporation, as Landlord, and C&G Healthcare at
Pensacola, L.L.C., a Delaware limited liability company, as Tenant, for Outlook
Pointe facility at Pensacola, Escambia County, Florida, as amended modified and
revised prior to the Reference Date
3. York, PA
Lease and Security Agreement dated March 27, 1998 between MLD Delaware Trust, a
Delaware business trust, as Landlord, and Elder Care Operators of York, LLC, a
Delaware limited liability company, as Tenant, for Outlook Pointe facility at
York, York Township County, Pennsylvania, as amended modified and revised prior
to the Reference Date
4. Xxxxx Xxxxxxx Xxxxxxxx (Xxxxxxxx Xxxxx), XX
Lease and Security Agreement dated March 27, 1998 between MLD Delaware Trust, a
Delaware business trust, as Landlord, and Elder Care Operators of Lakemont
Farms, LLC, a Delaware limited liability company, as Tenant, for Outlook Pointe
facility at South Fayette Township, Allegheny County, Pennsylvania, as amended
modified and revised prior to the Reference Date
5. Hilliard (Heritage Lakes), OH
Lease and Security Agreement dated March 27, 1998 between Nationwide Health
Properties, Inc., a Maryland corporation, as Landlord, and Elder Care Operators
of Hilliard, LLC, a Delaware limited liability company, as Tenant, for Outlook
Pointe
Schedule 3-1
27
facility at Heritage Lakes, Franklin County, Ohio, as amended modified and
revised prior to the Reference Date
6. Akron, OH
Lease and Security Agreement dated March 31, 1998 between Nationwide Health
Properties, Inc., a Maryland corporation, as Landlord, and Elder Care Operators
of Akron, LLC, a Delaware limited liability company, as Tenant, for Outlook
Pointe facility at Akron, Summit County, Ohio, as amended modified and revised
prior to the Reference Date
Schedule 3-2
28
"Cumberland Leases":
1. Hagerstown, MD
Lease and Security Agreement dated June 26, 1998 between Nationwide Health
Properties, Inc., a Maryland corporation, as Landlord, and C&G Healthcare at
Hagerstown, L.L.C., a Delaware limited liability company, as Tenant, for
Balanced Care facility at Hagerstown, Washington County, Maryland, as amended
modified and revised prior to the Reference Date
2. Bristol, TN
Lease and Security Agreement dated March 31, 1998 between Nationwide Health
Properties, Inc., a Maryland corporation, as Landlord, and Elder Care Operators
of Bristol, LLC, a Delaware limited liability company, as Tenant, for Outlook
Pointe facility at Bristol, Xxxxxxxx County, Tennessee, as amended modified and
revised prior to the Reference Date
3. Johnson City, TN
Lease and Security Agreement dated June 26, 1998 between Nationwide Health
Properties, Inc., a Maryland corporation, as Landlord, and C&G Healthcare at
Xxxxxxx City, L.L.C., a Delaware limited liability company, as Tenant, for
Outlook Pointe facility at Xxxxxxx City, Washington County, Tennessee, as
amended modified and revised prior to the Reference Date
4. Murfreesboro, TN
Lease and Security Agreement dated March 27, 1998 between Nationwide Health
Properties, Inc., a Maryland corporation, as Landlord, and Elder Care Operators
of Murfreesboro, LLC, a Delaware limited liability company, as Tenant, for
Outlook Pointe facility at Murfreesboro, Xxxxxxxxxx County, Tennessee, as
amended modified and revised prior to the Reference Date
5. Teay's Valley, WV
Lease and Security Agreement dated June 26, 1998 between Nationwide Health
Properties, Inc., a Maryland corporation, as Landlord, and C&G Healthcare at
Teay's Valley, L.L.C., a Delaware limited liability company, as Tenant, for
Outlook Pointe facility at Teay's Valley, Xxxxxx County, West Virginia, as
amended modified and revised prior to the Reference Date
Schedule 3-3
