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Exhibit 10.8
THIRD AMENDMENT TO STOCK PLEDGE AGREEMENT
This Third Amendment Agreement (this "Amendment") to that certain Stock
Pledge Agreement (as amended, the "Stock Pledge Agreement") entered into as of
April 18, 2000 by and among Balanced Care Corporation, a Delaware corporation
("BCC"), the other parties identified as Pledgors on the signature pages hereto,
all of which are Delaware corporations and are wholly-owned subsidiaries of BCC
(collectively referred to herein as "Subsidiaries", and together with BCC,
collectively the "Pledgor"), the parties identified as Companies on the
signature pages hereto, all of which are Delaware corporations (individually, a
"Company" and collectively, the "Companies"), FRR Investments Limited, a Cayman
Islands corporation ("FRR"), and IPC Advisors S.A.R.L., a Luxembourg corporation
("IPC"), is entered into as of this 5th day of January, 2001 by and among the
Pledgor, the Companies, FRR, IPC, HR Investments Limited, a Cayman Islands
corporation ("HR"), RH Investments Limited, a Cayman Islands corporation ("RH")
and VXM Investments Limited, a Cayman Islands corporation ("VXM") (FRR, IPC, HR,
RH and VXM are collectively referred to as the "Secured Party").
WITNESSETH:
WHEREAS BCC has issued certain Promissory Notes (the "Promissory
Notes") dated (i) November 6, 2000 in favor of each of RH, HR and VXM, in each
case, in the original principal amount of $2,166,666.66, and (ii) December 7,
2000 in favor of each of RH, HR and VXM, in each case, in the original principal
amount of $500,000, evidencing a loan (the "Loan") to BCC by RH, HR and VXM in
the aggregate amount of $8,000,000, the proceeds of which have been advanced to
BCC;
AND WHEREAS Pledgor agreed as a condition precedent to the advance of
the Loan to provide collateral security to the Secured Party and to execute and
deliver this Amendment in favor of the Secured Party;
AND WHEREAS the security interest in the shares of BCC at Darlington,
Inc., Balanced Care at Xxxxxx, Inc., Balanced Care at Eyers Grove, Inc.,
Balanced Care at North Ridge, Inc. and Balanced Care at Xxxxxx, Inc. created
hereunder in favor of the Secured Party is part of such collateral security and
was
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intended by the parties to be part of the same transaction as the advance of the
Loan;
AND WHEREAS Pledgor, being all of the shareholders of the Companies,
has received a direct benefit from the consummation of the transactions
evidenced by the Promissory Notes;
NOW THEREFORE, the parties hereby agree as follows:
1. INCORPORATION OF RECITALS; DEFINITIONS.
The recitals set forth above are incorporated herein by reference and
are made a part hereof to the same extent as if such recitals were set forth
herein. Capitalized terms used but not defined herein shall have the meanings
ascribed to them in the Stock Pledge Agreement.
2. EQUITY PLEDGE.
(a) Schedules 2 and Schedule 3 to the Pledge Agreement are each
hereby amended by incorporating Schedules A and B attached
hereto into such schedules, respectively.
3. MISCELLANEOUS.
(a) Except as expressly amended or modified by this Amendment, the
terms and conditions of the Stock Pledge Agreement shall
remain in full force and effect.
(b) Other than with respect to the restriction on the Secured
Party's right to foreclose on the Pledged Interests identified
as numbers 22 through and including number 42 on Schedule 2 of
the Stock Pledge Agreement, each Pledgor hereby reaffirms and
restates the representations and warranties set forth in the
Stock Pledge Agreement, as amended by this Agreement, and all
such representations and warranties shall be true and correct
on the date hereof (unless expressly related to an earlier
date) with the same force and effect as if made on such date.
Each Pledgor represents and warrants (which representations
and warranties shall survive the execution and delivery
hereof) to the Secured Party that on the date hereof:
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i. It has the corporate power and authority to execute,
deliver and carry out the terms and provisions of
this Agreement and the transactions contemplated
hereby and has taken or caused to be taken all
necessary corporate action to authorize the
execution, delivery and performance of this Agreement
and the transactions contemplated hereby;
ii. Except as already obtained, no consent of any other
person (including, without limitation, shareholders
or creditors of any Pledgor), and no action of, or
filing with any governmental or public body or
authority is required to authorize, or is otherwise
required in connection with the execution, delivery
and performance of this Agreement;
iii. This Agreement has been duly executed and delivered
on behalf of each Pledgor by a duly authorized
officer, and constitutes a legal, valid and binding
obligation of each Pledgor enforceable in accordance
with its terms, subject to bankruptcy,
reorganization, insolvency, moratorium and other
similar laws affecting the enforcement of creditors'
rights generally and the exercise of judicial
discretion in accordance with general principles of
equity; and
iv. The execution, delivery and performance of this
Agreement will not violate any law, statute or
regulation, or any order or decree of any court or
governmental instrumentality having jurisdiction over
any Pledgor, any Company or any property owned by any
Pledgor or any Company, or conflict with, or result
in the breach of, or constitute a default under any
contractual obligation of any Pledgor or any Company
(other than any breach or default under (a) Section
10.1.6 of those certain Master Lease and Security
Agreements (collectively, the "Master Leases")
between Nationwide Health Properties, Inc. and/or MLD
Delaware Trust (individually and collectively, the
"NHP Lessor") and the Companies appearing as numbers
22 through and including 32 on Schedule 2 of the
Stock Purchase Agreement and
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(b) Section 3(b) of those certain Guarantees dated as
of July 1, 2000 (collectively, the "Guarantees") by
BCC in favor of the NHP Lessor, in each case, in the
event the Secured Party forecloses on the Pledged
Interests of such Companies without obtaining the
prior written consent of the NHP Lessor).
(c) This Amendment may be executed in one or more counterparts,
each of which shall constitute an original but all of which
shall constitute one and the same instrument. Delivery of an
executed counterpart of a signature page to this Agreement by
telecopier shall be effective as delivery of a manually
executed signature page hereto.
(d) The Secured Party agrees to forebear from taking any action to
foreclose on the Pledged Interests of the Companies appearing
as numbers 22 through and including 42 on Schedule 2 of the
Stock Pledge Agreement without obtaining the prior written
consent of the applicable NHP Lessor if such foreclosure would
result in a breach or default under Section 10.1.6 the Master
Leases and/or Section 3(b) of the Guarantees. If the Secured
Party so requests, the Pledgor hereby agrees to use their best
efforts to obtain the consents referred to in the immediately
preceding sentence.
(e) This Amendment may be amended only by a writing signed by all
of the parties hereto.
(f) This Amendment and the construction and enforcement hereof
shall be governed in all respects by the laws of the
Commonwealth of Pennsylvania exclusive of its conflicts of
laws principles.
4. CONDITION TO EFFECTIVENESS
(a) This Amendment shall not become effective until the Pledgor
has obtained the written consent of Xxxxxx Financial, Inc. to
execute this Amendment.
Remainder of this page intentionally left blank.
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IN WITNESS WHEREOF, Pledgor, each Company and Secured Party have caused
this Amendment to be duly executed and delivered under hand and seal, all as of
the day and year first above written.
PLEDGOR:
BALANCED CARE CORPORATION
By:/s/Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Title: Senior Vice President and Legal Counsel
BALANCED CARE REALTY I, INC.
BALANCED CARE REALTY II, INC.
BALANCED CARE REALTY III, INC.
BALANCED CARE REALTY IV, INC.
BALANCED CARE REALTY V, INC.
BALANCED CARE REALTY VI, INC.
BALANCED CARE REALTY VII, INC.
BALANCED CARE REALTY VIII, INC.
BALANCED CARE REALTY IX, INC.
BALANCED CARE REALTY X, INC.
BALANCED CARE REALTY XI, INC.
BALANCED CARE REALTY XII, INC.
BALANCED CARE REALTY XIII, INC.
BALANCED CARE REALTY XIV, INC.
BALANCED CARE REALTY XV, INC.
BALANCED CARE REALTY XVI, INC.
BALANCED CARE REALTY XVII, INC.
BALANCED CARE REALTY XVIII, INC.
BALANCED CARE REALTY XIX, INC.
BALANCED CARE REALTY XX, INC.
BALANCED CARE REALTY XXI, INC.
BALANCED CARE REALTY XXII, INC.
BALANCED CARE REALTY XXIII, INC.
BALANCED CARE REALTY XXIV, INC.
BALANCED CARE REALTY XXV, INC.
By:/s/Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Title: Vice President and Secretary
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BALANCED CARE REALTY XXVI, INC.
BALANCED CARE REALTY XXVII, INC.
BALANCED CARE REALTY XXVIII, INC.
BALANCED CARE REALTY XXIX, INC.
BALANCED CARE REALTY XXX, INC.
BALANCED CARE REALTY XXXI, INC.
BALANCED CARE REALTY XXXII, INC.
BALANCED CARE REALTY XXXIII, INC.
BALANCED CARE REALTY XXXIV, INC.
BALANCED CARE REALTY XXXV, INC.
BALANCED CARE REALTY XXXVI, INC.
BALANCED CARE REALTY XXXVII, INC.
BALANCED CARE REALTY XXXVIII, INC.
BALANCED CARE REALTY XXXIX, INC.
BCC AT HARRISBURG, INC.
BALANCED CARE AT TALLAHASSEE, INC.
BALANCED CARE AT PENSACOLA, INC.
BALANCED CARE AT XXXXXXXX, INC.
BALANCED CARE AT AKRON, INC.
BALANCED CARE AT YORK, INC.
BALANCED CARE AT HAGERSTOWN, INC.
BALANCED CARE AT BRISTOL, INC.
BALANCED CARE AT XXXXXXX CITY, INC.
BALANCED CARE AT MURFREESBORO, INC.
BALANCED CARE AT TEAY'S VALLEY, INC.
By:/s/Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Title: Vice President and Secretary
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COMPANIES:
BALANCED CARE REALTY AT ALTOONA, INC.
BALANCED CARE REALTY AT BERWICK, INC.
BALANCED CARE REALTY AT LEWISTOWN, INC.
BALANCED CARE REALTY AT MANSFIELD, INC.
BALANCED CARE REALTY AT MARTINSBURG, INC.
BALANCED CARE REALTY AT MAUMELLE, INC.
BALANCED CARE REALTY AT MOUNTAIN HOME, INC.
BALANCED CARE REALTY AT PECKVILLE, INC.
BALANCED CARE REALTY AT READING, INC.
BALANCED CARE REALTY AT SCRANTON, INC.
BALANCED CARE REALTY AT SHERWOOD, INC.
BALANCED CARE REALTY AT STATE COLLEGE, INC.
BCC AT WEST VIEW, INC.
BCC AT MID-VALLEY, INC.
BCC AT OLD FORGE, INC.
BCC AT BLOOMSBURG, INC.
BCC AT KINGSTON I, INC.
BCC AT KINGSTON II, INC.
BCC AT XXXXXXX, INC.
EXTENDED CARE OPERATORS OF HARRISBURG, L.L.C.
BCC AT HARRISBURG, INC.
C & G HEALTHCARE AT TALLAHASEE, L.L.C.
C & G HEALTHCARE AT PENSACOLA L.L.C.
ELDER CARE OPERATORS OF LAKEMONT FARMS, LLC
ELDER CARE OPERATORS OF XXXXXXXX, LLC
ELDER CARE OPERATORS OF AKRON, LLC
ELDER CARE OPERATORS OF YORK, LLC
C & G HEALTHCARE AND HAGERSTOWN L.L.C.
ELDER CARE OPERATORS OF BRISTOL LLC
C & G HEALTH CARE AT XXXXXXX CITY, L.C.C.
ELDER CARE OPERATORS OF MURFREESBORO LLC
C & G HEALTHCARE AT TEAY'S VALLEY L.C.C.
By:/s/Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Title: Vice President and Secretary
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BALANCED CARE AT TALLAHASSEE, INC.
BALANCED CARE AT PENSACOLA, INC.
BALANCED CARE AT LAKEMONT FARMS, INC.
BALANCED CARE AT XXXXXXXX, INC.
BALANCED CARE AT AKRON, INC.
BALANCED CARE AT YORK, INC.
BALANCED CARE AT HAGERSTOWN, INC.
BALANCED CARE AT BRISTOL, INC.
BALANCED CARE AT XXXXXXX CITY, INC.
BALANCED CARE AT MURFREESBORO, INC.
BALANCED CARE AT TEAY'S VALLEY, INC.
BCC AT DARLINGTON, INC.
BALANCED CARE AT XXXXXX, INC.
BALANCED CARE AT EYERS GROVE, INC.
BALANCED CARE AT NORTH RIDGE, INC.
BALANCED CARE AT XXXXXX, INC.
By:/s/Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Title: Vice President and Secretary
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SECURED PARTY:
FRR INVESTMENTS LIMITED
By:/s/X. X. Xxxxxxxx
Name: X. X. Xxxxxxxx
Title: Director
IPC ADVISORS S.A.R.L.
By:/s/X. X. Xxxxxxxx
Name: X. X. Xxxxxxxx
Title: Manager
HR INVESTMENTS LIMITED
By:/s/X. X. Xxxxxxxx
Name: X. X. Xxxxxxxx
Title: Director
RH INVESTMENTS LIMITED
By:/s/X. X. Xxxxxxxx
Name: X. X. Xxxxxxxx
Title: Director
VXM INVESTMENTS LIMITED
By:/s/X. X. Xxxxxxxx
Name: X. X. Xxxxxxxx
Title: Director
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SCHEDULE A
COMPANIES
1. BCC AT DARLINGTON, INC.
2. BALANCED CARE AT XXXXXX, INC.
3. BALANCED CARE AT EYERS GROVE, INC.
4. BALANCED CARE AT NORTH RIDGE, INC.
5. BALANCED CARE AT XXXXXX, INC.
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