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EXHIBIT 10.8
OMNIBUS ASSIGNMENT AND ASSUMPTION AGREEMENT,
AMENDMENT OF LOAN DOCUMENTS, AMENDMENT OF LEASE DOCUMENTS,
TERMINATION OF LEASE DOCUMENTS, CONSENT TO ASSIGNMENT AND
CONFIRMATION OF GUARANTIES
THIS OMNIBUS ASSIGNMENT AND ASSUMPTION AGREEMENT, AMENDMENT OF LOAN
DOCUMENTS, AMENDMENT OF LEASE DOCUMENTS, TERMINATION OF LEASE DOCUMENTS, CONSENT
TO ASSIGNMENT AND CONFIRMATION OF GUARANTIES is made as of January 12, 2000 by
and among (i) HAWTHORN HEALTH PROPERTIES, INC., a California corporation
("Hawthorn"), NATIONAL CARE CENTERS OF HERMITAGE, INC., a Missouri corporation
("Hermitage"), NATIONAL CARE CENTERS, INC., a Missouri corporation ("National
Care Centers"), NATIONAL CARE CENTERS OF LEBANON, INC., a Missouri corporation
("National Care Centers-Lebanon"), SPRINGFIELD RETIREMENT VILLAGE, INC., a
Missouri corporation ("Springfield"), NATIONAL CARE CENTERS OF NIXA, INC., a
Missouri corporation ("Nixa"), NATIONAL CARE CENTERS OF SPRINGFIELD, INC., a
Missouri corporation ("National Care Centers-Springfield") and MT. XXXXXX XXXX
CARE CENTER WEST, INC., a Missouri corporation ("Mt. Xxxxxx" and collectively
with Hawthorn, Hermitage, National Care Centers, National Care Centers-Lebanon,
Springfield, Nixa and National Care Centers-Springfield, the "Borrowers"), (ii)
BCC AT LEBANON CARE CENTER, INC., a Delaware corporation ("BCC-Lebanon Care"),
BCC AT LEBANON PARK MANOR, INC., a Delaware corporation ("BCC-Lebanon Park"),
BCC AT NIXA PARK CENTER, INC., a Delaware corporation ("BCC-Nixa"), BCC AT
SPRINGFIELD CARE CENTER, INC., a Delaware corporation ("BCC-Springfield"), BCC
AT MT. XXXXXX XXXX CARE CENTER, INC., a Delaware corporation ("BCC-Mt. Xxxxxx
Xxxx"), BCC AT MT. XXXXXX XXXX CARE CENTER WEST, INC., a Delaware corporation
("BCC-Mt. Xxxxxx Xxxx") and BCC AT HERMITAGE PARK CARE CENTER, INC., a Delaware
corporation ( "BCC-Hermitage" and collectively, with BCC-Lebanon Care,
BCC-Lebanon Park, BCC-Nixa, BCC-Springfield, BCC-Mt Xxxxxx Xxxx and BCC-Mt.
Xxxxxx Xxxx, the "Balanced Care Lessees"), (iii) BALANCED CARE CORPORATION, a
Delaware corporation ("Balanced Care") and XXXXX MANAGEMENT, INC., a Missouri
corporation ("Xxxxx" and collectively with Balanced Care, the "Balanced Care
Guarantors"), (iv) MEDITRUST MORTGAGE INVESTMENTS, INC., a Delaware corporation
(the "Lender"), (v) CHRISTIAN HEALTH CARE OF MISSOURI, INC., a Missouri
nonprofit corporation (the "Purchaser") and CORNERSTONE PROPERTIES INVESTMENT
II, LLC, a Missouri limited liability company ("CPI"), (vi) CORNERSTONE HEALTH
CARE, INC., a Missouri corporation ("Cornerstone"), (vii) CHRISTIAN HEALTH CARE
PERSONNEL SERVICES, INC., a Missouri nonprofit corporation ("CHC-Personnel"),
(viii) CHRISTIAN HEALTH CARE, INC., an Arkansas nonprofit corporation ("CHC"),
(ix) CHRISTIAN HEALTH CARE OF HERMITAGE, INC., a Missouri nonprofit corporation
("CHC-Hermitage"), CHRISTIAN HEALTH CARE OF LEBANON NORTH, INC., a Missouri
nonprofit corporation ("CHC-Lebanon North"), CHRISTIAN HEALTH CARE OF
SPRINGFIELD WEST PARK, INC. ("CHC-Springfield West Park"), a Missouri nonprofit
corporation,
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CHRISTIAN HEALTH CARE OF SPRINGFIELD WEST, INC., a Missouri nonprofit
corporation ("CHC-Springfield West"), CHRISTIAN HEALTH CARE OF LEBANON SOUTH,
INC., a Missouri nonprofit corporation ("CHC-Lebanon South"), CHRISTIAN HEALTH
CARE OF SPRINGFIELD EAST, INC., a Missouri nonprofit corporation
("CHC-Springfield East") and CHRISTIAN HEALTH CARE OF NIXA, INC., a Missouri
nonprofit corporation ("CHC-Nixa" and collectively with CHC-Hermitage,
CHC-Lebanon North, CHC-Springfield West Park, CHC-Springfield West, CHC-Lebanon
South and CHC-Springfield East, the "CHC Lessees") and (x) ALINGTON X. XXXXXXX
of Rogers, Arkansas ("Xxxxxxx").
WITNESSETH:
WHEREAS, the Lender made a loan to the Borrowers (the "Hawthorn Loan"),
in the original principal amount of FORTY-ONE MILLION THREE HUNDRED EIGHTY-FIVE
THOUSAND DOLLARS ($41,385,000), which loan is evidenced by that certain
Promissory Note, dated as of August 30, 1996, made by the Borrowers to the order
of the Lender (the "Note");
WHEREAS, the Note is referred to in that certain Loan Agreement, dated
as of August 30, 1996, as amended, by and among the Borrowers and the Lender
(the "Loan Agreement") and is in all respects subject to the provisions thereof,
and all capitalized terms used herein and not expressly defined herein shall
have the same meanings ascribed to such terms in the Loan Agreement;
WHEREAS, the obligations of the Borrowers under the Loan Documents are
secured, in part, by the Deeds of Trust which encumber the Mortgaged Property;
WHEREAS, simultaneous with the execution and delivery of the Loan
Documents, the Balanced Care Lessees and the Borrowers executed and delivered,
or caused to be executed and delivered, (i) the BCC Missouri Leases, relating to
certain premises that (a) are more fully described in the BCC Missouri Leases
and (b) consist of all or a portion of the Mortgaged Property and (ii) the
remainder of the BCC Missouri Lease Documents;
WHEREAS, as security for the BCC Missouri Leases, the Balanced Care
Guarantors have executed and delivered, or caused to be executed and delivered,
guaranties of the Lease Obligations (as defined in the BCC Missouri Leases)
relating to each of the BCC Missouri Leases (collectively, the "BCC Missouri
Lease Guaranties") and certain other BCC Missouri Lease Documents;
WHEREAS, as a condition of the consummation of the Hawthorn Loan, the
Lender required the execution and delivery of (i) the Lease Subordination
Agreements, which, among other things, subordinate the BCC Missouri Leases to
the liens of the Deeds of Trust and the
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other Loan Documents, (ii) the Assignments of Leases, pursuant to which, among
other things, Hermitage, National Care Centers, National Care Centers-Lebanon,
Springfield, Nixa, National Care Centers-Springfield and Mt. Xxxxxx
(collectively, the "Hawthorn Subsidiaries") assigned to the Lender all of their
right, title and interest in the BCC Missouri Leases and the BCC Missouri Lease
Guaranties and directed (a) the Balanced Care Lessees to pay all "Rent" as
defined under the BCC Missouri Leases and (b) the Balanced Care Guarantors to
pay all amounts due under the BCC Missouri Lease Guaranties to the Lender (for
application towards the Loan Obligations in accordance with the terms of the
Loan Documents) and (iii) the Omnibus Assignment of Contracts, pursuant to
which, among other things, (a) the Hawthorn Subsidiaries assigned all of their
right, title and interest in and to all of the BCC Missouri Lease Documents
(other than the BCC Missouri Leases and the BCC Missouri Lease Guaranties, which
were assigned to the Lender pursuant to the Assignments of Leases) to the
Lender, (b) the Borrowers, the Balanced Care Lessees and the Balanced Care
Guarantors acknowledged that the Lender, as the successor in interest to the
Hawthorn Subsidiaries under the BCC Missouri Lease Documents, is entitled to
exercise all of the Hawthorn Subsidiaries' respective duties, covenants,
obligations, rights (including, without limitation, the exercise of any right of
approval or consent) and/or remedies under the BCC Missouri Lease Documents,
other than the purchase options granted pursuant to Section 18.4 of each of the
BCC Missouri Leases and (c) the Hawthorn Subsidiaries directed the Balanced Care
Lessees and the Balanced Care Guarantors to perform all of their respective
obligations under the BCC Missouri Lease Documents for the benefit of the
Lender;
WHEREAS, the Balanced Care Lessees and the Balanced Care Guarantors
desire to transfer, and the Purchaser desires to acquire certain assets,
including, without limitation, the Balanced Care Lessees' interests in the BCC
Missouri Leases, on the terms and conditions set forth in that certain Asset
Purchase Agreement, dated as of October 15, 1999, as amended, by and among
Balanced Care (on behalf of itself and certain subsidiaries) and the Purchaser
(the "BCC/CHC Purchase Agreement");
WHEREAS, the Purchaser has assigned its rights and obligations with
respect to the Facilities under the BCC/CHC Purchase Agreement to the CHC
Lessees (which are Subsidiaries of CHC) and, accordingly, the CHC Lessees will
acquire the lessee's interests in the BCC Missouri Leases from the Balanced Care
Lessees in accordance with the terms of the BCC/CHC Purchase Agreement
(collectively, the "BCC/CHC Lease Assignments");
WHEREAS, the Purchaser has assigned its other rights and obligations
under the BCC/CHC Purchase Agreement relating to the Leased Property (as defined
under the BCC Missouri Leases) to CPI;
WHEREAS, simultaneously with the execution and delivery of this
Agreement and the consummation of the BCC/CHC Lease Assignments, (I) the CHC
Lessees and Cornerstone (which is wholly-owned and controlled by Xxxxxxx) will
execute and deliver the Cornerstone Management Agreements (as hereafter
defined), pursuant to which Cornerstone shall be
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engaged by the CHC Lessees to manage the Facilities, (II) the CHC Lessees and
CHC-Personnel (which is wholly-owned and controlled by Xxxxxxx) shall execute
and deliver the Employment Lease Agreements (as hereinafter defined), pursuant
to which CHC-Personnel shall provide certain employment services to the CHC
Lessees with regard to the Facilities and (III) the CHC Lessees shall execute
and deliver the Equipment Leases (as hereinafter defined), pursuant to which,
the CHC Lessees shall lease from CPI the tangible personal property required to
operate the Facilities (which tangible personal property CPI acquired
simultaneously with the execution and delivery hereof from the Balanced Care
Lessees pursuant to the BCC/CHC Purchase Agreement);
WHEREAS, the Balanced Care Lessees and the Balanced Care Guarantors
(collectively, the "Balanced Care Entities") shall derive direct and indirect
benefits from the consummation of the BCC/CHC Lease Assignments and the other
transactions contemplated by the BCC/CHC Purchase Agreement;
WHEREAS, the Purchaser, CPI, CHC, the CHC-Lessees, CHC-Personnel,
Cornerstone and Xxxxxxx (collectively, the "CHC Group") shall derive direct and
indirect benefits from the consummation of the BCC/CHC Lease Assignments and the
other transactions contemplated under the BCC/CHC Purchase Agreement and the
execution and delivery (and subsequent performance of the obligations under) the
Cornerstone Management Agreements and the Employment Lease Agreements;
WHEREAS, pursuant to the Loan Documents and the BCC Missouri Lease
Documents, the consents of the Lender and the Hawthorn Subsidiaries are required
for the BCC/CHC Lease Assignments; and
WHEREAS, as a condition of their consent to the BCC/CHC Lease
Assignments, the Lender and the Borrowers have required that the parties hereto
execute and deliver this Agreement and that the conditions and covenants set
forth herein be satisfied.
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, and in consideration of the mutual
covenants set forth herein, the parties hereto hereby agree as follows:
1. DEFINITIONS: For all purposes of this Agreement, except as otherwise
expressly provided or unless the context otherwise requires, the terms defined
in this Section have the meanings ascribed to them in this Section:
AFFILIATED PARTY SUBORDINATION AGREEMENTS: Collectively, the Affiliated
Party Subordination Agreements as defined under the BCC Missouri Leases.
BALANCED CARE: As defined in the preamble of this Agreement and its
successors and assigns.
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BALANCED CARE ENTITIES: As defined in the preamble of this Agreement.
BALANCED CARE GUARANTORS: As defined in the preamble of this Agreement
and their respective successors and assigns.
BALANCED CARE LESSEES: As defined in the preamble of this Agreement and
their respective successors and assigns.
BCC/CHC LEASE ASSIGNMENTS: As defined in the preamble of this
Agreement.
BCC/CHC PURCHASE AGREEMENT: As defined in the preamble of this
Agreement.
BCC-HERMITAGE: As defined in the preamble of this Agreement and its
successors and assigns.
BCC-LEBANON CARE: As defined in the preamble of this Agreement and its
successors and assigns.
BCC-LEBANON PARK: As defined in the preamble of this Agreement and its
successors and assigns.
BCC MISSOURI LEASE GUARANTIES: As defined in the preamble (including,
without limitation, the Hermitage Guaranties, the Lebanon Care Guaranties, the
Lebanon Park Guaranties, the Mt. Xxxxxx Guaranties, the Nixa Guaranties, the
Springfield Guaranties and the West Park Guaranties).
BCC MISSOURI LEASE OBLIGATIONS: Collectively, the Lease Obligations as
defined under the BCC Missouri Leases.
BCC MISSOURI LEASES: Collectively, the Hermitage Lease, the Lebanon
Care Lease, the Lebanon Park Lease, the Mt. Xxxxxx Lease, the Nixa Lease, the
Springfield Lease and the West Park Lease.
BCC-MT. XXXXXX XXXX: As defined in the preamble and its successors and
assigns.
BCC-MT. XXXXXX XXXX: As defined in the preamble of this Agreement and
its successors and assigns.
BCC-NIXA: As defined in the preamble of this Agreement and its
successors and assigns.
BCC-SPRINGFIELD: As defined in the preamble of this Agreement and its
successors and assigns.
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BORROWERS: As defined in the preamble of this Agreement and their
respective successors and assigns.
BUSINESS DAY: Any day which is not a Saturday or a Sunday or a public
holiday under the laws of the United States of America or the state of Missouri.
CHC: As defined in the preamble of this Agreement and its successors
and assigns.
CHC GROUP: As defined in the preamble of this Agreement and its
successors and assigns.
CHC-HERMITAGE: As defined in the preamble of this Agreement and its
successors and assigns.
CHC-LEBANON NORTH: As defined in the preamble of this Agreement and its
successors and assigns.
CHC-LEBANON SOUTH: As defined in the preamble of this Agreement and its
successors and assigns.
CHC-LESSEES: As defined in the preamble of this Agreement and their
respective successors and assigns.
CHC-NIXA: As defined in the preamble of this Agreement and its
successors and assigns.
CHC-PERSONNEL: As defined in the preamble of this Agreement and its
successors and assigns.
CHC-SPRINGFIELD EAST: As defined in the preamble of this Agreement and
its successors and assigns.
CHC-SPRINGFIELD WEST: As defined in the preamble of this Agreement and
its successors and assigns.
CHC-SPRINGFIELD WEST PARK: As defined in the preamble of this Agreement
and its successors and assigns.
CORNERSTONE: As defined in the preamble of this Agreement and its
successors and assigns.
CORNERSTONE MANAGEMENT AGREEMENTS: Collectively, the seven (7) separate
Management Agreements of even date by and between the CHC Lessees and
Cornerstone.
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CPI: As defined in the preamble of this Agreement and its successors
and assigns.
CROSS-DEFAULT AGREEMENT: As defined in Section 28 of this Agreement.
XXXXX: As defined in the preamble of this Agreement and its successors
and assigns.
EMPLOYMENT LEASE AGREEMENTS: Collectively, the seven (7) separate
Employee Leasing Agreements of even date by and between the CHC Lessees and
CHC-Personnel.
EQUIPMENT LEASES: Collectively, the seven (7) separate Equipment Leases
of even date by and between the CHC Lessees and CPI.
HAWTHORN: As defined in the preamble of this Agreement and its
successors and assigns.
HAWTHORN LOAN: As defined in the preamble of this Agreement.
HAWTHORN SUBSIDIARIES: As defined in the preamble of this Agreement and
their respective successors and assigns.
HERMITAGE: As defined in the preamble of this Agreement and its
successors and assigns.
HERMITAGE ASSIGNMENT OF LEASES: The Assignment of Leases and Rents,
dated as of August 30, 1996, date granted by Hermitage to the Lender.
HERMITAGE FACILITY: The "Facility" as defined under the Hermitage
Lease.
HERMITAGE GUARANTIES: Collectively, the "Guaranties" as defined under
the Hermitage Lease.
HERMITAGE INDEMNIFIED MATTERS: As defined in Section 20 of this
Agreement.
HERMITAGE INDEMNITEE: As defined in Section 20 of this Agreement.
HERMITAGE INDEMNITOR: As defined in Section 20 of this Agreement.
HERMITAGE LEASE: The Facility Lease Agreement, dated as of August 30,
1996, as amended, by and between Hermitage and BCC-Hermitage.
HERMITAGE LEASE DOCUMENTS: Collectively, the "Lease Documents" as
defined under the Hermitage Lease.
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HERMITAGE PLEDGE AGREEMENT: The Pledge Agreement as defined in the
Hermitage Lease.
INTERCREDITOR AGREEMENT: That certain Intercreditor Agreement of even
date by and between the Lender, the Borrowers and the Bank of Bentonville.
XXXXXXX: As defined in the preamble of this Agreement and his heirs,
administrators, executors, legal representatives, successors and assigns.
LEASE DEFAULT: As defined under the BCC Missouri Leases.
LEBANON CARE ASSIGNMENT OF LEASES: The Assignment of Leases and Rents,
dated as of August 30, 1996, granted by National Care Centers to the Lender.
LEBANON CARE FACILITY: The "Facility" as defined under the Lebanon Care
Lease.
LEBANON CARE GUARANTIES: Collectively, the "Guaranties" as defined
under the Lebanon Care Lease.
LEBANON CARE INDEMNIFIED MATTERS: As defined in Section 21 of this
Agreement.
LEBANON CARE INDEMNITEE: As defined in Section 21 of this Agreement.
LEBANON CARE INDEMNITOR: As defined in Section 21 of this Agreement.
LEBANON CARE LEASE: The Facility Lease Agreement, dated as of August
30, 1996, as amended, by and between National Care Centers and BCC-Lebanon Care.
LEBANON CARE LEASE DOCUMENTS: Collectively, the "Lease Documents" as
defined under the Lebanon Care Lease.
LEBANON CARE PLEDGE AGREEMENT: The Pledge Agreement as defined in the
Lebanon Care Lease.
LEBANON PARK ASSIGNMENT OF LEASES: The Assignment of Leases and Rents,
dated as of August 30, 1996, granted by National Care Centers-Lebanon to the
Lender.
LEBANON PARK FACILITY: The "Facility" as defined under the Lebanon Park
Lease.
LEBANON PARK GUARANTIES: Collectively, the "Guaranties" as defined
under the Lebanon Park Lease.
LEBANON PARK INDEMNIFIED MATTERS: As defined in Section 22 of this
Agreement.
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LEBANON PARK INDEMNITEE: As defined in Section 22 of this Agreement.
LEBANON PARK INDEMNITOR: As defined in Section 22 of this Agreement.
LEBANON PARK LEASE: The Facility Lease Agreement, dated as of August
30, 1996, as amended, by and between National Care Centers-Lebanon and
BCC-Lebanon Park.
LEBANON PARK LEASE DOCUMENTS: Collectively, the "Lease Documents" as
defined under the Lebanon Park Lease.
LEBANON PARK PLEDGE AGREEMENT: The Pledge Agreement as defined in the
Lebanon Park Lease.
LENDER: As defined in the preamble of this Agreement and its successors
and assigns.
LOAN AGREEMENT: As defined in the preamble of this Agreement.
LONG TERM: Long Term Pharmaceutical Care, Inc., a Missouri corporation
and its successors and assigns.
MT. XXXXXX: As defined of this Agreement in the preamble and its
successors and assigns.
MT. XXXXXX ASSIGNMENT OF LEASES: The Assignment of Leases and Rents,
dated as of August 30, 1996, granted by Springfield to the Lender.
MT. XXXXXX FACILITY: The "Facility" as defined under the Mt. Xxxxxx
Lease.
MT. XXXXXX GUARANTIES: Collectively, the "Guaranties" as defined under
the Mt. Xxxxxx Lease.
MT. XXXXXX INDEMNIFIED MATTERS: As defined in Section 23 of this
Agreement.
MT. XXXXXX INDEMNITEE: As defined in Section 23 of this Agreement.
MT. XXXXXX INDEMNITOR: As defined in Section 23 of this Agreement.
MT. XXXXXX LEASE: The Facility Lease Agreement, dated as of August 30,
1996, as amended, by and between Springfield and BCC-Mt. Xxxxxx Xxxx.
MT. XXXXXX LEASE DOCUMENTS: Collectively, the "Lease Documents" as
defined under the Mt. Xxxxxx Lease.
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MT. XXXXXX PLEDGE AGREEMENT: The Pledge Agreement as defined in the Mt.
Xxxxxx Lease.
NATIONAL CARE CENTERS: As defined in the preamble of this Agreement and
its successors and assigns.
NATIONAL CARE CENTERS-LEBANON: As defined in the preamble of this
Agreement and its successors and assigns.
NATIONAL CARE CENTERS-SPRINGFIELD: As defined in the preamble of this
Agreement and its successors and assigns.
NIXA: As defined in the preamble of this Agreement and its successors
and assigns.
NIXA ASSIGNMENT OF LEASES: The Assignment of Leases and Rents, dated as
of August 30, 1996, granted by Nixa to the Lender.
NIXA FACILITY: The "Facility" as defined under the Nixa Lease.
NIXA GUARANTIES: Collectively, the "Guaranties" as defined under the
Nixa Lease.
NIXA INDEMNIFIED MATTERS: As defined in Section 24 of this Agreement.
NIXA INDEMNITEE: As defined in Section 24 of this Agreement.
NIXA INDEMNITOR: As defined in Section 24 of this Agreement.
NIXA LEASE: The Facility Lease Agreement, dated as of August 30, 1996,
as amended, by and between Nixa and BCC-Nixa.
NIXA LEASE DOCUMENTS: Collectively, the "Lease Documents" as defined
under the Nixa Lease.
NIXA PLEDGE AGREEMENT: The Pledge Agreement as defined in the Nixa
Lease.
NOTE: As defined in the preamble of this Agreement.
PLEDGE AGREEMENTS: Collectively, the Hermitage Pledge Agreement, the
Lebanon Care Pledge Agreement, the Lebanon Park Pledge Agreement, the Mt. Xxxxxx
Pledge Agreement, the Nixa Pledge Agreement, the Springfield Pledge Agreement
and the West Park Pledge Agreement.
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PURCHASER: As defined in the preamble of this Agreement and its
successors and assigns.
REQUIRED LEASE GUARANTIES: As defined in Section 28 of this Agreement.
REQUIRED LOAN GUARANTIES: As defined in Section 28 of this Agreement.
REQUIRED PREPAYMENT: As defined in Section 28 of this Agreement.
SHAREHOLDERS: As defined in Section 38 of this Agreement.
SPRINGFIELD: As defined in the preamble of this Agreement and its
successors and assigns.
SPRINGFIELD ASSIGNMENT OF LEASES: The Assignment of Leases and Rents,
dated as of August 30, 1996, granted by National Care Centers-Springfield to the
Lender.
SPRINGFIELD FACILITY: The "Facility" as defined under the Springfield
Lease.
SPRINGFIELD GUARANTIES: Collectively, the "Guaranties" as defined under
the Springfield Lease.
SPRINGFIELD INDEMNIFIED MATTERS: As defined in Section 25 of this
Agreement.
SPRINGFIELD INDEMNITEE: As defined in Section 25 of this Agreement.
SPRINGFIELD INDEMNITOR: As defined in Section 25 of this Agreement.
SPRINGFIELD LEASE: That certain Facility Lease Agreement, dated as of
August 30, 1996, as amended, by and between National Care Centers-Springfield
and BCC-Springfield.
SPRINGFIELD LEASE DOCUMENTS: Collectively, the "Lease Documents" as
defined under the Springfield Lease.
SPRINGFIELD PLEDGE AGREEMENT: The Pledge Agreement as defined under the
Springfield Lease.
TRANSACTION DOCUMENTS: Collectively, the BCC/CHC Purchase Agreement and
all other documents and instruments now or hereafter executed and/or delivered
in connection with the BCC/CHC Lease Assignments, including, without limitation,
all documents required by the Lender to be executed and delivered to the Lender
as a condition of its consent to the BCC/CHC Lease Assignments, including,
without limitation, the Required Lease Guaranties and the Required Loan
Guaranties.
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WAKEFIELD: As defined in Section 38 of this Agreement.
WEST PARK ASSIGNMENT OF LEASES: The Assignment of Leases and Rents,
dated as of August 30, 1996, granted by Mt. Xxxxxx to the Lender.
WEST PARK FACILITY: The "Facility" as defined under the West Park
Lease.
WEST PARK GUARANTIES: Collectively, the "Guaranties" as defined under
the West Park Lease.
WEST PARK INDEMNIFIED MATTERS: As defined in Section 26 of this
Agreement.
WEST PARK INDEMNITEE: As defined in Section 26 of this Agreement.
WEST PARK INDEMNITOR: As defined in Section 26 of this Agreement.
WEST PARK LEASE: The Facility Lease Agreement, dated as of August 30,
1996, as amended, by and between Mt. Xxxxxx and BCC-Mt. Xxxxxx Xxxx West.
WEST PARK LEASE DOCUMENTS: Collectively, the "Lease Documents" as
defined under the West Park Lease.
WEST PARK PLEDGE AGREEMENT: The Pledge Agreement as defined under the
West Park Lease.
2. REPRESENTATIONS BY THE BORROWERS: The Borrowers hereby represent and
warrant to the CHC Lessees and the Lender that:
A. To the best knowledge and belief of the Borrowers, there is no
default by any of the Hawthorn Subsidiaries or any of the Balanced Care Lessees
now existing under any of the BCC Missouri Lease Documents and there exists no
state of facts which, with the giving of notice or lapse of time or both, would
constitute a default under any of the BCC Missouri Lease Documents or which has
given rise to a current dispute between any of the Hawthorn Subsidiaries and any
Balanced Care Lessee. No notices of default have been sent to any Balanced Care
Lessee or received by any Hawthorn Subsidiary relating to any such default
which, as of the date hereof, remains uncured or has not been waived. None of
the BCC Missouri Lease Documents are presently in arbitration or litigation and,
to the best knowledge and belief of the Borrowers, none of the Balanced Care
Lessees, as of the date hereof, has any charge, lien, claim or offset under the
BCC Missouri Lease Documents or otherwise against the Rent or other amounts due
or to become due under the BCC Missouri Lease Documents.
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B. Other than BCC/CHC Lease Assignments, the Hawthorn Subsidiaries have
received no written notice of, and have no actual knowledge of, any purported
assignment, hypothecation, subletting, pledge or other transfer of any tenant's
interest under any of the BCC Missouri Lease Documents.
C. Each Borrower is duly authorized to make and enter into this
Agreement. This Agreement has been duly executed and delivered by each Borrower,
and is a legal, valid and binding obligation of each Borrower, enforceable in
accordance with its terms.
D. The execution, delivery and performance of this Agreement and the
consummation of the transactions hereby contemplated shall not result in any
breach of, or constitute a default under, or result in the acceleration of, or
constitute an event which, with the giving of notice or the passage of time, or
both, could result in default or acceleration of any obligation of any Borrower
under any of the Permits or Contracts or any other contract, mortgage, lien,
lease, agreement, instrument, franchise, arbitration award, judgment, decree,
bank loan or credit agreement, trust indenture or other instrument to which any
Borrower is a party or by which any Borrower or all or any portion of the
Mortgaged Property may be bound or affected.
E. Except as already obtained or filed, as the case may be, no consent
or approval or other authorization of, or exemption by, or declaration or filing
with, any Person and no waiver of any right by any Person is required to
authorize or permit, or is otherwise required as a condition of the execution
and delivery of this Agreement by any of the Borrowers and the performance of
such Borrower's obligations hereunder or as a condition to the validity
(assuming the due authorization, execution and delivery of this Agreement by all
other parties hereto) and enforceability of this Agreement.
F. Other than in the Loan Documents, the Hawthorn Subsidiaries have not
assigned, hypothecated, sublet, pledged or otherwise transferred any landlord's
interest under any of the BCC Missouri Lease Documents.
3. REPRESENTATIONS BY THE BALANCED CARE LESSEES: The Balanced Care
Lessees hereby represent and warrant to the Hawthorn Subsidiaries, the CHC
Lessees and the Lender that:
A. The Balanced Care Lessees are the current holders of all of the
tenants' right, title and interest under the BCC Missouri Lease Documents, and
none of the Balanced Care Lessees has assigned, hypothecated, pledged or
otherwise transferred all or any portion of their interests under any of the BCC
Missouri Lease Documents.
B. There exists no default by any landlord or any tenant now existing
under any of the BCC Missouri Lease Documents, nor have any notices of default
been sent to any landlord or received by any of the Balanced Care Lessees
relating to any such default which, as of the
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date hereof, remains uncured or has not been waived, and, to the best knowledge
and belief of the Balanced Care Lessees, there exists no state of facts which,
with the giving of notice or lapse of time or both, would constitute a default
under any of the BCC Missouri Lease Documents or which has given rise to a
current dispute between any landlord and any tenant thereunder. None of the BCC
Missouri Lease Documents are presently in arbitration or litigation and none of
the Balanced Care Lessees, as of the date hereof, has any charge, lien, claim or
offset under the BCC Missouri Lease Documents or otherwise against the Rent or
other amounts due or to become due under the BCC Missouri Lease Documents.
C. Except for the Assignments of Leases and the Omnibus Assignment of
Contracts, the Balanced Care Lessees have received no written notice of, and
have no actual knowledge of, any purported assignment, hypothecation,
subletting, pledge or other transfer of the landlords' interests under the BCC
Missouri Lease Documents.
D. Each Balanced Care Lessee is duly authorized to make and enter into
this Agreement and to carry out the transactions contemplated in and under the
Transaction Documents. This Agreement and each Transaction Document to which any
Balanced Care Lessee is a party have been duly executed and delivered by such
Balanced Care Lessee, and each is a legal, valid and binding obligation of such
Balanced Care Lessee, enforceable in accordance with its terms.
E. The execution, delivery and performance of this Agreement and the
Transaction Documents and the consummation of the transactions thereby
contemplated shall not result in any breach of, or constitute a default under,
or result in the acceleration of, or constitute an event which, with the giving
of notice or the passage of time, or both, could result in default or
acceleration of any obligation of any Balanced Care Lessee under any permit,
contract, mortgage, lien, lease, agreement, instrument, franchise, arbitration
award, judgment, decree, bank loan or credit agreement, trust indenture or other
instrument to which any Balanced Care Lessee is a party or by which any Balanced
Care Lessee or all or any portion of the Mortgaged Property may be bound or
affected and do not violate or contravene any Legal Requirement.
F. Except as already obtained or filed, as the case may be, no consent
or approval or other authorization of, or exemption by, or declaration or filing
with, any Person and no waiver of any right by any Person is required to
authorize or permit, or is otherwise required as a condition of, the execution
and delivery of this Agreement or any of the Transaction Documents by any
Balanced Care Lessee and the performance of such Balanced Care Lessee's
obligations thereunder or as a condition to the validity (assuming the due
authorization, execution and delivery of this Agreement and the Transaction
Documents by all other applicable parties thereto) and enforceability of this
Agreement and/or the Transaction Documents.
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4. REPRESENTATIONS BY THE BALANCED CARE GUARANTORS: The Balanced Care
Guarantors hereby represent and warrant to the Hawthorn Subsidiaries, the CHC
Lessees and the Lender that:
A. Each Balanced Care Guarantor is duly authorized to make and enter
into this Agreement and to carry out the transactions contemplated in and under
this Agreement and the Transaction Documents. This Agreement and each
Transaction Document to which any Balanced Care Guarantor is a party have been
duly executed and delivered by such Balanced Care Guarantor, and each is a
legal, valid and binding obligation of such Balanced Care Guarantor, enforceable
in accordance with its terms.
B. The execution, delivery and performance of this Agreement and the
Transaction Documents and the consummation of the transactions thereby
contemplated shall not result in any breach of, or constitute a default under,
or result in the acceleration of, or constitute an event which, with the giving
of notice or the passage of time, or both, could result in default or
acceleration of any obligation of any Balanced Care Guarantor under any permit,
contract, mortgage, lien, lease, agreement, instrument, franchise, arbitration
award, judgment, decree, bank loan or credit agreement, trust indenture or other
instrument to which such Balanced Care Guarantor is a party or by which such
Balanced Care Guarantor may be bound and do not violate or contravene any Legal
Requirement.
C. Except as already obtained or filed, as the case may be, no consent
or approval or other authorization of, or exemption by, or declaration or filing
with, any Person and no waiver of any right by any Person is required to
authorize or permit, or is otherwise required as a condition of the execution
and delivery of this Agreement or any of the Transaction Documents by any
Balanced Care Guarantor and the performance of such Balanced Care Guarantor's
obligations thereunder or as a condition to the validity (assuming the due
authorization, execution and delivery of this Agreement and the Transaction
Documents by all other applicable parties thereto) and enforceability of this
Agreement and/or the Transaction Documents.
D. Balanced Care has delivered true and correct copies of the Loan
Documents and the BCC Missouri Lease Documents to CHC.
5. REPRESENTATIONS BY THE CHC LESSEES AND XXXXXXX: The CHC Lessees and
Xxxxxxx hereby represent and warrant to the Lender, the Hawthorn Subsidiaries,
the Balanced Care Lessees and the Balanced Care Guarantors that:
A. Each CHC Lessee is a nonprofit corporation duly organized, validly
existing and in good standing under the laws of the State of Missouri. Each CHC
Lessee has all requisite corporate power to own and operate its properties and
to carry on its purpose as now conducted and as proposed to be conducted (under
the BCC Missouri Lease Documents, subsequent to the consummation of the BCC/CHC
Lease Assignments) and is duly qualified to
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transact business and is in good standing in each jurisdiction where such
qualification is necessary or desirable in order to carry out its purpose as
presently conducted and as proposed to be conducted. As of the date of this
Agreement, none of the CHC Lessees has any Subsidiaries and none of the CHC
Lessees is a member of any partnership or joint venture.
CHC is the sole member of each of the CHC Lessees.
B. Each CHC Lessee is duly authorized to make and enter into this
Agreement and to carry out the transactions contemplated in and under this
Agreement, the BCC Missouri Lease Documents and the Transaction Documents. This
Agreement and each Transaction Document to which any CHC Lessee is a party have
been duly executed and delivered by such CHC Lessee, and each is a legal, valid
and binding obligation of such CHC Lessee, enforceable in accordance with its
terms.
C. The execution, delivery and performance of this Agreement and the
Transaction Documents and the consummation of the transactions thereby
contemplated shall not result in any breach of, or constitute a default under,
or result in the acceleration of, or constitute an event which, with the giving
of notice or the passage of time, or both, could result in default or
acceleration of any obligation of any member of the CHC Group under any of the
Permits or Contracts or any other contract, mortgage, lien, lease, agreement,
instrument, franchise, arbitration award, judgment, decree, bank loan or credit
agreement, trust indenture or other instrument to which any member of the CHC
Group is a party or by which any member of the CHC Group or all or any portion
of the Mortgaged Property may be bound or affected and do not violate or
contravene any Legal Requirement.
D. Except as already obtained or filed, as the case may be, no consent
or approval or other authorization of, or exemption by, or declaration or filing
with, any Person and no waiver of any right by any Person is required to
authorize or permit, or is otherwise required as a condition of the execution
and delivery of this Agreement or any of the Transaction Documents by any member
of the CHC Group and the performance of such member's obligations thereunder or
as a condition to the validity (assuming the due authorization, execution and
delivery of this Agreement and the Transaction Documents by all other applicable
parties thereto) and enforceability of this Agreement and/or the Transaction
Documents and, subject to the terms of the Intercreditor Agreement, the first
priority of any Liens granted by the CHC Lessees under the BCC Missouri Lease
Documents (by virtue of the BCC/CHC Lease Assignments), except the filing of
financing statements with appropriate Governmental Authorities.
E. Each member of the CHC Group is financially solvent and there are no
actions, suits, investigations or proceedings including, without limitation,
outstanding federal or state tax liens, garnishments or insolvency or bankruptcy
proceedings, pending or, to the best of knowledge and belief of the CHC Lessees
and Xxxxxxx, threatened:
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(i) against or affecting any member of the CHC Group, which if
adversely resolved to such member of the CHC Group, would materially
adversely affect the ability of any of the foregoing to perform their
respective obligations under this Agreement or any of the Transaction
Documents; or
(ii) which may involve or affect the validity, priority or
enforceability of this Agreement or any of the Transaction Documents,
at law or in equity, or before or by any arbitrator or Governmental
Authority.
F. No member of the CHC Group is a party to any agreement the terms of
which now have, or, as far as can be reasonably foreseen, may have, a material
adverse affect on its respective financial condition or business or on the
operation of the Mortgaged Property.
G. After giving effect to the consummation of the transactions
contemplated by this Agreement and the Transaction Documents, each member of the
CHC Group:
(i) will be able to pay its debts as they become due;
(ii) will have sufficient funds and capital to carry on its
business as now conducted or as contemplated to be conducted (in
accordance with the terms of the BCC Missouri Lease Documents);
(iii) will own property having a value both at fair valuation
and at present fair saleable value greater than the amount required to
pay its debts as they become due; and
(iv) will not be rendered insolvent as determined by
applicable law.
H. No member of the CHC Group is delinquent or claimed to be delinquent
under any obligation for the payment of borrowed money.
I. None of the CHC Lessees has created, incurred, guaranteed, endorsed,
assumed or suffered to exist any liability (whether direct or contingent) for
borrowed money from any member of the CHC Group or any other Affiliate that is
not fully subordinated to the BCC Missouri Lease Obligations pursuant to the
Affiliated Party Subordination Agreements.
J. The financial statements of any member of the CHC Group given to the
Lender in connection with the execution and delivery of this Agreement were
true, complete and accurate, in all material respects, and fairly presented the
financial condition of each such member of the CHC Group as of the date thereof
and for the periods covered thereby, having been prepared in accordance with
GAAP, except as reflected in the notes thereto and such financial statements
disclosed all liabilities, including, without limitation, contingent
liabilities, of each such member of the CHC Group. There has been no material
adverse change since
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such date with respect to the tangible net worth of any member of the CHC Group
or with respect to any other matters contained in such financial statements, nor
have any additional material liabilities, including, without limitation,
contingent liabilities, of any member of the CHC Group arisen or been incurred
or asserted since such date.
K. Neither this Agreement, nor any of the Transaction Documents, nor
any certificate, agreement, statement or other document, including, without
limitation, any financial statements concerning the financial condition of any
member of the CHC Group, furnished to or to be furnished to the Lender or any of
its attorneys in connection with the transactions contemplated by this Agreement
or any of the Transaction Documents, contains or will contain any untrue
statement of a material fact or omits or will omit to state a material fact
necessary in order to prevent all statements contained herein and therein from
being misleading in any material respect. There is no fact within the special
knowledge of any member of the CHC Group which has not been disclosed herein or
in writing to the Lender that materially adversely affects, or in the future,
insofar as the CHC Lessees can reasonably foresee, may materially adversely
affect the business, properties, assets or condition, financial or otherwise, of
any member of the CHC Group or the Mortgaged Property.
L. There are no Management Agreements in force and effect as of the
date hereof, except the Cornerstone Management Agreements.
6. ASSIGNMENT BY BCC-HERMITAGE: BCC-Hermitage hereby assigns,
transfers, sets over and conveys to CHC-Hermitage all of BCC-Hermitage's right,
title and interest in, to and under the Hermitage Lease and the other Hermitage
Lease Documents, including, without limitation, the documents listed on EXHIBIT
A attached hereto and incorporated herein by reference; but, excluding, however,
the Hermitage Pledge Agreement.
7. ASSIGNMENT BY BCC-LEBANON CARE: BCC-Lebanon Care hereby assigns,
transfers, sets over and conveys to CHC-Lebanon North all of BCC-Lebanon Care's
right, title and interest in, to and under the Lebanon Care Lease and the other
Lebanon Care Lease Documents, including, without limitation, the documents
listed on EXHIBIT B attached hereto and incorporated herein by reference; but,
excluding, however, the Lebanon Care Pledge Agreement.
8. ASSIGNMENT BY BCC-LEBANON PARK: BCC-Lebanon Park hereby assigns,
transfers, sets over and conveys to CHC-Lebanon South all of BCC-Lebanon Park's
right, title and interest in, to and under the Lebanon Park Lease and the other
Lebanon Park Lease Documents, including, without limitation, the documents
listed on EXHIBIT C attached hereto and incorporated herein by reference; but,
excluding, however, the Lebanon Park Pledge Agreement.
9. ASSIGNMENT BY BCC-MT XXXXXX XXXX: BCC-Mt. Xxxxxx Xxxx hereby
assigns, transfers, sets over and conveys to CHC-Springfield West all of BCC-Mt.
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Xxxxxx Xxxx'x right, title and interest in, to and under the Mt.Xxxxxx Lease and
the other Mt.Xxxxxx Lease Documents, including, without limitation, the
documents listed on EXHIBIT D attached hereto and incorporated herein by
reference; but, excluding, however, the Mt. Xxxxxx Pledge Agreement.
10. ASSIGNMENT BY BCC-NIXA: BCC-Nixa hereby assigns, transfers, sets
over and conveys to CHC-Nixa all of BCC-Nixa's right, title and interest in, to
and under the Nixa Lease and the other Nixa Lease Documents, including, without
limitation, the documents listed on EXHIBIT E attached hereto and incorporated
herein by reference; but, excluding, however, the Nixa Pledge Agreement.
11. ASSIGNMENT BY BCC-SPRINGFIELD: BCC-Springfield hereby assigns,
transfers, sets over and conveys to CHC-Springfield East all of
BCC-Springfield's right, title and interest in, to and under the Springfield
Lease and the other Springfield Lease Documents, including, without limitation,
the documents listed on EXHIBIT F attached hereto and incorporated herein by
reference; but, excluding, however, the Springfield Pledge Agreement.
12. ASSIGNMENT BY BCC-MT. XXXXXX XXXX: BCC-Mt. Xxxxxx Xxxx hereby
assigns, transfers, sets over and conveys to CHC-Springfield West Park all of
BCC-Mt. Xxxxxx Xxxx'x right, title and interest in, to and under the West Park
Lease and the other West Park Lease Documents, including, without limitation,
the documents listed on EXHIBIT G attached hereto and incorporated herein by
reference; but, excluding, however, the West Park Pledge Agreement.
13. ASSUMPTION BY CHC-HERMITAGE: CHC-Hermitage does hereby assume and
agree to perform all of BCC-Hermitage's obligations with respect to the
Hermitage Lease and the other Hermitage Lease Documents (excluding, however, the
Hermitage Pledge Agreement) accruing from and after the date hereof.
BCC-Hermitage shall remain liable for all of BCC-Hermitage's obligations with
respect to the Hermitage Lease and the other Hermitage Lease Documents accruing
prior to the date hereof.
14. ASSUMPTION BY CHC-LEBANON NORTH: CHC-Lebanon North does hereby
assume and agree to perform all of BCC-Lebanon Care's obligations with respect
to the Lebanon Care Lease and the other Lebanon Care Lease Documents (excluding,
however, the Lebanon Care Pledge Agreement) accruing from and after the date
hereof. BCC-Lebanon Care shall remain liable for all of BCC-Lebanon Care's
obligations with respect to the Lebanon Care Lease and the other Lebanon Care
Lease Documents accruing prior to the date hereof.
15. ASSUMPTION BY CHC-LEBANON SOUTH: CHC-Lebanon South does hereby
assume and agree to perform all of BCC-Lebanon Park's obligations with respect
to the Lebanon Park Lease and the other Lebanon Park Lease Documents (excluding,
however, the Lebanon Park Pledge Agreement) accruing from and after the date
hereof. BCC-Lebanon Park
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shall remain liable for all of BCC-Lebanon Park's obligations with respect to
the Lebanon Park Lease and the other Lebanon Park Lease Documents accruing prior
to the date hereof.
16. ASSUMPTION BY CHC-SPRINGFIELD WEST: CHC-Springfield West does
hereby assume and agree to perform all of BCC-Mt. Xxxxxx Xxxx'x obligations with
respect to the Mt. Xxxxxx Lease and the other Mt. Xxxxxx Lease Documents
(excluding, however, the Mt. Xxxxxx Pledge Agreement) accruing from and after
the date hereof. BCC-Mt. Xxxxxx Xxxx shall remain liable for all of BCC-Mt.
Xxxxxx Xxxx'x obligations with respect to the Mt. Xxxxxx Lease and the other Mt.
Xxxxxx Lease Documents accruing prior to the date hereof.
17. ASSUMPTION BY CHC-NIXA: CHC-Nixa does hereby assume and agree to
perform all of BCC-Nixa's obligations with respect to the Nixa Lease and the
other Nixa Lease Documents (excluding, however, the Nixa Pledge Agreement)
accruing from and after the date hereof. BCC-Nixa shall remain liable for all of
BCC-Nixa's obligations with respect to the Nixa Lease and the other Nixa Lease
Documents accruing prior to the date hereof.
18. ASSUMPTION BY CHC-SPRINGFIELD EAST: CHC-Springfield East does
hereby assume and agree to perform all of BCC-Springfield's obligations with
respect to the Springfield Lease and the other Springfield Lease Documents
(excluding, however, the Springfield Pledge Agreement) accruing from and after
the date hereof. BCC-Springfield shall remain liable for all of
BCC-Springfield's obligations with respect to the Springfield Lease and the
other Springfield Lease Documents accruing prior to the date hereof.
19. ASSUMPTION BY CHC-SPRINGFIELD WEST PARK: CHC-Springfield West Park
does hereby assume and agree to perform all of BCC-Mt. Xxxxxx Xxxx'x obligations
with respect to the West Park Lease and the other West Park Lease Documents
(excluding, however, the West Park Pledge Agreement) accruing from and after the
date hereof. BCC-Mt. Xxxxxx Xxxx shall remain liable for all of BCC-Mt. Xxxxxx
Xxxx'x obligations with respect to the West Park Lease and the other West Park
Lease Documents accruing prior to the date hereof.
20. HERMITAGE INDEMNIFICATION: BCC-Hermitage and CHC-Hermitage agree to
protect, indemnify, defend and hold harmless each other from and against any and
all of the following matters (collectively, the "Hermitage Indemnified
Matters"): claims, demands, actions, lawsuits, proceedings, judgments,
liabilities, losses, costs, damages and expenses (including reasonable
attorneys' fees and costs) directly or indirectly arising out of or related to
any breach or default in such party's obligations under Section 13 of this
Agreement and the enforcement of the provisions of this Section. BCC-Hermitage
and CHC-Hermitage each agree to promptly notify the other in writing upon
learning of any such claim or cause of action.
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In the event that any action, suit or proceeding is brought against
either BCC-Hermitage or CHC-Hermitage (the "Hermitage Indemnitee") with respect
to any Hermitage Indemnified Matter, the action, suit or proceeding shall, at
the written election made by the other party (the "Hermitage Indemnitor") within
fifteen (15) Business Days after the Hermitage Indemnitor's receipt of written
notice of the commencement of such action, suit or proceeding, be defended by
the Hermitage Indemnitor (including all proceedings on appeal or for review in
connection therewith) at the Hermitage Indemnitor's expense and liability.
Pending the Hermitage Indemnitor's election hereunder, the Hermitage Indemnitee
shall have the right to employ its own counsel to file a request for an
extension of time to file an answer, or to file an answer if the Hermitage
Indemnitor fails to have its counsel file an answer within three (3) Business
Days prior to the expiration of the period within which an answer must be filed,
as such period may be extended. The Hermitage Indemnitee shall have the right to
employ its own counsel, for the duration of such action, suit or proceeding, but
the fees and expenses of such counsel shall be at the expense of the Hermitage
Indemnitee unless the Hermitage Indemnitor has not elected within the required
time period to defend any such action, suit or proceeding, or unless the actions
or inactions by counsel retained by the Hermitage Indemnitor appear reasonably
likely to result in a judgment against the Hermitage Indemnitee because of a
failure to defend the action in a reasonably prudent manner (the burden to prove
the same by a preponderance of the evidence to rest with the Hermitage
Indemnitee), in which event the Hermitage Indemnitor shall pay such counsel's
fees and expenses. The Hermitage Indemnitor shall keep the Hermitage Indemnitee
reasonably informed of any action, suit or proceeding at all stages thereof,
whether or not it is represented by its own counsel. The provisions of this
Section shall not impair, limit, restrict, abridge or reduce the respective
indemnification obligations of Balanced Care, the Balanced Care Entities and the
CHC Group pursuant to the Asset Purchase Agreement and the Transaction
Documents.
The provisions of this Section shall survive the Closing of the
transactions contemplated by this Agreement.
21. LEBANON CARE INDEMNIFICATION: BCC-Lebanon Care and CHC-Lebanon
North agree to protect, indemnify, defend and hold harmless each other from and
against any and all of the following matters (collectively, the "Lebanon Care
Indemnified Matters"): claims, demands, actions, lawsuits, proceedings,
judgments, liabilities, losses, costs, damages and expenses (including
reasonable attorneys' fees and costs) directly or indirectly arising out of or
related to any breach or default in such party's obligations under Section 14 of
this Agreement and the enforcement of the provisions of this Section. BCC-
Lebanon Care and CHC-Lebanon North each agree to promptly notify the other in
writing upon learning of any such claim or cause of action.
In the event that any action, suit or proceeding is brought against
either BCC-Lebanon Care or CHC-Lebanon North (the "Lebanon Care Indemnitee")
with respect to any Lebanon Care Indemnified Matter, the action, suit or
proceeding shall, at the written election made by
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the other party (the "Lebanon Care Indemnitor") within fifteen (15) Business
Days after the Lebanon Care Indemnitor's receipt of written notice of the
commencement of such action, suit or proceeding, be defended by the Lebanon Care
Indemnitor (including all proceedings on appeal or for review in connection
therewith) at the Lebanon Care Indemnitor's expense and liability. Pending the
Lebanon Care Indemnitor's election hereunder, the Lebanon Care Indemnitee shall
have the right to employ its own counsel to file a request for an extension of
time to file an answer, or to file an answer if the Lebanon Care Indemnitor
fails to have its counsel file an answer within three (3) Business Days prior to
the expiration of the period within which an answer must be filed, as such
period may be extended. The Lebanon Care Indemnitee shall have the right to
employ its own counsel, for the duration of such action, suit or proceeding, but
the fees and expenses of such counsel shall be at the expense of the Lebanon
Care Indemnitee unless the Lebanon Care Indemnitor has not elected within the
required time period to defend any such action, suit or proceeding, or unless
the actions or inactions by counsel retained by the Lebanon Care Indemnitor
appear reasonably likely to result in a judgment against the Lebanon Care
Indemnitee because of a failure to defend the action in a reasonably prudent
manner (the burden to prove the same by a preponderance of the evidence to rest
with the Lebanon Care Indemnitee), in which event the Lebanon Care Indemnitor
shall pay such counsel's fees and expenses. The Lebanon Care Indemnitor shall
keep the Lebanon Care Indemnitee reasonably informed of any action, suit or
proceeding at all stages thereof, whether or not it is represented by its own
counsel. The provisions of this Section shall not impair, limit, restrict,
abridge or reduce the respective indemnification obligations of Balanced Care,
the Balanced Care Entities and the CHC Group pursuant to the Asset Purchase
Agreement and the Transaction Documents.
The provisions of this Section shall survive the Closing of the
transactions contemplated by this Agreement.
22. LEBANON PARK INDEMNIFICATION: BCC-Lebanon Park and CHC-Lebanon
South agree to protect, indemnify, defend and hold harmless each other from and
against any and all of the following matters (collectively, the "Lebanon Park
Indemnified Matters"): claims, demands, actions, lawsuits, proceedings,
judgments, liabilities, losses, costs, damages and expenses (including
reasonable attorneys' fees and costs) directly or indirectly arising out of or
related to any breach or default in such party's obligations under Section 15 of
this Agreement and the enforcement of the provisions of this Section.
BCC-Lebanon Park and CHC-Lebanon South each agree to promptly notify the other
in writing upon learning of any such claim or cause of action.
In the event that any action, suit or proceeding is brought against
either BCC-Lebanon Park or CHC-Lebanon South (the "Lebanon Park Indemnitee")
with respect to any Lebanon Park Indemnified Matter, the action, suit or
proceeding shall, at the written election made by the other party (the "Lebanon
Park Indemnitor") within fifteen (15) Business Days after the Lebanon Park
Indemnitor's receipt of written notice of the commencement of such action, suit
or proceeding, be defended by the Lebanon Park Indemnitor (including all
proceedings on
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appeal or for review in connection therewith) at the Lebanon Park Indemnitor's
expense and liability. Pending the Lebanon Park Indemnitor's election hereunder,
the Lebanon Park Indemnitee shall have the right to employ its own counsel to
file a request for an extension of time to file an answer, or to file an answer
if the Lebanon Park Indemnitor fails to have its counsel file an answer within
three (3) Business Days prior to the expiration of the period within which an
answer must be filed, as such period may be extended. The Lebanon Park
Indemnitee shall have the right to employ its own counsel, for the duration of
such action, suit or proceeding, but the fees and expenses of such counsel shall
be at the expense of the Lebanon Park Indemnitee unless the Lebanon Park
Indemnitor has not elected within the required time period to defend any such
action, suit or proceeding, or unless the actions or inactions by counsel
retained by the Lebanon Park Indemnitor appear reasonably likely to result in a
judgment against the Lebanon Park Indemnitee because of a failure to defend the
action in a reasonably prudent manner (the burden to prove the same by a
preponderance of the evidence to rest with the Lebanon Park Indemnitee), in
which event the Lebanon Park Indemnitor shall pay such counsel's fees and
expenses. The Lebanon Park Indemnitor shall keep the Lebanon Park Indemnitee
reasonably informed of any action, suit or proceeding at all stages thereof,
whether or not it is represented by its own counsel. The provisions of this
Section shall not impair, limit, restrict, abridge or reduce the respective
indemnification obligations of Balanced Care, the Balanced Care Entities and the
CHC Group pursuant to the Asset Purchase Agreement and the Transaction
Documents.
The provisions of this Section shall survive the Closing of the
transactions contemplated by this Agreement.
23. MT. XXXXXX INDEMNIFICATION: BCC-Mt. Xxxxxx Xxxx and CHC-Springfield
West agree to protect, indemnify, defend and hold harmless each other from and
against any and all of the following matters (collectively, the "Mt. Xxxxxx
Indemnified Matters"): claims, demands, actions, lawsuits, proceedings,
judgments, liabilities, losses, costs, damages and expenses (including
reasonable attorneys' fees and costs) directly or indirectly arising out of or
related to any breach or default in such party's obligations under Section 16 of
this Agreement and the enforcement of the provisions of this Section. BCC-Mt.
Xxxxxx Xxxx and CHC-Springfield West each agree to promptly notify the other in
writing upon learning of any such claim or cause of action.
In the event that any action, suit or proceeding is brought against
either BCC-Mt. Xxxxxx Xxxx or CHC-Springfield West (the "Mt. Xxxxxx Indemnitee")
with respect to any Mt. Xxxxxx Indemnified Matter, the action, suit or
proceeding shall, at the written election made by the other party (the "Mt.
Xxxxxx Indemnitor") within fifteen (15) Business Days after the Mt. Xxxxxx
Indemnitor's receipt of written notice of the commencement of such action, suit
or proceeding, be defended by the Mt. Xxxxxx Indemnitor (including all
proceedings on appeal or for review in connection therewith) at the Mt. Xxxxxx
Indemnitor's expense and liability. Pending the Mt. Xxxxxx Indemnitor's election
hereunder, the Mt. Xxxxxx Indemnitee shall have the right to employ its own
counsel to file a request for an
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extension of time to file an answer, or to file an answer if the Mt. Xxxxxx
Indemnitor fails to have its counsel file an answer within three (3) Business
Days prior to the expiration of the period within which an answer must be filed,
as such period may be extended. The Mt. Xxxxxx Indemnitee shall have the right
to employ its own counsel, for the duration of such action, suit or proceeding,
but the fees and expenses of such counsel shall be at the expense of the Mt.
Xxxxxx Indemnitee unless the Mt. Xxxxxx Indemnitor has not elected within the
required time period to defend any such action, suit or proceeding, or unless
the actions or inactions by counsel retained by the Mt. Xxxxxx Indemnitor appear
reasonably likely to result in a judgment against the Mt. Xxxxxx Indemnitee
because of a failure to defend the action in a reasonably prudent manner (the
burden to prove the same by a preponderance of the evidence to rest with the Mt.
Xxxxxx Indemnitee), in which event the Mt. Xxxxxx Indemnitor shall pay such
counsel's fees and expenses. The Mt. Xxxxxx Indemnitor shall keep the Mt. Xxxxxx
Indemnitee reasonably informed of any action, suit or proceeding at all stages
thereof, whether or not it is represented by its own counsel. The provisions of
this Section shall not impair, limit, restrict, abridge or reduce the respective
indemnification obligations of Balanced Care, the Balanced Care Entities and the
CHC Group pursuant to the Asset Purchase Agreement and the Transaction
Documents.
The provisions of this Section shall survive the Closing of the
transactions contemplated by this Agreement.
24. NIXA INDEMNIFICATION: BCC-Nixa and CHC-Nixa agree to protect,
indemnify, defend and hold harmless each other from and against any and all of
the following matters (collectively, the "Nixa Indemnified Matters"): claims,
demands, actions, lawsuits, proceedings, judgments, liabilities, losses, costs,
damages and expenses (including reasonable attorneys' fees and costs) directly
or indirectly arising out of or related to any breach or default in such party's
obligations under Section 17 of this Agreement and the enforcement of the
provisions of this Section. BCC-Nixa and CHC-Nixa each agree to promptly notify
the other in writing upon learning of any such claim or cause of action.
In the event that any action, suit or proceeding is brought against
either BCC-Nixa or CHC-Nixa (the "Nixa Indemnitee") with respect to any Nixa
Indemnified Matter, the action, suit or proceeding shall, at the written
election made by the other party (the "Nixa Indemnitor") within fifteen (15)
Business Days after the Nixa Indemnitor's receipt of written notice of the
commencement of such action, suit or proceeding, be defended by the Nixa
Indemnitor (including all proceedings on appeal or for review in connection
therewith) at the Nixa Indemnitor's expense and liability. Pending the Nixa
Indemnitor's election hereunder, the Nixa Indemnitee shall have the right to
employ its own counsel to file a request for an extension of time to file an
answer, or to file an answer if the Nixa Indemnitor fails to have its counsel
file an answer within three (3) Business Days prior to the expiration of the
period within which an answer must be filed, as such period may be extended. The
Nixa Indemnitee shall have the right to employ its own counsel, for the duration
of such action, suit or proceeding, but the fees and expenses of such counsel
shall be at the expense of the Nixa
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Indemnitee unless the Nixa Indemnitor has not elected within the required time
period to defend any such action, suit or proceeding, or unless the actions or
inactions by counsel retained by the Nixa Indemnitor appear reasonably likely to
result in a judgment against the Nixa Indemnitee because of a failure to defend
the action in a reasonably prudent manner (the burden to prove the same by a
preponderance of the evidence to rest with the Nixa Indemnitee), in which event
the Nixa Indemnitor shall pay such counsel's fees and expenses. The Nixa
Indemnitor shall keep the Nixa Indemnitee reasonably informed of any action,
suit or proceeding at all stages thereof, whether or not it is represented by
its own counsel. The provisions of this Section shall not impair, limit,
restrict, abridge or reduce the respective indemnification obligations of
Balanced Care, the Balanced Care Entities and the CHC Group pursuant to the
Asset Purchase Agreement and the Transaction Documents.
The provisions of this Section shall survive the Closing of the
transactions contemplated by this Agreement.
25. SPRINGFIELD INDEMNIFICATION: BCC-Springfield and CHC-Springfield
East agree to protect, indemnify, defend and hold harmless each other from and
against any and all of the following matters (collectively, the "Springfield
Indemnified Matters"): claims, demands, actions, lawsuits, proceedings,
judgments, liabilities, losses, costs, damages and expenses (including
reasonable attorneys' fees and costs) directly or indirectly arising out of or
related to any breach or default in such party's obligations under Section 18 of
this Agreement and the enforcement of the provisions of this Section.
BCC-Springfield and CHC-Springfield East each agree to promptly notify the other
in writing upon learning of any such claim or cause of action.
In the event that any action, suit or proceeding is brought against
either BCC-Springfield and CHC-Springfield East (the "Springfield Indemnitee")
with respect to any Indemnified Matter, the action, suit or proceeding shall, at
the written election made by the other party (the "Springfield Indemnitor")
within fifteen (15) Business Days after the Springfield Indemnitor's receipt of
written notice of the commencement of such action, suit or proceeding, be
defended by the Springfield Indemnitor (including all proceedings on appeal or
for review in connection therewith) at the Springfield Indemnitor's expense and
liability. Pending the Springfield Indemnitor's election hereunder, the
Springfield Indemnitee shall have the right to employ its own counsel to file a
request for an extension of time to file an answer, or to file an answer if the
Springfield Indemnitor fails to have its counsel file an answer within three (3)
Business Days prior to the expiration of the period within which an answer must
be filed, as such period may be extended. The Springfield Indemnitee shall have
the right to employ its own counsel, for the duration of such action, suit or
proceeding, but the fees and expenses of such counsel shall be at the expense of
the Springfield Indemnitee unless the Springfield Indemnitor has not elected
within the required time period to defend any such action, suit or proceeding,
or unless the actions or inactions by counsel retained by the Springfield
Indemnitor appear reasonably likely to result in a judgment against the
Springfield Indemnitee because of a failure to defend the action in a reasonably
prudent manner (the
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burden to prove the same by a preponderance of the evidence to rest with the
Springfield Indemnitee), in which event the Springfield Indemnitor shall pay
such counsel's fees and expenses. The Springfield Indemnitor shall keep the
Springfield Indemnitee reasonably informed of any action, suit or proceeding at
all stages thereof, whether or not it is represented by its own counsel. The
provisions of this Section shall not impair, limit, restrict, abridge or reduce
the respective indemnification obligations of Balanced Care, the Balanced Care
Entities and the CHC Group pursuant to the Asset Purchase Agreement and the
Transaction Documents.
The provisions of this Section shall survive the Closing of the
transactions contemplated by this Agreement.
26. WEST PARK INDEMNIFICATION: BCC-Mt. Xxxxxx Xxxx and CHC-Springfield
West Park agree to protect, indemnify, defend and hold harmless each other from
and against any and all of the following matters (collectively, the "West Park
Indemnified Matters"): claims, demands, actions, lawsuits, proceedings,
judgments, liabilities, losses, costs, damages and expenses (including
reasonable attorneys' fees and costs) directly or indirectly arising out of or
related to any breach or default in such party's obligations under Section 19 of
this Agreement and the enforcement of the provisions of this Section. BCC-Mt.
Xxxxxx Xxxx and CHC-Springfield West Park each agree to promptly notify the
other in writing upon learning of any such claim or cause of action.
In the event that any action, suit or proceeding is brought against
either BCC-Mt. Xxxxxx Xxxx and CHC-Springfield West Park (the "West Park
Indemnitee") with respect to any West Park Indemnified Matter, the action, suit
or proceeding shall, at the written election made by the other party (the "West
Park Indemnitor") within fifteen (15) Business Days after the West Park
Indemnitor's receipt of written notice of the commencement of such action, suit
or proceeding, be defended by the West Park Indemnitor (including all
proceedings on appeal or for review in connection therewith) at the West Park
Indemnitor's expense and liability. Pending the West Park Indemnitor's election
hereunder, the West Park Indemnitee shall have the right to employ its own
counsel to file a request for an extension of time to file an answer, or to file
an answer if the West Park Indemnitor fails to have its counsel file an answer
within three (3) Business Days prior to the expiration of the period within
which an answer must be filed, as such period may be extended. The West Park
Indemnitee shall have the right to employ its own counsel, for the duration of
such action, suit or proceeding, but the fees and expenses of such counsel shall
be at the expense of the West Park Indemnitee unless the West Park Indemnitor
has not elected within the required time period to defend any such action, suit
or proceeding, or unless the actions or inactions by counsel retained by the
West Park Indemnitor appear reasonably likely to result in a judgment against
the West Park Indemnitee because of a failure to defend the action in a
reasonably prudent manner (the burden to prove the same by a preponderance of
the evidence to rest with the West Park Indemnitee), in which event the West
Park Indemnitor shall pay such counsel's fees and expenses. The West Park
Indemnitor shall keep the West Park Indemnitee reasonably
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informed of any action, suit or proceeding at all stages thereof, whether or not
it is represented by its own counsel. The provisions of this Section shall not
impair, limit, restrict, abridge or reduce the respective indemnification
obligations of Balanced Care, the Balanced Care Entities and the CHC Group
pursuant to the Asset Purchase Agreement and the Transaction Documents.
The provisions of this Section shall survive the Closing of the
transactions contemplated by this Agreement.
27. CONSENT FROM THE BORROWERS AND THE LENDER: In consideration of the
Lender agreeing to consent to the BCC/CHC Lease Assignments and as a condition
precedent to the effectiveness of this Agreement, the Lender requires that prior
to the consummation of the BCC/CHC Lease Assignments:
A. An amount not less than Four Million Dollars ($4,000,000) shall be
paid to the Lender to be applied toward the Hawthorn Loan (the "Required
Prepayment"). Notwithstanding anything to the contrary set forth in the Loan
Documents, no Prepayment Fee shall be due and payable as a consequence of the
Required Prepayment.
B. Balanced Care, CHC, CPI and Xxxxxxx shall execute and deliver to the
Lender joint and several guaranties of the Loan Obligations, pursuant to
guaranties in form and substance acceptable to the Lender (collectively, the
"Required Loan Guaranties").
C. CHC, CPI and Xxxxxxx shall execute and deliver to the Lender (in its
capacity as the assignee under the Assignment of Leases) joint and several
guaranties of the BCC Missouri Lease Obligations, pursuant to guaranties in form
and substance acceptable to the Lender (collectively, the "Required Lease
Guaranties").
D. Balanced Care and those Affiliates that have entered into
transactions with any Meditrust Entities shall have executed and delivered to
the Lender and the other applicable Meditrust Entities, a cross-default
agreement in form and substance acceptable to the Lender and such Meditrust
Entities (the "Cross-Default Agreement"), confirming that a Loan Default under
any of the Loan Documents will trigger a default under the transaction documents
with such Affiliates of Balanced Care.
Subject to the satisfaction of the conditions set forth above, the
Lender hereby consents to the BCC/CHC Lease Assignments. Without limiting any of
the provisions set forth in the Omnibus Assignment of Contracts, the Borrowers
hereby consent to and waive any and all objections to the BCC/CHC Lease
Assignments and the Lender's consent to the BCC/CHC Lease Assignments.
28. AMENDMENT OF LOAN DOCUMENTS:
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A. AMENDMENT OF LOAN AGREEMENT. After giving effect to the BCC/CHC
Lease Assignments (consummated by virtue of the execution and delivery of this
Agreement and the satisfaction of the conditions set forth therein), the
Hawthorn Borrowers and the Lender hereby agree that:
(i) Exhibit B of the Loan Agreement is hereby amended by
adding the following definition immediately following the definition of
Approval Date:
ARKANSAS OFFICE: 0000 Xxxxxxx Xxxxxxx, Xxxxx 00, Xxxxxx, Xxxxxxxx
00000
(ii) The definition of "Borrowing Group" set forth in Exhibit
B of the Loan Agreement is hereby deleted in its entirety and is
restated to read as follows:
BORROWING GROUP: Collectively, the Borrowers, any
guarantor of the Loan Obligations, any Lessee, any Lease
Guarantor, any Manager, CHC-Missouri and CHC-Personnel.
(iii) The definitions "Current Manager," "Current Management
Agreement" and "Current Manager's Principal Place of Business" set
forth in Exhibit B of the Loan Agreement are hereby deleted in their
entirety and all references in the Loan Agreement to such terms are
hereby deleted in their entirety.
(iv) Exhibit B of the Loan Agreement is hereby amended by
adding the following definitions immediately following the definition
of "Champus":
CHC: Christian Health Care, Inc., an
Arkansas nonprofit corporation and its respective
successors and assigns.
CHC/BCC ASSET PURCHASE AGREEMENT: That
certain Asset Purchase Agreement, dated as of October
15, 1999, as amended, by and among Balanced Care (on
behalf of itself and certain subsidiaries) and
CHC-Missouri.
CHC/BCC ASSET PURCHASE DOCUMENTS:
Collectively, the CHC/BCC Asset Purchase Agreement
and all other documents and instruments now or
hereafter executed and/or delivered in connection
therewith or pursuant thereto.
CHC-HERMITAGE: Christian Health Care of
Hermitage, Inc., a Missouri nonprofit corporation and
its respective successors and assigns.
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CHC-LEBANON NORTH: Christian Health Care of
Lebanon North, Inc., a Missouri nonprofit corporation
and its respective successors and assigns.
CHC-LEBANON SOUTH: Christian Health Care of
Lebanon South, Inc., a Missouri nonprofit corporation
and its respective successors and assigns.
CHC-LESSEES: Collectively, CHC-Hermitage,
CHC-Lebanon North, CHC-Lebanon South, CHC-Nixa,
CHC-Springfield East, CHC- Springfield Park,
CHC-Springfield West Park and their respective
successors and assigns.
CHC-MISSOURI: Christian Health Care of
Missouri, Inc., a Missouri nonprofit corporation and
its respective successors and assigns.
CHC-NIXA: Christian Health Care of Nixa,
Inc., a Missouri nonprofit corporation and its
respective successors and assigns.
CHC-PERSONNEL: Christian Health Care
Personnel Services, Inc., a Missouri nonprofit
corporation and its respective successors and
assigns.
CHC-SPRINGFIELD EAST: Christian Health Care
of Springfield East, Inc., a Missouri nonprofit
corporation and its respective successors and
assigns.
CHC-SPRINGFIELD WEST: Christian Health Care
of Springfield West, Inc., a Missouri nonprofit
corporation and its respective successors and
assigns.
CHC-SPRINGFIELD WEST PARK: Christian Health
Care of Springfield West Park, Inc., a Missouri
nonprofit corporation and its respective successors
and assigns.
(v) Exhibit B of the Loan Agreement is hereby amended by
adding the following definition immediately following the definition of
"Contracts":
CORNERSTONE: Cornerstone Health Care, Inc.,
a Missouri corporation and its respective successors
and assigns.
(vi) Clause (iii) and (iv) in Section 3.6 of the Loan
Agreement is hereby deleted in its entirety.
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(vii) Section 6.3.01 A of the Loan Agreement is hereby deleted
in its entirety and is restated to read as follows:
a copy of the Consolidated Financials for CHC
(including, supplemental schedules for the CHC
Lessees), for the preceding fiscal year, certified
and audited by, and with the unqualified opinion of,
independent certified public accountants acceptable
to the Lender and certified as true and correct by
CHC (and, without limiting anything else contained
herein, the Consolidated Financials for CHC shall
contain a detailed balance sheet for each Facility as
of the last day of such fiscal year and a statement
of earnings from such properties for such fiscal year
showing, among other things, all rents and other
income therefrom and all expenses paid or incurred in
connection with the operation of such properties);
(viii) Section 6.3.04 of the Loan Agreement is hereby deleted
in its entirety and is restated to read as follows:
Within forty-five (45) days after the end of each of
their respective fiscal quarters, unaudited
Consolidated Financials for each CHC Lessee certified
as true and correct by such CHC Lessee.
(ix) Section 6.3.06 of the Loan Agreement is hereby deleted in
its entirety.
(x) Section 6.7 of the Loan Agreement is hereby deleted in its
entirety and is restated to read as follows:
The Borrowers shall provide the Lender thirty (30)
days' prior written notice of any change of their
Principal Place of Business from their current
Principal Place of Business. The Borrowers shall
maintain the Collateral, including without
limitation, all books and records relating to the
Borrowers' businesses, at solely at their Principal
Place of Business, the Mortgaged Property and/or at
the Arkansas Office. The Borrowers shall not (A)
remove the Collateral, including, without limitation,
any books or records relating to the Collateral
and/or the Borrowers' businesses from the Mortgaged
Property, their Principal Place of Business and/or
the Arkansas Office or (B) relocate their Principal
Place of Business until after receipt of a
certificate from the Lender, signed by an officer
thereof, stating that the Lender has, to its
satisfaction, obtained all documentation that it
deems necessary or desirable to obtain, maintain,
perfect and confirm the first priority security
interests granted in the Loan Documents.
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(xi) Section 6.19 of the Loan Agreement is hereby deleted in
its entirety and is restated to read as follows:
Pursuant to the BCC Missouri Leases, the CHC Lessees
(as the successors in interest to the Balanced Care
Lessees) have been granted options to purchase the
Mortgaged Property and the issued and outstanding
shares of the capital stock of the Hawthorn
Subsidiaries (collectively, the "Purchase Options").
Notwithstanding anything to the contrary contained in
the BCC Missouri Leases or the Omnibus Assignment of
Contracts, the Purchase Options may be exercised in
accordance with their terms, subject to the liens of
the Loan Documents, provided, that, at the time of
exercise and at the time of the consummation of the
applicable transaction(s), no Loan Default exists,
nor any event which, with the giving of notice and/or
the passage of time, would constitute a Loan Default
and provided, further, that, in connection with the
consummation of the applicable transaction(s), (I)
the Loan Documents are amended and restated, to
reflect the then current ownership structure of the
Mortgaged Property and the Borrowers, in forms
reasonably acceptable to the Lender and substantially
similar to the Loan Documents and (II) the Borrowing
Group shall execute and deliver such other
instruments, certificates and agreements, in form and
substance acceptable to the Lender, that are
necessary and/or reasonably requested by the Lender
to effectuate the consummation of the applicable
transaction(s).
(xii) References to the terms "Balanced Care Lessee" and
"Balanced Care Lessees" set forth in Section 5.1.12 E, Section 5.1.13 A
and Section 8 of the Loan Agreement are hereby deleted in their
entirety and are replaced with the terms "CHC Lessee" and CHC Lessees,"
respectively.
(xiii) Subsection 10V of the Loan Agreement is hereby deleted
in its entirety.
(xiv) Subsection 10X of the Loan Agreement is hereby deleted
in its entirety.
(xv) The first sentence of Section 12.11 of the Loan Agreement
is hereby deleted in its entirety and is restated to read as follows:
This Agreement and the other Loan Documents are
solely for the benefit of the Lender, its successors,
assigns and participants (if any), the Meditrust
Entities, the Indemnified Parties and the Borrowing
Group, and except as otherwise expressly set forth in
any of the Loan Documents, nothing contained therein
shall confer upon anyone other
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than such parties any right to insist upon or to
enforce the performance or observance of any of the
obligations contained therein.
(xvi) Section 12.13 of the Loan Agreement is hereby deleted in
its entirety and is restated to read as follows:
Any notice, request, demand, statement or
consent made hereunder or under any of the other Loan
Documents shall be in writing and shall be deemed
duly given if 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 Borrowers: Hawthorn Health Properties, Inc.
c/o J. Xxxx Xxxxxxxx, Jr.
0000 Xxxx Xxxxxx, Xxx. 00X
Xxx Xxxx, XX 00000
Attn: President
With copies to: LeBoeuf, Lamb, Xxxxxx & XxxXxx
Xxx Xxxxxxxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxxxxxx, XX 00000
Attn: Xxxxxx Xxxxxx, Esq.
and
Christian Health Care, Inc.
0000 Xxxxxxx Xxxxxxx
Xxxxx 00
Xxxxxx, Xxxxxxxx 00000
Attn: President
and
Ball & Xxxxxxx, Ltd., PLLC
X.X. Xxxx Plaza
000 X. Xxxxxx, Xxxxx 000
Xxxxxxxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxx, Esq.
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If to the Lender: Meditrust Mortgage Investments, Inc.
000 Xxxxx Xxxxxx
Xxxxxxx Xxxxxxx, Xxxxxxxxxxxxx 00000
Attn: President
With copies to: Meditrust Mortgage Investments, Inc.
000 Xxxxx Xxxxxx
Xxxxxxx Xxxxxxx, Xxxxxxxxxxxxx 00000
Attn: General Counsel
and
Xxxxxx, XxXxxxxxx & Fish, LLP
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000-0000
Attn: Xxxxxxxx Xxxxxxx, Esq.
or at such other place as either party hereto may
from time to time hereafter designate to the other in
writing. Any notice given to the Borrowers by the
Lender at any time shall not imply that such notice
or any further or similar notice was or is required.
B. AMENDMENT OF ENVIRONMENTAL INDEMNITY AGREEMENT. After giving effect
to the BCC/CHC Lease Assignments (consummated by virtue of the execution and
delivery of this Agreement and the satisfaction of the conditions set forth
herein) the Borrowers, Balanced Care, CHC, Xxxxxxx and the Lender hereby agree
that (I) the Environmental Indemnity Agreement (as defined under the Loan
Agreement) is hereby amended by adding Balanced Care, CHC and Xxxxxxx as parties
thereto and (II) the definition of "Indemnitors" set forth in the Environmental
Indemnity Agreement is hereby amended to include Balanced Care, CHC and Xxxxxxx.
C. AMENDMENT OF THE NOTE. After giving effect to the BCC/CHC Lease
Assignments (consummated by virtue of the execution and delivery of this
Agreement and the satisfaction of the conditions set forth herein) the Borrowers
and the Lender hereby agree that subparagraph (b) in the Note is hereby deleted
in its entirety and amended and restated to read as follows:
b. commencing on October 1, 1997 and on the first day of
each calendar month thereafter through and including
January 1, 2000, the Makers shall pay to the Holder
equal monthly installments of principal and interest
in arrears [based upon a thirty (30) year
amortization schedule with interest accruing on the
outstanding principal balance at the Interest Rate];
on February 1, 2000, the Makers shall pay to the
Holder a
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payment of interest only accruing on the outstanding
principal balance at the Interest Rate and commencing
on March 1, 2000 and on the first day of each
calendar month thereafter through and including
August 1, 2006, the Makers shall pay to the Holder
monthly installments of principal and interest in
arrears, in the amount of $347,295.80, with interest
accruing on the outstanding principal balance at the
Interest Rate.
29. AMENDMENT OF LEASE DOCUMENTS:
A. OMNIBUS AMENDMENT OF BCC MISSOURI LEASES. After giving effect to the
BCC/CHC Lease Assignments (consummated by virtue of the execution and delivery
of this Agreement and the satisfaction of the conditions set forth herein) and
without limiting the provisions of the Omnibus Assignment of Contracts or any of
the Assignments of Leases, the Hawthorn Subsidiaries, the CHC Lessees and the
Lender hereby agree that:
(i) The definition of Affiliated Party Subordination
Agreements set forth in Section 2.1 of each of the BCC Missouri Leases
is hereby deleted in its entirety and restated to read as follows:
AFFILIATED PARTY SUBORDINATION AGREEMENTS:
Collectively, (i) the Affiliated Party Subordination
Agreement of even date by and among Lessee, the
Balanced Care Lessees, the Guarantors and Lessor,
(ii) the Affiliated Party Subordination Agreement as
defined under the Hawthorn Loan Agreement and (iii)
the five (5) separate Affiliated Party Subordination
Agreements of even date by and among Lessee, the
Balanced Care Lessees, the Guarantors, Lessor and the
other Hawthorn Subsidiaries.
(ii) The definition of Cash Flow set forth in Section 2.1 of
each of the BCC Missouri Leases is hereby deleted in its entirety and
restated to read as follows:
CASH FLOW: The Consolidated Net Income (or
Consolidated Net Loss) before federal and state income taxes
for any period plus (I) the amount of the provision for
depreciation and amortization actually deducted on the books
of the applicable Person for the purposes of computing such
Consolidated Net Income (or Consolidated Net Loss) for the
period involved, plus (II) with respect to the CHC Lessees,
BCC Rent and interest on all other Indebtedness which is fully
subordinated to the BCC Lease Obligations plus (III) with
respect to the CHC Lessees, any payments with respect to
Indebtedness and/or any other obligations (including, without
limitation, management fees) which are fully subordinated to
the BCC Lease Obligations pursuant to the BCC Lease Affiliated
Party Subordination Agreements.
(iii) Section 2.1 of each of the BCC Missouri Leases is hereby
amended by adding the following definition:
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CHC LESSEES: As defined in the Hawthorn Loan Agreement.
(iv) The definitions of "Current Manager" and "Current
Management Agreement" set forth on Section 2.1 of each of the Missouri
Leases are hereby deleted in their entirety and all references in the
BCC Missouri Leases to such terms are hereby deleted.
(v) The definition of Debt Coverage Ratio set forth in Section
2.1 of each of the BCC Missouri Leases is hereby deleted in its
entirety and restated to read as follows:
DEBT COVERAGE RATIO: The ratio of (I) Cash Flow for
each applicable period to (II) with respect to the CHC
Lessees, the total of all BCC Rent paid or payable during such
period or accrued for such period.
(vi) The definition of Guaranties set forth in Section 2.1 of
each of the BCC Missouri Leases is hereby deleted in its entirety and
restated to read as follows:
GUARANTIES: Collectively, the Balanced Care Guaranty,
the Xxxxx Guaranty and any other guaranty of the Lease
Obligations executed and delivered by any Guarantor.
(vii) The definition of Guarantors set forth in Section 2.1 of
each of the BCC Missouri Leases is hereby deleted in its entirety and
restated to read as follows:
GUARANTORS: Collectively, Balanced Care, the BCC
Subsidiary Guarantors and any other guarantor of the Lease
Obligations.
(viii) Section 1.2 of each of the BCC Missouri Leases is
hereby amended by adding the following definitions:
XXXXXXX: Alington X. Xxxxxxx of Rogers, Arkansas.
TERMINATION PROVISION: As defined in Section 18.4.14
(ix) The second, third, fourth and fifth sentences of Section
10.1.3 of each of the BCC Missouri Leases are hereby deleted in their
entirety.
(x) The words "the Xxxxx Facility, the Pharmacies, the Nevada
Facility or the Republic Facility" are hereby deleted from Section
10.1.16 of each of the BCC Missouri Leases.
(xi) Section 10.1.28 of each of the BCC Missouri Leases is
hereby deleted in its entirety and is hereby restated to read as
follows:
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10.1.28 PRINCIPAL PLACE OF BUSINESS. The principal place of
business and chief executive office of Lessee is located at
0000 Xxxxxxx Xxxxxxx, Xxxxx 00, Xxxxxx, Xxxxxxxx 00000 (the
"Principal Place of Business").
(xii) Section 11.2 .1 (a) of each of the BCC Missouri Leases
is hereby deleted in its entirety and is hereby restated to read as
follows:
(a) ANNUAL STATEMENTS. Within one hundred (100) days
after the end of each of their respective fiscal years, (I) a
copy of the Consolidated Financials for each of (X) CHC
(including supplemental schedules for Lessee and the other CHC
Lessees) and (Y) any Sublessee for the preceding fiscal year,
certified and audited by, and with the unqualified opinion of,
independent certified public accountants acceptable to Lessor
and certified as true and correct by CHC or the applicable
Sublessee, as the case may be (and, without limiting anything
else contained herein, the Consolidated Financials for CHC
shall include a detailed balance sheet for the Hawthorn
Facilities as of the last day of such fiscal year and a
statement of earnings from such properties for such fiscal
year showing, among other things, all rents and other income
therefrom and all expenses paid or incurred in connection with
the operation of such properties); (II) separate statements,
certified as true and correct by Lessee, the Guarantors and
each Sublessee, stating whether, to the best of the signer's
knowledge and belief after making due inquiry, Lessee, each of
the Guarantors or such Sublessee, as the case may be, is in
default in the performance or observance of any of the terms
of this Lease or any of the other Lease Documents and, if so,
specifying all such defaults, the nature thereof and the steps
being taken to immediately remedy the same; (III) a copy of
all letters from the independent certified accountants engaged
to perform the annual audits referred to above, directed to
the management of CHC, Lessee, any other CHC Lessee, any
Guarantor or Sublessee, as the case may be, regarding the
existence of any reportable conditions or material weaknesses
and (IV) a statement certified as true and correct by Lessee
setting forth all Subleases as of the last day of such fiscal
year, the respective areas demised thereunder, the names of
the Sublessees thereunder, the respective expiration dates of
such Subleases, the respective rentals provided for therein,
and such other information pertaining to the Subleases as may
be reasonably requested by Lessor.
(xiii) Section 11.2 .1 (d) of each of the BCC Missouri Leases
is hereby deleted in its entirety and is hereby restated to read as
follows:
(d) QUARTERLY STATEMENTS OF CHC. Within fifty (50)
days after the end of each Fiscal Quarter, unaudited
Consolidated Financials for CHC certified as true and correct
by CHC.
(xiv) Section 11.3 of each of the BCC Missouri Leases is
hereby deleted in its entirety and is hereby restated to read as
follows:
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11.3 FINANCIAL COVENANTS. Lessee covenants and agrees
that, throughout the Term and as long as Lessee is in
possession of the Leased Property:
11.3.1 RENT COVERAGE RATIO OF LESSEE.
Commencing with the first Fiscal Quarter after the
Commencement Date and for each Fiscal Quarter
thereafter during the remainder of the Term, the
CHC Lessees shall maintain a combined Debt
Coverage Ratio with respect to the Hawthorn
Mortgaged Property equal to or greater than 1.25
to 1.
11.3.2 CURRENT RATIO. The CHC Lessees shall
maintain, at all times, a ratio of Consolidated
Current Assets to Consolidated Current Liabilities
equal to or greater than 1 to 1.
(xi) Article 18 of each of the Missouri Leases is hereby
amended by adding the following Section 18.4.14:
18.4.14 TERMINATION OF OPTION.
Notwithstanding anything to the contrary set forth
herein or in any of the other BCC Lease Documents,
in the event that the CHC Lessees fail to acquire
the Hawthorn Mortgaged Property, pursuant to that
certain Option Agreement, dated as of January __,
2000, by and among the Hawthorn Subsidiaries and
the CHC Lessees, on or before October 1, 2000, the
Purchase Option relating to the Mortgaged Property
(but, not the Purchase Option relating to the
stock of the Hawthorn Subsidiaries) shall
automatically expire (the "Termination
Provision"); provided, however, that,
notwithstanding the foregoing Termination
Provision, if such failure to acquire the Hawthorn
Mortgaged Property shall result from the gross
negligence or willful misconduct by any of the
Hawthorn Subsidiaries (or any of their respective
successors and assigns), the Purchase Option
relating to the Mortgaged Property shall remain in
force and effect and may be exercised and enforced
in accordance with the terms hereof without regard
to the foregoing Termination Provision.
B. OMNIBUS AMENDMENT OF AFFILIATED PARTY SUBORDINATION AGREEMENTS.
After giving effect to the BCC/CHC Lease Assignments (consummated by virtue of
the execution and delivery of this Agreement and the satisfaction of the
conditions set forth herein)and without limiting the provisions of the Omnibus
Assignment of Contracts, the parties hereto hereby agree that (I) each
Affiliated Party Subordination Agreement is hereby amended by adding the
Purchaser, Cornerstone, CHC-Personnel, CPI, CHC, the Balanced Care Lessees and
Xxxxxxx as parties thereto, (II) the definition of "Affiliated Parties" set
forth in each such Affiliated Party Subordination Agreement is hereby amended to
include the Purchaser,
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Cornerstone, CHC-Personnel, CPI, CHC, the Balanced Care Lessees and Xxxxxxx and
(III) each such Affiliated Party Subordination Agreement is amended to delete
all references to the Current Manager and the Current Management Agreement.
As a consequence of the foregoing, (1) Cornerstone acknowledges and
agrees that all amounts now or hereafter owed to Cornerstone by any CHC Lessee
(including, without limitation, all fees and other amounts now or hereafter owed
under the Cornerstone Management Agreements) are subordinated to the BCC
Missouri Lease Obligations, (2) CHC-Personnel acknowledges and agrees that all
amounts now or hereafter owed to CHC-Personnel by any CHC Lessee (including,
without limitation, all amounts now or hereafter owed under the Employment Lease
Agreements) are subordinated to the BCC Missouri Lease Obligations, (3) the
Balanced Care Entities acknowledge and agree that all amounts now or hereafter
owed to any Balanced Care Entity by any CHC Lessee are subordinated to the BCC
Lease Obligations and (4) CPI acknowledges and agrees that all amounts now or
hereafter owed to CPI by any CHC Lessee (including, without limitation, all fees
and other amounts now or hereafter owed under the Equipment Leases) are
subordinated to the BCC Missouri Lease Obligations.
D. OMNIBUS AMENDMENT OF ENVIRONMENTAL INDEMNITY AGREEMENTS. After
giving effect to the BCC/CHC Lease Assignments and without limiting the
provisions of the Omnibus Assignment of Contracts, the Hawthorn Subsidiaries,
the CHC Lessees, CHC, Cornerstone, CHC-Personnel, Xxxxxxx and the Lender hereby
agree that (I) each Environmental Indemnity Agreement (as defined under each of
the BCC Missouri Leases) is hereby amended by adding the CHC, CPI, Cornerstone,
CHC-Personnel and Xxxxxxx as parties thereto and (II) the definition of
"Indemnitors" set forth in each such Environmental Indemnity Agreement is hereby
amended to include CHC, CPI, Cornerstone, CHC-Personnel and Xxxxxxx.
E. OMNIBUS AMENDMENT OF SECURITY AGREEMENTS. After giving effect to the
BCC/CHC Lease Assignments (consummated by virtue of the execution and delivery
of this Agreement and the satisfaction of the conditions set forth herein) and
without limiting the provisions of the Omnibus Assignment of Contracts, the
Hawthorn Subsidiaries, the CHC Lessees and the Lender hereby agree that clause
(viii) of Section 1.1 of each Security Agreement (as defined under each of the
BCC Missouri Leases) is hereby deleted in its entirety and is restated to read
as follows:
(viii) all of the Debtor's rights to use, in perpetuity,
in connection with the operation of the Leased
Property, any name now, hereafter or previously
used in connection with the operation of the
Leased Property and the good will of the Debtor
with respect thereto.
F. OMNIBUS AMENDMENT OF BCC MISSOURI LEASE DOCUMENTS. After giving
effect to the BCC/CHC Lease (consummated by virtue of the execution and delivery
of this Agreement and the satisfaction of the conditions set forth herein) and
without limiting the provisions of the Assignments of Leases and/or the Omnibus
Assignment of Contracts, the
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parties hereto agree that whenever notice is required to be given under any of
the BCC Missouri Lease Documents, such notice shall be addressed as follows:
IF TO THE BALANCE CARE the applicable Balanced Care Guarantor
GUARANTORS: 0000 Xxxxx Xxxxx
Xxxxxxxxxxxxx, XX 00000
Attn: President
WITH COPIES TO: Balanced Care Corporation
0000 Xxxxx Xxxxx
Xxxxxxxxxxxxx, XX 00000
Attn: General Counsel
Xxxxxxxxxxx & Xxxxxxxx LLP
0000 Xxxxx X. Xxxxxx Building
000 Xxxxxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000-0000
Attn: Xxxxxx X. Xxxxxxxx, Esq.
IF TO ANY CHC LESSEE: the applicable CHC Lessee
0000 Xxxxxxx Xxxxxxx
Xxxxx 00
Xxxxxx, Xxxxxxxx 00000
Attn: President
WITH A COPY TO: Ball & Xxxxxxx, Ltd., PLLC
X.X. Xxxx Plaza
000 X. Xxxxxx, Xxxxx 000
Xxxxxxxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxx, Esq.
IF TO ANY HAWTHORN the applicable Hawthorn Subsidiary
SUBSIDIARY: c/o J. Xxxx Xxxxxxxx, Jr.
0000 Xxxx Xxxxxx, Xxx. 00X
Xxx Xxxx, XX 00000
Attn: President
WITH A COPY TO: LeBoeuf, Lamb, Xxxxxx & XxxXxx
Xxx Xxxxxxxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxxxxxx, XX 00000
Attn: Xxxxxx Xxxxxx, Esq.
30. TERMINATION OF PLEDGE AGREEMENTS: Without limiting the terms of the
Omnibus Assignment of Contracts, the Hawthorn Subsidiaries, Balanced Care, the
Balanced Care Lessees and the Lender hereby acknowledge and agree that the
Pledge
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Agreements are hereby terminated without further recourse to any party
thereunder (except as may be expressly set forth therein).
31. RATIFICATION FROM THE BALANCED CARE GUARANTORS: The Balanced Care
Guarantors each hereby (I) ratifies and confirms the Loan Documents and the BCC
Missouri Lease Documents to which it is a party, (II) agrees to remain fully
bound by the Loan Documents and the BCC Missouri Lease Documents to which it is
a party, (III) confirms that the Loan Documents and BCC Missouri Lease Documents
to which it is a party remain in full force and effect, except as otherwise
expressly provided herein and (IV) , without limiting the foregoing, confirms
that the BCC Missouri Lease Guaranties remain in full force and effect,
unaffected by the execution and delivery of this Agreement and/or the
consummation of the BCC/CHC Lease Assignments.
32. GOVERNING LAW: This Agreement shall be construed, and the rights
and obligations of the parties hereto shall be determined, in accordance with
the laws of the Commonwealth of Massachusetts.
The Borrowers, the Balanced Care Entities, the Purchaser, Cornerstone,
CHC-Personnel, CHC, the CHC Lessees and Xxxxxxx hereby consent to personal
jurisdiction in 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 (A) this Agreement and/or (B) the Lender's relationship with
any member of the Borrowing Group or the CHC Group in connection with the
transactions evidenced by the Transaction Documents, the BCC Missouri Lease
Documents and/or the Loan Documents.
33. AMENDMENTS: The parties hereto acknowledge and agree that the
Agreement shall not amend, abridge, limit, modify, release, terminate or
otherwise affect any of the provisions of any of the Loan Documents and/or any
of the BCC Missouri Lease Documents, except as expressly set forth herein.
34. REFERENCES: Without limiting the provisions set forth in Section
12.17 of the Loan Agreement, the Borrowers, Balanced Care, CHC, Xxxxxxx and the
Lender acknowledge and agree that (I) that all references to the Loan Agreement,
the Affiliated Party Subordination Agreement, any of the Lease Subordination
Agreements and/or the Omnibus Assignment of Contracts set forth in any of the
Loan Documents shall include the Loan Agreement, the Affiliated Party
Subordination Agreement, the Lease Subordination Agreements and/or the Omnibus
Assignment of Contracts, as affected by this Agreement and (II) this Agreement
shall be included within the definition of Loan Documents.
Without limiting the provisions set forth in Section 24.13 of the BCC
Missouri Leases, the Borrowers, the Balanced Care Guarantors, CHC, the CHC
Lessees, Xxxxxxx and the Lender acknowledge and agree that (A) all references to
any of the BCC Missouri Lease Documents set forth in any of the BCC Missouri
Lease Documents shall include the BCC
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Missouri Lease Documents, as affected by this Agreement and (B) this Agreement
shall be included with the definition of BCC Missouri Lease Documents.
35. CAPTIONS AND HEADINGS: The captions and headings set forth in this
Agreement are included for convenience and reference only and the words
contained therein shall in no way be held or deemed to define, limit, describe,
explain, modify, amplify or add to the interpretation, construction or meaning
of, or the scope or intent of, this Agreement or any part hereof.
36. TIME OF THE ESSENCE: Time is of the essence of each and every term,
condition, covenant and warranty set forth in this Agreement and in the other
Loan Documents.
37. COUNTERPARTS: This Agreement and the other Loan Documents may be
executed in one or more counterparts, each of which taken together shall
constitute an original and all of which shall constitute one and the same
instrument.
38. OPTION AGREEMENT: Reference is made to that certain Option
Agreement of even date herewith by and among the Hawthorn Subsidiaries and the
CHC Lessees. Notwithstanding anything to the contrary set forth in the Loan
Documents, the Lender hereby acknowledges and agrees that, to the extent that
the execution and delivery of such Option Agreement constitutes an Event of
Default under any of the Loan Documents, the Lender hereby waives any such Event
of Default (the "Limited Waiver"); provided, however, that, the Hawthorn
Subsidiaries and the CHC Lessees acknowledge and agree that notwithstanding the
foregoing Limited Waiver, the Lender has not consented to such Option Agreement,
nor the performance by the Hawthorn Subsidiaries of their respective obligations
thereunder and, without limiting the foregoing, in no event shall (A) the Lender
be bound by the terms of such Option Agreement and (B) neither the execution and
delivery of such Option Agreement nor the Limited Waiver shall be deemed to
amend, abridge, limit, modify, release, terminate or otherwise affect any of the
provisions of any of the Loan Documents (including, without limitation, the
Lender's right to exercise any rights and/or remedies arising under any of the
Loan Documents should any of the Hawthorn Subsidiaries perform (or seek to
perform) any of their respective obligations under such Option Agreement.
[The remainder of this page was intentionally left blank]
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EXECUTED as a sealed instrument as of the day and year first above
mentioned.
WITNESS: LENDER:
MEDITRUST MORTGAGE INVESTMENTS, INC.,
a Delaware corporation
/s/Xxxxxxxxx Xxxxxxxxxx By:/s/Xxxxxxx X. Xxxxxxxx
Name:Xxxxxxxxx Xxxxxxxxxx Name:Xxxxxxx X. Xxxxxxxx
Title:Senior Vice President
WITNESS: BORROWERS:
HAWTHORN HEALTH PROPERTIES, INC., a
California corporation
/s/Xxxxxxxx X. Xxxxxxx By: /s/J. Xxxx Xxxxxxxx, Jr.
Name: Xxxxxxxx X. Xxxxxxx Name: J. Xxxx Xxxxxxxx, Jr.
Title: President
WITNESS: NATIONAL CARE CENTERS OF HERMITAGE,
INC., a Missouri Corporation
/s/Xxxxxxxx X. Xxxxxxx By: /s/J. Xxxx Xxxxxxxx, Jr.
Name: Xxxxxxxx X. Xxxxxxx Name: J. Xxxx Xxxxxxxx, Jr.
Title: President
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WITNESS: NATIONAL CARE CENTERS, INC., a Missouri
corporation
/s/Xxxxxxxx X. Xxxxxxx By: /s/J. Xxxx Xxxxxxxx, Jr.
Name: Xxxxxxxx X. Xxxxxxx Name: J. Xxxx Xxxxxxxx, Jr.
Title: President
WITNESS: NATIONAL CARE CENTERS OF LEBANON, INC.,
a Missouri corporation
/s/Xxxxxxxx X. Xxxxxxx By: /s/J. Xxxx Xxxxxxxx, Jr.
Name: Xxxxxxxx X. Xxxxxxx Name: J. Xxxx Xxxxxxxx, Jr.
Title: President
WITNESS: SPRINGFIELD RETIREMENT VILLAGE, INC., a
Missouri corporation
/s/Xxxxxxxx X. Xxxxxxx By: /s/J. Xxxx Xxxxxxxx, Jr.
Name: Xxxxxxxx X. Xxxxxxx Name: J. Xxxx Xxxxxxxx, Jr.
Title: President
WITNESS: NATIONAL CARE CENTERS OF NIXA, INC., a
Missouri corporation
/s/Xxxxxxxx X. Xxxxxxx By: /s/J. Xxxx Xxxxxxxx, Jr.
Name: Xxxxxxxx X. Xxxxxxx Name: J. Xxxx Xxxxxxxx, Jr.
Title: President
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WITNESS: NATIONAL CARE CENTERS OF SPRINGFIELD,
INC., a Missouri corporation
/s/Xxxxxxxx X. Xxxxxxx By: /s/J. Xxxx Xxxxxxxx, Jr.
Name: Xxxxxxxx X. Xxxxxxx Name: J. Xxxx Xxxxxxxx, Jr.
Title: President
WITNESS: MT. XXXXXX XXXX CARE CENTER WEST, INC.,
a Missouri corporation
/s/Xxxxxxxx X. Xxxxxxx By: /s/J. Xxxx Xxxxxxxx, Jr.
Name: Xxxxxxxx X. Xxxxxxx Name: J. Xxxx Xxxxxxxx, Jr.
Title: President
WITNESS: BALANCED CARE LESSEES:
BCC AT LEBANON CARE CENTER, INC., a
Delaware corporation
/s/ Xxxxxxxx X. Xxxxxx By:/s/Xxxxx X. Xxxxxx
Name: Xxxxxxxx X. Xxxxxx Name: Xxxxx X. Xxxxxx
Title: Vice President and Secretary
WITNESS: BCC AT LEBANON PARK MANOR, INC., a
Delaware corporation
/s/ Xxxxxxxx X. Xxxxxx By:/s/Xxxxx X. Xxxxxx
Name: Xxxxxxxx X. Xxxxxx Name: Xxxxx X. Xxxxxx
Title: Vice President and Secretary
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WITNESS: BCC AT NIXA PARK CENTER, INC., a Delaware
corporation
/s/ Xxxxxxxx X. Xxxxxx By:/s/Xxxxx X. Xxxxxx
Name: Xxxxxxxx X. Xxxxxx Name: Xxxxx X. Xxxxxx
Title: Vice President and Secretary
WITNESS: BCC AT SPRINGFIELD CARE CENTER, INC., a
Delaware corporation
/s/ Xxxxxxxx X. Xxxxxx By:/s/Xxxxx X. Xxxxxx
Name: Xxxxxxxx X. Xxxxxx Name: Xxxxx X. Xxxxxx
Title: Vice President and Secretary
WITNESS: BCC AT MT. XXXXXX XXXX CARE CENTER,
INC., a Delaware corporation
/s/ Xxxxxxxx X. Xxxxxx By:/s/Xxxxx X. Xxxxxx
Name: Xxxxxxxx X. Xxxxxx Name: Xxxxx X. Xxxxxx
Title: Vice President and Secretary
WITNESS: BCC AT MT. XXXXXX XXXX CARE CENTER
WEST, INC., a Delaware corporation
/s/ Xxxxxxxx X. Xxxxxx By:/s/Xxxxx X. Xxxxxx
Name: Xxxxxxxx X. Xxxxxx Name: Xxxxx X. Xxxxxx
Title: Vice President and Secretary
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WITNESS: BCC AT HERMITAGE PARK CARE CENTER,
INC., a Delaware corporation
/s/ Xxxxxxxx X. Xxxxxx By:/s/Xxxxx X. Xxxxxx
Name: Xxxxxxxx X. Xxxxxx Name: Xxxxx X. Xxxxxx
Title: Vice President and Secretary
BALANCED CARE GUARANTORS:
WITNESS: BALANCED CARE CORPORATION, a Delaware
corporation
/s/ Xxxxxxxx X. Xxxxxx By:/s/Xxxxx X. Xxxxxx
Name: Xxxxxxxx X. Xxxxxx Name: Xxxxx X. Xxxxxx
Title: Senior Vice President and Legal Counsel
& Assistant Secretary
WITNESS: XXXXX MANAGEMENT, INC., a Missouri
corporation
/s/ Xxxxxxxx X. Xxxxxx By:/s/Xxxxx X. Xxxxxx
Name: Xxxxxxxx X. Xxxxxx Name: Xxxxx X. Xxxxxx
Title: Vice President and Secretary
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WITNESS: PURCHASER:
CHRISTIAN HEALTH CARE OF MISSOURI, INC.,
a Missouri nonprofit corporation
/s/Xxxxxxx X. Xxxxx By:Xxxxx Xxxxxxx
Name:Xxxxxxx X. Xxxxx Name:Xxxxx X. Xxxxxxx
Title:President
WITNESS: CPI:
CORNERSTONE PROPERTIES INVESTMENT II,
LLC, a Missouri limited liability company
/s/Xxxxxxx X. Xxxxx By:Xxxxx Xxxxxxx
Name:Xxxxxxx X. Xxxxx Name:Xxxxx X. Xxxxxxx
Title:President
WITNESS: CORNERSTONE:
CORNERSTONE HEALTH CARE, INC., a Missouri
corporation
/s/Xxxxxxx X. Xxxxx By:Xxxxx Xxxxxxx
Name:Xxxxxxx X. Xxxxx Name:Xxxxx X. Xxxxxxx
Title:President
WITNESS: CHC-PERSONNEL:
CHRISTIAN HEALTH CARE PERSONNEL
SERVICES, INC., a Missouri corporation
/s/Xxxxxxx X. Xxxxx By:Xxxxx Xxxxxxx
Name:Xxxxxxx X. Xxxxx Name:Xxxxx X. Xxxxxxx
Title:President
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WITNESS: CHC:
CHRISTIAN HEALTH CARE, INC., an Arkansas
nonprofit corporation
/s/Xxxxxxx X. Xxxxx By:Xxxxx Xxxxxxx
Name:Xxxxxxx X. Xxxxx Name:Xxxxx X. Xxxxxxx
Title:President
WITNESS: CHC LESSEES:
CHRISTIAN HEALTH CARE OF HERMITAGE,
INC., a Missouri nonprofit corporation
/s/Xxxxxxx X. Xxxxx By:Xxxxx Xxxxxxx
Name:Xxxxxxx X. Xxxxx Name:Xxxxx X. Xxxxxxx
Title:President
WITNESS: CHRISTIAN HEALTH CARE OF LEBANON
NORTH, INC., a Missouri nonprofit corporation
/s/Xxxxxxx X. Xxxxx By:Xxxxx Xxxxxxx
Name:Xxxxxxx X. Xxxxx Name:Xxxxx X. Xxxxxxx
Title:President
WITNESS: CHRISTIAN HEALTH CARE OF SPRINGFIELD
WEST PARK, INC., a Missouri nonprofit corporation
/s/Xxxxxxx X. Xxxxx By:Xxxxx Xxxxxxx
Name:Xxxxxxx X. Xxxxx Name:Xxxxx X. Xxxxxxx
Title:President
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WITNESS: CHRISTIAN HEALTH CARE OF SPRINGFIELD
WEST, INC., a Missouri nonprofit corporation
/s/Xxxxxxx X. Xxxxx By:Xxxxx Xxxxxxx
Name:Xxxxxxx X. Xxxxx Name:Xxxxx X. Xxxxxxx
Title:President
WITNESS: CHRISTIAN HEALTH CARE OF LEBANON
SOUTH, INC., a Missouri nonprofit corporation
/s/Xxxxxxx X. Xxxxx By:Xxxxx Xxxxxxx
Name:Xxxxxxx X. Xxxxx Name:Xxxxx X. Xxxxxxx
Title:President
WITNESS: CHRISTIAN HEALTH CARE OF SPRINGFIELD
EAST, INC., a Missouri nonprofit corporation
/s/Xxxxxxx X. Xxxxx By:Xxxxx Xxxxxxx
Name:Xxxxxxx X. Xxxxx Name:Xxxxx X. Xxxxxxx
Title:President
WITNESS: CHRISTIAN HEALTH CARE OF NIXA, INC., a
Missouri corporation
/s/Xxxxxxx X. Xxxxx By:Xxxxx Xxxxxxx
Name:Xxxxxxx X. Xxxxx Name:Xxxxx X. Xxxxxxx
Title:President
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WITNESS: XXXXXXX:
/s/Xxxxxxx X. Xxxxx /s/Xxxxx Xxxxxxx
Name:Xxxxxxx X. Xxxxx Alington X. Xxxxxxx
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EXHIBIT A
Lease Documents Assigned by BCC at Hermitage Park Care Center, Inc.
1. Facility Lease Agreement, dated as of August 30, 1996, as amended, by
and between Hermitage and BCC-Hermitage.
2. Collateral Assignment of Permits, Approvals, Licenses and Contracts,
dated as of August 30, 1996, granted by BCC-Hermitage for the benefit
of Hermitage.
3. Security Agreement, dated as of August 30, 1996, by and between
Hermitage and BCC-Hermitage.
4. Environmental Indemnity Agreement, dated as of August 30, 1996, by and
among Hermitage, BCC-Hermitage and the Balanced Care Guarantors.
5. The "Affiliated Party Subordination Agreements" as defined under the
Hermitage Lease.
6. Lease Subordination Agreement, dated as of August 30, 1996, by and
among BCC-Hermitage, Hermitage and the Lender.
7. Omnibus Assignment of Contracts, dated as of August 30, 1996, by and
among the Borrowers, the Balanced Care Lessees, the Balanced Care
Guarantors, Long Term, the Lender and the Shareholders.
8. All other "Lease Documents", as defined under the Hermitage Lease, to
which BCC- Hermitage is a party (excluding, however, the Hermitage
Pledge Agreement).
52
EXHIBIT B
Lease Documents Assigned by BCC at Lebanon Care Center, Inc.
1. Facility Lease Agreement, dated as of August 30, 1996, as amended, by
and between National Care Centers and BCC-Lebanon Care.
2. Collateral Assignment of Permits, Approvals, Licenses and Contracts,
dated as of August 30, 1996, granted by BCC-Lebanon Care for the
benefit of National Care Centers.
3. Security Agreement, dated as of August 30, 1996, by and between
National Care Centers and BCC-Lebanon Care.
4. Environmental Indemnity Agreement, dated as of August 30, 1996, by and
among National Care Centers, BCC-Lebanon Care and the Balanced Care
Guarantors.
5. The "Affiliated Party Subordination Agreements" as defined under the
Lebanon Care Lease.
6. Lease Subordination Agreement, dated as of August 30, 1996, by and
among BCC-Lebanon Care, National Care Centers and the Lender.
7. Omnibus Assignment of Contracts, dated as of August 30, 1996, by and
among the Borrowers, the Balanced Care Lessees, the Balanced Care
Guarantors, Long Term, the Lender and the Shareholders.
8. All other "Lease Documents", as defined under the Lebanon Care Lease,
to which BCC-Lebanon is a party (excluding, however, the Lebanon Care
Pledge Agreement).
53
EXHIBIT C
Lease Documents Assigned by BCC at Lebanon Park Manor, Inc.
1. Facility Lease Agreement, dated as of August 30, 1996, as amended, by
and between National Care Centers-Lebanon and BCC-Lebanon Park.
2. Collateral Assignment of Permits, Approvals, Licenses and Contracts,
dated as of August 30, 1996, granted by BCC-Lebanon Park for the
benefit of National Care Centers-Lebanon.
3. Security Agreement, dated as of August 30, 1996, by and between
National Care Centers-Lebanon and BCC-Lebanon Park.
4. Environmental Indemnity Agreement, dated as of August 30, 1996, by and
among National Care Centers-Lebanon, BCC-Lebanon Park and the Balanced
Care Guarantors.
5. The "Affiliated Party Subordination Agreements" as defined under the
Lebanon Park Lease.
6. Lease Subordination Agreement, dated as of August 30, 1996, by and
among BCC-Lebanon Park, National Care Centers-Lebanon and the Lender.
7. Omnibus Assignment of Contracts, dated as of August 30, 1996, by and
among the Borrowers, the Balanced Care Lessees, the Balanced Care
Guarantors, Long Term, the Lender and the Shareholders.
8. All other "Lease Documents", as defined under the Lebanon Park Lease,
to which BCC-Lebanon Park is a party (excluding, however, the Lebanon
Park Pledge Agreement).
54
EXHIBIT D
Lease Documents Assigned by BCC at Mt. Xxxxxx Xxxx Care Center, Inc.
1. Facility Lease Agreement, dated as of August 30, 1996, as amended, by
and between Springfield and BCC-Mt. Xxxxxx Xxxx.
2. Collateral Assignment of Permits, Approvals, Licenses and Contracts,
dated as of August 30, 1996, granted by BCC-Mt. Xxxxxx Xxxx for the
benefit of Springfield.
3. Security Agreement, dated as of August 30, 1996, by and between
Springfield and BCC-Mt. Xxxxxx Xxxx.
4. Environmental Indemnity Agreement, dated as of August 30, 1996, by and
among Springfield, BCC-Mt. Xxxxxx Xxxx and the Balanced Care
Guarantors.
5. The "Affiliated Party Subordination Agreements" as defined under the
Mt. Xxxxxx Lease.
6. Lease Subordination Agreement, dated as of August 30, 1996, by and
among BCC-Mt. Xxxxxx Xxxx, Springfield and the Lender.
7. Omnibus Assignment of Contracts, dated as of August 30, 1996, by and
among the Borrowers, the Balanced Care Lessees, the Balanced Care
Guarantors, Long Term, the Lender and the Shareholders.
8. All other "Lease Documents", as defined in the Mt. Xxxxxx Lease, to
which BCC-Mt. Xxxxxx Xxxx is a party (excluding, however, the Mt.
Xxxxxx Pledge Agreement).
55
EXHIBIT E
Lease Documents Assigned by BCC at Nixa Park Center, Inc.
1. Facility Lease Agreement, dated as of August 30, 1996, as amended, by
and between Nixa and BCC-Nixa.
2. Collateral Assignment of Permits, Approvals, Licenses and Contracts,
dated as of August 30, 1996, granted by BCC-Nixa for the benefit of
Nixa.
3. Security Agreement, dated as of August 30, 1996, by and between Nixa
and BCC- Nixa.
4. Environmental Indemnity Agreement, dated as of August 30, 1996, by and
among Nixa, BCC-Nixa and the Balanced Care Guarantors.
5. The "Affiliated Party Subordination Agreements" as defined under the
Nixa Lease.
6. Lease Subordination Agreement, dated as of August 30, 1996, by and
among BCC-Nixa, Nixa and the Lender.
7. Omnibus Assignment of Contracts, dated as of August 30, 1996, by and
among the Borrowers, the Balanced Care Lessees, the Balanced Care
Guarantors, Long Term, the Lender and the Shareholders.
8. All other "Lease Documents", as defined under the Nixa Lease, to which
BCC-Nixa is a party (excluding, however, the Nixa Pledge Agreement).
56
EXHIBIT F
Lease Documents Assigned by BCC at Springfield Care Center, Inc.
1. Facility Lease, dated as of August 30, 1996, as amended, by and between
National Care Centers-Springfield and BCC-Springfield.
2. Collateral Assignment of Permits, Approvals, Licenses and Contracts,
dated as of August 30, 1996, granted by BCC-Springfield for the benefit
of National Care Centers-Springfield.
3. Security Agreement, dated as of August 30, 1996, by and between
National Care Centers-Springfield and BCC-Springfield.
4. Environmental Indemnity Agreement, dated as of August 30, 1996, by and
among National Care Centers-Springfield, BCC-Springfield and the
Balanced Care Guarantors.
5. The "Affiliated Party Subordination Agreements" as defined under the
Springfield Lease.
6. Lease Subordination Agreement, dated as of August 30, 1996, by and
among BCC-Springfield, National Care Centers-Springfield and the
Lender.
7. Omnibus Assignment of Contracts, dated as of August 30, 1996, by and
among the Borrowers, the Balanced Care Lessees, the Balanced Care
Guarantors, Long Term, the Lender and the Shareholders.
8. All other "Lease Documents", as defined under the Springfield Lease, to
which BCC-Springfield is a party (excluding, however, the Springfield
Pledge Agreement).
57
EXHIBIT G
Lease Documents Assigned by BCC at Mt. Xxxxxx Xxxx Care Center West, Inc.
1. Facility Lease Agreement, dated August 30, 1996, as amended, by and
between Mt. Xxxxxx and BCC-Mt.Xxxxxx Xxxx West.
2. Collateral Assignment of Permits, Approvals, Licenses and Contracts,
dated as of August 30, 1996, granted by BCC-Mt. Xxxxxx Xxxx West for
the benefit of Mt. Xxxxxx.
3. Security Agreement, dated as of August 30, 1996, by and between Mt.
Xxxxxx and BCC-Mt. Xxxxxx Xxxx West.
4. Environmental Indemnity Agreement, dated as of August 30, 1996, by and
among Mt. Xxxxxx, BCC-Mt. Xxxxxx Xxxx and the Balanced Care Guarantors.
5. The "Affiliated Party Subordination Agreements" as defined under the
West Park Lease.
6. Lease Subordination Agreement, dated as of August 30, 1996, by and
among BCC-Mt. Xxxxxx Xxxx West, Mt. Xxxxxx and the Lender.
7. Omnibus Assignment of Contracts, dated as of August 30, 1996, by and
among the Borrowers, the Balanced Care Lessees, the Balanced Care
Guarantors, Long Term, the Lender and the Shareholders.
8. All other "Lease Documents", as defined under the West Park Lease, to
which BCC-Mt. Xxxxxx Xxxx is a party (excluding, however, the West Park
Pledge Agreement).
