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Exhibit 10.12
FIFTH AMENDMENT TO STOCK PLEDGE AGREEMENT
This Fifth Amendment Agreement (this "Amendment") to that certain Stock
Pledge Agreement (as amended, the "Stock Pledge Agreement") entered into as of
April 18, 2000 by and among Balanced Care Corporation, a Delaware corporation
("BCC"), the other parties identified as Pledgors on the signature pages hereto,
all of which are Delaware corporations and are wholly-owned subsidiaries of BCC
(collectively referred to herein as "Subsidiaries", and together with BCC,
collectively the "Pledgor"), the parties identified as Companies on the
signature pages hereto, all of which are Delaware corporations (individually, a
"Company" and collectively, the "Companies"), FRR Investments Limited, a Cayman
Islands corporation ("FRR"), and IPC Advisors S.A.R.L., a Luxembourg corporation
("IPC"), is entered into as of this 7th day of March, 2001 by and among the
Pledgor, the Companies, FRR, IPC, HR Investments Limited, a Cayman Islands
corporation ("HR"), RH Investments Limited, a Cayman Islands corporation ("RH")
and VXM Investments Limited, a Cayman Islands corporation ("VXM") (FRR, IPC, HR,
RH and VXM are collectively referred to as the "Secured Party").
WITNESSETH:
WHEREAS BCC is issuing a Promissory Note (the "Promissory Note") dated
March 7, 2001 in favor of VXM in the original principal amount of $850,000,
evidencing a loan (the "Loan") to BCC by VXM in the original principal amount of
$850,000, the proceeds of which have been advanced to BCC;
AND WHEREAS Pledgor, being all of the shareholders of the Companies,
has received a direct benefit from the consummation of the transactions
evidenced by the Promissory Note;
NOW THEREFORE, the parties hereby agree as follows:
1. INCORPORATION OF RECITALS; DEFINITIONS.
The recitals set forth above are incorporated herein by reference and
are made a part hereof to the same extent as if such recitals were set forth
herein. Capitalized terms used but not defined herein shall have the meanings
ascribed to them in the Stock Pledge Agreement.
2. EQUITY PLEDGE.
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(a) Section 1 of the Stock Pledge Agreement is hereby amended and
restated in its entirety as follows:
"1. (i) Pledgor hereby pledges, grants a security interest in,
mortgages, assigns, transfers, delivers, sets over and
confirms unto Secured Party, its successors and assigns, all
of Pledgor's right, title and interest in and to all Equity
Interests owned by Pledgor with respect to the Companies
listed on Schedule 2A attached hereto and incorporated herein
(collectively, the "Approved Pledged Interests"), and delivers
to FRR, as agent for itself, IPC, HR Investments Limited
("HR"), RH Investments Limited ("RH") and VXM Investments
Limited ("VXM"), the certificates representing or evidencing
the Approved Pledged Interests on the date hereof, which
certificates are listed on Schedule 3A attached hereto and
incorporated herein (collectively, the "Approved
Certificates"), with equity powers attached duly endorsed in
blank by each Pledgor, receipt of which is acknowledged by
FRR, as agent for itself, IPC, HR, RH and VXM. The Approved
Pledged Interests shall be security for Pledgor's complete
payment and performance of: (a) Pledgor's obligations under
that certain promissory note dated March 7, 2001 in favor of
VXM in the original principal amount of $850,000, (b)
Pledgor's obligations under that certain promissory note dated
February 9, 2001 in favor of VXM in the original principal
amount of $750,000, (c) Pledgor's obligations under the
promissory notes dated December 7, 2000 in favor of HR, RH and
VXM in the original principal amounts of $500,000, $500,000
and $500,000, respectively; (d) Pledgor's obligations under
the promissory notes dated November 6, 2000 in favor of HR, RH
and VXM, in the original principal amounts of $2,166,666.67,
$2,166,666.67 and $2,166,666.66, respectively, and the
Indemnification Agreement (clauses (a), (b), (c) and (d)
collectively, "Loan Documents") and (e) all other past,
present and future obligations of Pledgor to any Secured Party
which the Secured Party makes subject to this Agreement in its
sole discretion by notice in writing given by such Secured
Party to Pledgor (clauses (a), (b), (c), (d) and (e)
collectively, the "Secured Obligations").
(ii) Subject to the express condition on effectiveness set
forth in Section (iii) below, Pledgor hereby pledges, grants a
security interest in, mortgages,
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assigns, transfers, delivers, sets over and confirms unto
Secured Party, its successors and assigns, all of Pledgor's
right, title and interest in and to all Equity Interests owned
by Pledgor with respect to the Companies listed on Schedule 2B
attached hereto and incorporated herein (collectively, the
"Non-Approved Pledged Interests"), and delivers to FRR, as
agent for itself, IPC, HR, RH and VXM the certificates
representing or evidencing the Non-Approved Pledged Interests
on the date hereof, which certificates are listed on Schedule
3B attached hereto and incorporated herein (collectively, the
"Non-Approved Certificates"), with equity powers attached duly
endorsed in blank by each Pledgor, receipt of which is
acknowledged by FRR, as agent for itself, IPC, HR, RH and VXM.
The Non-Approved Pledged Interests shall be security for
Pledgor's complete payment and performance of the Secured
Obligations. Hereinafter, the Approved Pledged Interests and
the Non-Approved Pledged Interests shall be collectively
referred to herein as the "Pledged Interests".
(iii) The Pledgor's pledge in Section (ii) above shall not
become effective with respect to the Non-Approved Pledged
Interests unless and until the Pledgor has obtained the
written consent of Xxxxxx Healthcare Finance, Inc. ("Xxxxxx")
to execute that certain Third Amendment to Stock Pledge
Agreement dated as of January 5, 2001 (the "Third Amendment")
executed by and among the Pledgor, the Companies and the
Secured Party. On the date hereof, Xxxxxx has not given its
consent to the Third Amendment.
(iv) Upon the payment and satisfaction in full of the Secured
Obligations, this Agreement and the security interests granted
hereby in the Pledged Interests shall be released (with FRR,
as agent for itself, IPC, HR, RH and VXM returning all
certificates evidencing Pledged Interests and the Secured
Party taking such other action as Pledgor may reasonably
request to release the security interests granted hereby).
3. MISCELLANEOUS.
(a) Except as expressly amended or modified by this Amendment, the
terms and conditions of the Stock Pledge Agreement shall
remain in full force and effect.
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(b) Each Pledgor hereby reaffirms and restates the representations
and warranties set forth in the Stock Pledge Agreement, as
amended by this Agreement, and all such representations and
warranties shall be true and correct on the date hereof
(unless expressly related to an earlier date) with the same
force and effect as if made on such date. Each Pledgor
represents and warrants (which representations and warranties
shall survive the execution and delivery hereof) to the
Secured Party that on the date hereof:
i. It has the corporate power and authority to execute,
deliver and carry out the terms and provisions of
this Agreement and the transactions contemplated
hereby and has taken or caused to be taken all
necessary corporate action to authorize the
execution, delivery and performance of this Agreement
and the transactions contemplated hereby;
ii. Except as already obtained, no consent of any other
person (including, without limitation, shareholders
or creditors of any Pledgor), and no action of, or
filing with any governmental or public body or
authority is required to authorize, or is otherwise
required in connection with the execution, delivery
and performance of this Agreement;
iii. This Agreement has been duly executed and delivered
on behalf of each Pledgor by a duly authorized
officer, and constitutes a legal, valid and binding
obligation of each Pledgor enforceable in accordance
with its terms, subject to bankruptcy,
reorganization, insolvency, moratorium and other
similar laws affecting the enforcement of creditors'
rights generally and the exercise of judicial
discretion in accordance with general principles of
equity; and
iv. The execution, delivery and performance of this
Agreement will not violate any law, statute or
regulation, or any order or decree of any court or
governmental instrumentality having jurisdiction over
any Pledgor, any Company or any property owned by any
Pledgor or any Company, or conflict with, or result
in the breach of, or constitute a default under any
contractual obligation of any Pledgor or any Company.
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(c) This Amendment may be executed in one or more counterparts,
each of which shall constitute an original but all of which
shall constitute one and the same instrument. Delivery of an
executed counterpart of a signature page to this Agreement by
telecopier shall be effective as delivery of a manually
executed signature page hereto.
(d) This Amendment may be amended only by a writing signed by all
of the parties hereto.
(e) This Amendment and the construction and enforcement hereof
shall be governed in all respects by the laws of the
Commonwealth of Pennsylvania exclusive of its conflicts of
laws principles.
[This Portion of the Page Intentionally Left Blank]
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IN WITNESS WHEREOF, Pledgor, each Company and Secured Party have caused this
Amendment to be duly executed and delivered under hand and seal, all as of the
day and year first above written.
PLEDGOR:
BALANCED CARE CORPORATION
By: /s/ Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Title: Senior Vice President and Legal
Counsel
BALANCED CARE REALTY I, INC.
BALANCED CARE REALTY II, INC.
BALANCED CARE REALTY III, INC.
BALANCED CARE REALTY IV, INC.
BALANCED CARE REALTY V, INC.
BALANCED CARE REALTY VI, INC.
BALANCED CARE REALTY VII, INC.
BALANCED CARE REALTY VIII, INC.
BALANCED CARE REALTY IX, INC.
BALANCED CARE REALTY X, INC.
BALANCED CARE REALTY XI, INC.
BALANCED CARE REALTY XII, INC.
BALANCED CARE REALTY XIII, INC.
BALANCED CARE REALTY XIV, INC.
BALANCED CARE REALTY XV, INC.
BALANCED CARE REALTY XVI, INC.
BALANCED CARE REALTY XVII, INC.
BALANCED CARE REALTY XVIII, INC.
BALANCED CARE REALTY XIX, INC.
BALANCED CARE REALTY XX, INC.
BALANCED CARE REALTY XXI, INC.
BALANCED CARE REALTY XXII, INC.
BALANCED CARE REALTY XXIII, INC.
BALANCED CARE REALTY XXIV, INC.
BALANCED CARE REALTY XXV, INC.
By: /s/ Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Title: Vice President and Secretary
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PLEDGOR:
BALANCED CARE REALTY XXVI, INC.
BALANCED CARE REALTY XXVII, INC.
BALANCED CARE REALTY XXVIII, INC.
BALANCED CARE REALTY XXIX, INC.
BALANCED CARE REALTY XXX, INC.
BALANCED CARE REALTY XXXI, INC.
BALANCED CARE REALTY XXXII, INC.
BALANCED CARE REALTY XXXIII, INC.
BALANCED CARE REALTY XXXIV, INC.
BALANCED CARE REALTY XXXV, INC.
BALANCED CARE REALTY XXXVI, INC.
BALANCED CARE REALTY XXXVII, INC.
BALANCED CARE REALTY XXXVIII, INC.
BALANCED CARE REALTY XXXIX, INC.
BCC AT HARRISBURG, INC.
BALANCED CARE AT TALLAHASSEE, INC.
BALANCED CARE AT PENSACOLA, INC.
BALANCED CARE AT XXXXXXXX, INC.
BALANCED CARE AT AKRON, INC.
BALANCED CARE AT YORK, INC.
BALANCED CARE AT HAGERSTOWN, INC.
BALANCED CARE AT BRISTOL, INC.
BALANCED CARE AT XXXXXXX CITY, INC.
BALANCED CARE AT MURFREESBORO, INC.
BALANCED CARE AT TEAY'S VALLEY, INC.
By: /s/ Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Title: Vice President and Secretary
COMPANIES:
BALANCED CARE REALTY AT ALTOONA, INC.
BALANCED CARE REALTY AT BERWICK, INC.
BALANCED CARE REALTY AT LEWISTOWN, INC.
BALANCED CARE REALTY AT MANSFIELD, INC.
BALANCED CARE REALTY AT MARTINSBURG, INC.
BALANCED CARE REALTY AT MAUMELLE, INC.
By: /s/ Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Title: Vice President and Secretary
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COMPANIES:
BALANCED CARE REALTY AT MOUNTAIN HOME, INC.
BALANCED CARE REALTY AT PECKVILLE, INC.
BALANCED CARE REALTY AT READING, INC.
BALANCED CARE REALTY AT SCRANTON, INC.
BALANCED CARE REALTY AT SHERWOOD, INC.
BALANCED CARE REALTY AT STATE COLLEGE, INC.
BCC AT WEST VIEW, INC.
BCC AT MID-VALLEY, INC.
BCC AT OLD FORGE, INC.
BCC AT BLOOMSBURG, INC.
BCC AT KINGSTON I, INC.
BCC AT KINGSTON II, INC.
BCC AT XXXXXXX, INC.
EXTENDED CARE OPERATORS OF HARRISBURG,
L.L.C.
BCC AT HARRISBURG, INC.
C & G HEALTHCARE AT TALLAHASEE, L.L.C.
C & G HEALTHCARE AT PENSACOLA L.L.C.
ELDER CARE OPERATORS OF LAKEMONT FARMS, LLC
ELDER CARE OPERATORS OF XXXXXXXX, LLC
ELDER CARE OPERATORS OF AKRON, LLC
ELDER CARE OPERATORS OF YORK, LLC
C & G HEALTHCARE AND HAGERSTOWN L.L.C.
ELDER CARE OPERATORS OF BRISTOL LLC
C & G HEALTH CARE AT XXXXXXX CITY, L.C.C.
ELDER CARE OPERATORS OF MURFREESBORO LLC
C & G HEALTHCARE AT TEAY'S VALLEY L.C.C.
By: /s/ Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Title: Vice President and Secretary
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COMPANIES:
BALANCED CARE AT TALLAHASSEE, INC.
BALANCED CARE AT PENSACOLA, INC.
BALANCED CARE AT LAKEMONT FARMS, INC.
BALANCED CARE AT XXXXXXXX, INC.
BALANCED CARE AT AKRON, INC.
BALANCED CARE AT YORK, INC.
BALANCED CARE AT HAGERSTOWN, INC.
BALANCED CARE AT BRISTOL, INC.
BALANCED CARE AT XXXXXXX CITY, INC.
BALANCED CARE AT MURFREESBORO, INC.
BALANCED CARE AT TEAY'S VALLEY, INC.
BCC AT DARLINGTON, INC.
BALANCED CARE AT XXXXXX, INC.
BALANCED CARE AT EYERS GROVE, INC.
BALANCED CARE AT NORTH RIDGE, INC.
BALANCED CARE AT XXXXXX, INC.
By: /s/ Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Title: Vice President and Secretary
SECURED PARTY:
FRR INVESTMENTS LIMITED
By:/s/X. X. Xxxxxxxx
Name: X. X. Xxxxxxxx
Title: Director
IPC ADVISORS S.A.R.L.
By:/s/ X. X. Xxxxxxxx
Name: X. X. Xxxxxxxx
Title: Manager
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SECURED PARTY:
HR INVESTMENTS LIMITED
RH INVESTMENTS LIMITED
VXM INVESTMENTS LIMITED
By:/s/ X. X. Xxxxxxxx
Name: X. X. Xxxxxxxx
Title: Director
