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Exhibit 10.9
FOURTH AMENDMENT TO STOCK PLEDGE AGREEMENT
This Fourth 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 9th day of February,
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
February 9, 2001 in favor of VXM in the original principal amount of $750,000,
evidencing a loan (the "Loan") to BCC by VXM in the original principal amount of
$750,000, 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:
"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 (collectively, the "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 Pledged Interests on the date hereof, which
certificates are listed on Schedule 3 attached hereto
(collectively, the "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, as security for Pledgor's complete payment and
performance of: (a) Pledgor's obligations under that certain
promissory note dated February 9, 2001 in favor of VXM in the
original principal amount of $750,000, (b) 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; (c)
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) and (c) collectively, "Loan Documents") and
(d) 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)
and (d) collectively, the "Secured Obligations"). 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.
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(a) Except as expressly amended or modified by this Amendment, the
terms and conditions of the Stock Pledge Agreement shall
remain in full force and effect.
(b) 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
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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.
(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.
4. CONDITION TO EFFECTIVENESS
(a) This Amendment shall become effective immediately with respect
to the Pledged Interests of the Companies numbered 1 through
43 (inclusive) but shall not become effective with respect to
the Pledged Interests of the Companies numbered 44 though 48
(inclusive) on Schedule A attached hereto and incorporated
herein until the Pledgor has obtained the written consent of
▇▇▇▇▇▇ Financial, Inc. to execute that certain Third Amendment
to Stock Pledge Agreement dated as of January 5, 2001 executed
by and among the Pledgor, the Companies and the Secured Party.
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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/▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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/▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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 ▇▇▇▇▇▇▇▇, INC.
BALANCED CARE AT AKRON, INC.
BALANCED CARE AT YORK, INC.
BALANCED CARE AT HAGERSTOWN, INC.
BALANCED CARE AT BRISTOL, INC.
BALANCED CARE AT ▇▇▇▇▇▇▇ CITY, INC.
BALANCED CARE AT MURFREESBORO, INC.
BALANCED CARE AT TEAY'S VALLEY, INC.
By:/s/▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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/▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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 ▇▇▇▇▇▇▇, 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 ▇▇▇▇▇▇▇▇, 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 ▇▇▇▇▇▇▇ CITY, L.C.C.
ELDER CARE OPERATORS OF MURFREESBORO LLC
C & G HEALTHCARE AT TEAY'S VALLEY L.C.C.
By:/s/▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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 ▇▇▇▇▇▇▇▇, INC.
BALANCED CARE AT AKRON, INC.
BALANCED CARE AT YORK, INC.
BALANCED CARE AT HAGERSTOWN, INC.
BALANCED CARE AT BRISTOL, INC.
BALANCED CARE AT ▇▇▇▇▇▇▇ CITY, INC.
BALANCED CARE AT MURFREESBORO, INC.
BALANCED CARE AT TEAY'S VALLEY, INC.
BCC AT DARLINGTON, INC.
BALANCED CARE AT ▇▇▇▇▇▇, INC.
BALANCED CARE AT EYERS GROVE, INC.
BALANCED CARE AT NORTH RIDGE, INC.
BALANCED CARE AT ▇▇▇▇▇▇, INC.
By:/s/▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President and Secretary
SECURED PARTY:
FRR INVESTMENTS LIMITED
By:/s/▇. ▇. ▇▇▇▇▇▇▇▇
Name: ▇. ▇. ▇▇▇▇▇▇▇▇
Title: Director
IPC ADVISORS S.A.R.L.
By:/s/▇. ▇. ▇▇▇▇▇▇▇▇
Name: ▇. ▇. ▇▇▇▇▇▇▇▇
Title: Manager
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SECURED PARTY:
HR INVESTMENTS LIMITED
RH INVESTMENTS LIMITED
VXM INVESTMENTS LIMITED
By:/s/▇. ▇. ▇▇▇▇▇▇▇▇
Name: ▇. ▇. ▇▇▇▇▇▇▇▇
Title: Director
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SCHEDULE A
COMPANIES
1. Balanced Care Realty at Altoona, Inc.
2. Balanced Care Realty at Berwick, Inc.
3. Balanced Care Realty at Lewistown, Inc.
4. Balanced Care Realty at Mansfield, Inc.
5. Balanced Care Realty at Martinsburg, Inc.
6. Balanced Care Realty at Maumelle, Inc.
7. Balanced Care Realty at Mountain Home, Inc.
8. Balanced Care Realty at Peckville, Inc.
9. Balanced Care Realty at Reading, Inc.
10. Balanced Care Realty at Scranton, Inc.
11. Balanced Care Realty at Sherwood, Inc.
12. Balanced Care Realty at State College, Inc.
13. BCC at West View, Inc.
14. BCC at Mid-Valley, Inc.
15. BCC at Old Forge, Inc.
16. BCC at Bloomsburg, Inc.
17. BCC at Kingston I, Inc.
18. BCC at Kingston II, Inc.
19. BCC at ▇▇▇▇▇▇▇, Inc.
20. BCC at Harrisburg, Inc.
21. Extended Care Operators of Harrisburg, L.L.C.
22. C & G Healthcare at Tallahasee, L.L.C.
23. C & G Healthcare at Pensacola L.L.C.
24. Elder Care Operators of Lakemont Farms, LLC
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25. Elder Care Operators of ▇▇▇▇▇▇▇▇, LLC
26. Elder Care Operators of Akron, LLC
27. Elder Care Operators of York, LLC
28. C & G Healthcare and Hagerstown L.L.C.
29. Elder Care Operators of Bristol LLC
30. C & G Health Care at ▇▇▇▇▇▇▇ City, L.C.C.
31. Elder Care Operators of Murfreesboro LLC
32. C & G Healthcare at Teay's Valley L.C.C.
33. Balanced Care at Tallahassee, Inc.
34. Balanced Care at Pensacola, Inc.
35. Balanced Care at Lakemont Farms, Inc.
36. Balanced Care at ▇▇▇▇▇▇▇▇, Inc.
37. Balanced Care at Akron, Inc.
38. Balanced Care at York, Inc.
39. Balanced Care at Hagerstown, Inc.
40. Balanced Care at Bristol, Inc.
41. Balanced Care at ▇▇▇▇▇▇▇ City, Inc.
42. Balanced Care at Murfreesboro, Inc.
43. Balanced Care at Teay's Valley, Inc.
44. BCC at Darlington, Inc.
45. Balanced Care at ▇▇▇▇▇▇, Inc.
46. Balanced Care at Eyers Grove, Inc.
47. Balanced Care at North Ridge, Inc.
48. Balanced Care at ▇▇▇▇▇▇, Inc.