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Exhibit 10.7
RIGHT OF FIRST REFUSAL AGREEMENT
This Right of First Refusal Agreement is dated December 30, 1999 by and
among Meditrust Mortgage Investments, Inc., a Delaware corporation having a
principal place of business at 000 Xxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxxxxx, 00000
("MMI"), Meditrust Corporation, a Delaware corporation having a principal place
of business at 000 Xxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxxxxx, 00000 ("MC"; MMI and MC
hereinafter collectively referred to as Meditrust), and IPC Advisors S.A.R.L., a
Luxembourg corporation having for the purposes of this Agreement, an address at
00-00 Xxx Xxxxxx Xxxxx, Xxxxxxxxxx X-0000 ("IPC").
W I T N E S S E T H
WHEREAS, MMI owns three hundred thirty-one thousand three hundred
twelve (331,312) shares of common stock, $0.001 par value (the "Common Stock")
of Balanced Care Corporation, a Delaware corporation (the "Company"), and MC
owns seven hundred fifty thousand (750,000) shares of Common Stock of the
Company (said 331,312 and 750,000 shares of Common Stock being hereinafter
referred to as the "Shares"); and
WHEREAS, the parties desire to impose restrictions on the transfer of
the Shares.
NOW, THEREFORE, the parties, each in consideration that the other joins
herein, act and agree as follows:
1. Right of First Refusal. (a) In the event Meditrust desires to sell,
give or otherwise dispose of or transfer any of the Shares (such Shares so
desired to be sold, given or otherwise disposed of or transferred being
hereinafter in this Section 1 called the "Stock"), Meditrust shall, except only
as provided in subsection (b) below, be under an obligation, before selling,
giving or otherwise disposing of or transferring the Stock, to offer in writing
the Stock to IPC for purchase or acquisition by IPC and in such offer, and as an
essential part thereof, to state the name and address of the proposed transferee
(or that the proposed transferee will be a transferee in the open market), and
the price or consideration, if any, to be paid by such transferee (or the
expected price to be received by Meditrust if the Shares will be sold on the
open market) and the terms, if any, of payment of such price. IPC may, at any
time within ten (10) days after receipt of such an offer from Meditrust, elect
to accept such offer, but only with respect to all of the Stock, by so
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notifying Meditrust in writing and delivering to it a written acceptance of such
offer. The price, if any, at which IPC shall buy and Meditrust shall sell the
Stock, if such offer shall have been duly accepted as aforesaid, shall be the
price per Share, if any, as stated in the offer, to be paid for the Stock by the
proposed transferee, and shall be payable upon such terms, as stated in the
offer, to be paid by the proposed transferee on the tenth (10th) day after
acceptance of the offer (the "Payment Date") at the principal place of business
of Meditrust. If, within such ten (10) day period, IPC shall not elect to accept
the offer, or if IPC shall accept the offer and then fail to purchase the Stock
on or before the Payment Date, Meditrust may, prior to the expiration of six (6)
months from the date of such offer by Meditrust, give or otherwise dispose of or
transfer the Stock to the proposed transferee, and only to the proposed
transferee, and at the price, and only at the price, if any, named in the offer,
but not after the expiration of said six (6) months or to any other transferee
or at any other price without again offering the Stock to IPC for purchase by it
hereunder. Such failure by IPC to purchase the Stock following its acceptance of
an offer shall not deprive Meditrust of any right or remedy arising out of such
failure.
(b) The restrictions on transfer contained in this Section 1 shall not
be applicable to any transfer of Common Stock by Meditrust to any entity that is
a direct or indirect subsidiary of Meditrust Corporation, provided however, that
no such transfer under this subsection 1(b) may be made unless and until such
transferees shall have become parties to and bound by this Right of First
Refusal Agreement.
(c) A pledge or hypothecation shall not be deemed a sale, transfer or
other disposition for the purposes of this Section 1, provided that the pledgee
shall agree to be bound by and subject to this Right of First Refusal Agreement
upon any foreclosure or transfer pursuant to foreclosure under the pledge or
hypothecation. If the pledge or hypothecation is foreclosed, any transfer
pursuant to foreclosure shall be deemed a sale or transfer and shall be subject
to this Right of First Refusal Agreement.
(d) Any transfer, sale or disposition (or attempted transfer, sale or
disposition) of any Shares which violates or fails to comply with this Section 1
shall be absolutely void and of no force or effect.
2. Legend. Meditrust agrees that, during the term of this
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Right of First Refusal Agreement, it will cause each certificate representing
Shares to have noted thereon the following legend:
"This certificate and the shares represented hereby are subject to a
Right of First Refusal Agreement dated December 30, 1999, executed by
and among Meditrust Mortgage Investments, Inc., Meditrust Corporation
and IPC Advisors S.A.R.L. and to the restrictions and rights contained
therein, a copy of which Right of First Refusal Agreement will be
furnished by Meditrust Corporation to the holder of this certificate
upon written request and without charge."
3. Benefit and Binding Effect. This Right of First Refusal Agreement
shall inure to the benefit of the respective representatives, successors and
assigns of the parties hereto, and no other persons, and shall be binding upon
such representatives, successors and assigns and all other persons having or
claiming an interest in any Shares, whether by operation of law or otherwise.
4. Termination. This Right of First Refusal Agreement, as the same may
from time to time be amended, may be terminated at any time by an instrument in
writing duly executed by Meditrust and IPC, or their respective successors,
assigns and transferees, without any requirement for action by or on behalf of
the Company. Unless sooner terminated pursuant to the provisions of the
immediately preceding sentence, this Right of First Refusal Agreement shall
continue until December 31, 2009; provided, however, that this Right of First
Refusal Agreement shall terminate automatically upon the occurrence of any of
the following events:
(a) as a result of purchases made pursuant to this Right of First
Refusal Agreement, Meditrust no longer owns any Shares;
(b) a "Buyer Default" pursuant to and as defined in that certain Option
Agreement of even date herewith by and among the Company, New Meditrust Company
LLC and IPC;
(c) an "Event of Default" pursuant to and as defined in that certain
$7,811,054 Note of even date herewith from the Company and IPC to New Meditrust
Company LLC;
(d) the Company is liquidated and dissolved; or
(e) the Company is adjudicated bankrupt or insolvent.
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5. Additional Securities. (a) All references in this Right of First
Refusal Agreement to Shares shall be deemed to mean, and this Right of First
Refusal Agreement shall be applicable to, all other securities which may from
time to time hereafter come to the holders of record of the Shares as a result
of any one or more stock or security reclassifications, changes, exchanges,
dividends, splits, consolidations, subdivisions or combinations, or any one or
more consolidations, mergers, recapitalizations or reorganizations affecting the
Company or the holders of record of its stock or other securities, or any one or
more sales or conveyances to another corporation of the properties of the
Company as an entirety or substantially as an entirety, except for stock or
other securities surrendered or canceled pursuant to any of same.
6. Severability. If any term or condition of this Right of First
Refusal Agreement shall be invalid or unenforceable to any extent or in any
application, then the remainder of this Right of First Refusal Agreement, and
such term or condition except to such extent or in such application, shall not
be affected thereby, and each and every term and condition of this Right of
First Refusal Agreement shall be valid and enforceable to the fullest extent and
in the broadest application permitted by law.
7. Waivers or Modifications. Neither this Right of First Refusal
Agreement nor any term or condition hereof, including without limitation, the
terms and conditions in this Section, may be waived in whole or in part or
otherwise modified as against any party hereto, except by written instrument
signed by the party sought to be charged hereunder expressly stating that it is
intended to operate as a waiver or modification of this Right of First Refusal
Agreement.
8. Notices. Any notice, offer, acceptance, request, instruction or
other document to be given, made or delivered under this Right of First Refusal
Agreement shall be in writing (a "Notice"). Any Notice shall be (i) personally
delivered, (ii) sent by certified mail, return receipt requested or (iii) sent
by nationally recognized commercial overnight delivery service, with provision
for a receipt, postage or delivery charges prepaid and, in each instance, sent
simultaneously by facsimile transmission. Any Notice shall be deemed given when
hand delivered, postmarked or placed in the possession of such mail or delivery
service, as the case may be (provided, that, in each instance, a copy of such
Notice was simultaneously sent by facsimile transmission) and shall be addressed
as follows:
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if to Meditrust, to it at:
Meditrust Corporation
000 Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxxxxx 00000
Fax: (000) 000-0000
Attention: President
with a copy simultaneously so sent to:
Meditrust Corporation
000 Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxxxxx 00000
Fax: (000) 000-0000
Attention: General Counsel
and
Xxxxxx, XxXxxxxxx & Fish, LLP
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000-0000
(000) 000-0000
Attention: Xxxxxxxx Xxxxxxx, Esq.
if to IPC, to it at
IPC Advisors S.a.r.l.
00-00 Xxx Xxxxx Xxxxx
Xxxxxxxxxx X-0000
Fax: 000000000000
Attention: X.X.Xxxxxxxx
with a copy simultaneously so sent to:
IPC Advisors S.a.r.l.
c/o Unsworth & Associates
Xxxxxxxxxxx 000
0000 XX
Xxxxxxxxx, Xxxxxxxxxxx
Fax: 000-00000000000
Attention: X.X. Xxxxxxxx
Xxxxxxx, Xxxxxxxx and Xxxxxxxx
000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx
Xxxxxx X0X 0X0
Fax: (000) 000-0000
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Attn: Xxxxxxx Xxxxxx, Esq.
or to such other address as any party hereto may designate by notice given as
herein provided.
9. Captions. The captions of the Sections of this Right of First
Refusal Agreement are for convenience of reference only and shall not affect the
meaning or interpretation of any of the provisions hereof.
10. Governing Law. This Right of First Refusal Agreement shall be
construed in all respects in accordance with the law of the Commonwealth of
Massachusetts.
11. Closing Dates. If any closing contemplated by this Right of First
Refusal Agreement is, by the terms of this Right of First Refusal Agreement,
scheduled to occur on (i) a Saturday, Sunday or statutory holiday in the State
of New York or (ii) any of the first, second, seventh or eighth day of Passover,
the first or second day of Shavuoth, the first or second day of Rosh Hashanah,
Yom Kippur, the first or second day of Sukkoth, Shemini Azereth or Simchas
Torah, the closing shall occur on the next day that is not such a day.
12. Ownership. Meditrust hereby represents and warrants to IPC that the
Shares are the only Common Stock or rights to acquire any equity securities of
the Company held by Meditrust.
WITNESS the execution hereof under seal as of the day and year first
above written.
MEDITRUST MORTGAGE INVESTMENTS, INC.
CORPORATE
SEAL By: /s/ Xxxxxxx X. Xxxxxxxx, Esq.
Its : Senior Vice President
MEDITRUST CORPORATION
CORPORATE
SEAL By: /s/ Xxxxxxx X. Xxxxxxxx, Esq.
Its: Senior Vice President
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IPC ADVISORS S.A.R.L.
CORPORATE
SEAL By: /s/ X.X. Xxxxxxxx
Its: Manager
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