Looking for an agreement? Search from over 1 million agreements now.

1st Amend. To 1st Series Master Trust Investment

This is an actual contract by Balanced Care.
Browse the agreement preview below and buy the entire agreement for $35
Search This Document
FIRST AMENDMENT TO FIRST SERIES MASTER INVESTMENT AGREEMENT
AND AGREEMENT REGARDING FIRST SERIES
CONSTRUCTION SCHEDULES, COMPLETION DATES, AND BUDGETS


THIS FIRST AMENDMENT TO FIRST SERIES MASTER INVESTMENT AGREEMENT AND AGREEMENT REGARDING FIRST SERIES CONSTRUCTION SCHEDULES, COMPLETION DATES, AND BUDGETS (this "Amendment") is made by and between BALANCED CARE CORPORATION ("BCC"), BCC DEVELOPMENT AND MANAGEMENT CO. ("Developer"), a Delaware corporation, ELDER CARE OPERATORS, LLC ("Elder Care"), a Delaware limited liability company, ELDER CARE OPERATORS OF YORK, LLC ("York"), a Delaware limited liability company, ELDER CARE OPERATORS OF LAKEMONT FARMS, LLC ("Lakemont"), a Delaware limited liability company, ELDER CARE OPERATORS OF MURFREESBORO, LLC ("Murfreesboro"), a Delaware limited liability company, ELDER CARE OPERATORS OF BRISTOL, LLC ("Bristol"), a Delaware limited liability company, ELDER CARE OPERATORS OF HILLIARD, LLC ("Hilliard"), a Delaware limited liability company, ELDER CARE OPERATORS OF AKRON, LLC ("Akron"), a Delaware limited liability company (York, Lakemont, Murfreesboro, Bristol, Hilliard, and Akron being hereinafter each individually referred to as a "Tenant" and collectively referred to as the "Tenants"), and NATIONWIDE HEALTH PROPERTIES, INC., a Maryland corporation ("NHP") and MLD DELAWARE TRUST ("MLD"), a Delaware business trust, and joined herein by KEVIN L. SHERRY ("Sherry"), solely for the purposes of acknowledging the changes in the Transaction Documents (defined below) set forth in this Amendment and reaffirming his obligations under the Note Guaranties (defined below).


RECITALS:


A. NHP (as landlord under 4 separate leases), MLD (as landlord under 2 separate leases), the Tenants (as individual tenants under separate leases), Elder Care, and/or BCC have previously entered into a series of six (6) transactions, as specifically set forth in Exhibit "A" of the Master Agreement (defined below) (hereinafter individually referred to as a "Transaction" and collectively referred to as the "Transactions"), each of which included the purchase, lease, and development of certain tracts or parcels of real property, together with all improvements thereon, all personal property to be leased therewith, and all appurtenances thereto (hereinafter individually referred to as a "Property" and collectively referred to as the "Properties"). 2
B. As a part of the Transactions, (i) the Properties were each leased from NHP or MLD by the applicable Tenant, pursuant to the terms and conditions set forth in a lease and security agreement (hereinafter individually referred to as a "Lease" and collectively referred to as the "Leases"), which Leases were all amended pursuant to the provisions of a First Amendment to Lease and Security Agreements ("First Lease Amendment"), made effective as of the respective execution dates of the Leases, and are to be further amended pursuant to the provisions of a Second Amendment to Lease and Security Agreements ("Second Lease Amendment"), being entered into contemporaneous herewith; (ii) Elder Care, which owns all or part of the membership interests in each of the Tenants, guaranteed the obligations of the applicable Tenants under each of the Leases pursuant to a lease guaranty (collectively, the "Lease Guaranties"); (iii) as additional security for the obligations of Tenants under each respective Lease, BCC entered into certain shortfall funding agreements and option agreements with the Tenants, and certain corresponding working capital assurance agreements with NHP or MLD, (collectively, the "Capital Agreements"), whereby BCC agreed to make working capital loans to the applicable Tenant, and as further security, NHP or MLD are party to deposit pledge agreements (collectively, the "Deposit Agreements") whereby each applicable Tenant pledges a minimum amount of capital as a working capital reserve for its operations; (iv) each Property has been or is being developed, used, and licensed (by the State in which such Property is located) as an assisted living facility, personal care home, independent living facility, or similar adult care facility (hereinafter individually referred to as a "Facility" and collectively referred to as the "Facilities"), including any applicable ancillary services for independent living, skilled nursing, rehabilitation, or Alzheimer's or dementia care; (v) BCC DEVELOPMENT AND MANAGEMENT CO. ("Developer"), a Delaware corporation wholly owned by BCC, acted or is acting as developer of each of the Properties, pursuant to the terms and conditions of development agreements (hereinafter individually referred to as a "Development Agreement" and collectively referred to as the "Development Agreements") entered into by and between Developer and NHP or MLD; (vi) BCC guaranteed the obligations of Developer under each respective Development Agreement and the completion of all improvements contemplated in such Development Agreements, pursuant to a guaranty agreement with NHP or MLD (collectively, the "Development Guaranties"), (vii) each of the Tenants entered into a management agreement with a newly formed subsidiary of BCC, whereby such BCC subsidiary agreed to manage the respective Facility on behalf of the respective Tenant (such BCC subsidiaries being hereinafter collectively referred to as the


- 2 - 3 "Managers"), (viii) BCC indemnified NHP or MLD with respect to possible environmental hazards on each applicable Property by means of environmental indemnification agreements (collectively, the "Environmental Indemnifications"), (ix) NHP or MLD, as applicable, granted rights of first refusal to BCC with respect to any proposed sales of the Properties, by means of right of first refusal agreements (hereinafter individually referred to as a "Refusal Agreement" and collectively referred to as the "Refusal Agreements"), (x) in order to assist Tenants with certain startup costs, NHP or MLD made loans (hereinafter individually referred to as a "Senior Loan" and collectively referred to as the "Senior Loans") to Elder Care with respect to each facility, pursuant to the terms of certain promissory notes, certain guarantees made by Sherry for the benefit of NHP of repayment of up to fifteen percent (15%) of the principal of such Senior Loans (collectively, the "Note Guaranties"), and other related security documents (such notes, Note Guaranties, and other security documents being hereinafter collectively referred to as the "Senior Loan Documents"), and (xi) the parties hereto previously entered into that certain First Series Master Investment Agreement (the "Master Agreement"), dated March 27, 1998, whereby NHP, MLD, BCC, Developer, Elder Care, and Oakhaven Elder Living, Inc. (a former 1% member of each of the Tenants) agreed that certain provisions related to NHP's maximum investment, cross default, cross renewal, purchase options, development fees, and budgets would govern all the Transactions (since Sherry has purchased all the equity ownership interests in Elder Care and the Tenants, Oakhaven Elder Living, Inc. is no longer a party to the Master Agreement). The documents and instruments defined or described in this Paragraphs A. and B. of these Recitals are hereinafter collectively referred to as the "Transaction Documents".


C. Due to unforeseen problems with the soil conditions at the Akron, Ohio Property, NHP, Elder Care, Akron, and BCC have determined it is not feasible or practical to continue the development of a Facility on such Property at this time, and that it may be necessary to sell such Property without further development and independently of the other Properties.


D. Due to unforeseen delays in construction of some of the Facilities, revisions to the budgets, and changes in NHP's Maximum Investment (as defined in the Master Agreement), the parties have agreed to establish new Construction Schedules and Completion Dates with respect to the delayed Facilities (other than the Akron, Ohio Facility), establish new Budgets for all the Facilities (other than the Akron, Ohio Facility), and permit certain increases in NHP's Maximum Investment.


- 3 - 4
E. It has been determined by the parties that it is necessary and desirable to amend the Master Agreement in the manner set forth in this Amendment.


NOW, THEREFORE, taking the foregoing paragraphs A through E (the "Recitals") into account, and in consideration of the mutual covenants, agreements, and conditions set forth herein and in the Transaction Documents described in the Recitals, and for other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, the parties hereto, intending to be legally bound, hereby agree as follows:


1. Definitions. All provisions of the Master Agreement will remain in full force and effect as if restated herein, except as such provisions may clearly conflict with the terms of this Amendment, and any words or phrases which are defined terms in the Master Agreement will have the same meaning in this Amendment as such words or phrases have in the Master Agreement (except as otherwise defined pursuant to the amendments set forth in this Amendment).


2. Amendment of Section 6(a) of the Master Agreement. Notwithstanding any other provision of the Master Agreement to the contrary, the parties hereto agree that the current language of the second sentence of Section 6(a) Master Agreement is hereby corrected and amended by replacing the phrase "exceeds NHP's Maximum Investment" with the phrase "exceeds six and one-half percent (6.5%) of NHP's Maximum Investment".


3. Further Amendment of the Master Agreement. Notwithstanding any other provision of the Master Agreement to the contrary, the parties hereto agree that the current language of the Master Agreement is hereby amended by inserting at the end thereof the following provisions:


"13. DEVELOPMENT OR SALE OF AKRON PROPERTY.


(a) Notwithstanding anything in this Master Agreement or the
Akron Development Agreement to the contrary, until or unless NHP
determines, in its sole and absolute discretion, that it is
economically desirable to build a Facility on the Akron, Ohio Premises
(as defined in the Akron, Ohio Lease) (herein referred to as the "Akron
Property") and gives BCC and Tenant written notice ("Construction
Notice") of its intent to complete construction of a Facility on the
Akron Property, NHP will not be obligated to (i) complete development
or construction of a Facility on the Akron Property, (ii) make any
additional payments for Work (as


- 4 - 5
defined in the Akron Development Agreement) performed on the Akron
Property (whether or not an Application for Payment has already been
received; provided, however, payments already made by NHP prior to the
Effective Date [as defined in the Amendment by which this Paragraph 13
was added to this Agreement] are not effected by this provision), or
(iii) pay or commit any additional funds with respect to the
development of the Akron Property, or with respect to any Development
Fees, Development Advance, or Land Acquisition Costs related to the
Akron Property. NHP and Developer hereby agree to stop all Work on the
Akron Property until or unless NHP delivers a Construction Notice to
Developer. Developer agrees to record, at Developer's expense and
within thirty (30) days after the Effective Date, signed unconditional
mechanic's lien waivers and releases from the Contractor (as defined in
the Akron Development Agreement) and each subcontractor or materials
supplier who has provided work or materials for the Improvements (as
defined in the Akron Development Agreement) constructed or the Work
performed on or before the Effective Date. BCC and Developer hereby
represent and warrant to NHP that (w) all Applications for Payment with
respect to Work performed on or before the Effective Date have been
submitted to NHP, (x) all p
-- End of Preview --
Home| About Us| FAQ| Subscription | Contact Us |