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Exhibit 10.11
CROSS-DEFAULT AGREEMENT
THIS CROSS-DEFAULT AGREEMENT is made as of the 12th day of January,
2000 by and among (i) BALANCED CARE AT ▇▇▇▇▇▇▇▇, INC., a Delaware corporation
(the "Potomac Point Lessee"); (ii) NEW MEDITRUST COMPANY LLC, a Delaware limited
liability company (the "Lessor"), successor by merger to Meditrust Company LLC,
a Delaware limited liability company (the "Original Lessor"); (iii) MEDITRUST
MORTGAGE INVESTMENTS, INC., a Delaware corporation ("MMI") and (iv) BALANCED
CARE CORPORATION, a Delaware corporation ("BCC").
W I T N E S S E T H
WHEREAS, the Lessor is the holder of the landlord's interest under that
certain Facility Lease Agreement, dated as of June 30, 1998, by and between the
Original Lessor and the Potomac Point Lessee relating to a certain adult care
residence located in ▇▇▇▇▇▇▇▇ County, Virginia (the "Potomac Point Lease");
WHEREAS, BCC, the sole shareholder of the Potomac Point Lessee,
guaranteed the Lease Obligations (as defined under the Potomac Point Lease)
pursuant to that certain Guaranty, dated as of June 30, 1998 executed for the
benefit of the Original Lessor and its successors and assigns (the "Potomac
Point Guaranty");
WHEREAS, MMI is the holder of the lender's interest under the "Loan
Documents" as such term is defined under that certain Loan Agreement, dated as
of August 6, 1996, as amended (the "Hawthorn Loan Agreement"), by and among (i)
MMI and (ii) Hawthorn Health Properties, Inc., a California corporation,
National Care Centers of Hermitage, Inc., a Missouri corporation, National Care
Centers, Inc., a Missouri corporation, National Care Centers of Lebanon, Inc., a
Missouri corporation, Springfield Retirement Village, Inc., a Missouri
corporation, National Care Centers of Nixa, Inc., a Missouri corporation,
National Care Centers of Springfield, Inc., a Missouri corporation and Mt.
▇▇▇▇▇▇ ▇▇▇▇ Care Center West, Inc., a Missouri corporation (the "Hawthorn
Borrowers");
WHEREAS, at the request of BCC, MMI (an affiliate of the Lessor) was
requested to consent to certain transactions contemplated by that certain Asset
Purchase Agreement, dated as of October 15, 1999, as amended, by and among BCC
(on behalf of itself and certain subsidiaries) and Christian Health Care of
Missouri, Inc. (the "BCC/CHC Purchase Agreement");
WHEREAS, MMI was willing to consent to the transactions contemplated by
the BCC/CHC Purchase Agreement, subject to the satisfaction of certain
conditions, including, without limitation, the execution and delivery by BCC of
a guaranty of the Loan Obligations (as defined under the Hawthorn Loan
Agreement) and the execution and delivery of this Agreement; and
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WHEREAS, BCC and its subsidiary, the Potomac Point Lessee, will receive
direct and indirect benefits from the consummation of the transactions
contemplated by the BCC/CHC Purchase Agreement.
NOW, THEREFORE, in order to induce MMI to consent to the transactions
contemplated by the BCC/CHC Asset Purchase Agreement, and in consideration
therefor, and for One Dollar ($1.00) and other good and valuable consideration,
the receipt and sufficiency of which are acknowledged, and in consideration of
the mutual covenants set forth herein, the parties hereto hereby agree as
follows:
1. From the date hereof until the earlier to occur of (a) the
Termination Date (as defined under that certain Termination Agreement, of even
date herewith by and among MMI, the Lessor, the Hawthorn Borrowers, BCC, ▇▇▇▇▇
Management, Inc. and the Potomac Point Lessee) or (b) such time, if any, as the
Leased Property (as defined under the Potomac Point Lease) is transferred to the
Buyer (as hereinafter defined) or any of the Buyer's Title Designees (as
hereinafter defined) pursuant to that certain Option Agreement, dated as of
December 30, 1999, by and among the Lessor, IPC Advisors S.a.r.l., a Luxembourg
corporation and BCC (the "Option Agreement"), the parties hereto acknowledge and
agree that the occurrence of an Event of Default as defined under the Hawthorn
Loan Agreement shall constitute an Event of Default under Potomac Point Lease.
Notwithstanding the foregoing, in the event that, (i) solely as a consequence of
any Seller Default (as defined under the Option Agreement), the Buyer or any of
the Buyer's Title Designees do not acquire the Leased Property in accordance
with the terms of the Option Agreement and that is the only reason that the
Leased Property is not transferred to the Buyer or any of the Buyer's Title
Designees in accordance with the terms of the Option Agreement [recognizing that
a failure to transfer the Leased Property to the Buyer or any of the Buyer's
Title Designees in accordance with the terms of the Option Agreement may result
from other causes, such as a determination by the Buyer to refrain from
exercising any or all of its Option Rights (as defined under the Option
Agreement) and/or a Buyer Default (as defined under the Option Agreement)] and
(ii) the Buyer or the Buyer's Title Designees have acquired all other portions
of the Land (as defined under the Option Agreement) not affected by any Seller
Default, then, upon the occurrence of the events described in the foregoing
clauses (i) and (ii) (the "Termination Event"), this Agreement shall terminate.
As used herein, the terms "Land", "Buyer" and "Title Designees" shall
have the same meanings as ascribed to such terms under the Option Agreement.
2. This Agreement shall be deemed to amend the Potomac Point Lease
solely as expressly set forth herein and, as amended hereby, the Potomac Point
Lessee hereby ratifies, approves and confirms the Potomac Point Lease, in every
respect as of the date hereof and agrees that the Potomac Point Lease is valid,
binding and in full force and effect.
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3. This Agreement shall not be deemed to amend, abridge, limit, modify,
release, terminate or otherwise affect any of the provisions of the Potomac
Point Guaranty. Without limiting the foregoing, BCC hereby confirms that the
Potomac Point Guaranty remains in full force and effect, unaffected by the
execution and delivery of this Agreement.
4. This Agreement shall be binding on and inure to the benefit of the
parties hereto and their respective successors and assigns.
5. This Agreement shall remain in full force and effect until the
earlier to occur of (i) the conveyance of all of the Land to the Buyer or the
Buyer's Title Designees in accordance with the terms of the Option Agreement,
(ii) the Termination Event, (iii) the complete payment and performance of the
Loan Obligations or (iv) the complete payment and performance of the Lease
Obligations.
6. 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. BCC and the Potomac Point Lessee 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 this Agreement.
7. This Agreement 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.
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IN WITNESS WHEREOF, the parties have executed this Agreement under seal
as of the day and year first above written.
WITNESS: BALANCED CARE AT ▇▇▇▇▇▇▇▇, INC., a
-------- Delaware corporation
/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President and Secretary
BALANCED CARE CORPORATION, a
Delaware corporation
/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ By: /s/▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President and Legal Counsel
& Assistant Secretary
NEW MEDITRUST COMPANY LLC, a Delaware
limited liability company
/s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ By: /s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Senior Vice President
MEDITRUST MORTGAGE INVESTMENTS, INC., a
Delaware corporation
/s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ By: /s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Senior Vice President
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