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Exhibit 10.21
FORM OF
FIRST AMENDMENT TO LOAN AGREEMENT
THIS FIRST AMENDMENT TO LOAN AGREEMENT ("Amendment") is made
effective as of the 30th day of September, 1999 ("Effective Date") between [ ],
a corporation organized under the laws of the State of [ ] ("Lender"), having
its principal office located at ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇.▇. ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇, and FINANCIAL CARE INVESTORS, LLC, a limited liability company
organized under the laws of the State of Delaware ("Borrower"), having its
principal office located at ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
R E C I T A L S
A. Lender has extended to Borrower a loan up to the amount of
[ ] ("Loan"). The Loan is evidenced by a Note ("Note") and subject to the terms
of a Loan Agreement ("Loan Agreement"), each dated as of September 22, 1998. The
Loan is secured by a security interest granted by [ ], a limited liability
company organized under the laws of the State of Delaware ("Tenant") under a
Security Agreement dated as of September 22, 1998 ("Security Agreement"). The
Note, Loan Agreement, and Security Agreement may be collectively called the
"Loan Documents".
B. Lender has leased to Tenant property located in [ ]
("Property") pursuant to a Lease Agreement dated as of September 22, 1998 as
amended by a First Amendment to Lease Agreement of even date ("Lease"). Tenant
intends to operate a [ ]-unit ([ ]-bed) [ ] ("Facility") on the Property.
C. Under a Shortfall Funding Agreement among Balanced Care
Corporation, Tenant and Borrower, Borrower agreed to contribute capital to
Tenant to fund the working capital needs of Tenant. Borrower agreed to borrow
85% of the working capital needs of Tenant through the Loan ("Senior Loan
Capital Portion"). Borrower also agreed to fund the remaining 15% as an equity
contribution ("Equity Capital Portion"). The Senior Loan Capital Portion and the
Equity Capital Portion collectively constitute the Working Capital Reserve.
D. The sole member of Borrower, ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, now desires
to withdraw as the nominal holder of the equity interests of Borrower so as to
permit a group of investors to purchase 100% of the equity interests and to make
certain investments in
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Borrower ("Equity Purchase"). Lender has consented to the Equity Purchase
subject to certain conditions including but not limited to modifications to the
Loan Agreement, Lease, and other documents.
E. In connection with the Equity Purchase, BCC Development and
Management Co. has agreed to make loans to Borrower to fund a portion of the
Equity Capital Portion of Tenant's working capital needs ("BCC Loans").
F. Borrower and Lender desire to amend the Loan Agreement to
reflect certain changes in the terms of the Loan Agreement related to the Equity
Purchase and the BCC Loans.
NOW THEREFORE, in consideration of the foregoing recitals and
for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, and intending to be legally bound hereby, the parties
hereto agree as follows.
1. Principal Place of Business. Borrower's chief executive
office as stated in the introductory paragraph of the Loan Agreement is amended
to read as follows: "1350 ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇".
2. Definitions. Any capitalized terms not defined in this
Amendment shall have the meaning set forth in the Loan Agreement.
(a) Section 1.2 of the Loan Agreement is amended to substitute
the following definitions:
"Affiliate" means any person, corporation,
partnership, limited liability company, trust, or other legal entity
that, directly or indirectly, controls, or is controlled by, or is
under common control with Borrower. "Control" (and the correlative
meanings of the terms "controlled by" and "under common control with")
means the possession, directly or indirectly, of the power to direct or
cause the direction of the management and policies of such entity.
"Affiliate" includes, without limitation, any corporation, partnership
or limited liability company (now or hereafter existing) of which the
equity interest is owned by any one or more Affiliates or by the
members of Borrower. "Affiliate" does not include any Member
individually or the Members collectively.
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"Member" means F. ▇▇▇▇▇ ▇▇▇▇ and ▇▇▇ ▇. ▇▇▇▇▇▇,
Co-Trustees of the ▇▇▇▇ Living Trust dated January 17, 1992; ▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇, an individual resident of Pennsylvania; ▇▇▇▇ ▇▇▇▇▇, an
individual resident of Pennsylvania; the ▇▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇
1993 Family Trust; and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇,
Trustees, or their successors in trust under the ▇▇▇▇▇▇▇ Family
Revolvable Trust u/t/a dated November 29, 1994, individually and
collectively.
"Transaction Documents" means the Loan Documents,
Lease Documents, the Management Agreement, the BCC Loan Documents, and
all agreements and documents made between Borrower or Tenant and
Balanced Care or by Borrower or Tenant in favor of Balanced Care,
including, without limitation, the Shortfall Agreement, the Option
Agreement, all Promissory Notes, the Open End Leasehold Mortgage and
Security Agreement, the Deposit Agreement and the Equity Pledge
Agreement; provided, however, Transaction Documents refer only to
agreements and documents entered into in connection with any lease
within the Current Phase that includes the Lease.
(b) Section 1.2 of the Loan Agreement is amended to add the
following definitions:
"BCC Loan" means any loan extended by BCC Development
and Management Co. to Borrower to fund a portion of the Equity Capital
Portion of Tenant's working capital needs.
"BCC Loan Documents" means the Loan Agreement and
Note executed by Borrower in connection with a BCC Loan.
3. Financial Documents. The last sentence of Section 5.2.1 of
the Loan Agreement is amended to read in its entirety as follows:
With each delivery of Annual Financial Statements and Periodic
Financial Statements to Lender, Borrower shall also deliver to Lender a
certificate signed by the managing member of Borrower in the form of
Exhibit F.
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4. Working Capital Budget. Exhibit C of the Loan Agreement,
Working Capital Budget, is amended to substitute the Exhibit C attached hereto
and made a part hereof.
5. Affirmation. Except as specifically modified by this
Amendment, the terms and provisions of the Loan Agreement are hereby affirmed
and shall remain in full force and effect.
6. Binding Effect. This Amendment shall be binding upon and
inure to the benefit of the successors and permitted assigns of Lender and
Borrower.
7. Representations and Warranties. Borrower affirms all
representations and warranties contained in the Loan Agreement as of the
Effective Date.
8. Further Modification. The Loan Agreement may be further
modified only by a writing signed by Lender and Borrower.
9. Counterparts. This Amendment may be executed in multiple
counterparts, each of which shall be deemed an original hereof.
10. Consent of Manager. This Amendment shall have no force or
effect unless and until Manager has executed the Consent set forth below.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, Lender and Borrower have executed this
Amendment as of the date first set forth above.
[ ]
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President and
Corporate Secretary
FINANCIAL CARE INVESTORS, LLC
By: /s/ F. ▇▇▇▇▇ ▇▇▇▇
F. ▇▇▇▇▇ ▇▇▇▇
Title: Manager
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CONSENT OF MANAGER
Manager hereby [i] consents to the foregoing Amendment; [ii]
agrees to be bound by the terms and provisions of the Amendment to the extent
applicable to Manager; [iii] affirms the Management Agreement which shall remain
in full force and effect; and [iv] waives any suretyship defenses arising in
connection with the Amendment.
BALANCED CARE AT [ ], INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President and Secretary