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Exhibit 10.19
FORM OF
FIRST AMENDMENT TO LEASE AGREEMENT
THIS FIRST AMENDMENT TO LEASE 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 [ ] ("Landlord"), having
its principal office located at ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇.▇. ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇, and [ ], a limited liability company organized under the laws of the
State of Delaware ("Tenant"), having its principal office located at ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
R E C I T A L S
A. Landlord leased to Tenant property located in [ ]
("Property") pursuant to a Lease Agreement dated as of September 22, 1998
("Lease"). Tenant intends to operate a [ ]-unit ([ ]-bed) [ ] ("Facility") on
the Property.
B. The Lease is guaranteed by the Unconditional and Continuing
Lease Guaranty of Balanced Care Corporation ("Guarantor") dated as of September
22, 1998 ("Guaranty").
C. Pursuant to a Construction Disbursing Agreement
("Construction Agreement") dated as of September 22, 1998 between Landlord and
BCC Development and Management Co. ("Developer") and the Lease, Landlord has
agreed to pay for certain acquisition, development and construction costs of the
Facility.
D. Landlord has extended to Financial Care Investors, LLC
("Member"), the sole member of Tenant, a loan up to the amount of [ ] for
Facility working capital purposes ("Equity Loan"). The Equity 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 Equity Loan is secured by
a security interest granted by 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 "Equity Loan Documents".
E. Under a Shortfall Funding Agreement among Guarantor, Tenant
and Member, Member agreed to contribute capital to Tenant to fund the working
capital needs of Tenant. Member agreed to borrow 85% of the working capital
needs of Tenant through the Equity Loan ("Senior Loan Capital Portion"). Member
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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. Guarantor agreed to advance
funds to Tenant upon the depletion of the Working Capital Reserve to pay any
shortfalls in the working capital needs of Tenant. Guarantor's obligation to
fund working capital shortfalls is confirmed in and subject to the terms of the
Working Capital Assurance Agreement between Guarantor and Landlord dated as of
September 22, 1998 ("Working Capital Assurance Agreement").
F. Tenant provided a Letter of Credit to Landlord in the
amount of 5% of the Maximum Lease Amount as security for the performance of the
Secured Obligations (as defined in the Lease).
G. As additional security for the Secured Obligations and the
Equity Loan, Tenant and Member granted to Landlord and to Guarantor a pledge of
and security interest in a certain Collateral Account as defined in the Deposit
Pledge Agreement among Landlord, Guarantor, Member, and Tenant dated as of
September 22, 1998 ("Pledge Agreement").
H. The sole member of Financial Care Investors, LLC, ▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇, now desires to withdraw as the nominal holder of the equity interests
of Member so as to permit a group of investors to purchase 100% of the equity
interests and to make certain investments in Member ("Equity Purchase").
Landlord has consented to the Equity Purchase subject to certain conditions
including but not limited to modifications to the Lease.
I. In connection with the Equity Purchase, Developer has
agreed to make loans to Member to fund a portion of the Equity Capital Portion
of Tenant's working capital needs ("BCC Loans").
J. In addition, Tenant has requested certain changes to the
financial covenants contained in the Lease.
K. Tenant and Landlord desire to amend the Lease to reflect
certain changes in the terms of the Lease related to the Equity Purchase and the
BCC Loans and to modify the financial covenants.
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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. Tenant's chief executive
office as stated in the introductory paragraph of the Lease is amended to read
as follows: "1350 ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇".
2. Term. Section 1.2 of the Lease is amended to read in its
entirety as follows:
1.2 Term. The Construction Term of this Lease
commences on the Effective Date and expires on the Conversion Date. The
initial term ("Initial Term") of this Lease commences on the day after
the Conversion Date and expires at 12:00 Midnight Eastern Time on the
sixteenth anniversary of the Term Commencement Date (the "Expiration
Date"); provided, however, that [i] Tenant has one or more options to
renew the Lease pursuant to Article 12, and [ii] the Initial Term may
be extended from time to time pursuant to Article 23.
3. Definitions. Any capitalized terms not defined in this
Amendment shall have the meaning set forth in the Lease or the Construction
Agreement, as the case may be.
(a) Section 1.3 of the Lease is amended to substitute the
following definitions:
"Equity Loan" means any loan extended by Landlord to
Member for working capital purposes pursuant to the term of the Equity
Loan Documents.
"Equity Loan Documents" means the Loan Agreement and
Note executed on behalf of Member and the Security Agreement executed
by Tenant in connection with the Equity Loan.
"Increaser Rate" means [i] in any Lease Year (other
than Lease Years 15 and 16 of the Initial Term) in which the nationwide
Consumer Price Index for all urban consumers increases by a percentage
that is less than 20%, 25 basis points per year for the Initial Term
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and 25 basis points per year for each Renewal Term; [ii] in all other
Lease Years (other than Lease Years 15 and 16 of the Initial Term), 30
basis points per year for the Initial Term and 30 basis points per year
for each Renewal Term; and [iii] in Lease Years 15 and 16 of the
Initial Term, 58 basis points per year if the nationwide Consumer Price
Index for all urban consumers increases by a percentage that is less
than 20% or 63 basis points per year if the nationwide Consumer Price
Index for all urban consumers increases by a percentage that is 20% or
greater.
"Lease Documents" means [i] this Lease; [ii] the
Construction Agreement; [iii] the Collateral Assignment of Construction
Contract; [iv] the Collateral Assignment of Architect's Contract; [v]
the Collateral Assignment of Management Agreement and Consent of
Manager to Collateral Assignment of Management Agreement and Security
Agreement; [vi] the Cash Collateral Security Agreement (Fill Up
Account); [vii] the Cash Collateral Security Agreement (Working Capital
Account), and [viii] all other documents and instruments executed by
Tenant, Manager or Developer and Landlord in connection with the Lease.
"Working Capital Documents" means [i] the Transaction
Documents as defined in Appendix I to that certain Shortfall Funding
Agreement among Guarantor, Tenant, and Member; [ii] the Working Capital
Assurance Agreement; and [iii] the BCC Loan Documents.
(b) Section 1.3 of the Lease is amended to add the
following definitions:
"Actual Fill Up Schedule" means, for each month of
each Fill Up Quarter, the computation of actual results for each of the
following:
[i] Average Daily Census;
[ii] Quarterly Cash Flow; and
[iii] Cumulative Cash Flow.
"Applicable Percentage" means 25% for the first Fill
Up Quarter, 20% for the second Fill Up Quarter, 15% for the third Fill
Up Quarter, 10% for the fourth Fill Up Quarter, and 5% for each Fill Up
Quarter thereafter.
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"Average Daily Census" means the result of dividing
the total resident days for a specific month by the number of days
contained in that month.
"BCC Loan" means any loan extended by Developer to
Member 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 Member in connection with a BCC Loan.
"Budgeted Fill Up Schedule" means, for each Fill Up
Quarter, the schedule as set forth on Exhibit H for each of the
following:
[i] Average Daily Census;
[ii] Quarterly Cash Flow;
[iii] Cumulative Cash Flow;
[iv] Stabilization; and
[v] Fill Up Working Capital Amount.
"C of O" means the certificate of occupancy issued
for the Facility.
"Cumulative Cash Flow" means the accumulation of the
Quarterly Cash Flow a set forth on the Budgeted Fill Up Schedule.
"Developer" means BCC Development and Management Co.,
a corporation organized under the laws of the State of Delaware.
"Fill Up Account" means an interest bearing account
under the control of Landlord established with National City Bank of
Cleveland into which Landlord shall deposit funds received from Tenant
pursuant to Section 15.7.6.
"Fill Up Period" means the period of time commencing
on the first day of the first Fill Up Quarter and terminating upon
Stabilization.
"Fill Up Quarter" means a three month period of time,
the first of which will commence on either [i] the first day of the
month after the issuance of the C
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of O or [ii] if the C of O is issued during the first five days of the
month, then the first day of the month that the C of O is issued, and
terminating three full months thereafter, and each three month period
thereafter during the Fill Up Period.
"Fill Up Working Capital Amount" means the amount
necessary to meet anticipated working capital needs for the period set
forth on the Budgeted Fill Up Schedule.
"Quarterly Cash Flow" means the net income of Tenant
as reflected on the income statement of Tenant plus [i] the amount of
the provision for depreciation and amortization; plus [ii] the amount
of the provision for management fees; plus [iii] the amount of the
provision for income taxes; plus [iv] the amount of the provision for
interest and lease payment, if any; less [v] the amount of the
provision for Rent payments.
"Revised Fill Up Schedule" means, for each Fill Up
Quarter that Tenant is required to prepare a reconciliation pursuant to
Section 15.7.6(b) hereof, the revised schedule for each of the
following for the period covered by the Budgeted Fill Up Schedule:
[i] Average Daily Census;
[ii] Quarterly Cash Flow;
[iii] Cumulative Cash Flow;
[iv] Fill Up Working Capital Amount; and
[v] Working Capital Deficiency.
"Revised Fill Up Working Capital Amount" means the
Fill Up Working Capital Amount set forth on the Revised Fill Up
Schedule, calculated to adjust for any variances in Average Daily
Census and Quarterly Cash Flow and projected forward utilizing the
assumption set forth in the Underwriting Schedule.
"Stabilization" means the end of the Fill Up Quarter
in which Tenant first achieves the Average Daily Census and Quarterly
Cash Flow shown in the column headed "Stabilized" on the Budgeted Fill
Up Schedule.
"Underwriting Schedule" means the schedule set forth
on Exhibit I.
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"Working Capital Account" means the account funded as
provided in Section 15.9.
"Working Capital Deficiency" means the amount derived
from adding the Revised Fill Up Working Capital Amount plus the
Cumulative Cash Flow as set forth in the Revised Fill Up Schedule and
subtracting the Fill Up Working Capital Amount as set forth in the
Budgeted Fill Up Schedule.
4. Financial Covenants.
(a) Section 15.7.2 of the Lease is amended to read in its
entirety as follows:
15.7.2 Coverage Ratio. Tenant shall maintain a
Coverage Ratio with respect to the Facility of not less than 1.25 to
1.00, measured on a monthly basis commencing on the date of
Stabilization as set forth on the Budgeted Fill Up Schedule.
(b) Section 15.7.3 of the Lease is amended to read in its
entirety as follows:
15.7.3 Net Worth. Guarantor shall maintain for each
fiscal quarter a Net Worth and equity capitalization of not less than
$35,000,000.00.
(c) Section 15.7.5 of the Lease is amended to read in its
entirety as follows:
15.7.5 Debt to Equity Ratio. Guarantor shall maintain
for each fiscal quarter a ratio of total indebtedness to shareholders'
equity not to exceed 10.0 to 1.0. The aggregate lease amount under all
capitalized and operating leases shall be included as indebtedness and
all subordinated debt shall be included as equity. For purposes of this
section, "operating leases" shall include all future lease obligations
where Guarantor is not currently the tenant but has an option to
purchase the equity interest in or assets of the tenant or where
Guarantor otherwise has rights to purchase the assets or equity of the
tenant or where Guarantor has agreed to fund operating shortfalls in
connection with the operation of the facility by the tenant.
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5. Fill Up Requirements. Article 15 of the Lease is amended to
add the following Section 15.7.6:
15.7.6 Fill Up Requirement. For each Fill Up Quarter,
Tenant shall have achieved the Average Daily Census and the Cumulative
Cash Flow specified in the Budgeted Fill Up Schedule for that month.
Failure to satisfy this provision shall not be a default under this
Lease if Tenant complies with the requirements of Section 15.7.6(a) -
(d).
(a) Reporting of Compliance with Fill Up Schedule.
Within 15 days after each Fill Up Quarter, Tenant shall provide
Landlord with the Actual Fill Up Schedule for said Fill Up Quarter.
(b) Reconciliation. In the event the Actual Fill Up
Schedule shows any deviation from the Budgeted Fill Up Schedule, Tenant
shall submit, together with the Actual Fill Up Schedule, a Revised Fill
Up Schedule in form reasonably acceptable to Landlord. The Revised Fill
Up Schedule shall set forth detailed line item reconciliation of each
item reported on the Budgeted Fill Up Schedule, including a calculation
of the Revised Fill Up Working Capital Amount required to stabilize the
Facility and the Working Capital Deficiency.
(c) Amended Budgeted Fill Up Schedule. If the Revised
Fill Up Schedule submitted by Tenant to Landlord under Section
15.7.6(b) above is acceptable to Landlord, such Revised Fill Up
Schedule shall thereafter be deemed to be the Budgeted Fill Up Schedule
for purposes of this Section 15.7.6.
(d) Fill Up Account.
Deposits. Within five (5) business days after Landlord has approved the
Revised Fill Up Schedule (which approval shall not be unreasonably
withheld, conditioned or delayed), Tenant shall deliver to Landlord for
deposit in the Fill Up Account the greater of [i] the Fill Up Working
Capital Deficiency or [ii] the Applicable Percentage of the Fill Up
Working Capital Amount. Within five (5) business days after Landlord
notifies Tenant that the Revised Fill Up Schedule is not acceptable,
Tenant shall deliver to Landlord for deposit in the Fill Up Account the
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Applicable Percentage of the Fill Up Working Capital Amount as shown on
the Budgeted Fill Up Schedule. Within ten (10) business days after
Landlord notifies Tenant that the Revised Fill Up Schedule is not
acceptable, Tenant shall deliver to Landlord a modified Revised Fill Up
Schedule acceptable to Landlord.
(i) Use of Fill Up Account Funds. All funds delivered
to Landlord pursuant to this section shall be deposited in the Fill Up
Account. All interest accrued on the Fill Up Account shall be deemed to
be income of Tenant and shall be so reported for tax purposes.
Withdrawals from the Fill Up Account shall be permitted solely for
working capital purposes and only upon the prior written consent of
Landlord, which consent shall not be unreasonably withheld, conditioned
or delayed. No funds may be drawn under the Fill Up Account until
Member has borrowed all funds available under the Equity Loan Documents
and the BCC Loan Documents. If Landlord at any time applies funds in
the Fill Up Account to payments due under the Lease, which Landlord may
do but which Landlord is not obligated to do, then Tenant shall
promptly replenish the Fill Up Account to its original amount. The Fill
Up Account, including accrued interest, shall be released to Tenant
within five (5) business days after satisfaction of the following
conditions: [a] no monetary Event of Default has occurred under any
financing made pursuant to the Credit Facility; and [b] the Facility
has reached Stabilization.
6. Additional Equity Investment. Article 15 of the Lease shall
be amended to add a new Section 15.9 as follows:
15.9 Additional Equity Investment. Guarantor and
Member shall provide Landlord with evidence of additional equity
invested in Member in the amount of at least $236,710.00 on or before
November 30, 1999. If Guarantor and Member fail to satisfy the
foregoing requirement within the time specified, Landlord shall place
the Shortfall Equity Amount (as hereinafter defined) into an interest
bearing account under the control of Landlord established with National
City Bank of Cleveland ("Working Capital Account"). Developer shall
execute a Cash Collateral Security Agreement in
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favor of Landlord, granting to Landlord a security interest in the
Working Capital Account. The Shortfall Equity Amount shall be taken
solely from Development Fees owing to Developer under the Construction
Agreements for each Facility described on Exhibit H and shall be in an
amount equal to the difference between $236,710.00 and the amount of
additional equity investments, if any, that have been actually received
by FCI as of November 30, 1999. All interest accrued on the Working
Capital Account shall be deemed to be income of Developer and shall be
so reported for tax purposes. Funds in the Working Capital Account,
including accrued interest, shall be released to Developer under the
following conditions: [i] monthly working capital draw requests from
Developer for working capital shortfall advances that Developer is
obligated to pay under the BCC Loan Documents; or [ii] all Facilities
shown on Exhibit H have reached Stabilization.
7. Earnout Lease Advance. Section 17.1 of the Lease is amended
to read in its entirety as follows:
17.1 Earnout Lease Advance. Prior to the fourth
anniversary of the Effective Date, Landlord shall, at Guarantor's
request, make a Lease Advance ("Earnout Lease Advance") to Tenant in an
amount not to exceed the sum of [i] ten percent (10%) of the Maximum
Lease Amount, plus [ii] the lesser of [a] the amount, subject to
Landlord's approval (not to be unreasonably withheld, conditioned or
delayed), by which the budgeted construction costs (as shown on the
Project Budget) exceed the actual construction costs for the Facility
as determined by Landlord, or [b] $54,166.00, upon satisfaction of the
Earnout Conditions (defined below).
8. Budgeted Fill Up Schedule. The Lease is amended to add an
Exhibit H attached hereto and made a part hereof.
9. Underwriting Schedule. The Lease is amended to add an
Exhibit I attached hereto and make a part hereof.
10. Affirmation. Except as specifically modified by this
Amendment, the terms and provisions of the Lease and the security for the
Secured Obligations are hereby affirmed and shall remain in full force and
effect.
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11. Binding Effect. This Amendment shall be binding upon and
inure to the benefit of the successors and permitted assigns of Landlord and
Tenant.
12. Representations and Warranties. Tenant affirms all
representations and warranties contained in the Lease as of the Effective Date.
13. Further Modification. The Lease may be further modified
only by a writing signed by Landlord and Tenant.
14. Counterparts. This Amendment may be executed in multiple
counterparts, each of which shall be deemed an original hereof.
15. Consent of Guarantor and Developer. This Amendment shall
have no force or effect unless and until Guarantor and Developer have executed
the Consents set forth below.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, Landlord and Tenant have executed this
Amendment as of the date first set forth above.
Signed and acknowledged [ ]
in the presence of:
Signature /s/ ▇▇▇▇ ▇. ▇▇▇▇▇ By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
Print Name ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President and
Corporate Secretary
Signature /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Print Name ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
[ ]
Signature /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇ By: /s/ F. ▇▇▇▇▇ ▇▇▇▇
Print Name ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Manager
Signature /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Print Name ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
STATE OF OHIO )
) SS:
COUNTY OF ▇▇▇▇▇ )
The foregoing instrument was acknowledged before me this 26th
day of October, 1999 by ▇▇▇▇ ▇. ▇▇▇▇▇, the Vice President and Corporate
Secretary of [ ], a [ ] corporation, on behalf of the corporation.
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇
Notary Public
My Commission Expires: August 26, 2000 [SEAL]
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▇▇▇▇▇▇▇▇▇▇ ▇▇▇-▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ of California )
) ss.
County of San Mateo )
On Oct. 26, 1999, before me, ▇▇▇▇▇▇▇▇ ▇'▇▇▇▇▇▇, Notary Public personally
appeared F. ▇▇▇▇▇ ▇▇▇▇, personally known to me to be the person whose name is
subscribed to the within instrument and acknowledged to me that he executed the
same in his authorized capacity and that by his signature on the instrument the
person or the entity upon behalf of which the person acted, executed the
instrument.
Witness my hand and official seal.
/s/ ▇▇▇▇▇▇▇▇ ▇'▇▇▇▇▇▇
Place Notary Seal Above
OPTIONAL
Though the information below is not required by law, it may prove valuable to
persons relying on the document and could prevent fraudulent removal and
reattachment of this form to another document.
Description of Attached Document
Title or Type of Document: First Amend To Lease Agmt.
Document Date: 10/26/99 Number of Pages:
Signer(s) Other Than Named Above:
Capacity(ies) Claimed by Signer
Signer's Name:
Individual
Corporate Officer - Title(s):
Partner - Limited General
Attorney in Fact
Trustee
Guardian or Conservator
Other:
Signer is Representing:
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CONSENT OF GUARANTOR
Guarantor 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 Guarantor pursuant to the Guaranty, as amended from time to time;
[iii] affirms the Guaranty which shall remain in full force and effect; and [iv]
waives any suretyship defenses arising in connection with the Amendment.
BALANCED CARE CORPORATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President and Counsel;
Assistant Secretary
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CONSENT OF DEVELOPER
Developer 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 Developer pursuant to the Construction Disbursing Agreement, as
amended from time to time; [iii] affirms the Construction Disbursing Agreement
which shall remain in full force and effect; and [iv] waives any suretyship
defenses arising in connection with the Amendment.
BCC DEVELOPMENT AND MANAGEMENT CO.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President and Secretary
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