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Exhibit 10.2
FORM OF
SECOND AMENDED AND RESTATED LOAN AGREEMENT
THIS SECOND AMENDED AND RESTATED LOAN AGREEMENT ("Agreement") is made
and entered into effective as of October 31, 2000 (the "Effective Date") between
[ ], a limited liability company organized under the laws of the
State of Delaware (the "Borrower or "Tenant"), having its chief executive office
at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ and [ ], a
corporation organized under the laws of the [ ] (the "Lender"),
having an address of ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇.▇. ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇.
R E C I T A L S:
A. Lender has leased to Borrower certain real property pursuant to a
Lease Agreement made between Lender and Borrower dated as of September 22, 1998,
as amended by a First Amendment to Lease Agreement dated as of September 30,
1999 ("Lease").
B. In connection with the Lease, Lender extended a loan ("Loan") to
Financial Care Investors, LLC ("Original Borrower") pursuant to a Loan Agreement
made between Lender and Original Borrower dated as of September 22, 1998, as
amended by a First Amendment to Loan Agreement dated as of September 30, 1999
("Loan Agreement".) At the time the Loan was extended, Original Borrower was the
sole member of Tenant.
C. Original Borrower has now assigned its membership interest in Tenant
to Balanced Care at [ ], Inc. In connection with the
assignment, Tenant has agreed to assume responsibility for repayment of the
Loan. Borrower has executed an Amended and Restated Note to evidence its
obligation to repay the Loan. Lender and Borrower have agreed to amend and
restate the Loan Agreement to reflect these changes.
NOW, THEREFORE, in consideration of the mutual covenants and the
premises contained herein, the parties, intending to be legally bound hereby,
agree as follows:
ARTICLE 1: PURPOSE AND DEFINITIONS
1.1 Purpose. The purpose of this Agreement is to establish the Loan with Lender
for the financing as set forth above.
1.2 Definitions. Except as otherwise expressly provided, [i] the terms defined
in this section have the meanings assigned to them in this section and include
the plural as well as the singular; [ii] all accounting terms not otherwise
defined herein have the meanings assigned to them in accordance with generally
accepted accounting principles as of the time applicable; and [iii] the
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words "herein", "hereof", and "hereunder" and similar words refer to this
Agreement as a whole and not to any particular section.
"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 Loan" means each loan extended by Lender or any Lender
Affiliate to an Affiliate.
"Affiliate Obligation" means all indebtedness and obligations of
Borrower and any Affiliate to Lender or any Lender Affiliate now existing or
hereafter arising, including, without limitation, the Lease Documents,
indebtedness evidenced by promissory notes, lease agreements, guaranties or
otherwise and obligations under such indebtedness documents and all other
documents executed by Borrower or any Affiliate in connection therewith, and any
extensions, modifications, substitutions or renewals thereof.
"Annual Financial Statements" means the unaudited balance sheet and
statement of income of Borrower for the most recent fiscal year.
"Balanced Care" means Balanced Care Corporation, a corporation
organized under the laws of the State of Delaware.
"Borrower" means Financial Care Investors of Lebanon, LLC, a limited
liability company organized under the laws of the State of Delaware, its
successors and permitted assigns.
"Business Day" means any day which is not a Saturday or Sunday or a
public holiday under the laws of the United States of America or the State of
Ohio.
"Closing" means the closing of the Loan.
"Current Phase" has the meaning set forth in the Lease.
"Disbursement Schedule" means the Disbursement Schedule attached hereto
as Exhibit A setting forth Borrower's estimate of the dates and amounts of the
disbursements required hereunder.
"Disbursement Voucher" means Borrower's written request for a Loan
Advance set forth on the form attached hereto as Exhibit B.
"Effective Date" means the date of this Agreement.
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"Event of Default" has the meaning set forth in Section 7.1.
"Facility" has the meaning set forth in the Lease.
"Guarantor" means Balanced Care.
"Lease" means the Lease Agreement between Lender and Tenant dated as of
September 22, 1998, as amended by a First Amendment to Lease dated as of
September 30, 1999, as further amended from time to time.
"Lease Documents" means the Lease and all other documents executed by
Tenant in connection with the Lease, each as amended from time to time.
"Leased Property" has the meaning set forth in the Lease.
"Lender" means [ ], a corporation organized under the
laws of the [ ], its successors and assigns.
"Lender 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 Lender. "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.
"Lender Affiliate" includes without limitation, Health Care REIT, Inc., HCN BCC
Holdings, Inc. and any affiliate of Health Care REIT, Inc.
"Loan" means the loan by Lender to Borrower in the amount up to the
Loan Amount.
"Loan Amount" means [ ].
"Loan Advance" means each advance of proceeds of the Loan.
"Loan Commitment" means the term sheet for the Loan issued by Health
Care REIT, Inc. dated as of September 22, 1998 and as amended from time to time.
"Loan Documents" means [i] this Agreement; [ii] the Note; [iii] the
Security Agreement between Tenant and Lender dated as of September 22, 1998
("Security Agreement"); and [iv] all other documents and instruments executed by
Borrower in connection with the Loan, each as amended from time to time.
"Loan Expenses" means all reasonable costs and expenses incurred by
Lender in investigating, making and administering the Loan, including but not
limited to, [i] attorneys' and paralegals' fees and costs; and [ii] travel,
transportation, food, and lodging
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costs and expenses incurred by Lender and Lender's attorneys and paralegals,
but excluding Lender's internal bookkeeping and routine loan servicing costs.
"Management Agreement" means the Management Agreement between Manager
and Tenant.
"Manager" means [ ], a corporation organized under
the laws of the State of Delaware.
"Member" means Manager.
"Note" means the Amended and Restated Note of even date made by
Borrower in favor of Lender for a principal amount equal to the Loan Amount, and
any extensions, modifications, substitutions or renewals thereof.
"Organizational Documents" means [i] for a corporation, its Articles of
Incorporation certified by the Secretary of State of the state of organization,
as amended to date, and its Bylaws certified by an officer of such corporation,
as amended to date; [ii] for a limited partnership, its Certificate of
Partnership certified by the Secretary of State of the state of organization, as
amended to date, and its Limited Partnership Agreement certified by the general
partner of such partnership, as amended to date; and [iii] for a limited
liability company, its Certificate of Organization certified by the Secretary of
State of the State of Organization, as amended to date and its Operating
Agreement certified by the managing member of such limited liability company, as
amended to date.
"Periodic Financial Statements" means the unaudited balance sheet and
statement of income of Borrower for the most recent month and quarter.
"State" means the Commonwealth of Pennsylvania.
"Tenant" means Borrower.
"Transaction Documents" means the Loan Documents, Lease Documents, the
Management Agreement, and all agreements and documents made between Borrower and
Balanced Care or Manager or by Borrower in favor of Balanced Care or Manager;
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.
"Working Capital Budget" means the three year budget of the working
capital and operating expenses for the Facility, prepared by Manager and
approved by Lender, a copy of which is attached hereto as Exhibit C, and as
revised from time to time, subject to the prior written approval of Lender which
shall not be unreasonably withheld.
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1.3 Incorporation of Amendments. The definition of any agreement, document, or
instrument set forth in this Agreement or in any other Loan Document shall be
deemed to incorporate all amendments, modifications, and renewals thereof and
all substitutions and replacements therefor.
1.4 Exhibits. The following exhibits are attached hereto and incorporated
herein:
Exhibit A: Disbursement Schedule
Exhibit B: Disbursement Voucher
Exhibit C: Working Capital Budget
Exhibit D: Pending Litigation
Exhibit E: Documents to be Delivered
Exhibit F: Certificate
ARTICLE 2: LOAN AND LOAN DOCUMENTS
2.1 Obligation to Lend. Subject to the terms and upon the conditions set forth
in the Loan Documents, Lender shall lend to Borrower up to the Loan Amount. The
indebtedness of Borrower to Lender for the Loan is evidenced by the Note.
2.2 Obligation to Repay. Borrower shall repay the Loan in accordance with the
terms of the Note and the other Loan Documents.
2.2.1 Term of the Loan. The term of the Loan will expire on the Maturity Date
set forth in the Note.
2.2.2 Interest and Payments. Borrower shall make payments in accordance with the
Note at the rate set forth in the Note.
2.3 Use of Proceeds. All Loan Advances (less closing costs) shall be used by
Borrower solely to fund the Working Capital needs of Borrower for the Facility.
In accordance with the Management Agreement, Manager will use the Loan Advances
exclusively for the working capital needs of the Facility in accordance with the
Working Capital Budget.
2.4 Loan Expenses. At the Closing, Borrower shall pay or reimburse Lender for
any Loan Expenses incurred up to the Effective Date. Within 30 days after
receipt of an invoice therefor, Borrower shall reimburse Lender for any Loan
Expenses incurred by Lender. Lender shall apply proceeds of the Loan, up to the
Loan Amount, to pay the Loan Expenses.
2.5 Disbursements.
2.5.1 Loan Advances. For each Loan Advance, Manager, on behalf of Borrower,
shall submit to Lender and Borrower a Disbursement Voucher. The amount of each
Loan Advance shall be equal to 100% of the amount requested. Lender may make
disbursements from time to time but shall not be obligated to disburse more
frequently
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than once in each calendar month and shall not be obligated to disburse until at
least seven Business Days following receipt of a Disbursement Voucher.
2.5.2 Disbursement Schedule. Manager estimates that the schedule of Loan
Advances will be in accordance with the Disbursement Schedule; provided,
however, the actual disbursement dates shall be determined by the dates on which
Manager submits a Disbursement Voucher in accordance with the working capital
needs of the Facility.
2.5.3 Standby Termination. Lender's obligation to make Loan Advances pursuant to
this Agreement shall terminate on the Maturity Date set forth in the Note,
unless terminated earlier pursuant to an Event of Default.
2.5.4 [Intentionally Deleted].
2.5.5 Manager. Upon the termination of the Management Agreement, all provisions
in this Agreement relating to the Manager shall terminate and Loan Advances will
be made to Borrower or its designee and all obligations of Manager hereunder
shall be performed by Borrower or such other party approved by Lender.
2.6 Closing. The Closing shall occur on September 22, 1998. Lender may elect to
close by exchanging executed counterparts of one or more of the Loan Documents
and other closing documents by mail or a national courier service, or by
telecopier followed by exchanging documents by mail or national courier service.
ARTICLE 3: CONDITIONS PRECEDENT TO DISBURSEMENT
3.1 Conditions Precedent to Initial Disbursement. Borrower shall comply with,
and Lender's obligation to disburse the first Loan Advance shall be conditioned
upon Borrower's performance of the following conditions precedent:
3.1.1 Lender's Documents. Borrower shall have delivered to Lender fully executed
originals of the Transaction Documents and a Disbursement Voucher.
3.1.2 Organizational Documents. Borrower shall have delivered to Lender copies
of Borrower's Organizational Documents, in form and substance satisfactory to
Lender, and Borrower's resolutions authorizing the Transaction Documents,
certified by Borrower to be true and complete and not revoked or amended since
the respective dates thereof.
3.1.3 Budget and Schedule. Borrower shall have delivered to Lender the Working
Capital Budget and the Disbursement Schedule in form and substance reasonably
satisfactory to Lender.
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3.1.4 Legal Opinion. Borrower shall have delivered to Lender an opinion of
Borrower's counsel in form and substance satisfactory to Lender.
3.1.5 [Intentionally Deleted].
3.1.6 Other Closing Requirements. Borrower shall have satisfied the requirements
of Section 3.2.4 and all other closing requirements of the Transaction Documents
and the Loan Commitment.
3.2 Conditions Precedent to Each Disbursement. Borrower shall comply with, and
Lender's obligation to disburse each Loan Advance after the first Loan Advance
shall be conditioned upon Borrower's performance of the following conditions
precedent:
3.2.1 Disbursement Voucher. Manager shall have delivered to Lender a
Disbursement Voucher in accordance with Section 2.5.1.
3.2.2 Post-Closing Obligations. Borrower shall have satisfied all post-closing
obligations under the Loan Documents to be performed as of the date of such Loan
Advance request.
3.2.3 Damage and Destruction. The Facility for which the Loan Advance is drawn
shall not have been substantially or materially damaged or destroyed, in whole
or in part, by fire or other casualty nor shall eminent domain proceedings have
been threatened or be pending with respect to a substantial or material part of
the Facility.
3.2.4 No Event of Default. There shall be no uncured Event of Default under any
Transaction Document or any event which with the giving of notice or the passage
of time would constitute an Event of Default.
ARTICLE 4: BORROWER'S REPRESENTATIONS AND WARRANTIES
Borrower hereby makes the following representations and warranties, as
of the Effective Date and the date of each Loan Advance, to Lender and
acknowledges that Lender is making the Loan in reliance upon such
representations and warranties. Borrower's representations and warranties shall
survive the Closing and, except as specifically provided below, shall continue
in full force and effect until Borrower has repaid the Loan in full and
performed all other obligations under the Loan Documents.
4.1 Organization and Good Standing. Borrower is a limited liability company duly
organized, validly existing and in good standing under the laws of the State of
Delaware.
4.2 Power and Authority. Borrower has the power and authority to execute,
deliver, and perform Borrower's obligations under the Transaction Documents and
has taken all requisite action to authorize the execution, delivery and
performance of Borrower's obligations under such documents.
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4.3 Enforceability. The Transaction Documents constitute valid and binding
obligations of Borrower enforceable in accordance with their terms, except as
enforceability may be limited by creditor's rights laws, equitable principles
and the effect of judicial discretion.
4.4 No Violation. The execution, delivery and performance of the Transaction
Documents and the consummation of the transactions contemplated by the
Transaction Documents [i] do not conflict with and will not conflict with, and
do not result and will not result in a breach of Borrower's Organizational
Documents; [ii] do not conflict with and will not conflict with, and do not
result and will not result in a breach of, or constitute or will constitute a
default (or an event which, with notice or lapse of time, or both, would
constitute a default) under any of the terms, conditions or provisions of any
agreement or other instrument or obligation to which Borrower is a party or by
which its assets are bound; and [iii] to Borrower's actual knowledge, do not
violate any order, writ, injunction, decree, statute, rule or regulation
applicable to Borrower.
4.5 No Litigation. Except as disclosed on Exhibit D, [i] there are no actions,
suits, proceedings or, to Borrower's actual knowledge, investigations by any
governmental agency or regulatory body pending against Borrower; [ii] Borrower
has not received written notice of any threatened actions, suits or proceeding
or investigations against Borrower at law or in equity, or before any
governmental board, agency or authority which, if determined adversely to
Borrower, would materially and adversely affect the financial condition of
Borrower; [iii] there are no unsatisfied or outstanding judgments against
Borrower; [iv] there is no labor dispute materially and adversely affecting the
operation or business conducted by Borrower; and [v] Borrower does not have
knowledge of any facts or circumstances which might reasonably form the basis
for any such action, suit, or proceeding.
4.6 Reports, Statements and Copies. All reports, statements, certificates and
other data furnished by Borrower to Lender in connection with the Transaction
Documents, or the transactions contemplated thereunder, and all representations
and warranties made therein, or any certificate or other instrument delivered in
connection therewith, are true and correct in all material respects and do not
omit to state any material fact or circumstance necessary to make the statements
contained therein, in light of the circumstances under which they are made, not
misleading as of the date of such information, reports, statements or
certificates. The copies of all agreements and instruments submitted to Lender
are true, correct and complete copies and include all amendments and
modifications of such agreements.
4.7 No Default. As of the Effective Date, there is no existing Event of Default
by Borrower under the Transaction Documents and no event has occurred which,
with the giving of notice or the
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passage of time, would constitute or result in such an Event of Default.
4.8 ERISA. All plans [as defined in Section 4021(a) of the Employee Retirement
Income Security Act of 1974 as amended or supplemented from time to time
("ERISA")] for which Borrower is an "employer" or a "substantial employer" [as
defined in Subsection 3(5) and 4001(a)(2) of ERISA, respectively] are in
compliance with ERISA and the regulations and published interpretations
thereunder. To the extent Borrower maintains a qualified defined benefit pension
plan: [i] there exists no accumulated funding deficiency; [ii] no reportable
event and no prohibited transaction has occurred; [iii] no lien has been filed
or, to Borrower's actual knowledge, threatened to be filed by the Pension
Benefit Guaranty Corporation established pursuant to Subtitle A of Title IV of
ERISA; and [iv] Borrower has not been deemed to be a substantial employer as of
the Effective Date.
4.9 Chief Executive Office. Borrower maintains its chief executive office and
its books and records at the address set forth in the introductory paragraph of
this Agreement.
ARTICLE 5: AFFIRMATIVE COVENANTS
5.1 Perform Obligations. Borrower shall perform all its obligations under the
Transaction Documents.
5.2 Documents and Information.
5.2.1 Furnish Documents. Borrower shall periodically during the term of the Loan
deliver to Lender the Annual Financial Statements, Periodic Financial Statements
and other documents described on Exhibit E within the specified time periods.
With each delivery of Annual Financial Statements and Periodic Financial
Statements to Lender, Borrower shall also deliver to Lender a certificate signed
by Member in the form of Exhibit F.
5.2.2 Furnish Information. Borrower shall [i] within ten business days after any
request therefor, supply Lender with such information concerning its financial
condition, affairs and property, as Lender may reasonably request from time to
time hereafter; [ii] promptly notify Lender in writing of any condition or event
that constitutes a breach or event of default of any term, condition, warranty,
representation, or provisions of any Loan Document or any other Transaction
Document; [iii] maintain a standard and modern system of accounting; [iv] permit
Lender or any of its agents or representatives to have access to and to examine
all of its books and records regarding the financial condition of Borrower at
any time or times hereafter during business hours; and [v] permit Lender to copy
and make abstracts from any and all of said books and records, provided that
such copies and abstracts shall not be made available by Lender to anyone other
than to governmental authorities, attorneys, auditors, underwriters, credit
rating agencies and such other
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persons for which there is a legitimate business purpose for such disclosure.
5.2.3 Further Assurances and Information. Borrower shall, on request of Lender
from time to time, execute, deliver, and furnish documents as may be necessary
to fully consummate the transactions contemplated under this Agreement. Within
ten business days after a request from Lender, Borrower shall provide to Lender
such additional information regarding Borrower or Borrower's financial condition
as Lender, or any existing or proposed creditor of Lender, or any auditor or
underwriter of Lender, may require from time to time.
5.2.4 Material Communications. Borrower shall transmit to Lender, within five
business days after receipt thereof, any communication that may materially and
adversely affect Borrower, any existing Facility, the Loan Documents or the
Lease Documents and Borrower will promptly respond to Lender's inquiry with
respect to such communication. Upon receipt of written notice thereof, Borrower
shall promptly notify Lender in writing of any threatened or existing litigation
or proceeding against, or investigation of, Borrower or any Facility that may
materially and adversely affect the right to operate the Facility or title to
the Facility or Lender's interest therein.
5.2.5 Requirements for Financial Statements. Borrower shall meet the following
requirements in connection with the preparation of the financial statements: [i]
all audited financial statements (if any) shall be prepared in accordance with
generally accepted accounting principles consistently applied; [ii] all
unaudited financial statements shall be prepared in a manner substantially
consistent with prior audited and unaudited financial statements submitted to
Lender; [iii] all financial statements shall fairly present the financial
condition and performance of Borrower for the relevant period in all material
respects; [iv] the financial statements shall include all notes to the audited
financial statements and a complete schedule of contingent liabilities and
transactions with Affiliates; and [v] the audited financial statements shall
contain an unqualified opinion.
5.3 Broker's Commission. Borrower and Lender each represent that it has not
incurred an obligation to any broker in connection with the Loan.
5.4 Existence. Borrower shall maintain its existence throughout the term of this
Agreement and every other Transaction Document.
5.5 [Intentionally Deleted].
5.6 [Intentionally Deleted].
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ARTICLE 6: NEGATIVE COVENANTS
Until the Loan has been paid in full, Borrower shall not do any of the
following without the prior written consent of Lender which shall not be
unreasonably withheld:
6.1 No Debt. Borrower shall not create, incur, assume, or permit to exist any
indebtedness other than indebtedness incurred under the Transaction Documents.
6.2 No Liens. Borrower shall not create, incur, or permit to exist any lien upon
or pledge of any interest in Borrower except pursuant to the Transaction
Documents.
6.3 No Guaranties. Borrower shall not create, incur, assume, or permit to exist
any guarantee of any loan or other indebtedness except for the endorsement of
negotiable instruments for collection in the ordinary course of business.
6.4 No Dissolution. Borrower shall not dissolve, liquidate, merge, consolidate
or terminate its existence or, except pursuant to and in accordance with the
Transaction Documents, sell, assign, lease, or otherwise dispose of (whether in
one transaction or in a series of transactions) all or substantially all of its
assets (whether now owned or hereafter acquired).
6.5 No Change in Ownership. No change shall occur in the ownership of any equity
interest in Borrower except for transfers pursuant to and in accordance with the
Transaction Documents or in accordance with Section 8.17 hereof.
6.6 No Investments. Except for investments in tenants of leases included within
the Current Phase, Borrower shall not purchase or otherwise acquire, hold, or
invest in securities (whether capital stock or instruments evidencing
indebtedness) of or make loans or advances to any person, including, without
limitation, any shareholder, partner or member of Borrower.
6.7 Subordination of Payments. Borrower shall not make any payments or
distributions (including, without limitation, salary, bonuses, fees, principal,
interest, dividends, liquidating distributions, management fees, cash flow
distributions or lease payments) to any Affiliate or any shareholder, member or
partner of Borrower or any Affiliate, or any family member of any such
shareholder, member or partner. As long as there is no existing, uncured Event
of Default, Borrower may pay the management fees pursuant to the Transaction
Documents.
6.8 Change of Location or Name. Borrower shall not change any of the following:
[i] the location of the principal place of business or chief executive office of
Borrower, or any office where any of Borrower's books and records are
maintained; or [ii] the name under which Borrower conducts any of its business
or operations, until Borrower has given Lender 30 days' advance
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notice and has executed and delivered to Lender all UCC financing statements,
amendments and other documents reasonably requested by Lender in connection with
such change.
6.9 No Amendments. Borrower shall not consent or agree to any amendment,
modification, alteration or termination of any Transaction Document.
ARTICLE 7: DEFAULT AND REMEDIES
7.1 Event of Default. Any one or more of the following events shall constitute
an "Event of Default" hereunder:
7.1.1 Borrower or Manager fails to pay any amounts to Lender under the Note or
any other monetary obligation payable by Borrower or Manager under the Loan
Documents within 10 days after the date that such payment is due.
7.1.2 Borrower fails to comply with any covenant set forth in ss.5.4 or Article
6 and Borrower or Manager fails to comply with any covenant set forth in ss.2.3
of this Agreement.
7.1.3 Borrower fails to observe and perform any other covenant, condition or
agreement under the Loan Documents to be performed by Borrower and [i]
continuance of such failure for a period of 30 days after written notice thereof
is given to the Borrower by the Lender; or [ii] if, by reason of the nature of
such default the same cannot be remedied within the said 30 days, Borrower fails
to proceed with reasonable diligence (reasonably satisfactory to Lender) after
receipt of the notice to cure the same or, in any event, fails to cure such
default within 60 days after receipt of the notice. The foregoing notice and
cure provisions do not apply to any Event of Default otherwise specifically
described in any other subsection of Section 7.1.
7.1.4 [i] The filing by Borrower of a petition under 11 U.S.C. or the
commencement of a bankruptcy or similar proceeding by Borrower; [ii] the failure
by Borrower within 60 days to dismiss any involuntary bankruptcy petition or
other commencement of a bankruptcy, reorganization or similar proceeding against
Borrower or to lift or stay any execution, garnishment or attachment of the
Facility; [iii] the entry of an order for relief under 11 U.S.C. in respect of
Borrower; [iv] assignment by Borrower for the benefit of its creditors; [v] the
entry by Borrower into an agreement of composition with its creditors; [vi] the
approval by a court of competent jurisdiction of a petition applicable to
Borrower in any proceeding for its reorganization instituted under the
provisions of any state or federal bankruptcy, insolvency, or similar laws; or
[vii] appointment by final order, judgment or decree of a court of competent
jurisdiction of a receiver of the whole or any substantial part of the
properties of Borrower (provided such receiver shall not have been removed or
discharged within 60 days of the date of his qualification).
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7.1.5 [i] Any receiver, administrator, custodian or other person takes
possession or control of all or part of any Facility and continues in possession
for 60 days; [ii] any writ against all or part of any Facility is not released
within 60 days; [iii] any final, non-appealable judgment is rendered against all
or part of any Facility, any Affiliate or Borrower and which is undismissed for
60 days (except as otherwise provided in this section); [iv] all or a
substantial part of the assets of Borrower are attached, seized, subjected to a
writ or distress warrant, or are levied upon, or come into the possession of any
receiver, trustee, custodian, or assignee for the benefit of creditors and are
not released within 60 days; [v] Borrower is enjoined, restrained, or in any way
prevented by court order, or any proceeding is filed or commenced seeking to
enjoin, restrain, or in any way prevent Borrower from conducting all or a
substantial part of its business or affairs and such proceeding is not released
within 60 days; or [vi] if a notice of lien, levy, or assessment is filed of
record with respect to all or any part of the property of Borrower and is not
dismissed within 30 days.
7.1.6 Any representation or warranty made by Borrower in the Transaction
Documents, any security for the Loan, or any report, certificate, application,
financial statement or other instrument furnished by Borrower pursuant hereto or
thereto shall prove to be false, misleading or incorrect in any material respect
as of the date made.
7.1.7 Borrower or any Affiliate defaults on any indebtedness or obligation to
Lender or any Lender Affiliate, any agreement with Lender or any Lender
Affiliate or any Affiliate Obligation, or Borrower defaults under any
Transaction Document, (in each case limited to the indebtedness, obligations,
agreements and documents relating to the Current Phase) and any applicable grace
or cure period with respect to default under such indebtedness, obligation or
agreement expires without such default having been cured. This provision applies
to all such indebtedness, obligations and agreements as they may be amended,
modified, extended, or renewed from time to time.
7.1.8 Any guarantor (if any) of the Loan dies, dissolves, terminates, is
adjudicated incompetent, files a petition in bankruptcy, or is adjudicated
insolvent under 11 U.S.C. or any other insolvency law, or fails to comply with
any covenant or requirement set forth in the guaranty of such guarantor, and in
the case of the death or incompetency of a personal guarantor only, Borrower
fails within 30 days to deliver to Lender a substitute guaranty or other
collateral reasonably satisfactory to Lender.
7.2 Remedies on Default. Whenever any Event of Default occurs, Lender may, in
addition to any other remedies under the Loan Documents, at law or in equity,
take any one or more of the following remedial steps concurrently or
successively:
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7.2.1 Acceleration. Lender may declare the Loan to be immediately due and
payable, without presentment of any kind, demand, notice of dishonor, protest,
or other notice of any kind, all of which Borrower hereby waives.
7.2.2 Other Remedies. Lender may take whatever action at law or in equity as may
appear necessary or desirable to collect any monies then due and/or thereafter
to become due.
7.2.3 Waiver. Without waiving any prior or subsequent Event of Default, Lender
may waive any Event of Default or, with or without waiving any Event of Default,
remedy any default.
7.2.4 Terminate Disbursement. Lender may terminate its obligation to disburse
Loan proceeds.
ARTICLE 8: MISCELLANEOUS
8.1 Advances by Lender. At any time and from time to time, Lender may incur
and/or pay and/or advance costs or expenses: [i] which Lender is authorized or
has the right (but not necessarily the obligation) to incur or may incur under
any Loan Document or any law; [ii] in exercising any right or remedy provided
under any Loan Document or in taking any action which Lender is authorized to
take under any Loan Document; [iii] which are required to be paid by Borrower
under any Loan Document, but which Borrower fails to pay upon demand; or [iv]
from which Borrower is required to hold Lender harmless under any Loan Document,
but from which Borrower fails to hold Lender harmless. Any costs, expenses, or
advances incurred or paid by Lender as described in this Section 8.1 shall
become part of the Loan and, upon demand, shall be paid to Lender together with
interest thereon at the Default Rate from the date of disbursement by Lender.
8.2 [Intentionally Deleted].
8.3 Construction of Rights and Remedies and Waiver of Notice and Consent.
8.3.1 Applicability. The provisions of this ss.8.3 shall apply to all rights and
remedies provided by any Loan Document or by law or equity.
8.3.2 Waiver of Notices and Consent to Remedies. Unless otherwise expressly
provided herein, any right or remedy may be pursued without notice to or further
consent of Borrower, both of which Borrower waives.
8.3.3 Cumulative Rights. Each right or remedy under the Loan Documents is
distinct from but cumulative to each other right or remedy and may be exercised
independently of, concurrently with, or successively to any other rights and
remedies.
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8.3.4 Extension or Modification of Loan. No extension of time for or
modification of amortization of the Loan shall release the liability or bar the
availability of any right or remedy against Borrower or any successor in
interest, and Lender shall not be required to commence proceedings against
Borrower or any successor or to extend time for payment or otherwise to modify
amortization of the Loan by reason of any demand by Borrower or any successor.
8.3.5 Right to Select Security. Lender has the right to proceed at its election
against all security or against any item or items of such security from time to
time, and no action against any item or items of security shall bar subsequent
actions against any item or items of security.
8.3.6 Forbearance Not a Waiver. No forbearance in exercising any right or remedy
shall operate as a waiver thereof; no forbearance in exercising any right or
remedy on any one or more occasion shall operate as a waiver thereof on any
further occasion; and no single or partial exercise of any right or remedy shall
preclude any other exercise thereof or the exercise of any other right or
remedy.
8.3.7 No Waiver. Failure by Lender to insist upon the strict performance of any
of the covenants and agreements herein set forth or to exercise any rights or
remedies upon default by Borrower hereunder shall not be considered or taken as
a waiver or relinquishment for the future of the right to insist upon and to
enforce by mandamus or other appropriate legal or equitable remedy strict
compliance by Borrower with all of the covenants and conditions hereof, or of
the rights to exercise any such rights or remedies, if such default by Borrower
is continued or repeated. To the extent permitted by law, any two or more of
such rights or remedies may be exercised at the same time.
8.3.8 No Continuing Waivers. If any covenant or agreement contained in the Loan
Documents is breached by Borrower and thereafter waived by Lender, such waiver
shall be limited to the particular breach so waived and shall not be deemed to
waive any other breach hereunder. No waiver shall be binding unless it is in
writing and signed by Lender. No course of dealing between Lender and Borrower,
nor any delay nor omission on the part of Lender in exercising any rights under
the Loan Documents, shall operate as a waiver.
8.3.9 [Intentionally Deleted].
8.3.10 No Release. Borrower and any other person now or hereafter obligated for
the payment or performance of all or any part of the Note shall not be released
from paying and performing under the Note by reason of [i] the failure of Lender
to comply with any request of Borrower (or of any other person so obligated), to
take action to enforce any of the provisions of the Loan Documents, or [ii] the
release, regardless of consideration, of the obligations of any person liable
for payment or performance
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of the Note, or any part thereof, or [iii] any agreement or stipulation
extending the time of payment or modifying the terms of the Note, and in the
event of such agreement or stipulation, Borrower and all such other persons
shall continue to be liable under such documents, as amended by such agreement
or stipulation, unless expressly released and discharged in writing by Lender.
8.4 Assignment.
8.4.1 Assignment by Lender. Lender may assign, negotiate, pledge, or transfer
this Agreement, the Note and all other Loan Documents to any Lender Affiliate or
any other person or entity.
8.4.2 Assignment by Borrower. Borrower shall not assign or attempt to assign its
rights nor delegate its obligations under the Loan Documents except in
accordance with Section 8.17 hereof.
8.5 Notices. All notices, demands, requests, and consents (hereinafter
"notices") given pursuant to the terms of this Agreement shall be in writing,
shall be addressed to the addresses set forth in the introductory paragraph of
this Agreement and shall be served by [i] personal delivery; [ii] United States
mail, postage prepaid; or [iii] nationally recognized overnight courier. All
notices shall be deemed to be given upon the earlier of actual receipt or three
days after deposit in the United States mail or one business day after deposit
with the overnight courier. All notices sent pursuant to this Agreement or any
other Loan Document shall be simultaneously sent to Balanced Care at its address
as set forth in the Shortfall Agreement. Any notices meeting the requirements of
this section shall be effective, regardless of whether or not actually received.
Balanced Care, Lender and Borrower may change their notice address at any time
by giving the other party notice of such change.
8.6 Entire Agreement. This Agreement and the other Loan Documents constitute the
entire agreement between Borrower and Lender relating to the subject matter
hereof. No representations, warranties, and agreements have been made by Lender
except as set forth in this Agreement and the other Loan Documents. If there is
any conflict between the terms and provisions of the Loan Commitment and the
terms of this Agreement, this Agreement shall govern.
8.7 Severability. If any term or provision of this Agreement is held or deemed
by Lender to be invalid or unenforceable, such holding shall not affect the
remainder of this Agreement and the same shall remain in full force and effect.
8.8 Captions and Headings. The captions and headings are inserted only as a
matter of convenience and for reference and in no way define, limit or describe
the scope of this Agreement or the intent of any provision thereof.
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8.9 Governing Law. This Agreement shall be governed by and construed in
accordance with the internal laws of the State, without giving effect to the
conflict of laws rules thereof.
8.10 Binding Effect. This Agreement will be binding upon and inure to the
benefit of the heirs, successors, personal representatives, and permitted
assigns of Lender and Borrower.
8.11 Modification. This Agreement may only be modified by a writing signed by
both Lender and Borrower. All references to this Agreement, whether in this
Agreement or in any other document or instrument, shall be deemed to incorporate
all amendments, modifications, and renewals of this Agreement made after the
date hereof. If Borrower requests Lender's consent to any change in ownership,
merger or consolidation of Borrower, any assumption of the Loan, or any
modification of the Loan Documents, Borrower shall provide Lender all relevant
information and documents sufficient to enable Lender to evaluate the request.
In connection with any such request, Borrower shall pay to Lender a fee in the
amount of $2,500.00 and shall pay all of Lender's reasonable attorney's fees and
expenses and other reasonable out-of-pocket expenses incurred in connection with
Lender's evaluation of Borrower's request, the preparation of any documents and
amendments, the subsequent amendment of any documents between Lender and its
collateral pool lenders (if applicable), and all related matters. In connection
with any proposed change in the ownership of Borrower, or an assumption of the
Loan and Lease, relating to a proposed substitution of Borrower, Lender's fee
shall be limited to $2,500 for all modifications and consents relating to the
Current Phase and made concurrently.
8.12 Construction of Agreement. This Agreement has been prepared by Lender and
its professional advisors and reviewed by Borrower and its professional
advisors. Lender, Borrower and their advisors believe that this Agreement is the
product of all their efforts, it expresses their agreement, and that it shall
not be interpreted in favor of either Lender or Borrower or against either
Lender or Borrower merely because of their efforts in preparing it.
8.13 Counterparts. This Agreement may be executed in multiple counterparts, each
of which shall be deemed an original hereof.
8.14 No Third-Party Beneficiary Rights. Except for Balanced Care, no person not
a party to this Agreement shall have or enjoy any rights hereunder and all
third-party beneficiary rights are expressly negated. Without limiting the
generality of the foregoing, no one other than Borrower, Manager and Balanced
Care shall have any rights to obtain or compel a disbursement of proceeds of the
Loan hereunder. Notwithstanding any provision to the contrary contained herein
or in any other Loan Document, [i] Balanced Care is a third-party beneficiary of
this Agreement and the other Loan Documents, [ii] no Loan Document shall be
amended without the prior written consent of Balanced Care, and
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[iii] Balanced Care shall have the right to enforce the provisions of this
Agreement.
8.15 Lender's Authority to Furnish Copies of Loan Documents. Lender may exhibit
or furnish the Loan Documents or copies thereof to any potential transferee of
the Loan Documents (whether such transfer is absolute or collateral), to any
governmental or regulatory authority in connection with any legal,
administrative or regulatory proceedings requiring the disclosure of the terms
of the Loan Documents, to Lender's attorneys, auditors and underwriters, and to
any other person or entity for which there is a legitimate business purpose for
such disclosure.
8.16 Lender Merely a Lender.
8.16.1 No Agency. Lender is not and will not be in any way the agent for or
trustee of Borrower. Lender does not intend to act in any way for or on behalf
of Borrower in disbursing the proceeds of the Loan. Lender does not intend to be
and is not and will not be responsible for the completion of any improvements
erected or to be erected upon the Leased Property; the payment of bills or any
other details in connection with the Leased Property and improvements; any plans
and specifications prepared in connection with the Leased Property and
improvements; or Borrower's relations with any contractors, subcontractors,
materialmen, or laborers performing work or supplying materials for the Leased
Property and improvements.
8.16.2 No Obligation to Pay. This Agreement is not to be construed by Borrower
or anyone furnishing labor, materials, or any other work or product for
improving the Leased Property as an agreement upon the part of Lender to assure
that anyone will be paid for furnishing such labor, materials, or any other work
or product.
8.16.3 No Responsibility for Construction. Lender is not responsible for
construction of the improvements. Notwithstanding inspection of the Leased
Property and the improvements, Lender assumes no responsibility for the quality
of construction or workmanship or for the architectural or structural soundness
of any improvements to be erected upon the Leased Property or for the adherence
to or approval of any plans and specifications in connection therewith or for
any improvements.
8.17 Substitution of Borrower and/or Tenant. Notwithstanding any provision to
the contrary in the Loan Documents or Lease Documents, if [i] Member desires to
transfer the equity interest in Borrower, [ii] Borrower desires to assign its
rights and obligations under the Loan Documents, or [iii] Tenant desires to
assign its rights and obligations under the Lease Documents, in each case to a
person or entity ("Transferee") that is not an Affiliate of Borrower, Member,
Tenant or Balanced Care and in which Borrower, Member, Tenant and Balanced Care
hold no equity interest, the following conditions shall apply:
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(a) The prior written consent of Lender shall be required but
shall not be unreasonably withheld. Lender's review of the proposed Transferee
shall include application of Lender's customary underwriting standards.
(b) Lender shall have received such documents, instruments,
letter of credit amendments and amendments to the Loan Documents and Lease
Documents as Lender may reasonably request in connection with such transfer.
(c) All parties shall reasonably cooperate and take such
actions as may be reasonably requested in order to facilitate the transfer to
the Transferee.
(d) Lender shall have received reimbursement from Balanced
Care for all attorneys' fees and expenses and all other reasonable out-of-pocket
expenses incurred in connection with the foregoing.
8.18 Affirmation of Security Agreement. Borrower affirms that the Security
Agreement secures repayment of the Loan as evidenced by the Amended and Restated
Note and subject to the terms of this Agreement.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY BLANK]
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IN WITNESS WHEREOF, Lender and Borrower have executed and delivered
this Agreement effective as of the Effective Date.
LENDER: [ ]
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President and
Corporate Secretary
BORROWER: FINANCIAL CARE INVESTORS OF
[ ], LLC
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Vice President and
Secretary
AGREEMENT OF MANAGER
The undersigned Manager shall comply with all provisions and perform
all obligations applicable to Manager set forth in the foregoing Loan Agreement,
including, without limitation, Sections 2.3, 2.5, and 5.2.1.
BALANCED CARE AT [ ],
INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Vice President and
Secretary
