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Exhibit 10.55
FIRST AMENDMENT
TO OPTION AGREEMENTS, SHORTFALL FUNDING
AGREEMENTS AND STOCK PLEDGE AGREEMENTS
THIS AGREEMENT ("Agreement") is made as of March 6, 1998 by
and among Balanced Care Corporation, a Delaware corporation ("BCC"), Senior Care
Operators, LLC, a Delaware limited liability company ("SCO"), Senior Care
Operators of Ohio, LLC, a Delaware limited liability company ("SCOOL"), Assisted
Care Operators, LLC, a Delaware limited liability company ("ACO"), Assisted Care
Operators of Xxxxxxx, LLC, a Delaware limited liability company ("ACOJ"),
Assisted Care Operators of Xxxxxxxx, LLC, a Delaware limited liability company
("ACOA"), Extended Care Operators, a Delaware limited liability company ("ECO"),
Extended Care Operators of Harrisburg, LLC, a Delaware limited liability company
("ECOH"), Extended Care Operators of Ravenna, LLC, a Delaware limited liability
company ("ECOR"), Extended Care Operators of Greensboro, LLC, a Delaware limited
liability company ("ECOG"), Oakhaven Assisted Living, Inc., a California
corporation ("OAL"), Oakhaven Extended Living, Inc., a California corporation
("OEL") and Oakhaven Senior Living, Inc., a California corporation ("OSL"). OAL,
OEL and OSL are collectively referred to herein as "Oakhaven". SCO, ACO, ECO and
Oakhaven are collectively referred to herein as the "Members" and individually
referred to herein as a "Member". SCOOL, ACOJ, ACOA, ECOH, ECOR and ECOG are
collectively referred to herein as "Lessees" and individually referred to herein
as a "Lessee".
WHEREAS, each Lessee has entered into certain leases for
properties located in Pennsylvania, Indiana, Ohio, Tennessee and North Carolina
(each lease being referred to herein individually as a "Lease" and collectively
as the "Leases"). The Leases are more fully described on Schedule 1 attached
hereto; and
WHEREAS, in connection with each Lease, the Members, the
Lessees and BCC entered into Shortfall Funding Agreements (each such Shortfall
Funding Agreement being referred to herein collectively as the "Shortfall
Agreements" and individually as a "Shortfall Agreement"), which Shortfall
Agreements are more fully described on Schedule 1 attached hereto; and
WHEREAS, in connection with each Shortfall Agreement, each
Lessee has agreed to issue one or more Promissory Notes (each such Promissory
Note being collectively referred to herein as the "Notes" and individually as a
"Note") to evidence indebtedness regarding Advances (as defined in each
Shortfall Agreement), which Notes are in the form of Exhibit A attached to each
Shortfall Agreement; and
WHEREAS, to secure the obligations of the Lessees and the
Members to BCC, each Lessee has granted in favor of BCC a leasehold mortgage
encumbering each Lease (each such Leasehold Mortgage being referred to herein
collectively as the "Leasehold Mortgages" and individually as a "Leasehold
Mortgage"). Such Leasehold Mortgages are more fully described on Schedule 1
attached hereto; and
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WHEREAS, in connection with each Lease, the Members and BCC
entered into Option Agreements whereby BCC has the right to acquire all
membership interests in all Lessees (each such Option Agreement being referred
to herein collectively as the "Option Agreements" and individually as an "Option
Agreement"). Such Option Agreements are more fully described on Schedule 1
attached hereto; and
WHEREAS, in connection with certain Leases, certain Members
and Lessees and BCC entered into Stock Pledge Agreements (each such Stock Pledge
Agreement being referred to herein collectively as the "Pledge Agreements" and
individually as a "Pledge Agreement"), which Pledge Agreements are more fully
described on Schedule 1 attached hereto.
NOW, THEREFORE, for valuable consideration the receipt and
sufficiency of which are hereby acknowledged, and intending to be legally bound
hereby, the parties hereto hereby agree to amend all Option Agreements, all
Pledge Agreements, and all Shortfall Agreements as follows:
1. Option Agreements. (a) Each Option Agreement is hereby
amended by deleting in its entirety Section 1(b) and replacing such Section with
the following:
"(b) In consideration of the grant of the Option to
BCC, BCC shall make the following payments (the "OPTION PAYMENTS") to Optionor:
(1) on the earlier of one day after the issuance of the certificate of occupancy
for the Facility or twelve months following the commencement of construction
under the Development Agreement (the "First Payment Date"), an amount equal to
the Current Yield (as hereinafter defined) on the Working Capital Reserve
actually funded by Optionor through such date, payable in arrears, plus an
amount equal to the Current Yield on the Working Capital Reserve actually funded
by Optionor through such date for the next succeeding 12 month period, payable
in advance, (2) on that date which is twelve months after the First Payment Date
(the "Second Payment Date"), an amount calculated as 25% of the Current Yield on
the Working Capital Reserve actually funded by the Optionor, representing the
first quarterly installment of the annual Current Yield for the following 12
month period, payable in advance, and (3) thereafter, on the first day of each
three-month period following the Second Payment Date and for so long as this
Agreement is in effect (but ending in all events at the time of exercise of the
Option), 25% of the Current Yield on the Working Capital Reserve actually funded
from time to time by the Optionor, compounded on an annual basis, representing
quarterly installments of the annual Current Yield, payable in advance. "Current
Yield" as used in this Agreement means an annual return equal to 27.5% of the
Working Capital Reserve actually funded from time to time through the date of
such calculation. Notwithstanding anything to the contrary contained herein, if
the Option is exercised, BCC's obligation to make Option Payments thereafter
shall cease. Option Payments shall be made to Optionors without demand or
notice, except as expressly provided herein."
(b) Section 1(d) of each Option Agreement is hereby amended by
adding at the end of each such Section the following: "To avoid any doubt, BCC
shall receive a credit against
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the Purchase Price for Option Payments paid as Current Yield in advance, to the
extent that such advanced Option Payments are attributable to Current Yield
accruing after the Closing Date."
(c) Each Option Agreement is hereby amended by adding a new
Section 7(c) thereto, which shall read as follows:
"(c) Notwithstanding the provisions of Section 7(b)
and so long as neither a Default nor an Event of Default has occurred under any
Transaction Document or Lease Document which was caused by either Optionor or
the Company, in the event that BCC fails to make Option Payments as provided
hereunder, after ten (10) days prior written notice of such failure sent by
Optionor to BCC, Optionor shall have the following remedies and rights, which
remedies and rights shall be the sole and exclusive remedies and rights of
Optionor in the case of such failure: (i) BCC shall no longer have any right to
exercise the Option or the Asset Purchase Option, (ii) all Notes issued by the
Company pursuant to the Shortfall Agreement shall automatically be replaced with
amended and restated Notes that provide that interest due under the Notes will
accrue and not be due and payable until the date which is the fifth (5th)
anniversary of the date of issuance of the first Note so issued by the Company
pursuant to the Shortfall Agreement and (iii) the lien encumbering the Equity
Interests and other assets in favor of BCC arising hereunder and under the
Pledge Agreement (if applicable) and the Leasehold Mortgage shall automatically
be released and terminated. BCC agrees, after the failure to make Option
Payments and an opportunity to cure as provided herein, to execute such
documents and instruments, and accept delivery of such replacement Notes
(returning the Notes to be replaced) as Optionors may reasonably request to
effect the provisions of Subsections (c)(i), (c)(ii) and (c)(iii) above."
(d) The Option Agreement among BCC, Oakhaven and SCO is hereby
amended to delete any reference to "Membership Interests", and replace such
reference with "Equity Interests".
2. Stock Pledge Agreement. (a) Each Pledge Agreement is hereby
amended to delete any reference to "Stock" and to replace such reference with
"Equity Interests".
(b) Section 7 of each Pledge Agreement is hereby amended to
add the following language at the end thereof: "This Agreement and the grant of
the security interests provided herein are subject in all respects to the
provisions of Section 7(c) of the Option Agreement."
3. Shortfall Funding Agreement.
(a) Section 1.02 of each Shortfall Agreement is
hereby amended to delete any reference to the Note being due and payable on
demand; instead, each such Section shall be read to provide that the Note shall
be due and payable on that date which is the fifth (5th) anniversary of the date
of issuance of the first Note so issued by the Company pursuant to the Shortfall
Agreement; provided, however, interest shall (subject to the provisions of
Section 7(c) of the Option Agreement) nonetheless remain payable in arrears in
quarterly installments at the
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rate of interest provided in Section 1.02 of the Shortfall Agreement. Section
1.02 of each Shortfall Agreement is hereby further amended to include the
following language at the end thereof: "Notwithstanding any provision to the
contrary contained in the Transaction Documents, the provisions of this Section
1.02, and any Notes issued hereunder, shall be subject in all respects to the
terms and conditions of Section 7(c) of the Option Agreement."
(b) Section 1.03 of each Shortfall Agreement is
hereby modified to refer to that Section as "Section 1.03(a)". Section 1.03(a)
of each Shortfall Agreement is hereby amended to include the following language
at the end thereof: "Notwithstanding any provision to the contrary contained in
the Transaction Documents, the provisions of this Section 1.03(a) shall be
subject in all respects to the terms and conditions of Section 7(c) of the
Option Agreement."
(c) A new Section 1.03(b) shall be added to each
Shortfall Agreement, which shall provide as follows: "Notwithstanding any
provision to the contrary contained herein or in any other Transaction Document,
BCC agrees that the Asset Purchase Option shall not be exercised unless (i) BCC
or its designee is prohibited (by operation of law, or any other reason other
than the acts or omissions of BCC or any BCC Affiliate) from exercising the
Option to acquire the Equity Interests pursuant to the Option Agreement or (ii)
the Lessee or any Member is in Default of any covenant, agreement,
representation or warranty contained herein or in any other Transaction
Document, which Default was not caused by BCC or any BCC Affiliate."
4. Promissory Notes. (a) Each form of Promissory Note attached
to each Shortfall Agreement is hereby amended to delete any reference to such
Note being payable on demand. Instead, each such Promissory Note shall be due
and payable on that date which is the fifth (5th) anniversary of the date of
issuance of the first Note so issued by the Company pursuant to the Shortfall
Agreement
(b) Each form of Promissory Note is hereby amended by
adding at the end thereof prior to the signature line the following new
paragraph:
"THE TERMS AND PROVISIONS OF THIS NOTE ARE SUBJECT TO
THE TERMS AND PROVISIONS OF SECTION 7(c) OF THE OPTION AGREEMENT DATED AS OF
____________, 1998 AMONG BALANCED CARE CORPORATION, AND {NAME OF MEMBERS}."
5. Leasehold Mortgages. BCC, each Member and each Lessee
hereby agree that each Leasehold Mortgage shall be amended to add the following
provisions:
"31. Notwithstanding any provision to the contrary
contained in this Mortgage, in no event shall the actions or inactions of
Mortgagor be deemed a Mortgage Event of Default hereunder if and to the extent
that such actions are the responsibility of the Management Firm pursuant to the
Management Agreement; provided, however, such actions or inactions shall
nonetheless constitute a Mortgage Event of Default hereunder if the Management
Firm was unable to perform its responsibilities under the Management Agreement
as a result of either (i) the negligent or willful acts or omissions of
Mortgagor or (ii) a Default or Event of
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Default by Mortgagor under any Transaction Document other than this Mortgage.
Notwithstanding any provisions to the contrary contained herein or in any other
Transaction Document, this Mortgage and the rights of the Mortgagee hereunder
are subject in all respects to the provisions of Section 7(c) of the Option
Agreement."
BCC, each Lessee and each Member hereby agree to cause each Leasehold Mortgage
to be amended of record to add the foregoing provision.
6. Miscellaneous Provisions.
(a) Entire Agreement. This Agreement, together with
all other Transaction Documents (as amended hereby), contains the entire
understanding among the parties hereto with respect to its subject matter and
supersedes any prior understandings or agreements between the parties with
respect to such subject matter.
(b) Amendments. This Agreement may be modified or
amended only by a written instrument executed by the parties hereto.
(c) Severability. If any term or other provision of
this Agreement is invalid, illegal or incapable of being enforced by any rule of
law, or public policy, all other conditions and provisions of this Agreement
shall nevertheless remain in full force and effect so long as the substance of
the transactions contemplated hereby is not affected in any manner adverse to
any party. Upon such determination that any term or other provision is invalid,
illegal or incapable of being enforced, the parties hereto shall negotiate in
good faith to modify this Agreement so as to effect the original intent of the
parties as closely as possible in an acceptable manner to the end that
transactions contemplated hereby are fulfilled to the extent possible.
(d) Counterparts. This Agreement may be executed in
two or more counterparts, each of which shall constitute an original, but all of
which together shall constitute but a single instrument.
(e) Future Cooperation. Each party covenants and
agrees to take such further action and execute such further documents as may be
necessary or appropriate to carry out the intention of this Agreement.
(f) Successors and Assigns. This Agreement shall be
binding upon, and inure to the benefit of, the parties hereto and their
respective successors and assigns.
(g) Transaction Documents Remain Effective. Except as
expressly provided herein, each Shortfall Agreement, Option Agreement and Pledge
Agreement (and all other Transaction Documents) shall remain in full force and
effect, unmodified except as expressly provided herein.
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(h) Definition of Transaction Documents. The term
"Transaction Documents" as used herein, with respect to each Shortfall
Agreement, Option Agreement and (as applicable) Pledge Agreement executed in
connection with a particular Lease, shall have the meaning given to such term in
Appendix 1 to the applicable Shortfall Agreement, as amended hereby.
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IN WITNESS WHEREOF, the Members, the Lessees and BCC have
caused this First Amendment to be duly executed and delivered as of the date
first above written.
BALANCED CARE CORPORATION
By:
------------------------------------
Name
Title
SENIOR CARE OPERATORS, LLC
By:
------------------------------------
Name
Title
SENIOR CARE OPERATORS OF OHIO, LLC
By:
------------------------------------
Name
Title
ASSISTED CARE OPERATORS, LLC
By:
------------------------------------
Name
Title
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ASSISTED CARE OPERATORS OF XXXXXXX,
LLC
By:
------------------------------------
Name
Title
ASSISTED CARE OPERATORS OF
XXXXXXXX, LLC
By:
------------------------------------
Name
Title
EXTENDED CARE OPERATORS
By:
------------------------------------
Name
Title
EXTENDED CARE OPERATORS OF
HARRISBURG, LLC
By:
------------------------------------
Name
Title
EXTENDED CARE OPERATORS OF
RAVENNA, LLC
By:
------------------------------------
Name
Title
S-2
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EXTENDED CARE OPERATORS OF
GREENSBORO, LLC
By:
-----------------------------------
Name
Title
OAKHAVEN SENIOR LIVING, INC.
By:
-----------------------------------
Name
Title
OAKHAVEN EXTENDED LIVING, INC.
By:
-----------------------------------
Name
Title
OAKHAVEN ASSISTED LIVING, INC.
By:
-----------------------------------
Name
Title
S-3
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SCHEDULE 1
LEASE AND SECURITY AGREEMENT
Date of
Agreement Parties
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12/31/97 Xxxxxx XXX, Inc. (Lessor)
Senior Care Operators of Ohio, LLC (Lessee)
2/6/98 Capstone Capital Corporation (Lessor)
Extended Care Operators of Greensboro, LLC (Lessee)
2/6/98 Capstone Capital of Pennsylvania, Inc. (Lessor)
Extended Care Operators of Harrisburg, LLC (Lessee)
2/6/98 Capstone Capital Corporation (Lessor)
Extended Care Operators of Ravenna, LLC (Lessee)
1/30/98 AHP of Indiana, Inc. (Lessor)
Assisted Care Operators of Xxxxxxxx, LLC (Lessee)
1/30/98 AHP of Tennessee, Inc. (Lessor)
Assisted Care Operators of Xxxxxxx, LLC (Lessee)
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SHORTFALL FUNDING AGREEMENT
Date of
Agreement Parties
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12/31/97 Senior Care Operators, LLC
Oakhaven Senior Living, Inc.
Senior Care Operators of Ohio, LLC (Lessee)
Balanced Care Corporation
2/6/98 Extended Care Operators, LLC
Oakhaven Extended Living, Inc.
Extended Care Operators of Greensboro, LLC (Lessee)
Balanced Care Corporation
2/6/98 Extended Care Operators, LLC
Oakhaven Extended Living, Inc.
Extended Care Operators of Harrisburg, LLC (Lessee)
Balanced Care Corporation
2/6/98 Extended Care Operators, LLC
Oakhaven Extended Living, Inc.
Extended Care Operators of Ravenna, LLC (Lessee)
Balanced Care Corporation
1/30/98 Assisted Care Operators, LLC
Oakhaven Assisted Living, Inc.
Assisted Care Operators of Xxxxxxxx, LLC (Lessee)
Balanced Care Corporation
1/30/98 Assisted Care Operators, LLC
Oakhaven Assisted Living, Inc.
Assisted Care Operators of Xxxxxxx, LLC (Lessee)
Balanced Care Corporation
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OPTION AGREEMENT
Date of
Agreement Parties
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12/31/97 Senior Care Operators, LLC (Optionor)
Oakhaven Senior Living, Inc. (Optionor)
Balanced Care Corporation
{NOTE- This Option Agreement includes a pledge of the
equity of the Members in favor of BCC - See Section 3(c)}
2/6/98 Extended Care Operators, LLC (Optionor)(1)
Oakhaven Extended Living, Inc. (Optionor)
Balanced Care Corporation
2/6/98 Extended Care Operators, LLC (Optionor)(2)
Oakhaven Extended Living, Inc. (Optionor)
Balanced Care Corporation
2/6/98 Extended Care Operators, LLC (Optionor)(3)
Oakhaven Extended Living, Inc. (Optionor)
Balanced Care Corporation
1/30/98 Assisted Care Operators, LLC (Optionor)(4)
Oakhaven Assisted Living, Inc. (Optionor)
Balanced Care Corporation
1/30/98 Assisted Care Operators, LLC (Optionor)(5)
Oakhaven Assisted Living, Inc. (Optionor)
Balanced Care Corporation
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(1) Granting an option to purchase the equity interests in Extended Care
Operators of Greensboro, LLC.
(2) Granting an option to purchase the equity interests in Extended Care
Operators of Harrisburg, LLC.
(3) Granting an option to purchase the equity interests in Extended Care
Operators of Ravenna, LLC.
(4) Granting an option to purchase the equity interests in Assisted Care
Operators of Xxxxxxxx, LLC.
(5) Granting an option to purchase the equity interests in Assisted Care
Operators of Xxxxxxx, LLC.
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PLEDGE AGREEMENT
Date of
Agreement Parties
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2/6/98 Extended Care Operators, LLC (Pledgor) (6)
Oakhaven Extended Living, Inc. (Pledgor)
Balanced Care Corporation (Secured Party)
2/6/98 Extended Care Operators, LLC (Pledgor) (7)
Oakhaven Extended Living, Inc. (Pledgor)
Balanced Care Corporation (Secured Party)
2/6/98 Extended Care Operators, LLC (Pledgor) (8)
Oakhaven Extended Living, Inc. (Pledgor)
Balanced Care Corporation (Secured Party)
1/30/98 Assisted Care Operators, LLC (Pledgor) (9)
Oakhaven Assisted Living, Inc. (Pledgor)
Balanced Care Corporation (Secured Party)
1/30/98 Assisted Care Operators, LLC (Pledgor) (10)
Oakhaven Assisted Living, Inc. (Pledgor)
Balanced Care Corporation (Secured Party)
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(6) Pledging the equity interests of Extended Care Operators of Greensboro, LLC.
(7) Pledging the equity interests of Extended Care Operators of Harrisburg, LLC.
(8) Pledging the equity interests of Extended Care Operators of Ravenna, LLC.
(9) Pledging the equity interests of Assisted Care Operators of Xxxxxxxx, LLC.
(10) Pledging the equity interests of Assisted Care Operators of Xxxxxxx, LLC.
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LEASEHOLD MORTGAGES
Date of
Agreement Parties
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12/31/97 Balanced Care Corporation (Mortgagee)
Senior Care Operators of Ohio, LLC (Mortgagor)
2/6/98 Balanced Care Corporation (Mortgagee)
Extended Care Operators of Ravenna, LLC (Mortgagor)
2/6/98 Balanced Care Corporation (Mortgagee)
Extended Care Operators of Greensboro, LLC (Mortgagor)
2/6/98 Balanced Care Corporation (Mortgagee)
Extended Care Operators of Harrisburg, LLC (Mortgagor)
1/30/98 Balanced Care Corporation (Mortgagee)
Assisted Care Operators of Xxxxxxxx, LLC (Mortgagor)
1/30/98 Balanced Care Corporation (Mortgagee)
Assisted Care Operators of Xxxxxxx, LLC (Mortgagor)
