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Exhibit 10.7
Loan Number 99-407
THIRD AMENDMENT TO LOAN DOCUMENTS
This THIRD AMENDMENT TO LOAN DOCUMENTS (this "Amendment") is
made this 6th day of November, 2000, among XXXXXX HEALTHCARE FINANCE, INC., a
Delaware corporation formerly known as HCFP FUNDING, INC. ("Lender") and
BALANCED CARE CORPORATION, a Delaware corporation (referred to herein as
"Guarantor"), and BALANCED CARE REALTY AT STATE COLLEGE, INC., a Delaware
corporation, BALANCED CARE REALTY AT ALTOONA, INC., a Delaware corporation,
BALANCED CARE REALTY AT LEWISTOWN, INC., a Delaware corporation, BALANCED CARE
REALTY AT READING, INC., a Delaware corporation, BALANCED CARE REALTY AT
BERWICK, INC., a Delaware corporation, BALANCED CARE REALTY AT PECKVILLE, INC.,
a Delaware corporation, BALANCED CARE REALTY AT SCRANTON, INC., a Delaware
corporation, BALANCED CARE REALTY AT MARTINSBURG, INC., a Delaware corporation,
BALANCED CARE REALTY AT MAUMELLE, INC., a Delaware corporation, BALANCED CARE
REALTY AT SHERWOOD, INC., a Delaware corporation, BALANCED CARE REALTY AT
MOUNTAIN HOME, INC., a Delaware corporation, and BALANCED CARE REALTY AT
MANSFIELD, INC., a Delaware corporation (collectively referred to herein as
"Outlook Pointe Borrowers"), and BCC AT DARLINGTON, INC., a Delaware
corporation, BALANCED CARE AT EYERS GROVE, INC., a Delaware corporation,
BALANCED CARE AT XXXXXX, INC., a Delaware corporation, BALANCED CARE AT XXXXXX,
INC., a Delaware corporation, and BALANCED CARE AT NORTH RIDGE, INC., a Delaware
corporation (collectively referred to herein as "BCC Borrowers"). The Outlook
Pointe Borrowers and BCC Borrowers are collectively referred to herein as
"Borrowers."
RECITALS:
A. Lender has made available to BCC Borrowers a revolving
credit facility in the maximum principal amount of Twelve Million and No/100
Dollars ($12,000,000) (the "Revolving Credit Facility") subject to the terms and
conditions contained in a Loan and Security Agreement dated April 22, 1999, as
amended by an Amendment No. 1 to Loan and Security Agreement dated July 1, 1999
(the "First Amendment"), an Amendment No. 2 to Loan and Security Agreement dated
July 29, 1999 (the "Second Amendment"), and an Amendment No. 3 to Loan and
Security Agreement dated December 31, 1999 (the "Third Amendment"), all among
the Lender and BCC Borrowers (as well as other entities that have since been
released from the terms and conditions of the Loan and Security
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Agreement as amended). The Loan and Security Agreement, as amended by the First
Amendment, the Second Amendment, and the Third Amendment, is referred to herein
as the "Loan and Security Agreement." The Loan and Security Agreement and all
other loan documents executed in connection with the Loan and Security Agreement
and the Revolving Credit Facility are collectively referred to herein as the
"Revolving Credit Facility Loan Documents."
B. Lender has also made a loan (the "Outlook Pointe Loan") of
Thirty-Two Million and No/100 Dollars ($32,000,000.00) to Outlook Pointe
Borrowers subject to the terms and conditions contained in a Loan Agreement
dated December 30, 1999, between Lender and Outlook Pointe Borrowers (the Loan
Agreement, including all exhibits thereto and the Senior Housing Rider of even
date therewith, as amended from time to time, is referred to herein as the "Loan
Agreement"). The Outlook Pointe Loan is evidenced by a Promissory Note A of even
date with the Loan Agreement in the original principal amount of Twenty-Five
Million Six Hundred Thousand and No/100 Dollars ($25,600,000.00) ("Note A") and
by a Subordinated Promissory Note B of even date with the Loan Agreement in the
original principal amount of Six Million Four Hundred Thousand and No/100
Dollars ($6,400,000.00) ("Note B") (Note A and Note B and all amendments thereto
and substitutions therefor are hereinafter referred to collectively as the
"Note").
C. As additional security for the Outlook Pointe Loan,
Guarantor has executed and delivered a Guaranty dated December 30, 1999, in
favor of Lender (as amended from time to time, the "Guaranty").
D. Also in connection with the Outlook Pointe Loan, Guarantor
and Outlook Pointe Borrowers have executed and delivered a Hazardous Materials
Indemnity Agreement dated December 30, 1999, in favor of Lender (as amended from
time to time, the "Environmental Indemnity"). The Loan Agreement, the Guaranty,
and the Environmental Indemnity, the New Note (as defined below), together with
all mortgages, deeds of trust and other documents and instruments executed and
delivered by one or more of the Outlook Pointe Borrowers or the Guarantor in
connection the Outlook Pointe Loan, are collectively referred to herein as the
"Outlook Pointe Loan Documents," and the Outlook Pointe Loan Documents,
collectively with the Revolving Credit Facility Loan Documents, are referred to
herein as the "Loan Documents." Capitalized terms used herein without definition
shall have the meanings provided in the Loan Agreement.
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E. Also in connection with the Outlook Pointe Loan, Lender,
Guarantor, Outlook Pointe Borrowers, and various other entities have entered
into a Subordination Agreement dated April 18, 2000 (the "Subordination
Agreement"), addressing debt that is junior to the Outlook Pointe Loan.
F. On or about April 27, 2000, Lender increased the Outlook
Pointe Loan to Thirty-Seven Million and No/100 Dollars ($37,000,000.00) (the
"Amended Loan"), as evidenced by an Amended and Restated Promissory Note A dated
April 27, 2000 in the original principal amount of Thirty Million Six Hundred
Thousand and No/100 Dollars ($30,600,000.00) ("Amended Note A"), and an Amended
and Restated Subordinated Promissory Note B dated April 27, 2000 in the original
principal amount of Six Million Four Hundred Thousand and No/100 Dollars
($6,400,000.00) ("Amended Note B"), and amendments to the mortgages and deeds of
trust constituting Outlook Pointe Loan Documents dated April 27, 2000 (the
"Outlook Pointe Mortgages"). In connection with the Amended Loan, BCC Borrowers
have executed and delivered to Lender amendments to the mortgages and deeds of
trust constituting Revolving Credit Facility Loan Documents dated April 27, 2000
(the "Revolving Credit Facility Mortgages").
G. On or about September 20, 2000, Lender increased the
Amended Loan by Five Million and No/100 Dollars ($5,000,000.00) to Forty-Two
Million and No/100 Dollars ($42,000,000.00) (the "Second Amended Loan"), as
evidenced by a Second Amended and Restated Promissory Note A in the original
principal amount of Amended Note A (the "Second Amended Note A"), a Second
Amended and Restated Subordinated Promissory Note B in the original principal
amount of Amended Note B (the "Second Amended Note B"), and a Promissory Note C
in the original principal amount of Five Million and No/100 Dollars
($5,000,000.00) (the "Note C"), and amendments to the Outlook Pointe Mortgages
dated September 20, 2000. In conjunction with the Second Amended Loan, BCC
Borrowers have executed and delivered to Lender amendments to the Revolving
Credit Facility Mortgages dated September 20, 2000.
H. Pursuant to Section 1.11 of the Loan Agreement, Lender has
applied the funds in the Reserve Account to repay a portion of Note C.
I. HR Investments Limited, a Cayman Islands corporation, RH
Investments Limited, a Cayman Islands corporation and VXM Investments Limited, a
Cayman Islands corporation (collectively, "Junior Lenders") have made a loan to
Guarantor in the amount of Six Million Five Hundred Thousand and No/100 Dollars
($6,500,000.00) (the "Initial Guarantor Loan"). Junior Lenders intend to make
additional loans to Guarantor in an aggregate amount not to exceed One Million
Five Hundred Thousand and No/100
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Dollars ($1,500,000.00) (collectively, the "Subsequent Guarantor Loan").
Guarantor has used a portion of the proceeds of the Initial Guarantor Loan to
cause Outlook Pointe Borrowers to repay the outstanding principal balance of
Note C. In conjunction with the Initial Guarantor Loan, the Subsequent Guarantor
Loans and the repayment of Note C, Lender, Borrowers and Guarantor desire to
enter into this Amendment amending the Loan Documents. Also in conjunction with
such transactions, Lender, Borrowers, Guarantor, certain affiliates of Borrowers
and Guarantor, FRR Investments Limited, a Cayman Island Corporation, IPC
Advisors, S.a.r.l., a Luxembourg corporation and Assignees have entered into
that certain Amended and Restated Subordination Agreement dated as of the date
hereof (the "Amended and Restated Subordination Agreement").
NOW, THEREFORE, in consideration of the foregoing recitals and
the mutual conditions and agreements contained herein, and for other good and
valuable consideration (the receipt and sufficiency of which are hereby
acknowledged), Lender, the Borrowers and Guarantor hereby agree as follows:
1. Defined Terms. Capitalized terms used herein without
definition shall have the meanings provided in the Loan Agreement.
2. Payment of Expenses. Outlook Pointe Borrowers shall pay all
Expenses (as hereinafter defined) incurred by Lender previously, now or
hereafter in connection with the Second Amended Loan, the Revolving Credit
Facility, the Loan Documents or this Amendment, including without limitation,
Lender's expenses incurred in the negotiation and documentation related to the
approval of the Initial Guarantor Loan and the Subsequent Guarantor Loans, the
repayment of Note C, the Amended and Restated Subordination Agreement and this
Amendment. BCC Borrowers acknowledge and agree that Lender shall be entitled, at
any time, to advance any amounts available under the Revolving Credit Facility
to Lender in payment of any amounts due Lender from BCC Borrowers, Outlook
Pointe Borrowers, Guarantor or any affiliates of the foregoing in respect of any
Expenses. For the purposes hereof "Expenses" means all reasonable expenditures
and expenses which may be paid or incurred by or on behalf of Lender including
repair costs, payments to remove or protect against liens, attorneys' fees
(including fees of Lender's outside and inside counsel), receivers' fees,
engineers' fees, accountants' fees, independent consultants' fees (including
environmental
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consultants), all costs and expenses incurred in connection with any of the
foregoing, Lender's out-of-pocket costs and expenses related to any audits or
inspections, outlays for documentary and expert evidence, stenographers'
charges, stamp taxes, publication costs, and costs (which may be estimates as to
items to be expended after entry of an order or judgment) for procuring all such
abstracts of title, title and UCC searches, and examination, title insurance
policies, Torrens' Certificates (if applicable) and similar data and assurances
with respect to title as Lender may deem reasonably necessary either to
prosecute any action or to evidence to bidders at any foreclosure sale of any
collateral held by Lender the true condition of the title to, or the value of,
such collateral or any part thereof.
3. Lender has reviewed the documents evidencing the Initial
Guarantor Loan and hereby consents to Guarantor's indebtedness to Junior Lenders
under the Initial Guarantor Loan and agrees that the same shall not constitute
an Event of Default under any of the Loan Documents. Provided that the documents
evidencing the Subsequent Guarantor Loans are in substantially the same form and
contain substantially the same terms as the documents evidencing the Initial
Guarantor Loan, Lender hereby consents to Guarantor's indebtedness to Junior
Lenders under the Subsequent Guarantor Loans and agrees that the same shall not
constitute an Event of Default under any of the Loan Documents.
4. No Expenses or other expenses incurred by the Outlook
Pointe Borrowers in connection with this Amendment shall constitute an
"operating expense" for purposes of calculating Net Cash Flow.
5. Section 1.10 (Additional Exit Fee) of the Loan Agreement is
hereby deleted in its entirety.
6. The following new Section 7.1(l) shall be added immediately
following Section 7.1(k) of the Loan Agreement:
(l) The occurrence of a default by Guarantor under the Initial
Guarantor Loan or any of the Subsequent Guarantor Loans, which default
continues uncured beyond any applicable cure period.
7. All references in the Outlook Pointe Loan Documents to the
Subordination Agreement shall mean the Amended and Restated Subordination
Agreement.
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8. All references in the Loan Documents to any of the Outlook
Pointe Loan Documents shall mean the applicable Outlook Pointe Loan Document, as
amended hereby.
9. All references in the Loan Documents to any of the
Revolving Credit Facility Loan Documents shall mean the applicable Revolving
Credit Facility Loan Document as amended hereby.
10. Except as expressly provided herein, the Loan Documents
(including without limitation the Guaranty, Environmental Indemnity and the
undated Consent Form with attached letter dated February 16, 2000, to Lender and
Xxxxxx Financial, Inc. from Guarantor) shall remain unmodified and in full force
and effect and are hereby ratified and confirmed as amended by this Amendment
and the Amended and Restated Subordination Agreement.
11. The provisions of this Amendment that pertain to the
Outlook Pointe Loan, the Outlook Pointe Loan Documents, and the Outlook Pointe
Borrowers shall be governed by and construed in accordance with the internal
laws of the State of Illinois. The provisions of this Amendment that pertain to
the Revolving Credit Facility, the Revolving Credit Facility Loan Documents, and
the BCC Borrowers shall be governed by and construed in accordance with the
internal laws of the State of Maryland.
[signatures on following pages]
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IN WITNESS WHEREOF, the parties hereto have executed this
Amendment or have caused this Amendment to be executed by their duly authorized
representatives as of the date first above written.
OUTLOOK POINTE BORROWERS:
BALANCED CARE REALTY AT STATE
COLLEGE, INC., a Delaware corporation
By/s/Xxxxx X. Xxxxxx
Name Xxxxx X. Xxxxxx
Its Vice President and Secretary
BALANCED CARE REALTY AT ALTOONA,
INC., a Delaware corporation
By/s/Xxxxx X. Xxxxxx
Name Xxxxx X. Xxxxxx
Its Vice President and Secretary
BALANCED CARE REALTY AT LEWISTOWN,
INC., a Delaware corporation
By/s/Xxxxx X. Xxxxxx
Name Xxxxx X. Xxxxxx
Its Vice President and Secretary
BALANCED CARE REALTY AT READING,
INC., a Delaware corporation
By/s/Xxxxx X. Xxxxxx
Name Xxxxx X. Xxxxxx
Its Vice President and Secretary
BALANCED CARE REALTY AT BERWICK,
INC., a Delaware corporation
By/s/Xxxxx X. Xxxxxx
Name Xxxxx X. Xxxxxx
Its Vice President and Secretary
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BALANCED CARE REALTY AT PECKVILLE,
INC., a Delaware corporation
By/s/Xxxxx X. Xxxxxx
Name Xxxxx X. Xxxxxx
Its Vice President and Secretary
BALANCED CARE REALTY AT SCRANTON,
INC., a Delaware corporation
By/s/Xxxxx X. Xxxxxx
Name Xxxxx X. Xxxxxx
Its Vice President and Secretary
BALANCED CARE REALTY AT MARTINSBURG,
INC., a Delaware corporation
By/s/Xxxxx X. Xxxxxx
Name Xxxxx X. Xxxxxx
Its Vice President and Secretary
BALANCED CARE REALTY AT MAUMELLE,
INC., a Delaware corporation
By/s/Xxxxx X. Xxxxxx
Name Xxxxx X. Xxxxxx
Its Vice President and Secretary
BALANCED CARE REALTY AT SHERWOOD,
INC., a Delaware corporation
By/s/Xxxxx X. Xxxxxx
Name Xxxxx X. Xxxxxx
Its Vice President and Secretary
BALANCED CARE REALTY AT MOUNTAIN
HOME, INC., a Delaware corporation
By/s/Xxxxx X. Xxxxxx
Name Xxxxx X. Xxxxxx
Its Vice President and Secretary
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BALANCED CARE REALTY AT MANSFIELD,
INC., a Delaware corporation
By/s/Xxxxx X. Xxxxxx
Name Xxxxx X. Xxxxxx
Its Vice President and Secretary
BCC BORROWERS:
BCC AT DARLINGTON, INC.,
a Delaware corporation
By/s/Xxxxx X. Xxxxxx
Name Xxxxx X. Xxxxxx
Its Vice President and Secretary
BALANCED CARE AT EYERS GROVE, INC.,
a Delaware corporation
By/s/Xxxxx X. Xxxxxx
Name Xxxxx X. Xxxxxx
Its Vice President and Secretary
BALANCED CARE AT XXXXXX, INC.,
a Delaware corporation
By/s/Xxxxx X. Xxxxxx
Name Xxxxx X. Xxxxxx
Its Vice President and Secretary
BALANCED CARE AT XXXXXX, INC.,
a Delaware corporation
By/s/Xxxxx X. Xxxxxx
Name Xxxxx X. Xxxxxx
Its Vice President and Secretary
BALANCED CARE AT NORTH RIDGE, INC.,
a Delaware corporation
By/s/Xxxxx X. Xxxxxx
Name Xxxxx X. Xxxxxx
Its Vice President and Secretary
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GUARANTOR:
BALANCED CARE CORPORATION,
a Delaware corporation
By/s/Xxxxx X. Xxxxxx
Name Xxxxx X. Xxxxxx
Its Senior Vice President and Legal
Counsel & Assistant Secretary
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LENDER:
XXXXXX HEALTHCARE FINANCE, INC.,
a Delaware corporation formerly known as
HCFP FUNDING, INC.
By/s/Xxxxx X. Xxxxx
Name
Its
Accepted and agreed to on the date first set forth above.
MANAGERS OF PROJECTS:
BCC AT STATE COLLEGE, INC.,
a Delaware corporation
By/s/Xxxxx X. Xxxxxx
Name Xxxxx X. Xxxxxx
Its Vice President and Secretary
TC REALTY OF ALTOONA, INC.,
a Delaware corporation
By/s/Xxxxx X. Xxxxxx
Name Xxxxx X. Xxxxxx
Its Vice President and Secretary
TC REALTY OF LEWISTOWN, INC.,
a Delaware corporation
By/s/Xxxxx X. Xxxxxx
Name Xxxxx X. Xxxxxx
Its Vice President and Secretary
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TC REALTY OF READING, INC.,
a Delaware corporation
By/s/Xxxxx X. Xxxxxx
Name Xxxxx X. Xxxxxx
Its Vice President and Secretary
TC REALTY OF BERWICK, INC.,
a Delaware corporation
By/s/Xxxxx X. Xxxxxx
Name Xxxxx X. Xxxxxx
Its Vice President and Secretary
BLACK BOX OF PECKVILLE, INC.,
a Delaware corporation
By/s/Xxxxx X. Xxxxxx
Name Xxxxx X. Xxxxxx
Its Vice President and Secretary
TC REALTY CORPORATION III,
a Delaware corporation
By/s/Xxxxx X. Xxxxxx
Name Xxxxx X. Xxxxxx
Its Vice President and Secretary
BALANCED CARE AT MARTINSBURG, INC.,
a Delaware corporation
By/s/Xxxxx X. Xxxxxx
Name Xxxxx X. Xxxxxx
Its Vice President and Secretary
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BALANCED CARE AT MAUMELLE, INC.,
a Delaware corporation
By/s/Xxxxx X. Xxxxxx
Name Xxxxx X. Xxxxxx
Its Vice President and Secretary
BALANCED CARE AT SHERWOOD, INC.,
a Delaware corporation
By/s/Xxxxx X. Xxxxxx
Name Xxxxx X. Xxxxxx
Its Vice President and Secretary
BALANCED CARE AT MOUNTAIN HOME, INC.,
a Delaware corporation
By/s/Xxxxx X. Xxxxxx
Name Xxxxx X. Xxxxxx
Its Vice President and Secretary
TC REALTY CORPORATION II,
a Delaware corporation
By/s/Xxxxx X. Xxxxxx
Name Xxxxx X. Xxxxxx
Its Vice President and Secretary
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