Exhibit 10.11
AGREEMENT FOR
TERMINATION OF LEASE DOCUMENTS AND MUTUAL RELEASES
(Shippensburg)
THIS AGREEMENT FOR TERMINATION OF LEASE DOCUMENTS AND MUTUAL RELEASES
(this "Agreement") is made and entered into as of March 31, 2002, by and among
Ocwen Financial Corporation, a Florida corporation ("Ocwen"), Shippensburg ALF,
Inc., a Florida Corporation ("Landlord"), Ocwen Federal Bank FSB, a federally
chartered savings bank ("Bank"), Balanced Care Corporation, a Delaware
corporation ("Balanced Care"), BCC Development and Management Co., a Delaware
corporation ("Developer"), Senior Care Operators of Shippensburg, LLC, a
Delaware limited liability company ("Tenant"), Balanced Care at Shippensburg,
Inc., a Delaware corporation("Manager"), Senior Care Operators, LLC, a Delaware
limited liability company ("SCO"), and Oakhaven Senior Living, Inc., a
California corporation ("OSL"), with respect to the following:
RECITALS
A. Landlord and Tenant are parties to that certain Lease Agreement
dated as of March 31, 1998 (as the same may have been further amended or
modified from time to time in accordance with the terms thereof, the "Lease"),
covering certain "Premises", as more particularly described in the Lease. Tenant
presently operates a residential care facility (the "Facility") on the Premises
known as "Outlook Pointe at Shippensburg".
B. Landlord, Tenant and Developer are also parties to that certain
Development Agreement dated as of March 31, 1998 (as the same may have been
amended or modified in accordance with the terms thereof, the "Development
Agreement"), entered into in connection with the Lease.
C. Landlord and Tenant are also parties to that certain Security
Agreement dated as of March 31, 1998 (as the same may have been amended or
modified in accordance with the terms thereof, the "First Security Agreement"),
entered into in connection with the Lease.
D. Landlord, Tenant and Developer are also parties to that certain
Security Agreement dated as of March 31, 1998 (as the same may have been amended
or modified in accordance
with the terms thereof, the "Second Security Agreement"), entered into in
connection with the Lease.
E. SCO and OSL are also parties to that certain Guaranty of Payment and
Performance dated as of March 31, 1998 (as the same may have been amended or
reaffirmed from time to time in accordance with the terms thereof, the "Lease
Guaranty"), made in favor of Landlord, in connection with the Lease.
F. Balanced Care is also a party to that certain Construction
Completion Guaranty dated as of March 31, 1998 (as the same may have been
amended or reaffirmed from time to time in accordance with the terms thereof,
the "Completion Guaranty"), made in favor of Landlord, in connection with the
Lease.
G. Landlord, Tenant, Developer, Balanced Care, SCO and OSL are also
parties to that certain Environmental Indemnity Agreement dated as of March 31,
1998 (as the same may have been amended or modified from time to time in
accordance with the terms thereof, the "Environmental Indemnity Agreement"),
entered into in connection with the Lease.
H. Landlord and Tenant are also parties to that certain Assignment and
Pledge of Deposit Account Agreement dated as of March 31, 1998 (as the same may
have been amended or modified from time to time in accordance with the terms
thereof, the "First Assignment of Deposit Account Agreement"), entered into in
connection with the Lease.
I. Landlord, Tenant and Developer are also parties to that certain
Assignment and Pledge of Deposit Account Agreement dated as of March 31, 1998
(as the same may have been amended or modified from time to time in accordance
with the terms thereof, the "Second Assignment of Deposit Account Agreement"),
entered into in connection with the Lease.
J. Landlord and Tenant are also parties to that certain Assignment of
Contracts, Plans, Permits and Approvals dated as of March 31, 1998 (as the same
may have been amended or modified from time to time in accordance with the terms
thereof, the "First Assignment of Contracts"), entered into in connection with
the Lease.
K. Landlord, Tenant and Developer are also parties to that certain
Assignment of Contracts, Plans, Permits and
Approvals dated as of March 31, 1998 (as the same may have been amended or
modified from time to time in accordance with the terms thereof, the "Second
Assignment of Contracts"), entered into in connection with the Lease.
L. Landlord, Tenant and Bank are also parties to that certain Lockbox
and Blocked Account Agreement dated as of March 31, 1998 (as the same may have
been amended or modified from time to time in accordance with the terms thereof,
the "Lockbox Agreement"), entered into in connection with the Lease.
M. Landlord, Tenant, Developer, SCO, OSL and Balanced Care are also
parties to that certain Non-Competition Agreement dated as of March 31, 1998 (as
the same may have been amended or modified from time to time in accordance with
the terms thereof, the "Non-Competition Agreement"), entered into in connection
with the Lease.
N. Landlord, Tenant and Developer are also parties to that certain
Assignment of Construction Contract dated as of March 31, 1998 (as the same may
have been amended or modified from time to time in accordance with the terms
thereof, the "Assignment of Construction Contract"), entered into in connection
with the Lease.
O. Landlord, Tenant and Developer are also parties to that certain
Assignment of Architect's Contract dated as of March 31, 1998 (as the same may
have been amended or modified from time to time in accordance with the terms
thereof, the "Assignment of Architect's Contract"), entered into in connection
with the Lease.
P. Landlord, Tenant, and Developer are also parties to that certain
Assignment of Engineer's Contract dated as of March 31, 1998 (as the same may
have been amended or modified from time to time in accordance with the terms
thereof, the "Assignment of Engineer's Contract"), entered into in connection
with the Lease.
Q. Tenant and Manager are also parties to that certain Management
Agreement dated as of March 31, 1998 (as the same may have been amended or
modified from time to time in accordance with the terms thereof, the "Management
Agreement"), entered into in connection with the Lease.
R. Landlord, Tenant and Manager are also parties to that certain
Management Agreement Subordination Agreement dated
as of March 31, 1998 (as the same may have been amended or modified from time to
time in accordance with the terms thereof, the "Management Agreement
Subordination Agreement"), entered into in connection with the Lease.
S. Landlord and Tenant are also parties to that certain Assignment of
Leases, Rents and Receivables dated as of March 31, 1998 (as the same may have
been amended or modified from time to time in accordance with the terms thereof,
the "Assignment of Rents"), entered into in connection with the Lease.
T. Landlord and Balanced Care are also parties to that certain Right of
First Refusal Agreement dated as of March 31, 1998 (as the same may have been
amended or modified from time to time in accordance with the terms thereof, the
"Right of First Refusal Agreement"), entered into in connection with the Lease.
U. Landlord, Tenant and Balanced Care are also parties to that certain
Subordination and Standstill Agreement dated as of March 31, 1998 (as the same
may have been amended or modified from time to time in accordance with the terms
thereof, the "Subordination and Standstill Agreement"), entered into in
connection with the Lease.
V. Landlord and Balanced Care are also parties to that certain Working
Capital Assurance Agreement dated as of March 31, 1998 (as the same may have
been amended or modified from time to time in accordance with the terms thereof,
the "Working Capital Assurance Agreement"), entered into in connection with the
Lease.
W. Landlord, Tenant, Balanced Care and Developer are also parties to
that certain Post-Closing Agreement dated as of March 31, 1998 (as the same may
have been amended or modified from time to time in accordance with the terms
thereof, the "Post-Closing Agreement"), entered into in connection with the
Lease.
X. Landlord, Tenant, Balanced Care, and the other parties named therein
are also parties to that certain Cross-Default and Cross-Collateralization
Agreement dated as of March 31, 1998 (as the same may have been amended or
modified from time to time in accordance with the terms thereof, the "Cross
Default Agreement"), entered into in connection with the Lease.
Y. The Lease, the Development Agreement, the First Security Agreement,
the Second Security Agreement, the Lease Guaranty, the Completion Guaranty, the
Environmental Indemnity Agreement, the First Assignment of Deposit Account
Agreement, the Second Assignment of Deposit Account Agreement, the First
Assignment of Contracts, the Second Assignment of Contracts, the Lockbox
Agreement, the Non-Competition Agreement, the Assignment of Construction
Contract, the Assignment of Architect's Contract, the Assignment of Engineer's
Contract, the Management Agreement, the Management Agreement Subordination
Agreement, the Assignment of Rents, the Right of First Refusal Agreement, the
Subordination and Standstill Agreement, the Working Capital Assurance Agreement,
the Post-Closing Agreement, and the Cross Default Agreement together with any
and all other documents, instruments, agreements or other writings executed
under or in connection therewith, or executed in connection with any of the
transactions contemplated by any of the foregoing, are collectively referred to
herein as the "Lease Documents".
Z. Landlord, as owner of the Premises, has agreed to sell, and Balanced
Care Realty (OFC), Inc., a Delaware corporation and wholly-owned subsidiary of
Balanced Care ("Buyer"), has agreed to purchase, the Premises pursuant to that
certain Agreement of Purchase and Sale dated as of March 31, 2002 (the "Purchase
Agreement"), by and among Landlord, Buyer, Ocwen, Balanced Care and the other
parties named therein. In order to finance the purchase of the Premises from
Landlord, Buyer will obtain a loan from Ocwen, an affiliate of Landlord,
pursuant to a Term Loan Agreement dated as of March 31, 2002 (the "Term Loan
Agreement"), by and among Ocwen, Buyer and the other parties named therein.
Closing on the transactions contemplated under the Purchase Agreement and the
Term Loan Agreement is to be effective on and as of March 31, 2002 (the "Closing
Date"). In connection with the Purchase Agreement and the Term Loan Agreement
and the transactions contemplated thereunder, the parties hereto desire to
mutually cancel and terminate the Lease Documents to which each is a party on
the terms and conditions contained herein.
AGREEMENT
IN CONSIDERATION OF the foregoing recitals, the mutual promises and
agreements contained herein, and other good and valuable consideration, the
receipt and adequacy of which are hereby acknowledged, the parties hereto,
intending to be legally bound hereby, agree as follows:
1. Termination of Lease Documents. Subject to all of the terms and
conditions of this Agreement, each of the Lease Documents and the respective
obligations of the parties thereunder, including, but not limited to, (i)
Tenant's obligations with respect to past, present or future Base Rent and
Additional Rent and those items that directly relate to the payment of Base Rent
and/or Additional Rent (e.g., late payments, charges and interest)
(collectively, the "Terminated Rent Obligations") and (ii) Tenant's option to
purchase the Premises under Section 21 of the Lease, shall be terminated on and
as of the Closing Date; provided, however, that the foregoing termination is
subject to the terms and conditions of that certain Settlement Agreement and
Release dated as of even date herewith by and among Ocwen, Landlord, Balanced
Care and the other parties named therein (the "Settlement Agreement"), which
contemplates that the termination of the Lease Agreements and the releases
contained in Section 2 hereof may be voided, invalidated and set aside upon the
occurrence of certain events, as more specifically set forth in Section 9 of the
Settlement Agreement.
2. Mutual Releases.
(a) Except as set forth in Section 2(c) below and as provided
in Section 9 of the Settlement Agreement, Ocwen, Landlord and Bank, on behalf
of, and together with their respective shareholders, owners, principals,
directors, officers, managers, attorneys, employees, parents, partners,
fiduciaries, assigns, successors, affiliates, insurers, and agents, hereby
RELEASE, ACQUIT, AND FOREVER DISCHARGE, Balanced Care, Developer, Manager,
Tenant, SCO and OSL, together with their respective shareholders, members,
owners, principals, directors, officers, managers, attorneys, employees,
parents, partners, fiduciaries, assigns, successors, affiliates, insurers, and
agents, from any and all liabilities, manners of action, causes of action,
claims and/or demands, both known and unknown, in law or in equity, including,
but not limited to, any and all claims for breach of contract, fraud, emotional
distress, negligence, economic loss, damage to reputation, intentionally
tortious conduct, and/or other misconduct arising out of or in connection with
the Lease Documents.
(b) Except as set forth in Section 2(c) below, Balanced Care,
Developer, Manager, Tenant, SCO and OSL, on behalf of, and together with their
respective shareholders, members, owners, principals, directors, officers,
managers, attorneys, employees, parents, partners, fiduciaries, assigns,
successors, affiliates, insurers, and agents, hereby RELEASE, ACQUIT, AND
FOREVER DISCHARGE Ocwen, Landlord and Bank, together with their respective
shareholders, owners, principals, directors, officers, managers, attorneys,
employees, parents, partners, fiduciaries, assigns, successors, affiliates,
insurers, and agents, from any and all liabilities, manners of action, causes of
action, claims and/or demands, both known and unknown, in law or in equity,
including, but not limited to, any and all claims for breach of contract, fraud,
emotional distress, negligence, economic loss, damage to reputation,
intentionally tortious conduct, and/or other misconduct arising out of or in
connection with the Lease Documents.
(c) Notwithstanding the foregoing or anything else to the
contrary contained in this Agreement, except for any provisions of the Lease
Documents relating to the Terminated Rent Obligations, this Agreement shall not
effect, limit, modify or release any party from any obligation or operate as a
waiver of any rights of any party under or pursuant to any other provisions of
the Lease Documents which, by their express terms, survive the termination of
such Lease Documents. Further, Balanced Care agrees to defend, indemnify and
hold harmless Landlord, Ocwen and Bank from and against any and all liens,
claims, costs, losses, expenses, damages, actions and causes of action for which
Tenant, Manager, Developer, SCO or OSL is responsible under the Lease Documents
and which accrue or accrued on or before the Closing Date (other than in
connection with the Terminated Rent Obligations).
3. Delivery of the Premises. On the Closing Date, Tenant shall deliver
to Landlord possession of the Premises. Upon surrender, the Premises shall be
broom-clean (i.e., free of debris and rubbish), and in a safe condition, and in
such other condition that is acceptable to Buyer.
4. Mutual Termination of Lease. On the Closing Date, Landlord and
Tenant shall execute in recordable form a Mutual Termination of Lease relating
to the Lease in substantially the form of Exhibit A attached hereto, and shall
cause the same to be recorded as soon as practicable in the office of the county
recorder in the appropriate county where the Facility is located (the "County").
Landlord and Tenant each hereby agree promptly to execute and deliver such other
documents as the other party may reasonably request in order to confirm the
termination of the Lease in accordance with the terms of this Agreement.
5. Further Assurances. The parties hereto agree to execute and deliver
to the other parties hereto any agreement, document or instrument deemed
reasonably necessary or desirable to give effect to the transactions described
in this Agreement. Without limiting the generality of the foregoing, Landlord
agrees (i) to execute on the Closing Date in recordable form and cause to be
recorded in the office of the county recorder in the County as soon as
practicable, any and all instruments deemed reasonably necessary by Landlord to
remove the effect on title to the Premises of any mortgage or deed of trust, by
and between Landlord, as mortgagor, and Manufacturers and Traders Trust Company,
a New York banking corporation (together with its successors or assigns, "M&T"),
as mortgagee, and (ii) to execute on the Closing Date and cause to be recorded
or filed, as applicable, in the appropriate office as soon as practicable, such
statements as are necessary to effect a termination of any financing statements
or fixture filings relating to the Premises in favor of Landlord or M&T.
6. Miscellaneous.
(a) This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which shall
constitute one and the same instrument. This Agreement shall be deemed to be a
contract made under and shall be construed in accordance with and governed by
the laws of the State of Ohio, without regard to its conflict of law principles.
In the event of any dispute, claim or controversy arising out of the terms or
conditions of this Agreement, the parties hereto hereby agree that such dispute,
claim, or controversy shall be brought and heard only in the United States
District Court for the Southern District of Ohio, Western Division, in such
other federal court as Ocwen shall select, in state court in the State of Ohio,
County of Xxxxxxxxxx, or in such other state court in such other county and
state as Ocwen may select, and all applicable appellate courts thereof, and the
parties hereto hereby waive any objection to jurisdiction, venue or forum non
convenes that such party may have otherwise had if this provision were not
included herein.
(b) There are no agreements, understandings, commitments,
representations or warranties with respect to the subject matter hereof except
as expressly set forth in this Agreement and the Settlement Agreement. This
Agreement supersedes all prior and/or contemporaneous oral or written
negotiations, understandings and agreements with respect to the subject matter
hereof; provided, however, that nothing contained
herein shall be deemed to modify in any way the Term Loan Agreement, the
Purchase Agreement or any other documents, instruments, agreements or other
writings executed under or in connection therewith.
(c) Neither anything contained herein nor the transactions
provided for herein shall be deemed or construed to constitute a "bulk sale" or
an assumption by Landlord of any obligations of any other party hereto.
(d) Each of the parties hereto acknowledges that it has
negotiated for the specific considerations to be received by it hereunder and
that damages would be an inadequate remedy for the breach of this Agreement by
another party hereto. Each of the parties hereto shall be entitled to enforce
the terms of this Agreement by an action either for specific performance or for
injunctive relief, or both, to prevent the breach or continued breach of this
Agreement. The prevailing party in any proceeding pursuant to or based upon this
Agreement or in which this Agreement is asserted as a defense shall be entitled
to recover attorneys' fees and costs incurred in such proceeding in such amount
as the court shall determine to be reasonable.
(e) All capitalized terms not defined in this Agreement but
defined in the Lease shall have the meaning given to such terms under the Lease.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, intending to be legally bound hereby, the parties
hereto have executed this Agreement as of the day and year first above written.
OCWEN FINANCIAL CORPORATION, a Florida
corporation
By:/s/Xxxxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Sr. Vice President
SHIPPENSBURG ALF, INC., a Florida
corporation
By:/s/Xxxxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Sr. Vice President
OCWEN FEDERAL BANK FSB, a federally
chartered savings bank
By:/s/Xxxxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Sr. Vice President
BALANCED CARE CORPORATION, a Delaware
corporation
By:/s/Xxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Senior Vice President and
Legal Counsel & Assistant
Secretary
BCC DEVELOPMENT AND MANAGEMENT CO., a
Delaware corporation
By:/s/Xxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President and Secretary
SENIOR CARE OPERATORS OF SHIPPENSBURG,
LLC, a Delaware limited liability
company
By: BALANCED CARE AT
SHIPPENSBURG, INC., a
Delaware corporation, its
Manager
By:/s/Xxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President and Secretary
BALANCED CARE AT SHIPPENSBURG, INC., a
Delaware corporation
By:/s/Xxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President and Secretary
SENIOR CARE OPERATORS, LLC, a Delaware
limited liability company
By: BALANCED CARE AT CENTERVILLE,
INC., a Delaware corporation,
its Manager
By:/s/Xxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President and Secretary
OAKHAVEN SENIOR LIVING, INC., a
California corporation
By:/s/Xxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President and Secretary
EXHIBIT A
Form of Mutual Termination of Lease
PREPARED BY:
Xxxxx X. Xxxxxx, Esquire
Balanced Care Corporation
0000 Xxxxx Xxxxx
Xxxxxxxxxxxxx, XX 00000
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
Squire, Xxxxxxx & Xxxxxxx, L.L.P.
0000 Xxxxxxxxxx Xxxxxx
00 Xxxxx Xxxx Xxxxxx
Xxxxxxxx, XX 00000-0000
Att: Xxxx X. Xxxxxx, Esquire
(Space Above Line For Recorder's Use Only)
MUTUAL TERMINATION OF LEASE
THIS MUTUAL TERMINATION OF LEASE is made and entered into as
of March 31, 2002, by and between SHIPPENSBURG ALF, INC., a Florida
corporation (the "Landlord"), and SENIOR CARE OPERATORS OF
SHIPPENSBURG, LLC, a Delaware limited liability company (the "Tenant"),
with respect to the following:
A. Landlord is the landlord and Tenant is the tenant pursuant to that
certain Lease dated as of March 31, 1998 (as the same may have been
modified or amended, the "Lease"). The Lease describes and covers
certain real property located in Cumberland County, Pennsylvania, and
more particularly described on Exhibit A attached hereto and
incorporated herein by this reference (the "Property"). The Lease is
evidenced of record by that certain Memorandum of Lease dated as of
March 31, 1998, recorded in the Office of the Recorder of Cumberland
County, PA on April 9, 1998 and recorded in Misc. Book 573, Page 230.
A-1
B. Subject to the terms and conditions of that certain Agreement for
Termination of Lease Documents and Mutual Releases dated as of March
31, 2002 (the "Termination Agreement"), by and among Landlord, Tenant
and the other parties named therein, Landlord and Tenant mutually
desire to cancel and terminate the Lease effective as of March 31, 2002
(the "Closing Date"), irrespective of the date of the execution and
recordation of this instrument.
NOW, THEREFORE, for and in consideration of the foregoing
recitals and for good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, subject to the terms and
conditions of the Termination Agreement, Landlord and Tenant, intending
to be legally bound hereby, do hereby mutually cancel and terminate the
Lease, and the leasehold estate created thereby, effective on the
Closing Date.
This instrument may be signed in multiple counterparts which,
when duly delivered and taken together, shall constitute a binding
agreement between all parties.
IN WITNESS WHEREOF, intending to be legally bound hereby, the
undersigned have caused this Mutual Termination of Lease to be executed
as of the date first above written.
"Tenant" "Landlord"
SENIOR CARE OPERATORS OF SHIPPENSBURG ALF, INC., a
SHIPPENSBURG, LLC, a Florida corporation
Delaware limited liability
company
By: Balanced Care at By:
Shippensburg, Inc., a Name:
Delaware corporation, it Manager Title:
By:
Xxxxx X. Xxxxxx
Vice President and
Secretary
X-0
XXXXX XX XXXXXXXXXXXX
XXXXXX XX XXXXXXXXXX
Xx , 2002 before me, a Notary Public, personally
appeared Xxxxx X. Xxxxxx, personally known to me (or proved to me on the basis
of satisfactory evidence) to be the person whose name is subscribed to the
within instrument and acknowledged to me that she executed the same in her
authorized capacity, and that by her signature on the instrument the person, or
the entity upon behalf of which the person acted, executed the instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and seal on
this day of , 2002.
Notary Public
MY COMMISSION EXPIRES:
STATE OF
COUNTY OF
On , 2002 before me, a Notary Public, personally
appeared , personally known to me (or proved to me on the basis of satisfactory
evidence) to be the person(s) whose name(s) is/are subscribed to the within
instrument and acknowledged to me that he/she/they executed the same in
his/her/their authorized capacity(ies), and that by his/her/their signature(s)
on the instrument the person(s), or the entity upon behalf of which the
person(s) acted, executed the instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and seal on
this day of , 2002.
Notary Public
MY COMMISSION EXPIRES:
A-3
EXHIBIT A
TO
MUTUAL TERMINATION OF LEASE
Legal Description of the Property
