Exhibit 10(l)
EXTENSION AGREEMENT AND
FIFTH AMENDMENT TO LEASE AGREEMENT
THIS EXTENSION AGREEMENT AND FIFTH AMENDMENT TO LEASE AGREEMENT (the
"Agreement") is made effective as of the 31st day of January, 2001 ("Effective
Date") by and among the following:
[i] HEALTH CARE REIT, INC., a corporation organized under the laws of the
State of Delaware ("HCN"), having its chief executive office located at
Xxx XxxXxxx, Xxxxx 0000, X.X. Xxx 0000, Xxxxxx, Xxxx 00000-0000;
[ii] JUST LIKE HOME, INC., a corporation organized under the laws of the State
of Florida ("JLH"), having its chief executive office located at 000
Xxxxxx Xxxxxxx Xxxxxxxxx, Xxxxxxxxxx, Xxxxxxxxxxxx 00000;
[iii] JLH SERIES I, INC., a corporation organized under the laws of the State of
Florida ("JLHI"), having its chief executive office located at 000 Xxxxxx
Xxxxxxx Xxxxxxxxx, Xxxxxxxxxx, Xxxxxxxxxxxx 00000;
[iv] PERIDOT ENTERPRISES, INC., a corporation organized under the laws of the
Commonwealth of Pennsylvania ("Peridot"), having its chief executive
office located at 000 Xxxxxx Xxxxxxx Xxxxxxxxx, Xxxxxxxxxx, Xxxxxxxxxxxx
00000; and
[v] XXXXXX X. XXXX ("Xxxx" or "Guarantor"), having an address of 000 Xxxxxx
Xxxxx, Xxxxxxxxxx, Xxxxxxxxxxxx 00000.
JLH and JLHI may each be called a "Tenant" or an "Obligor". Obligors and
Guarantors may be collectively called "Obligor Group".
RECITALS
A. HCN leased to Tenant property located in Leesburg, Florida; Haines
City, Florida; Lake Wales, Florida; Bradenton, Florida; and Orange City, Florida
(collectively called "Property") pursuant to a Lease Agreement dated as of May
1, 1999 as amended by a First Amendment to Lease Agreement dated as of September
1, 1999, a Second Amendment to Lease Agreement dated as of December 1, 1999, a
Third Amendment to Lease Agreement dated as of January 31, 2000, and a Fourth
Amendment to Lease Agreement dated of May 1, 2000 ("Lease"). Tenant is operating
assisted living facilities ("Facilities") on the Property.
B. Tenants' obligations under the Lease are guaranteed on a limited basis
by Guarantors under an Unconditional and Continuing Lease Guaranty ("Guaranty").
Xxxx has also executed and delivered to HCN a mortgage against real property
located in Xxx County, Florida to secure the Tenant's Obligations under the
Lease and Guarantors' obligations under the Guaranty ("Mortgage").
C. In consideration for HCN's agreements under the Third Amendment to
Lease Agreement, including but not limited to HCN's agreement to extend the Term
of the Lease and to grant to Tenant a Renewal Option, JLH issued 500,000 shares
of common stock to HCN as well as stock warrants for an
1
additional 500,000 shares of stock. The issuance of the warrants is subject to
the terms of a Warrant Agreement dated as of January 31, 2000 ("Warrant
Agreement").
D. Tenant exercised the Renewal Option under the Lease. The Expiration
Date under the Lease is now January 31, 2001. In connection with the exercise of
the Renewal Option, JLH is obligated to issue stock warrants for 200,000
additional shares of common stock to HCN.
E. Obligors have failed to perform various covenants under the Lease. To
date, HCN has not exercised any remedies in connection with these failures.
Obligors have now taken action to remedy their failure to perform their
obligations under the Lease. In addition, Obligors have requested that HCN [i]
extend the terms of the Lease; [ii] modify the grace period for Rent payments;
[iii] extend a loan to Obligors to pay 1/2 of the real estate taxes currently
due and payable; and [iv] permit Tenant to amend the Pro Forma Statement
attached as Exhibit J to the Lease to reflect actual operating results. HCN has
agreed to these requests subject to the terms and conditions of this Agreement.
NOW THEREFORE, the Obligor Group and HCN agree as follows:
1. Definitions. Any capitalized terms not defined in this Agreement shall have
-----------
the meaning set forth in the Lease.
2. Term. Section 1.2 of the Lease is amended to read in its entirety as follows
----
(added language in italics):
1.2 Term. The initial term ("Initial Term") of this Lease commences
----
on May 1, 1999 and expires at 12:00 Midnight Eastern Time on
September 30, 2001 (the "Expiration Date").
3. Tenant's Obligations. The definition of "Tenant's Obligations" in ss.1.3 of
--------------------
the Lease is hereby amended to read in its entirety as follows (added language
in italics):
"Tenant's Obligations" means all payment and performance obligations
of Tenant under this Lease, the Loan, and all documents executed by
Tenant in connection with this Lease or the Loan.
4. Loan. Section 1.3 of the Lease is hereby amended to add the following
----
definition:
"Loan" means the loan in the amount of $76,529.00 extended by
Landlord to Tenant for working capital purposes.
2
5. Rent. Section 2.1 of the Lease is amended to read in its entirety as follows
----
(added language in italics):
2.1 Base Rent. Tenant shall pay Landlord base rent ("Base Rent") in
advance in consecutive monthly installments payable on the first day
of each month during the Term commencing on the Commencement Date.
If the Effective Date is not the first day of a month, Tenant shall
pay Landlord Base Rent on the Effective Date for the partial month,
i.e. for the period commencing on the Effective Date and ending on
the day before the Commencement Date. The Base Rent for the Term
will be $2,551,064.26 payable monthly as follows:
May 1, 1999 $86,049.18
June 1, 1999 $86,049.18
July 1, 1999 $86,538.76
August 1, 1999 - July 1, 2000 $87,101.26
August 1, 2000 - January 1, 2001 $88,411.67
February 1, 2001 - July 1, 2001 $89,265.00
August 1, 2001 - September 1, 2001 $90,576.00
6. Events of Default. Section 8.1(a) of the Lease is amended to read in its
-----------------
entirety as follows (added language in italics):
(a) Tenant fails [i] to pay in full any installment of Rent under
this Lease within 30 days after such payment is due; [ii] to pay
Landlord's attorney's fees and expenses as provided under the
Settlement Agreement and under (S)15.15 of the Lease; or [iii] to
comply with (S)3.1, (S)4.1, (S)4.2, (S)4.4, (S)7.3.1(a)-(b),
(S)15.8, (S)15.10, (S)15.14, and Article 19 of this Lease.
7. Loan Default. (S)8.1 of the Lease is hereby amended to add the following
------------
subsection (m):
(m) Tenant fails to perform any obligations under the note
evidencing the Loan.
8. Renewal Term. Article 12 of the Lease and all references to a Renewal Term
------------
are hereby deleted.
9. Extended Term. Article 13 of the Lease is hereby amended to add the
-------------
following (S)13.6:
13.6 Effect of Delivery of Financing Commitment. The following terms
------------------------------------------
and conditions will be applicable if prior to the Expiration Date,
Tenant delivers to Landlord an executed, binding commitment letter
for the financing of Tenant's purchase of the Leased Property from a
lender acceptable to Landlord:
(a) Extension of Current Term. The current Term will be
-------------------------
extended (the "Extended Term") for 90 days.
(b) Lease Obligations. During the Extended Term, Tenant shall
-----------------
continue to perform Tenant's Obligations under the Lease,
3
including but not limited to making monthly payments of Rent
(including Base Rent) in an amount equal to the August 1, 2001 Rent
payment.
(c) Extension Fee. At the commencement of the Extended Term,
-------------
Tenant shall be liable to Landlord for an extension fee in the
amount of $72,950.00 ("Extension Fee"). The extension fee shall be
payable in three equal installments of $24,316.66 each payable on
October 31, 2001, November 30, 2001, and December 31, 2001.
10. No Debt. Section 14.1 of the Lease is hereby amended to add the following
-------
clause:
[iv] indebtedness in favor of Landlord under the Loan
11. Furnish Documents. Section 15.3.1 of the Lease is hereby amended to add the
-----------------
following at the end of the section:
Tenant shall also deliver monthly reports by the 20th day of each
month showing [i] a schedule of accounts payable, including vendor,
amount owed, and due date; [ii] a detailed accounts payable aging,
including vendor, amount, description, and outstanding balance;
[iii] a schedule of accounts receivable and aging; [iv] a schedule
showing all tenants and units occupied; and [v] Monthly Cash Flow,
including budget versus actual.
12. Account Payables. Section 15.9 of the Lease is hereby amended to add the
----------------
following sentence at the end of the section: "Tenant shall not permit accounts
payable aging to exceed 60 days."
13. Rate Lock Provisions. Section 18.3 of the Lease is hereby amended to read in
--------------------
its entirety as follows (added language in italics):
18.3 Agreements with Residents. Notwithstanding ss.18.1, Tenant may
-------------------------
enter into an occupancy agreement with residents of the Leased
Property without the prior written consent of Landlord provided that
[i] the agreement does not provide for lifecare services; [ii] the
agreement does not contain any type of rate lock provision; [iii]
Tenant may not collect rent for more than one month in advance other
than deposits for first and lst month's rent; and [iv] all residents
of the Leased Property are accurately shown in Tenant's accounting
records.
14. Holdover. Section 19.1 of the Lease is hereby amended to read in its
--------
entirety as follows:
19.1 Holding Over. If Tenant, with or without the express or implied
------------
consent of Landlord, continues to hold and occupy the Leased
Property after the expiration of the Term or earlier termination of
this Lease, such holding over beyond the Term and the acceptance or
collection of Rent in the amount specified below by Landlord shall
operate and be construed as creating a tenancy from month-to-month
and not for any other term whatsoever. Said month-to-month tenancy
may be terminated by Landlord by giving Tenant 5 days written
notice, and at any time
4
thereafter Landlord may re-enter and take possession of the Leased
Property. If Tenant continues after the expiration of the Term or
earlier termination of this Lease to hold and occupy the Leased
Property whether as a month-to-month tenant or a tenant at
sufferance or otherwise, Tenant shall pay Rent for each month in an
amount equal to two times the sum of [i] the Base Rent payable
during the month in which such expiration or termination occurs,
plus [ii] all Additional Rent accruing during the month, plus [iii]
any and all other sums payable by Tenant pursuant to this Lease.
During any continued tenancy after the expiration of the Term or
earlier termination of this Lease, Tenant shall be obligated to
perform and observe all of the terms, covenants and conditions of
this Lease, but shall have no rights hereunder other than the right,
to the extent given by applicable law, to continue its occupancy and
use of the Leased Property until the tenancy is terminated. Nothing
contained herein shall constitute the consent, express or implied,
of Landlord to the holding over of Tenant after the expiration or
earlier termination of this Lease.
19.1.1 Indemnity. If Tenant fails to surrender the Leased Property
---------
upon the expiration or termination of this Lease in a timely manner
and in accordance with the provisions of this Lease, in addition to
any other liabilities to Landlord accruing therefrom, Tenant shall
defend, indemnify and hold Landlord, its principals, officers,
directors, agents and employees harmless from loss or liability
resulting from such failure, including, without limiting the
generality of the foregoing, loss of rental with respect to any new
lease in which the rental payable thereunder exceeds the Rent
collected by Landlord pursuant to this Lease during Tenant's
hold-over and any claims by any proposed new tenant founded on such
failure. The provisions of this Article 19 shall survive the
expiration or termination of this Lease.
15. Letter of Credit; Mortgage. Notwithstanding the provisions of Article 20 of
--------------------------
the Lease and ss.2 of the Fourth Amendment to Lease Agreement, for the partial
draw of $57,500.00, Tenant shall not be obligated to cause the Letter of Credit
to be reinstated to the amount in effect prior to the draw unless Tenant fails
to purchase the Leased Property on or before the end of the Lease Term
(including the Extended Term). Notwithstanding ss.3 of the Fourth Amendment to
Lease Agreement, Landlord shall not record the Mortgage delivered to Landlord
from Xxxxxx X. Xxxx until an Event of Default or an event which with the giving
of notice and passage of time would constitute an Event of Default occurs.
16. Pro Forma Statement. Exhibit J of the Lease Agreement, Pro Forma Statement,
-------------------
is amended to substitute the Exhibit J attached hereto and made a part hereof.
This amendment of Exhibit J shall be effective as of August 1, 2000.
17. Note. JLH and JLHI shall execute and deliver to Landlord a note in the
----
original principal amount of $76,529.00 to evidence Tenant's obligation to repay
the Loan.
18. Rent Payments. Obligors shall fully, timely and completely comply with all
-------------
of its representations, warranties, covenants, duties and obligations under the
Obligor Documents, including but not limited to Obligors' covenants to pay the
monthly installments of Base Rent on the first day of each month and covenants
to pay late fees and interest in connection with amounts not paid within 10 days
after the due
5
date. TIME IS OF THE ESSENCE AND STRICT PERFORMANCE ARE HEREBY REITERATED AND,
IF PREVIOUSLY WAIVED IN ANY MANNER OR RESPECT, ARE HEREBY REINSTATED, AND SHALL
CONTINUE IN FULL FORCE AND EFFECT UNTIL OBLIGORS' OBLIGATIONS UNDER THE OBLIGOR
DOCUMENTS HAVE BEEN PAID OR PERFORMED IN FULL.
19. Transfer of Operations; Letter of Credit. Upon the occurrence of an Event of
----------------------------------------
Default and in addition to any other remedies available to HCN under the Obligor
Documents, HCN will have the right to place a new operator in the Facilities.
HCN may, at its option, [i] terminate the Lease and enter into a new lease or
leases with one or more new operators for the Facilities; and [ii] appoint a
receiver to operate the Facilities. The Obligor Group shall cooperate with HCN
in connection with the substitution, including but not limited to, [a] vacating
the Facilities and delivering possession of the Facilities to the new
operator(s); [b] executing any documents deemed necessary to transfer the
license and the property; and [c] paying all costs and expenses in connection
with the substitution. Tenant reaffirms Tenant's obligations under the
Settlement Agreement to assist in the transfer of operations of the Leased
Property upon termination or expiration of the Lease and acknowledges that if
Tenant fails to do so, HCN may draw on the Letter of Credit. The Letter of
Credit will be held by HCN until a license is issued to the new operator(s) of
the Facilities to secure these Tenant Obligations.
20. Pre-Transfer Arrangements. HCN has the right, at any time after the date
-------------------------
hereof, to solicit potential new operators upon such terms and conditions as
HCN, in its sole discretion, deems desirable. The Obligor Group shall cooperate
with HCN in connection with such arrangements, including but not limited to, [i]
providing access to the Facilities; [ii] providing information about the
Facilities; and [iii] meeting with potential new operators.
21. Confidentiality. The Obligor Group shall execute such reasonable
---------------
confidentiality agreements as may be required by HCN in connection with the
pre-transfer arrangements with potential new operators.
22. Reaffirmation. The Obligor Group reaffirms the Obligor Documents. Except as
-------------
specifically described on Schedule 1 attached hereto and incorporated herein,
the Obligor Group reaffirms the representations and warranties contained in the
Obligor Documents. In addition, the Obligor Group affirms that the Lease remains
governed by and subject to the Judgment Entries referenced in Paragraph 1 of the
Settlement Agreement.
23. Cumulative Rights and Remedies. Upon the occurrence of any Event of Default
------------------------------
and at any time thereafter until HCN waives the default in writing or
acknowledges cure of the default in writing, at HCN's option, without
declaration, notice of dishonor, protest, noting for protest, or any other
notice, or demand of any kind (all of which the Obligor Group hereby waives),
HCN may exercise any and all rights and remedies provided in the Obligor
Documents.
24. Release of HCN. As additional consideration for the forbearance by HCN in
--------------
exercising its remedies and this Agreement, the Obligor Group jointly and
severally releases and forever discharges HCN, and each of HCN's officers,
directors, agents, employees, accountants, attorneys, and representatives, as
well as the respective heirs, personal representatives, successors, and assigns
of any or all of them (collectively called the "HCN Group") from any and all
claims, demands, debts, actions, causes of action, suits, contracts, agreements,
obligations, accounts, defenses, offsets and liabilities of any kind or
character whatsoever, known or unknown, suspected or unsuspected, in contract or
in tort, at law or in equity, including without limitation, such claims and
defenses as fraud, mistake, duress, and usury, the Obligor Group ever had, now
has, or might hereafter have against the HCN Group, jointly or severally, for or
by reason of any matter, cause or thing whatsoever which relates to or arises
from, in whole or in part, directly
6
or indirectly [i] the Obligor Documents; [ii] this Agreement; [iii] the
transactions described in the Recitals to this Agreement; and [iv] any other
agreement, document or instrument relating to or securing any of the foregoing.
The Obligor Group agrees that none of them shall commence, join, prosecute, or
participate in any suit or other proceeding in a position that is adverse to the
HCN Group arising directly or indirectly from any of the foregoing matters.
25. Voluntary Agreement. The Obligor Group represents and warrants that [i] each
-------------------
is represented by legal counsel (or has knowingly declined legal counsel) in
regard to the transaction provided for by this Agreement and that such counsel
has explained to each of them the significance of the terms, and the meaning and
effect of this Agreement and all other related documents; [ii] each is fully
aware and clearly understands all of the terms and provisions contained in this
Agreement and in all other related documents; [iii] each has voluntarily, with
full knowledge and without coercion or duress of any kind entered into this
Agreement and the documents executed in connection with this Agreement; [iv]
each is not relying on any representations either written or oral, express or
implied, made to any of them by HCN other than as set forth in this Agreement;
[v] this Agreement reflects a proposal that the Obligor Group made to HCN on the
Obligor Group's own initiative; and [vi] the consideration received by the
Obligor Group to enter into this Agreement and the arrangement contemplated by
this Agreement has been actual and sufficient.
26. Bankruptcy Proceedings. The Obligor Group agrees that given the unique
----------------------
nature of the Facilities, including but not limited to the need to eliminate
uncertainty with respect to continuity in resident care, in the event that any
Tenant files a petition in bankruptcy or is the subject of any petition under
Title 11 of the U.S. Code as amended, such Tenant shall assume or reject the
Lease within 60 days of the petition date, and each Tenant waives any right to
seek or obtain any extension of this 60 day period.
27. Waivers. Each member of the Obligor Group waives [i] any notice required by
-------
statute or other law as a condition to bringing an action for possession of, or
eviction from, any of the properties subject to the Leases or the Loan
Agreement; [ii] any right of re-entry or repossession; [iii] any right to a
trial by jury in any action or proceeding arising out of or relating to the
Obligor Documents or this Agreement [iv] any objections, defenses, claims or
rights with respect to the exercise by HCN of any rights or remedies; [v] all
presentments, demands for performance, notices of nonperformance, protest,
notices of protest, notices of dishonor and any other notice or demand of any
kind; and [vi] all notices of the existence, creation or incurring of any
obligation or advance under the Obligor Documents before or after this date.
28. Miscellaneous.
-------------
28.1 Obligations. The Obligor Group shall perform its respective obligations and
-----------
conform to all representations and warranties under the Obligor Documents and
this Agreement.
28.2 Costs. Upon execution of this Agreement, Obligors shall pay all costs and
-----
expenses in any way relating to this Agreement, the existing Events of Default,
the exercise of the rights and remedies of HCN and the giving of notice under
the Obligor Documents, sale of the Facilities, and all matters arising out of or
relating to the Obligor Documents, and implementation of this Agreement,
including, but not limited to, reasonable fees and out-of-pocket expenses of
HCN's counsel incurred in connection therewith.
28.3 Resolutions. The Obligor Group shall have delivered to HCN a certificate of
-----------
resolutions satisfactory to HCN authorizing the execution and performance of
this Agreement.
7
28.4 Waivers Concerning the Obligor Group. None of the following will be a
------------------------------------
course of dealing, estoppel, waiver, or implied amendment on which any party to
this Agreement or the Obligor Documents may rely: [i] HCN's acceptance of one or
more late payments or partial performance of this Agreement or the Obligor
Documents; [ii] HCN's forbearance from exercising any right or remedy under this
Agreement or the Obligor Documents; or [iii] HCN's forbearance from exercising
any right or remedy under this Agreement or the Obligor Documents on any one or
more occasions.
The Obligor Group [i] acknowledges that HCN would have exercised its
rights under the Obligor Documents but for this Agreement; [ii] warrants that
each has executed this Agreement to induce HCN not to exercise its rights under
the Obligor Documents; [iii] warrants that each has received good and valuable
consideration for executing this Agreement; and [iv] warrants that none has
executed this Agreement in reliance upon the existence of the security for or
guaranty or promise of the performance of this Agreement or any financial
information or valuation information supplied by HCN.
Without notice, HCN may do or not do anything affecting this Agreement or
the Obligor Documents as many times as HCN desires, including the following: [i]
releasing any security or anyone or any property from liability on this
Agreement or the Obligor Documents; [ii] amending this Agreement or the Obligor
Documents, including extending the time for payments due under the Obligor
Documents; or, [iii] granting or not granting any other indulgences to anyone
liable for performance of this Agreement or the Obligor Documents.
No obligations of any member of the Obligor Group shall be affected by [i]
any default in this Agreement or the Obligor Documents; [ii] the
unenforceability of or defect in this Agreement or the Obligor Documents; [iii]
any decline in the value of any interest in any property which is the subject of
this Agreement or the Obligor Documents; or, [iv] the death, incompetence,
insolvency, dissolution, liquidation or winding up of affairs of any party to
this Agreement or the Obligor Documents or the start of insolvency proceedings
by or against any such party. Each party to this Agreement and the Obligor
Documents waives all suretyship and other similar defenses. The Obligor Group
waives all rights of subrogation arising out of this Agreement or the Obligor
Documents, and no other party to the Obligor Documents may enforce any right of
subrogation or contribution unless and until all obligations of the Obligor
Group to HCN are paid in full.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
8
IN WITNESS WHEREOF, the parties hereto have executed or caused this
Agreement to be executed as of the date set forth at the beginning.
Signed and acknowledged HEALTH CARE REIT, INC.
in the presence of
By: /s/ [Signature Illegible]
Signature /s/ Xxxx X. Xxxxx
Print Name Xxxx X. Xxxxx Title: Vice President and
Corporate Secretary
Signature /s/ Xxxxxxxx X. Xxxxxxxx
Print Name Xxxxxxxx X. Xxxxxxxx
JUST LIKE HOME, INC.
By: /s/ Xxxxxx X. Xxxx
Signature /s/ Xxxxx X. Xxxxxxxxx
Print Name Xxxxx X. Xxxxxxxxx Title: President
Signature /s/ Xxxx X. Xxxxxx
Print Name Xxxx X. Xxxxxx
Signature /s/ Xxxxx X. Xxxxxxxxx JLH SERIES I, INC.
Print Name Xxxxx X. Xxxxxxxxx
By: /s/ Xxxxxx X. Xxxx
Signature /s/ Xxxx X. Xxxxxx
Print Name Xxxx X. Xxxxxx Title: President
Signature /s/ Xxxxx X. Xxxxxxxxx PERIDOT ENTERPRISES, INC.
Print Name Xxxxx X. Xxxxxxxxx
By: /s/ Xxxxxx X. Xxxx
Signature /s/ Xxxx X. Xxxxxx
Print Name Xxxx X. Xxxxxx Title: President
Signature /s/ Xxxxx X. Xxxxxxxxx /s/ Xxxxxx X. Xxxx
Print Name Xxxxx X. Xxxxxxxxx Xxxxxx X. Xxxx
Signature /s/ Xxxx X. Xxxxxx
Print Name Xxxx X. Xxxxxx
THIS INSTRUMENT PREPARED BY:
Xxxxxxx X. Xxxxxxx, Esq.
Xxxxxxxx, Loop & Xxxxxxxx, LLP
0000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxx 00000
9
EXHIBIT J: PRO FORMA STATEMENT
2000 2001
Aug Sep Oct Nov Dec Jan Feb Mar Apr May Jun July
Avg. Daily Census 196 200 200 201 202 205 206 207 208 208 208 208
Cash Flow 20,075 18,100 13,874 14,674 15,474 17,983 17,929 19,929 22,013 25,125 27,136 38,340
Aug Sep Oct Nov Dec
Avg. Daily Census 208 208 208 208 208
Cash Flow 37,209 37,029 37,029 37,029 37,029
10
