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Exhibit 10.1
SECOND AMENDMENT TO SECOND SERIES
LEASE AND SECURITY AGREEMENTS
THIS SECOND AMENDMENT TO SECOND SERIES LEASE AND SECURITY AGREEMENTS
(hereinafter designated "Amendment") is made by and between C&G HEALTHCARE AT
TALLAHASSEE, L.L.C. ("Tallahassee"), a Delaware limited liability company, C&G
HEALTHCARE AT PENSACOLA, L.L.C. ("Pensacola"), a Delaware limited liability
company, C&G HEALTHCARE AT TEAY'S VALLEY, L.L.C. ("Teay's Valley"), a Delaware
limited liability company, C&G HEALTHCARE AT XXXXXXX CITY, L.L.C. ("Xxxxxxx
City"), a Delaware limited liability company, C&G HEALTHCARE AT HAGERSTOWN,
L.L.C. ("Hagerstown"), a Delaware limited liability company (Tallahassee,
Pensacola, Teay's Valley, Xxxxxxx City, and Hagerstown being hereinafter
sometimes individually referred to as a "Tenant" and collectively referred to as
the "Tenants"), and NATIONWIDE HEALTH PROPERTIES, INC., a Maryland corporation
("NHP"), and joined herein by BALANCED CARE CORPORATION ("BCC"), a Delaware
corporation, and XXXXX X. XXXXXX ("Xxxxxx"), an individual, solely for purposes
of acknowledging and consenting to this Amendment, based upon the following
facts:
Recitals
A. The Tenants are each owned by Xxxxxx, as sole member. NHP, the
Tenants (as individual tenants under separate leases), and/or BCC have
previously entered into a series of five (5) transactions, as specifically set
forth in Exhibit "A" attached hereto and included herein for all purposes as
though fully set forth (hereinafter individually referred to as a "Transaction"
and collectively referred to as the "Transactions"), each of which included the
purchase, lease, and development of certain tracts or parcels of real property,
together with all improvements thereon, all personal property to be leased
therewith, and all appurtenances thereto (hereinafter individually referred to
as a "Property" and collectively referred to as the "Properties").
B. As a part of the Transactions, (i) the Properties were each leased
from NHP by the applicable Tenant, pursuant to the terms and conditions set
forth in a lease and security agreement (hereinafter individually referred to as
a "Lease" and collectively referred to as the "Leases"), which Leases were all
amended pursuant to the provisions of a First Amendment to Lease and Security
Agreements, entered into by and between all the parties hereto and made
effective as of the respective execution dates of the Leases; (ii) as additional
security for the obligations of Tenants under each respective Lease, BCC entered
into working capital assurance agreements with NHP (collectively, the "Capital
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Agreements"), whereby BCC agreed to make working capital loans to the applicable
Tenant, and as further security, NHP is party to deposit pledge agreements
(collectively, the "Deposit Agreements") whereby each applicable Tenant pledges
a minimum amount of capital as a working capital reserve for its operations;
(iii) each Property has been or is being developed, used, and licensed (by the
State in which such Property is located) as an assisted living facility,
personal care home, independent living facility, or similar adult care facility
(hereinafter individually referred to as a "Facility" and collectively referred
to as the "Facilities"), including any applicable ancillary services for
independent living, skilled nursing, rehabilitation, or Alzheimer's or dementia
care; (iv) Developer, which is a Delaware corporation wholly owned by BCC, acted
or is acting as developer of each of the Properties, pursuant to the terms and
conditions of development agreements (hereinafter individually referred to as a
"Development Agreement" and collectively referred to as the "Development
Agreements") entered into by and between Developer and NHP; (v) BCC guaranteed
the obligations of Developer under each respective Development Agreement and the
completion of all improvements contemplated in such Development Agreements,
pursuant to a guaranty agreement with NHP (collectively, the "Development
Guaranties"), (vi) each of the Tenants entered into a management agreement with
a newly formed subsidiary of BCC, whereby such BCC subsidiary agreed to manage
the respective Facility on behalf of the respective Tenant (such BCC
subsidiaries being hereinafter collectively referred to as the "Managers"),
(vii) BCC indemnified NHP with respect to possible environmental hazards on each
applicable Property by means of environmental indemnification agreements
(collectively, the "Environmental Indemnifications"), and (viii) NHP, as
applicable, granted rights of first refusal to BCC with respect to any proposed
sales of the Properties, by means of right of first refusal agreements
(collectively, the "Refusal Agreements").
C. It has been determined by the parties that it is necessary and
desirable to amend each of the Leases in the manner set forth in this Amendment.
Amendment
NOW, THEREFORE, the parties to this Amendment hereby agree to amend the
Leases as follows:
1. Definitions. All provisions of the Leases, as previously amended,
shall remain in full force and effect as if restated herein, except as such
provisions may clearly conflict with the terms of this Amendment, and any words
or phrases (other than as amended in Section 2 of this Amendment) which are
defined terms in
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the Leases shall have the same meaning in this Amendment as such words or
phrases have in the Leases.
2. Amendment of Section 2.1.2 of the Leases. Notwithstanding any other
provision of any of the Leases to the contrary, the parties hereto, in their
respective capacities as Landlord, Tenant, and/or guarantor under the respective
Leases, agree that the current language of Section 2.1.2 of each of the Leases
is hereby deleted in its entirety and replaced with the following language:
"2.1.2 Post-Construction Minimum Rent.
(i) If the Reset Date occurs prior to April
19, 1999, then for the period beginning with the Reset Date
and ending at 12:00 P.M. on April 18, 1999, the monthly
Minimum Rent with respect to the total of (A) the Land Cost
plus (B) all advances under the Development Agreement for Work
plus (C) all accrued but unpaid Construction Period Minimum
Rent shall be reset at an amount equal to one-twelfth (1/12)
of the product of (I) the total of the Land Cost plus such
advances made for Work plus accrued but unpaid Construction
Period Minimum Rent, times (II) three hundred thirty (330)
basis points over the twenty (20) day average 10 year United
States Treasury rate in effect on the Reset Date ("Interim
Post-Construction Minimum Rent").
(ii) For the period beginning as of the
later of the Reset Date or April 19, 1999, the monthly Minimum
Rent with respect to the total of (A) the Land Cost plus (B)
all advances under the Development Agreement for Work plus (C)
all accrued but unpaid Construction Period Minimum Rent plus
(D) all accrued but unpaid Interim Post-Construction Minimum
Rent shall be reset at an amount equal to one-twelfth (1/12)
of the product of (I) the total of the Land Cost plus such
advances made for Work plus accrued but unpaid Construction
Period Minimum Rent, plus accrued but unpaid Interim
Post-Construction Minimum Rent, if any, times (II) the greater
of (x) three hundred thirty (330) basis points over the twenty
(20) day average 10 year United States Treasury rate in effect
on the Reset Date, or (y) ten and 21/100 percent (10.21%) (the
sum of the Interim Post-Construction Minimum Rent, if any,
plus the Minimum Rent as calculated under this Section
2.1.2(ii) being sometimes collectively referred to herein as
"Initial Term Post-Construction Minimum Rent")."
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This Amendment is made as of June 30, 1999, to be effective with
respect to each of the individual Leases as of the date of execution for each
such Lease, as set forth in Exhibit "A" hereto.
"NHP"
NATIONWIDE HEATH PROPERTIES, INC., a
Maryland corporation
By: /s/ Xxxx X. Xxxxx (SEAL)
Name: Xxxx X. Xxxxx
Title: Vice President
"Pensacola"
C&G HEALTHCARE AT PENSACOLA, L.L.C.,
a Delaware limited liability company
By: /s/ Xxxxx X. Xxxxxx (SEAL)
Name: Xxxxx X. Xxxxxx
Title: Sole Member and President
"Tallahassee"
C&G HEALTHCARE AT TALLAHASSEE,
L.L.C., a Delaware limited liability company
By: /s/ Xxxxx X. Xxxxxx (SEAL)
Name: Xxxxx X. Xxxxxx
Title: Sole Member and President
"Hagerstown"
C&G HEALTHCARE AT HAGERSTOWN,
L.L.C., a Delaware limited liability company
By: /s/ Xxxxx X. Xxxxxx (SEAL)
Name: Xxxxx X. Xxxxxx
Title: Sole Member and President
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"Xxxxxxx City"
C&G HEALTHCARE AT XXXXXXX CITY,
L.L.C., a Delaware limited liability company
By: /s/ Xxxxx X. Xxxxxx (SEAL)
Name: Xxxxx X. Xxxxxx
Title: Sole Member and President
"Teay's Valley"
C&G HEALTHCARE AT TEAY'S VALLEY,
L.L.C., a Delaware limited liability company
By: /s/ Xxxxx X. Xxxxxx (SEAL)
Name: Xxxxx X. Xxxxxx
Title: Sole Member and President
ACKNOWLEDGED, AGREED AND CONSENTED TO:
"BCC"
BALANCED CARE CORPORATION,
a Delaware corporation
By: /s/ Xxxxx X. Xxxxxx
Xxxxx X. Xxxxxx, Senior Vice
President and Legal Counsel
"Xxxxxx"
/s/ Xxxxx X. Xxxxxx
XXXXX X. XXXXXX
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EXHIBIT "A"
TO
AMENDMENT TO LEASE AND SECURITY AGREEMENTS
SCHEDULE OF LEASES
Landlord/Tenant Name & Location of Facility
NHP/Xxxxxxx City Outlook Pointe at Xxxxxxx City
000 X. Xxxxxxxx Xxxx Xxxx,
Xxxxxxx City, 10th Civil District of
Washington County, Tennessee
Lease Execution Date: June 26, 1998
NHP/Hagerstown Balanced Care, Hagerstown
0000 Xxxxxxxxxxxx Xxxxx, Xxxxxxxxxx,
Xxxxxxxxxx Xxxxxx, Xxxxxxxx
Lease Execution Date: June 26, 0000
XXX/Xxxx'x Xxxxxx Xxxxxxx Xxxxxx at Teay's Valley
West Virginia State Xxxxx 00,
Xxx Xx. 0, Xxxxxxxxx Xxxxx,
Xxxxx Plaza, in or near Teay's Valley,
in the Xxxxx District of Xxxxxx County,
West Virginia
Lease Execution Date: June 26, 0000
XXX/Xxxxxxxxxxx Xxxxxxx Xxxxxx at Tallahassee
Xxxxxxxxxx Road, Tallahassee,
Xxxx County, Florida
Lease Execution Date: June 26, 1998
NHP/Pensacola Outlook Pointe at Pensacola
0000 Xxxxx Xxxx, Xxxxxxxxx
Xxxxxxxx Xxxxxx, Xxxxxxx
Lease Execution Date: June 26, 1998
