1
Exhibit 10.1
Loan Number 20- [99-407]
AMENDMENT TO LOAN DOCUMENTS
This AMENDMENT TO LOAN DOCUMENTS (this "Amendment") is made this 27th
day of April, 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"), BALANCED
CARE REALTY AT STATE COLLEGE, INC., BALANCED CARE REALTY AT ALTOONA, INC.,
BALANCED CARE REALTY AT LEWISTOWN, INC., BALANCED CARE REALTY AT READING, INC.,
BALANCED CARE REALTY AT BERWICK, INC., BALANCED CARE REALTY AT PECKVILLE, INC.,
BALANCED CARE REALTY AT SCRANTON, INC., BALANCED CARE REALTY AT MARTINSBURG,
INC., BALANCED CARE REALTY AT MAUMELLE, INC., BALANCED CARE REALTY AT SHERWOOD,
INC., BALANCED CARE REALTY AT MOUNTAIN HOME, INC., and BALANCED CARE REALTY AT
MANSFIELD, INC. (all Delaware corporations collectively referred to herein as
"Outlook Pointe Borrowers"), BCC AT DARLINGTON, INC., BALANCED CARE AT EYERS
GROVE, INC., BALANCED CARE AT XXXXXX, INC., BALANCED CARE AT XXXXXX, INC., and
BALANCED CARE AT NORTH RIDGE, INC. (all Delaware corporations 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 $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 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
2
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.
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.
-2-
3
F. Lender has agreed to increase the Outlook Pointe Loan amount by Five
Million and No/100 Dollars ($5,000,000.00) (the "New Funds") to Thirty-Seven
Million and No/100 Dollars ($37,000,000.00) and in consideration thereof
requires Borrowers and Guarantor to enter into this Amendment amending the Loan
Documents. In conjunction with this Amendment, Outlook Pointe Borrowers have
executed and delivered to Lender an Amended and Restated Promissory Note A (the
"New Note A"), an Amended and Restated Promissory Note B (the "New Note B")
(said amended and restated promissory notes collectively referred to herein as
the "New Note"), and amendments to the mortgages and deeds of trust constituting
Outlook Pointe Loan Documents (the "Outlook Pointe Mortgages"), all of even date
herewith. In conjunction with this Amendment, BCC Borrowers have executed and
delivered to Lender amendments to the mortgages and deeds of trust constituting
Revolving Credit Facility Loan Documents (the "Revolving Credit Facility
Mortgages").
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. Conditions Precedent. Lender's obligation to disburse the New Funds
is subject to satisfaction of all of the following conditions:
A. Lender shall have received the following documents, all in
form and substance reasonably satisfactory to Lender:
(i) this Amendment;
(ii) the New Note; and
(iii) amendments to the Outlook Pointe Mortgages and
the Revolving Credit Facility Mortgages (the "Mortgage Amendments");
B. Lender shall have received an endorsement to each existing
Title Policy reasonably acceptable to Lender dating down the Title Policy to the
date hereof and increasing the coverage amount to the new Loan Allocation Amount
for each Property set forth as the "Total Loan Allocation" amount in Exhibit A
attached hereto;
-3-
4
C. Borrower shall have paid Lender a commitment fee in the
amount of One Hundred Thousand and No/100 Dollars ($100,000.00), which
commitment fee shall be nonrefundable and shall be deemed fully earned upon
receipt, and the balance due of which Lender acknowledges shall be Seventy-Five
Thousand and No/100 Dollars ($75,000.00) (reflecting a credit of the good faith
deposit in the amount of Twenty-five Thousand and No/100 Dollars ($25,000.00))
provided that all of the requirements have been met as set forth in Section 33
(Good Faith Deposit and Commitment Fee) of the Application for Loan dated March
31, 2000, from Guarantor;
D. Lender shall have determined that the annualized Net
Operating Income (as defined in Schedule I attached to the Loan Agreement) of
the Project is at least Five Million and No/100 Dollars ($5,000,000);
E. Lender shall have received such opinions of counsel to
Borrowers as Lender may reasonably require; and
F. Lender shall have received such other items as Lender may
reasonably require.
2. Payment of Expenses. At the time of Lender's disbursement of the New
Funds, Outlook Pointe Borrowers shall pay all Expenses (as defined below)
incurred by Lender in connection with the transaction contemplated by this
Amendment, including without limitation, Lender's expenses incurred in the
negotiation and documentation related to the New Funds and this Amendment. For
the purposes hereof "Expenses" means all reasonable expenditures and expenses
that may be paid or incurred by or on behalf of Lender, including attorneys'
fees (of outside and inside counsel), engineers' fees, accountants' fees,
independent consultants' fees (including environmental consultants), all costs
and expenses incurred in connection with any of the foregoing fees and expenses,
Lender's out-of-pocket costs and expenses related to any audit or inspection of
the Project (as defined in the Loan Agreement), stamp taxes, mortgage taxes,
intangibles taxes, and costs for procuring any abstracts of title, title
searches, lien and UCC searches, and examination, title insurance policies and
endorsements, Torrens' Certificates (if applicable), and similar data and
assurances with respect to title as Lender may deem reasonably necessary.
3. The New Funds shall not constitute Gross Revenue for purposes of
calculating Net Cash Flow under the Loan Agreement, nor shall any Expenses,
commitment fees or other expenses incurred by the Outlook Pointe Borrowers in
connection
-4-
5
with the loan of the New Funds constitute an "operating expense" for purposes of
calculating Net Cash Flow.
4. Section 1.9 (Exit Fee) of the Loan Agreement is replaced in its
entirety with following language:
Exit Fee. As additional consideration for the Loan, Borrowers,
on the date payment in full of the Loan is made, shall pay to Lender an
amount (the "Final Exit Fee") equal to (A) One Million Two Hundred
Sixty Thousand and No/100 Dollars ($1,260,000.00) if payment in full is
made on or after October 1, 2000, otherwise Five Hundred Twenty
Thousand and No/100 Dollars ($520,000.00), (B) less the sum of the
Proportionate Exit Fees, if any, paid to Lender under Section 2.2
below. The Proportionate Exit Fees, if any, payable to Lender and the
Final Exit Fee payable to Lender are collectively referred to as the
"Exit Fee."
5. All references to the "Loan" in the Outlook Pointe Loan Documents,
including without limitation the Guaranty and Environmental Indemnity, shall
include the loan of the New Funds hereunder. Each "Loan Allocation Amount"
listed on Exhibit A of the Loan Agreement is replaced with the amount described
on Exhibit A attached hereto as the "Total Loan Allocation" assigned to that
Property. The two amounts shown as the "Proportionate Exit Fee" for each
Property, as listed on Exhibit A of the Loan Agreement, are replaced with the
two amounts described on Exhibit A attached hereto as the "Total Exit Fee"
assigned to that Property.
6. All references in the Loan Documents to any of the Outlooke Pointe
Loan Documents shall mean the applicable Outlook Pointe Loan Document, as
amended hereby and by the Mortgage Amendments, New Note A, New Note B or the New
Note, as applicable.
7. 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 and by the Mortgage Amendments.
8. Except as expressly provided herein, in the New Note and in the
Mortgage Amendments, the Loan Documents (including without limitation the
Guaranty, Environmental Indemnity, Subordination Agreement, and the undated
Consent Form with attached letter dated February 16, 2000, to Lender and Xxxxxx
Financial, Inc. from Balanced Care Corporation) shall
-5-
6
remain unmodified and in full force and effect and are hereby ratified and
confirmed as amended by this Amendment.
9. 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.
(Signature pages follow.)
-6-
7
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
Printed Name Xxxxx X. Xxxxxx
Its Vice President and Secretary
BALANCED CARE REALTY AT ALTOONA,
INC., a Delaware corporation
By /s/Xxxxx X. Xxxxxx
Printed Name Xxxxx X. Xxxxxx
Its Vice President and Secretary
BALANCED CARE REALTY AT LEWISTOWN,
INC., a Delaware corporation
By /s/Xxxxx X. Xxxxxx
Printed Name Xxxxx X. Xxxxxx
Its Vice President and Secretary
BALANCED CARE REALTY AT READING,
INC., a Delaware corporation
By /s/Xxxxx X. Xxxxxx
Printed Name Xxxxx X. Xxxxxx
Its Vice President and Secretary
BALANCED CARE REALTY AT BERWICK,
INC., a Delaware corporation
By /s/Xxxxx X. Xxxxxx
Printed Name Xxxxx X. Xxxxxx
Its Vice President and Secretary
-7-
8
BALANCED CARE REALTY AT PECKVILLE,
INC., a Delaware corporation
By /s/Xxxxx X. Xxxxxx
Printed Name Xxxxx X. Xxxxxx
Its Vice President and Secretary
BALANCED CARE REALTY AT SCRANTON,
INC., a Delaware corporation
By /s/Xxxxx X. Xxxxxx
Printed Name Xxxxx X. Xxxxxx
Its Vice President and Secretary
BALANCED CARE REALTY AT MARTINSBURG,
INC., a Delaware corporation
By /s/Xxxxx X. Xxxxxx
Printed Name Xxxxx X. Xxxxxx
Its Vice President and Secretary
BALANCED CARE REALTY AT MAUMELLE,
INC., a Delaware corporation
By /s/Xxxxx X. Xxxxxx
Printed Name Xxxxx X. Xxxxxx
Its Vice President and Secretary
BALANCED CARE REALTY AT SHERWOOD,
INC., a Delaware corporation
By /s/Xxxxx X. Xxxxxx
Printed Name Xxxxx X. Xxxxxx
Its Vice President and Secretary
BALANCED CARE REALTY AT MOUNTAIN
HOME, INC., a Delaware corporation
By /s/Xxxxx X. Xxxxxx
Printed Name Xxxxx X. Xxxxxx
Its Vice President and Secretary
-8-
9
BALANCED CARE REALTY AT MANSFIELD,
INC., a Delaware corporation
By /s/Xxxxx X. Xxxxxx
Printed Name Xxxxx X. Xxxxxx
Its Vice President and Secretary
BCC BORROWERS:
BCC AT DARLINGTON, INC.,
a Delaware corporation
By /s/Xxxxx X. Xxxxxx
Printed Name Xxxxx X. Xxxxxx
Its Vice President and Secretary
BALANCED CARE AT EYERS GROVE, INC.,
a Delaware corporation
By /s/Xxxxx X. Xxxxxx
Printed Name Xxxxx X. Xxxxxx
Its Vice President and Secretary
BALANCED CARE AT XXXXXX, INC.,
a Delaware corporation
By /s/Xxxxx X. Xxxxxx
Printed Name Xxxxx X. Xxxxxx
Its Vice President and Secretary
BALANCED CARE AT XXXXXX, INC.,
a Delaware corporation
By /s/Xxxxx X. Xxxxxx
Printed Name Xxxxx X. Xxxxxx
Its Vice President and Secretary
-9-
10
BALANCED CARE AT NORTH RIDGE, INC.,
a Delaware corporation
By /s/Xxxxx X. Xxxxxx
Printed Name Xxxxx X. Xxxxxx
Its Vice President and Secretary
GUARANTOR:
BALANCED CARE CORPORATION,
a Delaware corporation
By /s/Xxxxx X. Xxxxxx
Printed Name Xxxxx X. Xxxxxx
Its Senior Vice President and Legal
Counsel & Assistant Secretary
LENDER:
XXXXXX HEALTHCARE FINANCE, INC.,
a Delaware corporation formerly
known as HCFP FUNDING, INC.
By /s/Xxxxx X. XxXxxx
Name Xxxxx X. XxXxxx
Its Sr. V.P.
Accepted and agreed to on the date first set forth above.
-10-
11
MANAGERS OF PROJECTS:
BCC AT STATE COLLEGE, INC.,
a Delaware corporation
By /s/Xxxxx X. Xxxxxx
Printed Name Xxxxx X. Xxxxxx
Its Vice President and Secretary
TC REALTY OF ALTOONA, INC.,
a Delaware corporation
By /s/Xxxxx X. Xxxxxx
Printed Name Xxxxx X. Xxxxxx
Its Vice President and Secretary
TC REALTY OF LEWISTOWN, INC.,
a Delaware corporation
By /s/Xxxxx X. Xxxxxx
Printed Name Xxxxx X. Xxxxxx
Its Vice President and Secretary
TC REALTY OF READING, INC.,
a Delaware corporation
By /s/Xxxxx X. Xxxxxx
Printed Name Xxxxx X. Xxxxxx
Its Vice President and Secretary
-11-
12
TC REALTY OF BERWICK, INC.,
a Delaware corporation
By /s/Xxxxx X. Xxxxxx
Printed Name Xxxxx X. Xxxxxx
Its Vice President and Secretary
BLACK BOX OF PECKVILLE, INC.,
a Delaware corporation
By /s/Xxxxx X. Xxxxxx
Printed Name Xxxxx X. Xxxxxx
Its Vice President and Secretary
TC REALTY CORPORATION III,
a Delaware corporation
By /s/Xxxxx X. Xxxxxx
Printed Name Xxxxx X. Xxxxxx
Its Vice President and Secretary
BALANCED CARE AT MARTINSBURG, INC.,
a Delaware corporation
By /s/Xxxxx X. Xxxxxx
Printed Name Xxxxx X. Xxxxxx
Its Vice President and Secretary
BALANCED CARE AT MAUMELLE, INC.,
a Delaware corporation
By /s/Xxxxx X. Xxxxxx
Printed Name Xxxxx X. Xxxxxx
Its Vice President and Secretary
-12-
13
BALANCED CARE AT SHERWOOD, INC.,
a Delaware corporation
By /s/Xxxxx X. Xxxxxx
Printed Name Xxxxx X. Xxxxxx
Its Vice President and Secretary
BALANCED CARE AT MOUNTAIN HOME,
INC., a Delaware corporation
By /s/Xxxxx X. Xxxxxx
Printed Name Xxxxx X. Xxxxxx
Its Vice President and Secretary
TC REALTY CORPORATION II,
a Delaware corporation
By /s/Xxxxx X. Xxxxxx
Printed Name Xxxxx X. Xxxxxx
Its Vice President and Secretary
-13-
