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EXHIBIT 10.19
FIRST AMENDMENT TO AMENDED AND RESTATED
FINANCING AND SECURITY AGREEMENT
THIS FIRST AMENDMENT TO AMENDED AND RESTATED FINANCING AND SECURITY
AGREEMENT (herein called the "Amendment") made as of October 29, 1999, to be
effective for all purposes as of July 1, 1999, by and among ALS Holdings, Inc.,
a Delaware corporation ("Holdings"), ALS Wisconsin Holdings, Inc., a Delaware
corporation ("Wisconsin Holdings"), Bank United, individually and as agent for
itself and certain other lenders ("Agent").
W I T N E S S E T H:
WHEREAS, Holdings, Wisconsin Holdings and Agent entered into that
certain Amended and Restated Financing and Security Agreement dated as of
February 12, 1999, (as amended, supplemented, or restated to the date hereof,
the "Original Agreement"), for the purpose and consideration therein expressed,
whereby Lenders (as defined in the Original Agreement) became obligated to make
loans to Borrower (as defined in the Original Agreement) as therein provided;
and
WHEREAS, Holdings, Wisconsin Holdings and Agent desire to amend the
Original Agreement for the purposes expressed herein;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements contained herein and in the Original Agreement, in
consideration of the loans which may hereafter be made by Lenders to Borrower,
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto do hereby agree as follows:
ARTICLE I.
Definitions and References
Section 1.1. Terms Defined in the Original Agreement. Unless the
context otherwise requires or unless otherwise expressly defined herein, the
terms defined in the Original Agreement shall have the same meanings whenever
used in this Amendment.
Section 1.2. Other Defined Terms. Unless the context otherwise
requires, the following terms when used in this Amendment shall have the
meanings assigned to them in this Section 1.2.
"Amendment" means this First Amendment to Amended and Restated
Financing and Security Agreement.
"Agreement" means the Original Agreement as amended hereby.
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ARTICLE II.
Amendments to Original Agreement
Section 2.1. Definitions. The definition of "Stabilized Project" in
Section 1.1 of the Original Agreement is hereby amended in its entirety to read
as follows:
"Stabilized Project" means an Eligible Project with a Resident
Occupancy of at least 85% and shall include a Development Project which
(a) if the Eligible Project has fifty units or less, has either been
open fifteen months or longer or achieves a ratio of Net Operating
Income to Debt Service of not less than 1.25 to 1.00 measured at the
last day of the fifth full fiscal quarter of operations and (b) if the
Eligible Project has more than fifty units, has either been open
eighteen months or longer or achieves a ratio of Net Operating Income
to Debt Service of not less than 1.25 to 1.00 measured at the last day
of the sixth full fiscal quarter of operations."
Section 2.2. Pool A Project Covenants. Section 7.2.2 of the Original
Agreement is hereby amended by adding the following clauses (k) and (l) below:
"(k) Minimum Occupancy Requirement (Completed Project). Each
Completed Project shall maintain a minimum Resident Occupancy as of the
Operating Month shown below:
Minimum Facilities Facilities with
Occupancy with 50 51 units or
Requirement units or more
less
------------ --------------- ---------------
By 6 months 35%
By 9 months 50% 35%
By 12 months 75% 50%
By 15 months 85% 75%
By 18 months 85%
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(l) Minimum Occupancy Requirement (Acquisition Project). Each
Acquisition Project shall maintain a minimum Resident Occupancy as of
the Operating Month shown below:
Minimum Facilities Facilities with
Occupancy with 50 51 units or
Requirement units or more
less
--------------- ------------- ---------------
By 6 months 35%
By 9 months 50% 35%
By 12 months 75% 50%
By 15 months 85% 75%
By 18 months 85%
ARTICLE III.
Conditions of Effectiveness
Section 3.1. Effective Date. This Amendment shall become effective as
of July 1, 1999, when, and only when, Agent shall have received, at Agent's
office, a counterpart of this Amendment executed and delivered by Holdings,
Wisconsin Holdings and each Lender.
ARTICLE IV.
Representations and Warranties
Section 4.1. Representations and Warranties of the Borrower. In order
to induce each Lender to enter into this Amendment, the Borrower represents and
warrants to each Lender that:
(a) The representations and warranties contained in Article V of the
Original Agreement are true and correct at and as of the time of the
effectiveness hereof.
(b) The Borrower is duly authorized to execute and deliver this
Amendment and is and will continue to be duly authorized to perform its
obligations under the Agreement. The Borrower has duly taken all corporate
action necessary to authorize the execution and delivery of this Amendment and
to authorize the performance of the obligations of the Borrower hereunder.
(c) The execution and delivery by the Borrower of this Amendment, the
performance by the Borrower of its obligations hereunder and the consummation of
the transactions contemplated hereby do not and will not conflict with any
provision of law, statute, rule or regulation or of the articles of
incorporation and bylaws of the Borrower, or of any material agreement,
judgment, license, order or
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permit applicable to or binding upon the Borrower, or result in the creation of
any lien, charge or encumbrance upon any assets or properties of the Borrower.
Except for those which have been obtained, no consent, approval, authorization
or order of any court or governmental authority or third party is required in
connection with the execution and delivery by the Borrower of this Amendment or
to consummate the transactions contemplated hereby.
(d) When duly executed and delivered, each of this Amendment and the
Agreement will be a legal and binding obligation of the Borrower, enforceable in
accordance with its terms, except as limited by bankruptcy, insolvency or
similar laws of general application relating to the enforcement of creditors'
rights and by equitable principles of general application.
(e) The audited annual consolidated financial statements of the
Borrower dated as of December 31, 1998 and the unaudited quarterly consolidated
financial statements of the Borrower dated as of June 30, 1999 fairly present
the consolidated financial position at such dates and the consolidated statement
of operations and the changes in consolidated financial position for the periods
ending on such dates for the Borrower. Copies of such financial statements have
heretofore been delivered to each Lender. Since such dates no material adverse
change has occurred in the financial condition or businesses or in the
consolidated financial condition or businesses of the Borrower.
ARTICLE V.
Miscellaneous
Section 5.1. Ratification of Agreements. The Original Agreement as
hereby amended is hereby ratified and confirmed in all respects. Any reference
to the Financing Agreement in any Financing Document shall be deemed to be a
reference to the Original Agreement as hereby amended. The execution, delivery
and effectiveness of this Amendment shall not, except as expressly provided
herein, operate as a waiver of any right, power or remedy of Lenders under the
Financing Agreement or any other Financing Document nor constitute a waiver of
any provision of the Financing Agreement or any other Financing Document.
Section 5.2. Survival of Agreements. All representations, warranties,
covenants and agreements of the Borrower herein shall survive the execution and
delivery of this Amendment and the performance hereof, and shall further survive
until all of the Obligations are paid in full.
Section 5.3. Financing Documents. This Amendment is a Financing
Document, and all provisions in the Financing Agreement pertaining to Financing
Documents apply hereto.
Section 5.4. Governing Law. This Amendment shall be governed by and
construed in accordance the laws of the State of Texas and any applicable laws
of the United States of America in all respects, including construction,
validity and performance.
Section 5.5. Counterparts; Fax. This Amendment may be separately
executed in counterparts and by the different parties hereto in separate
counterparts, each of which when so executed shall be deemed to constitute one
and the same Amendment. This Amendment may be validly executed by facsimile or
other electronic transmission.
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THIS AMENDMENT AND THE OTHER FINANCING DOCUMENTS REPRESENT THE FINAL
AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO
UNWRITTEN ORAL AGREEMENTS OF THE PARTIES.
Section 5.6. Consent by Lenders. Each Lender is executing this
Amendment to evidence their acknowledgment of, and consent to, the amendments to
the Original Agreement contained herein.
[The Remainder Of This Page Has Been Intentionally Left Blank.]
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IN WITNESS WHEREOF, this Amendment is executed as of the date first
above written.
ALS HOLDINGS, INC.
By: /s/ Mark W. Ohlendorf
------------------------
Name: Mark W. Ohlendorf
Title: Vice President
ALS WISCONSIN HOLDINGS, INC.
By: /s/ Mark W. Ohlendorf
------------------------
Name: Mark W. Ohlendorf
Title: Vice President
BANK UNITED, AS AGENT AND
INDIVIDUALLY AS A LENDER
By: /s/ Casey Moore
------------------------
Name: Casey Moore
Title: Vice President
FIRSTAR BANK MILWAUKEE N.A.
By: /s/ Thomas V. Richtman
------------------------
Name: Thomas V. Richtman
Title: Vice President
AMSOUTH BANK
By: /s/ Allison J. Sanders
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Name: Allison J. Sanders
Title: Vice President
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CONSENT AND AGREEMENT OF GUARANTOR
Alterra Healthcare Corporation, a Delaware corporation, hereby consents
to the provisions of this Amendment and the transactions contemplated herein,
and hereby ratifies and confirms the Guaranty of Payment Agreement dated as of
February 12, 1999, made by it for the benefit of Agent and the Lenders, and
agrees that its obligations and covenants thereunder are unimpaired hereby and
shall remain in full force and effect.
ALTERRA HEALTHCARE CORPORATION
By: /s/ Mark W. Ohlendorf
------------------------------------
Name: Mark W. Ohlendorf
Title: Senior Vice President