10-K
Brookdale Senior Living Inc. (BKD)
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form 10-K
| ☒ | ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
|---|
For the fiscal year ended December 31, 2023
or
| ☐ | TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
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Commission File Number 001-32641
BROOKDALE SENIOR LIVING INC.
(Exact name of registrant as specified in its charter)
| Delaware | 20-3068069 | |||||||
|---|---|---|---|---|---|---|---|---|
| State or other jurisdiction of<br>incorporation or organization | (I.R.S. Employer Identification No.) | 111 Westwood Place, | Suite 400, | Brentwood, | Tennessee | 37027 | ||
| --- | --- | --- | --- | --- | ||||
| (Address of principal executive offices) | (Zip Code) | Registrant's telephone number including area code | (615) | 221-2250 | ||||
| --- | --- | --- |
SECURITIES REGISTERED PURSUANT TO SECTION 12(b) OF THE ACT:
| Title of each class | Trading Symbol(s) | Name of each exchange on which registered |
|---|---|---|
| Common Stock, $0.01 Par Value Per Share | BKD | New York Stock Exchange |
| 7.00% Tangible Equity Units | BKDT | New York Stock Exchange |
SECURITIES REGISTERED PURSUANT TO SECTION 12(g) OF THE ACT:
None
Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act. Yes ☒ No ¨
Indicate by check mark if the registrant is not required to file reports pursuant to Section 13 or Section 15(d) of the Act. Yes ¨ No ☒
Indicate by check mark whether the registrant: (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes ☒ No ¨
Indicate by check mark whether the registrant has submitted electronically every Interactive Data File required to be submitted pursuant to Rule 405 of Regulation S-T (§ 232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit such files). Yes ☒ No ¨
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or an emerging growth company. See the definitions of "large accelerated filer," "accelerated filer," "smaller reporting company," and "emerging growth company" in Rule 12b-2 of the Exchange Act.
| Large accelerated filer | ☒ | Accelerated filer | ☐ |
|---|---|---|---|
| Non-accelerated filer | ¨ | Smaller reporting company | ☐ |
| Emerging growth company | ☐ |
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised accounting standards provided pursuant to Section 13(a) of the Exchange Act. ¨
Indicate by check mark whether the registrant has filed a report on and attestation to its management's assessment of the effectiveness of its internal control over financial reporting under Section 404(b) of the Sarbanes-Oxley Act (15 U.S.C. 7262(b)) by the registered public accounting firm that prepared or issued its audit report. ☒
If securities are registered pursuant to Section 12(b) of the Act, indicate by check mark whether the financial statements of the registrant included in the filing reflect the correction of an error to previously issued financial statements. ☐
Indicate by check mark whether any of those error corrections are restatements that required a recovery analysis of incentive-based compensation received by any of the registrant’s executive officers during the relevant recovery period pursuant to §240.10D-1(b). ☐
Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Act). Yes ☐ No ☒
The aggregate market value of common stock held by non-affiliates of the registrant on June 30, 2023, the last business day of the registrant's most recently completed second fiscal quarter was approximately $0.8 billion. The market value calculation was determined using a per share price of $4.22, the price at which the registrant's common stock was last sold on the New York Stock Exchange on such date.
As of February 19, 2024, 189,339,428 shares of the registrant's common stock, $0.01 par value, were outstanding (excluding restricted stock units).
DOCUMENTS INCORPORATED BY REFERENCE
Certain sections of the registrant's Definitive Proxy Statement relating to its 2024 Annual Meeting of Stockholders to be filed with the SEC within 120 days of December 31, 2023, are incorporated by reference into Part III of this Annual Report on Form 10-K.
TABLE OF CONTENTS
BROOKDALE SENIOR LIVING INC.
FORM 10-K
FOR THE YEAR ENDED DECEMBER 31, 2023
| PAGE | ||
|---|---|---|
| PART I | ||
| Item 1 | Business | 5 |
| Item 1A | Risk Factors | 20 |
| Item 1B | Unresolved Staff Comments | 34 |
| Item 1C | Cybersecurity | 34 |
| Item 2 | Properties | 35 |
| Item 3 | Legal Proceedings | 37 |
| Item 4 | Mine Safety Disclosures | 37 |
| PART II | ||
| Item 5 | Market for Registrant's Common Equity, Related Stockholder Matters and Issuer Purchases of Equity Securities | 38 |
| Item 6 | (Reserved) | 40 |
| Item 7 | Management's Discussion and Analysis of Financial Condition and Results of Operations | 40 |
| Item 7A | Quantitative and Qualitative Disclosures About Market Risk | 62 |
| Item 8 | Financial Statements and Supplementary Data | 64 |
| Item 9 | Changes in and Disagreements with Accountants on Accounting and Financial Disclosure | 102 |
| Item 9A | Controls and Procedures | 102 |
| Item 9B | Other Information | 102 |
| Item 9C | Disclosure Regarding Foreign Jurisdictions that Prevent Inspections | 102 |
| PART III | ||
| Item 10 | Directors, Executive Officers, and Corporate Governance | 103 |
| Item 11 | Executive Compensation | 103 |
| Item 12 | Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters | 103 |
| Item 13 | Certain Relationships and Related Transactions, and Director Independence | 104 |
| Item 14 | Principal Accountant Fees and Services | 104 |
| PART IV | ||
| Item 15 | Exhibits and Financial Statement Schedules | 105 |
| Item 16 | Form 10-K Summary | 108 |
SAFE HARBOR STATEMENT UNDER THE PRIVATE SECURITIES LITIGATION REFORM ACT OF 1995
Certain statements in this Annual Report on Form 10-K may constitute forward-looking statements within the meaning of the Private Securities Litigation Reform Act of 1995. These forward-looking statements are subject to various risks and uncertainties and include all statements that are not historical statements of fact and those regarding our intent, belief, or expectations. Forward-looking statements are generally identifiable by use of forward-looking terminology such as "may," "will," "should," "could," "would," "potential," "intend," "expect," "endeavor," "seek," "anticipate," "estimate," "believe," "project," "predict," "continue," "plan," "target," or other similar words or expressions, and include statements regarding our expected financial and operational results. These forward-looking statements are based on certain assumptions and expectations, and our ability to predict results or the actual effect of future plans or strategies is inherently uncertain. Although we believe that expectations reflected in any forward-looking statements are based on reasonable assumptions, we can give no assurance that our assumptions or expectations will be attained and actual results and performance could differ materially from those projected. Factors which could have a material adverse effect on our operations and future prospects or which could cause events or circumstances to differ from the forward-looking statements include, but are not limited to, events which adversely affect the ability of seniors to afford resident fees, including downturns in the economy, housing market, consumer confidence, or the equity markets and unemployment among resident family members; changes in reimbursement rates, methods, or timing under governmental reimbursement programs including the Medicare and Medicaid programs; the effects of senior housing construction and development, lower industry occupancy, and increased competition; conditions of housing markets, regulatory changes, acts of nature, and the effects of climate change in geographic areas where we are concentrated; terminations of our resident agreements and vacancies in the living spaces we lease; failure to maintain the security and functionality of our information systems, to prevent a cybersecurity attack or breach, or to comply with applicable privacy and consumer protection laws, including HIPAA; our ability to complete our capital expenditures in accordance with our plans; our ability to identify and pursue development, investment, and acquisition opportunities and our ability to successfully integrate acquisitions; competition for the acquisition of assets; our ability to complete pending or expected disposition, acquisition, or other transactions on agreed upon terms or at all, including in respect of the satisfaction of closing conditions, the risk that regulatory approvals are not obtained or are subject to unanticipated conditions, and uncertainties as to the timing of closing, and our ability to identify and pursue any such opportunities in the future; risks related to the implementation of our strategy, including initiatives undertaken to execute on our strategic priorities and their effect on our results; the impacts of the COVID-19 pandemic, including on the nation's economy and debt and equity markets and the local economies in our markets, and on us and our business, results of operations, cash flow, revenue, expenses, liquidity, and our strategic initiatives, including plans for future growth, which will depend on many factors, some of which cannot be foreseen, including the pace and consistency of recovery from the pandemic and any resurgence or variants of the disease; limits on our ability to use net operating loss carryovers to reduce future tax payments; delays in obtaining regulatory approvals; disruptions in the financial markets or decreases in the appraised values or performance of our communities that affect our ability to obtain financing or extend or refinance debt as it matures and our financing costs; our ability to generate sufficient cash flow to cover required interest, principal, and long-term lease payments and to fund our planned capital projects; the effect of any non-compliance with any of our debt or lease agreements (including the financial or other covenants contained therein), including the risk of lenders or lessors declaring a cross default in the event of our non-compliance with any such agreements and the risk of loss of our property securing leases and indebtedness due to any resulting lease terminations and foreclosure actions; the inability to renew, restructure, or extend leases, or exercise purchase options at or prior to the end of any existing lease term; the effect of our indebtedness and long-term leases on our liquidity and our ability to operate our business; increases in market interest rates that increase the costs of our debt obligations; our ability to obtain additional capital on terms acceptable to us; departures of key officers and potential disruption caused by changes in management; increased competition for, or a shortage of, associates, wage pressures resulting from increased competition, low unemployment levels, minimum wage increases and changes in overtime laws, and union activity; environmental contamination at any of our communities; failure to comply with existing environmental laws; an adverse determination or resolution of complaints filed against us, including putative class action complaints, and the frequency and magnitude of legal actions and liability claims that may arise due to COVID-19 or our response efforts; negative publicity with respect to any lawsuits, claims, or other legal or regulatory proceedings; costs to respond to, and adverse determinations resulting from, government inquiries, reviews, audits, and investigations; the cost and difficulty of complying with increasing and evolving regulation, including new disclosure obligations; changes in, or our failure to comply with, employment-related laws and regulations; the risks associated with current global economic conditions and general economic factors on us and our business partners such as inflation, commodity costs, fuel and other energy costs, competition in the labor market, costs of salaries, wages, benefits, and insurance, interest rates, tax rates, geopolitical tensions or conflicts, and uncertainty surrounding federal elections; the impact of seasonal contagious illness or an outbreak of COVID-19 or other contagious disease in the markets in which we operate; actions of activist stockholders, including a proxy contest; as well as other risks detailed from time to time in our filings with the Securities and Exchange Commission, including those set forth under "Item 1A. Risk Factors" contained in this Annual Report on Form 10-K and elsewhere in this Annual Report on Form 10-K. When considering forward-looking statements, you should keep in mind the risk factors and other cautionary statements in such SEC filings. Readers are cautioned not to place undue reliance on any of these forward-looking statements, which reflect management's views as of the date of this Annual Report on Form 10-K. We cannot guarantee future results, levels of activity, performance or achievements, and, except as required by law, we expressly disclaim any obligation to release publicly any updates or revisions to any forward-looking statements contained in this Annual Report on Form 10-K to reflect any change in our expectations with regard thereto or change in events, conditions, or circumstances on which any statement is based.
Item 1. Business
Unless otherwise specified, references to "Brookdale," "we," "us," "our," or "the Company" in this Annual Report on Form 10-K mean Brookdale Senior Living Inc. together with its consolidated subsidiaries.
Our Business
We are the nation's premier operator of senior living communities, operating and managing 652 communities in 41 states as of December 31, 2023, with the ability to serve approximately 59,000 residents. We offer our residents access to a broad continuum of services across the most attractive sectors of the senior living industry. We operate and manage independent living, assisted living, memory care, and continuing care retirement communities ("CCRCs").
Our senior living communities and our comprehensive network help to provide seniors with care, connection, and services in an environment that feels like home. Our expertise in healthcare, hospitality, and real estate provides residents with opportunities to improve wellness, pursue passions, make new friends, and stay connected with loved ones. By providing residents with a range of service options as their needs change, we provide greater continuity of care, enabling seniors to age-in-place, which we believe enables them to maintain residency with us for a longer period of time. The ability of residents to age-in-place is also beneficial to our residents' families who are concerned with care decisions for their elderly relatives.
Strategy
Our goal is to be the first choice in senior living by being the nation's most trusted and effective senior living provider. Brookdale is committed to its mission—to enrich the lives of those we serve with compassion, respect, excellence, and integrity. We continue to focus on the health and well-being of our residents and associates and on achieving our long-term growth potential by providing valued high-quality care and personalized service. We believe successful execution of this strategy provides the best opportunity to create attractive long-term stockholder value. We are focused on priorities that will position us for growth and capitalize on positive trends in demand demographics, customer preferences, and lower new supply in the industry, while using our unique Brookdale differentiators and scale to our advantage. Our key strategic priorities are as follows:
•Get every available room in service at the best profitable rate. We believe that we provide highly valuable services to seniors, and we continually strive to expand the number of seniors we serve through targeted efforts to increase our occupancy levels while remaining focused on charging an appropriate rate for the services we provide. Over the near term, as occupancy continues to recover, we believe we can further improve controllable expense management and margin through leverage of fixed expenses while we continue to meet our residents' needs, provide high-quality care and personalized service, and remain in compliance with applicable regulatory requirements. With this strategic priority, we are working to ensure that all communities are appropriately priced within their market. Through our targeted sales and marketing efforts, we plan to drive increased move-ins through enhanced outreach with impactful points of differentiation based on quality, clinical and healthcare expertise, a portfolio of choices, and high-quality, personalized service delivered by caring and engaged associates.
•Attract, engage, develop, and retain the best associates. Brookdale’s culture is one of people serving people. We believe engaged associates, who are committed to our mission and culture, lead to an enhanced resident experience, higher retention, and ultimately improved operations that drive accelerated growth. Through this strategic priority, we intend to deliver continued favorable progress toward our goal of reducing associate turnover and extending length of employment with Brookdale. We also intend to further support enhanced training programs for associates, educational and career development opportunities for associates, and a compelling value proposition for our associates in the areas of compensation, leadership, career growth, and meaningful work.
•Earn resident and family trust and satisfaction by providing valued, high-quality care and personalized service. We believe that fostering the continued trust of our residents and their families will allow us to build relationships that create passionate advocates and generate referrals. We intend to create a consistent high-quality experience for residents, including through the implementation and execution of our high-quality clinical, operational, dining, and resident engagement programs. We are a learning organization that uses multiple tools to obtain feedback from residents, their families, and our associates to improve our services to meet the changing needs of residents. As we lengthen our associates' tenure, we anticipate an enhanced resident experience.
The above three priorities coupled with robust supply-demand fundamentals are intended to provide long-term returns to our stockholders by driving organic growth through focusing on growing RevPAR (as defined below), Adjusted EBITDA (as defined below), and cash flow. We expect RevPAR will continue to be driven by both occupancy and RevPOR (as defined below) growth, propelled by (i) our strategic priorities, (ii) accelerating growth within our target demographic, and (iii) significantly lower supply growth. Our goal is to initially return to our pre-pandemic level of occupancy and margins, to return to generating positive (and growing) cash flow, and then to reach or exceed our historical occupancy high and expand our margins over the long term. As occupancy grows, we anticipate benefiting from operating leverage, resulting in improving margins. With the combination of RevPAR growth and operating leverage, we expect to drive Adjusted EBITDA and cash flow increases.
Strategic innovation (including the execution of our healthcare strategy) remains an important factor for our long-term growth. We are regularly piloting programs in multiple areas with the intent to roll out successful initiatives to accelerate our growth potential. We also plan to continue to explore additional products and services that we may offer to our residents or to seniors living outside of our communities and, in the longer term where opportunities arise, we would expect to pursue development, investment, and acquisition opportunities to further enhance and grow our senior living portfolio.
•Enhance healthcare and wellness. We desire to enable those we serve to live well by offering our residents a high-quality healthcare and wellness platform. We believe Brookdale is uniquely positioned to be a key senior living leader, and partner to providers and payors, in the value-based healthcare ecosystem. As an example, we have been piloting our Brookdale HealthPlus program in a growing number of assisted living communities in certain markets. Brookdale HealthPlus, which is a community-based, technology-enabled, proactive care coordination program, is designed to help improve residents' quality of life through evidence-based preventative care coordination. During the pilot, an independent third party found that Brookdale HealthPlus delivered measurable favorable outcomes compared to seniors with similar attributes living at home or in competitive senior living properties; and as a result, we expect to introduce Brookdale HealthPlus to additional communities. We also continue to pilot the expansion of our private duty services business to serve those living outside of our communities. We believe the successful execution of these initiatives will improve resident health and well-being and drive incremental revenue and value creation (including through increasing move-ins and extending residents' average length of stay resulting in increased occupancy).
•Drive innovation and leverage technology. We are engaged in a variety of innovation initiatives and over time plan to pilot and test new ideas, technologies, and operating models in order to enhance our residents' engagement and experience, improve outcomes, increase average length of stay and occupancy, further differentiate Brookdale in the market, and better support our senior living operations. We also plan to continue to invest in our technology platform, with the goal of identifying and implementing solutions to reduce complexity, increase productivity, lower costs, and increase our ability to collaborate with third parties.
•Improve and grow our senior living portfolio. As we continue to focus on returning to, and then exceeding, our pre-pandemic results, in the near and longer term, we also intend to (i) exit certain non-strategic or underperforming owned assets when possible, (ii) exit or restructure underperforming leases as we approach lease maturity, where possible, (iii) expand our footprint and services in core markets where we have, or can achieve, a clear leadership position, and (iv) explore further growth opportunities, such as opportunistic acquisitions (including potential acquisitions of currently leased assets) and other expansions of our senior living business, subject to capital availability. Over the longer term, we expect that we will also continue to invest in our development capital expenditures program through which we expand, reposition, and redevelop selected existing senior living communities where economically advantageous.
We believe that our successful execution on these strategic priorities and our longer-term growth plans will allow us to achieve our goal to improve profitability and be the first choice in senior living by being the nation’s most trusted and effective senior living provider.
Recent Developments
Macroeconomic Conditions
A confluence of macroeconomic conditions, including labor pressures, high inflation, and increased interest rates, affected our operations during 2023.
Labor Pressures
Labor costs comprise approximately two-thirds of our total facility operating expense and are subject to inflationary and labor environment pressures. We began to experience pressures associated with the intensely competitive labor environment during 2021. The United States unemployment rate remained at or below 4% each month during 2022 and 2023. Labor pressures have resulted in higher-than-typical associate turnover and wage growth, and we have experienced difficulty in filling open positions timely. We have increased our recruiting efforts to fill existing open positions, resulting in increasing the size of our workforce since the beginning of 2022. We continue to analyze wage rates in our markets and make competitive adjustments. Beginning in 2021, to cover existing open positions, we needed to increase our reliance on more expensive premium labor, primarily contract labor and overtime. By increasing the number of shifts staffed with full- and part-time Brookdale associates rather than contract labor, our reliance on contract labor has moderated to pre-pandemic levels in the second half of 2023. We continue to work to reduce our reliance on premium labor while maintaining focus on meeting our residents' needs, providing high-quality care and personalized service, and remaining in compliance with applicable regulatory requirements.
The labor component of our facility operating expense in our same community portfolio increased 11.0% during 2022 compared to the prior year. The increase primarily resulted from merit and market wage rate adjustments, more hours worked with higher occupancy during the period, and an increase in the use of premium labor, primarily overtime. The labor component of our facility operating expense in our same community portfolio increased 1.2% during 2023 compared to the prior year. The increase primarily resulted from wage rate adjustments, partially offset by a decrease in the use of premium labor, primarily contract labor, as our associate turnover has declined and the size of our workforce has increased since the beginning of 2022. While the impacts of the intensely competitive labor environment have moderated in 2023, we may continue to experience labor cost pressure as a result of the labor environment conditions described above. Continued increased competition for, or a shortage of, nurses or other associates and general inflationary pressures have required and may require that we enhance our pay and benefits package to compete effectively for such associates.
Inflation
Our non-labor facility operating expense comprises approximately one-third of our total facility operating expense and is subject to inflationary pressures. The United States consumer price index increased 10% since December 2021. Despite our mitigation efforts and with higher occupancy, our non-labor facility operating expense in our same community portfolio increased 7.7% for 2023 compared to the prior year.
Interest Rates
As of December 31, 2023, we had $1.5 billion of long-term variable rate debt outstanding which is indexed to the Secured Overnight Financing Rate ("SOFR") plus a weighted average margin of 239 basis points. Accordingly, our annual interest expense related to long-term variable rate debt is directly affected by movements in SOFR. The SOFR increased since the beginning of 2022, ending 2023 more than 500 basis points higher than year-end 2021. For 2023, our debt interest expense increased 32.9% compared to the prior year, substantially all due to an increase in our interest expense associated with our long-term variable rate debt. Increased interest earned on our cash, cash equivalents, and marketable securities partially offset such increased interest expense.
Resident Fee Increases
The rates we charge our residents are highly dependent on local market conditions and the competitive environment in which our communities operate. Generally, we have increased our monthly rates, including rates for care and other services, for private pay residents on an annual basis beginning in January each year.
The annual rate adjustment effective January 1, 2023 for our in-place private pay residents was higher than our typical annual rate adjustment in order to help offset our recent increased costs as a result of labor pressures, high inflation, and increased interest rates. As a result of rate and occupancy increases, our consolidated RevPAR (as defined below) for 2023 increased 11.3% compared to the prior year. We have recently made the annual rate adjustment effective January 1, 2024 for our in-place private pay residents. The average increase for 2024 was lower than the prior year increase and was again higher than our typical annual rate adjustment in order to help offset our increased costs. Due to the competitive environment for new residents in our industry, our rate adjustments could slow our occupancy recovery progress or result in a decrease in occupancy in our communities. Any use of promotional or other discounting would offset a portion of such rate adjustments in our RevPAR and RevPOR (as defined below) results. In addition, our rate adjustments may not be sufficient to offset our increased costs in the event that labor expenses, inflation, or interest costs grow at rates higher than anticipated.
The Senior Living Industry
The senior living industry has undergone dramatic growth in the past several decades, marked by the emergence of assisted living communities in the mid-1990s, and it remains highly fragmented with numerous local and regional operators. According to data from the National Investment Center for the Seniors Housing & Care Industry ("NIC"), there were approximately 2,500 local and regional senior housing operators as of December 31, 2023, of which approximately 90% operated five or fewer communities. We are the largest of a limited number of operators that provide a broad range of community locations and service level offerings at varying price levels.
The industry attracted additional investment in the last decade, prior to the start of the COVID-19 pandemic, which resulted in increased construction and development of new senior housing supply. New community openings subjected the senior housing industry to oversupply and increased competitive pressures. Data from NIC shows that industry occupancy began to decrease starting in 2016 as a result of new openings and oversupply. During that time, we experienced an elevated rate of competitive new openings, with significant new competition opening in many markets, which adversely affected our occupancy, revenues, results of operations, and cash flow.
Beginning in early 2020, the COVID-19 pandemic resulted in additional occupancy pressure for our industry. NIC data shows that senior housing occupancy decreased for four consecutive quarters between March 31, 2020 and March 31, 2021, with nearly all markets falling to record low occupancy by the first quarter of 2021. We cannot predict with reasonable certainty when the senior housing industry occupancy rate will return to pre-pandemic levels or the extent to which the pandemic’s effect on demand may adversely affect the amount of resident fees we are able to collect from our residents.
NIC data shows that new construction starts and openings for the senior housing industry have decreased significantly for 2023 compared to the peaks in the last decade. The more recent impact of the pandemic, the macroeconomic factors discussed above, higher construction costs, increased interest rates, and tighter credit conditions may continue to impact new constructions starts and competitive new openings for a period of time.
The primary market for our senior living services is individuals age 75 and older. Due to demographic trends, and continuing advances in science, nutrition, and healthcare, the senior population will continue to grow. U.S. Census projections suggest that there will be over one million new potential residents per year for the next decade, and we believe that demand for senior care will increase as a result.
As seniors are living longer and this segment of the population rapidly grows, so will the number living with Alzheimer's disease and other dementias and the burden of chronic diseases and conditions. As a result of increased mobility in society, a reduction of average family size, and increased number of two-wage earner couples, families struggle to provide care for seniors and therefore look for alternatives outside of their family for care. There is a growing consumer awareness among seniors and their families regarding the types of services provided by senior living operators, which has further contributed to the demand for senior living services.
Including continued recovery from the significant challenge of the COVID-19 pandemic to our industry, additional challenges in our industry include increased state and local regulation of the assisted living, memory care, and skilled nursing sectors, which has led to an increase in the cost of doing business. The regulatory environment continues to intensify in the number and types of laws and regulations affecting us, accompanied by increased enforcement activity by state and local officials. In addition, there continue to be various federal and state legislative and regulatory proposals to implement cost containment measures that would limit payments to healthcare providers in the future.
Competition
The senior living industry is highly competitive. We compete with numerous organizations, including not-for-profit entities, that offer similar communities and services, community-based service programs, retirement communities, convalescent centers, and other senior living providers. In general, regulatory and other barriers to competitive entry in the independent living, assisted living, and memory care sectors of the senior living industry are not substantial. Consequently, we may encounter competition that could limit our ability to attract and retain residents and associates, raise or maintain resident fees, and expand our business, which could have a material adverse effect on our occupancy, revenues, results of operations, and cash flows. Due to the industry's current lower than pre-pandemic occupancy levels, certain competitors may price aggressively in order to capture market share. Our major senior housing competitors include Atria Senior Living Inc., Life Care Services, LLC, Sunrise Senior Living, LLC, Discovery Senior Living, LLC, and Erickson Senior Living, LLC, and multiple regional providers with large localized market presence, as well as a large number of not-for-profit entities.
Over the long term we plan to evaluate and, where opportunities arise, pursue development, investment, and acquisition opportunities. The market for acquiring and/or operating senior living communities is highly competitive, and some of our present and potential senior living competitors have, or may obtain, greater financial resources than us and may have a lower cost of capital. In addition, several publicly-traded and non-traded real estate investment trusts ("REITs") and private equity firms have similar objectives as we do, along with greater financial resources and/or lower costs of capital than we are able to obtain. Partially as a result of tax law changes enacted through REIT Investment Diversification and Empowerment Act ("RIDEA"), we now compete more directly with the various publicly-traded healthcare REITs for the acquisition of senior housing properties, the largest of which are Ventas, Inc. and Welltower Inc. Additionally, such REITs may have the ability to directly compete in the management of certain independent living facilities as a result of recent IRS rulings.
Our History
Brookdale Senior Living Inc. was formed as a Delaware corporation in June 2005 for the purpose of combining two leading senior living operating companies, Brookdale Living Communities, Inc. and Alterra Healthcare Corporation, which had been operating independently since 1986 and 1981, respectively. In 2005, we completed our initial public offering of common stock, and in 2006, we acquired American Retirement Corporation, another leading senior living provider that had been operating independently since 1978. In 2011, we completed the acquisition of Horizon Bay, which was the then-ninth largest operator of senior living communities in the United States. In 2014, we completed our acquisition of Emeritus Corporation through a merger, which was the then-second largest operator of senior living communities in the United States. Since our acquisition of Emeritus, we have disposed of over 350 communities through sales of owned communities and terminations of triple-net lease obligations.
Segments
As of December 31, 2023, we had three reportable segments: Independent Living; Assisted Living and Memory Care; and CCRCs. These segments were determined based on the way that our chief operating decision maker organizes our business activities for making operating decisions, assessing performance, developing strategy, and allocating capital resources.
Communities that we own or lease are included in the Independent Living, Assisted Living and Memory Care, or CCRCs segment, as applicable. Communities that we manage on behalf of others are included in the All Other category. The table below shows the number of communities and units within each of our senior housing segments and the All Other category as of December 31, 2023.
| Communities | Units | % of Total Units | Average Number of Units per Community | ||
|---|---|---|---|---|---|
| Independent Living | 68 | 12,563 | 22.6 | % | 185 |
| Assisted Living and Memory Care | 537 | 33,755 | 60.7 | % | 63 |
| CCRCs | 17 | 4,731 | 8.5 | % | 278 |
| All Other | 30 | 4,579 | 8.2 | % | 153 |
| Total | 652 | 55,628 | 100.0 | % | 85 |
For the year ended December 31, 2023, we generated 93.7% of our resident fee revenue from private pay residents, 4.8% from government reimbursement programs (primarily Medicaid and Medicare), and 1.5% from other payor sources. Our owned communities generated 58.6% of our resident fee revenue and our leased communities generated 41.4% of our resident fee
revenue. The table below shows the percentage of our resident fee and management fee revenue attributable to each of our segments or All Other category for the year ended December 31, 2023.
| (in thousands) | Resident Fee and Management Fee Revenue | % of Total | ||
|---|---|---|---|---|
| Independent Living | $ | 564,012 | 19.7 | % |
| Assisted Living and Memory Care | 1,960,432 | 68.3 | % | |
| CCRCs | 332,826 | 11.6 | % | |
| All Other | 10,161 | 0.4 | % | |
| Total resident fee and management fee revenue | $ | 2,867,431 | 100.0 | % |
Further operating results and financial metrics from our three reportable segments are discussed further in "Item 7. Management's Discussion and Analysis of Financial Condition and Results of Operations" and Note 20 to our consolidated financial statements contained in "Item 8. Financial Statements and Supplementary Data."
Our Community Offerings
We offer a variety of senior living communities in locations across the United States. We operate and manage independent living, assisted living, memory care, and continuing care retirement communities. The majority of our units are organized in campus-like settings or stand-alone communities offering multiple service levels.
Independent Living Communities
Our independent living communities are primarily designed for middle to upper income seniors who desire to live in a residential setting that feels like home, without the efforts of ownership. Some of our independent living residents choose to relocate to a community in a metropolitan area that is closer to their adult children. The majority of our independent living communities consist of both independent and assisted living units in a single community, which allows residents to age-in-place by providing them with a broad continuum of senior independent and assisted living services to accommodate their changing needs. While the number varies depending upon the particular community, as of December 31, 2023 approximately 80% of all of the units at our independent living communities were independent living units, with the balance of the units operating as licensed assisted living and memory care units.
Our independent living communities are generally large multi-story buildings with extensive common areas and amenities to support the lifestyle preferences of more independent seniors. Residents may choose from studio, one-bedroom, and two-bedroom units, depending upon the specific community. Each independent living unit is designed to feel and function like a private residence while providing residents with basic services such as dining service options, an emergency alert system, housekeeping, education and wellness programs, and recreational activities. Most of these communities also offer (either directly or through access to third-party service providers) custom tailored concierge and personal assistance/private duty services at an additional charge, which may include medication reminders, daily check-in, transportation, shopping, escort, and companion services.
In addition to the basic services, our independent living communities that include assisted living also provide residents with personal care and convenience service options to provide assistance with activities of daily living ("ADLs"). The levels of care provided to residents vary from community to community depending, among other things, upon the licensing requirements and healthcare regulations of the state in which the community is located.
Residents in our independent living communities are able to maintain their residency for an extended period of time due to the range of service options available (not including skilled nursing). Residents with physical frailties and higher level service needs can often be accommodated with supplemental services in their own units or, in certain communities, are cared for in a more structured and supervised environment on a separate wing or floor. These communities also generally have dedicated assisted living associates and separate assisted living dining rooms and activity areas.
Assisted Living and Memory Care Communities
Our assisted living and memory care communities offer housing and 24-hour assistance with ADLs for our residents. Residents typically enter an assisted living or memory care community due to a relatively immediate need for services that may have been triggered by a medical event. Our assisted living and memory care communities include both freestanding, multi-story
communities with more than 50 units, as well as smaller, freestanding, single story communities. Although building layouts will vary depending on specific location, the community may include (i) private studio, one-bedroom, and one-bedroom deluxe apartments, or (ii) individual rooms for one or two residents in wings or "neighborhoods" scaled to a single-family home, that would include a living room, dining room, patio or enclosed porch, laundry room, and personal care area, as well as a caregiver work station.
We also provide memory care services at freestanding memory care communities that are specifically designed for residents with dementia, including Alzheimer's disease and other forms of cognitive impairment. Our freestanding memory care communities average 39 units and some are part of a campus-like setting which includes a freestanding assisted living community. As of December 31, 2023, we provide memory care services at 338 of our communities, aggregating 9,015 memory care units across our segments. These communities include 107 freestanding memory care communities with 4,158 units included in our Assisted Living and Memory Care segment.
All residents at our assisted living and memory care communities are eligible to receive the basic care level, which includes ongoing health assessments, three meals per day and snacks, coordination of special diets planned by a registered dietitian, 24-hour staff assistance, assistance with medical care coordination, education and wellness programs, social and recreational activities providing socialization and engagement, housekeeping, and personal laundry services. In some locations, we offer our residents exercise programs and programs designed to address needs associated with early stages of Alzheimer's disease and other dementias. For an additional cost at these communities, we offer higher levels of personal care services to residents who are more physically frail or require more frequent or intensive physical assistance or increased personal care and supervision due to cognitive impairments.
As a result of their progressive cognitive decline, residents at our memory care units typically require higher levels of personal care and services than in assisted living and therefore pay higher monthly service fees. Specialized services include assistance with ADLs, behavior management, and an activities program, the goal of which is to provide a normalized environment that supports residents' decreased functional abilities.
CCRCs
Our CCRCs are large communities that offer a variety of living arrangements and services to accommodate a broad spectrum of physical ability and healthcare needs. Most of our CCRCs have independent living, assisted living, memory care, and skilled nursing available on one campus or within the immediate area. Our residents of our CCRCs are generally seniors seeking a community that offers a broad continuum of care enabling them to age-in-place. Generally, these residents will initially enter the community as independent living residents and may, at a later time, advance into an assisted living, memory care, or skilled nursing area as their needs change. Residents can also enter the CCRCs directly into assisted living, memory care, or skilled nursing and, in some cases, may enter via the skilled nursing service line following an acute event and subsequently transfer from the skilled nursing unit to one of the other on-campus service lines.
Management Services
As of December 31, 2023, we managed a total of 30 communities (4,579 units) on behalf of others, which represented 8% of our senior housing capacity. Under our management arrangements, we receive management fees, which are generally determined by an agreed upon percentage of gross revenues (as defined in the management arrangement), as well as reimbursed expenses, which represent the reimbursement of certain expenses we incur on behalf of the owners.
Competitive Strengths
We believe our nationwide network of senior living communities is well positioned to benefit from the growth and increasing demand in the industry. Some of our most significant competitive strengths are:
•Skilled management team with extensive experience. Our senior management team has extensive experience in the senior living industry, including operating and managing a broad range of senior living assets, and related healthcare, hospitality, and real estate experience.
•Geographically diverse, high-quality, purpose-built communities. As of December 31, 2023, we operated a nationwide base of 652 communities in 41 states.
•Ability to provide a broad spectrum of care. Given our diverse mix of independent living, assisted living, memory care, and CCRCs communities, we are able to meet a wide range of our residents' needs. Through our comprehensive network of
services, we help to provide seniors with care, connection, and services to support their lifestyle in an environment that feels like home. We believe that we are one of the few companies in the senior living industry with this capability and the ability to do so at scale on a national basis. We believe that our multiple service offerings create marketing synergies and cross-selling opportunities.
•The size of our business allows us to realize cost and operating efficiencies. We are the largest operator of senior living communities in the United States based on total capacity. The size of our business allows us to realize cost savings and economies of scale in the procurement of goods and services. Our scale also allows us to achieve increased efficiencies with respect to various community support functions. We intend to continue utilizing our expertise and size to capitalize on economies of scale resulting from our national platform to enhance our residents' experiences. Our geographic footprint and centralized infrastructure provide us with an operational advantage. We negotiate contracts for food, insurance, and other goods and services with the advantages that scale provides. In addition, we have and will continue to leverage our centralized community support functions such as finance, human resources, legal, information technology, and marketing.
Seasonality
Our senior housing business has typically experienced some seasonality, which we experience in certain regions more than others, due to weather patterns, geography, and higher incidence and severity of flu and other illnesses during winter months. Although our seasonal pattern varies from year to year and occupancy patterns have been affected by the COVID-19 pandemic, historically our average monthly occupancy has generally begun to decline sequentially toward the end of the fourth quarter of the year, and we have generally expected average monthly occupancy to begin to increase towards the end of the second quarter each year with the third quarter historically being the highest occupancy growth period of the year. Utility expenses trend seasonally high in the first quarter and third quarter of each year. Facility operating expenses, such as labor, food, and supplies also trend higher in the second half of the year compared with the first half due to an increased number of working days.
Operations
Operations Overview
We have implemented intensive standards, policies and procedures, and systems, including detailed associate resources and training, which we believe have contributed to high levels of customer service. Further, we believe our centralized community support infrastructure allows our community-based leaders and personnel to focus on resident care and family connections.
Community Support Functions
We have developed a centralized support infrastructure and services platform, which we believe provides us with a significant operational advantage over local and regional operators of senior living communities. The size of our business also allows us to achieve increased efficiencies with respect to various community support functions such as procurement, human resources, finance, accounting, legal, information technology, and marketing. We are also able to realize cost efficiencies in the purchasing of food, supplies, insurance, benefits, and other goods and services. In addition, we have established centralized operations groups to support all of our service lines and communities in areas such as training, regulatory affairs, asset management, dining, clinical services, sales, resident engagement, marketing, and procurement. We have also established company-wide policies and procedures relating to, among other things: resident care; community design and community operations; billing and collections; accounts payable; finance and accounting; risk management; development of associate training materials and programs; advertising and marketing activities; the hiring and training of management and other community-based personnel; compliance with applicable local and state regulatory requirements; and implementation of our acquisition, development, and leasing plans.
Community Staffing and Training
Each community has an Executive Director responsible for the overall day-to-day operations of the community, including the community's associate relations, resident and family engagement and connection, financial performance, and regulatory compliance. Each Executive Director receives specialized training developed by our learning and development associates. In addition, a portion of each Executive Director's compensation is directly based on the operating performance of the community, community associate turnover, and resident and family satisfaction. We continue to take actions intended to simplify the role of our Executive Director to allow them to focus on our residents and their families and our associates. We believe that the quality of our communities, coupled with support provided by our community support infrastructure has enabled us to attract high-quality, professional community Executive Directors.
Depending upon the size and type of the community, each Executive Director is supported by key leaders, a Health and Wellness Director (or nursing director), and/or a Sales Director. The Health and Wellness Director or nursing director is directly responsible for day-to-day care of our assisted living, memory care, and skilled nursing residents. The Sales Director oversees the community's sales, marketing, and community outreach programs. Other key positions supporting each community may include individuals responsible for dining services, healthcare services, resident activities, housekeeping, transportation, and maintenance.
We believe that quality of care and operating efficiency can be maximized through direct resident and associate interaction. Associates involved in resident care, including administrative associates, are trained in support and care protocols, including emergency response techniques. We have adopted formal training and evaluation procedures to help ensure quality care for our residents. We have comprehensive policy and procedure manuals and hold regular training sessions for management and non-management associates at each community.
Quality Assurance
We maintain quality assurance programs at each of our communities overseen by our community support associates. Our quality assurance programs are designed to achieve a high degree of resident and family member satisfaction through the care and services that we provide. Our quality control measures include, among other things, community inspections conducted by community support associates on a regular basis. These inspections cover the appearance of the exterior and grounds; the appearance and cleanliness of the interior; the professionalism and friendliness of associates; quality of resident care (including assisted living and memory care services and nursing care); the quality of activities and the dining program; observance of residents in their daily living activities; and compliance with government regulations. Our quality control measures also include the survey of residents and family members on a regular basis to monitor their perception of the quality of services we provide to residents.
In order to foster a sense of belonging and engagement, as well as to respond to residents' needs and desires, at many of our communities, we have established a resident council or other resident advisory committees that meet periodically with the Executive Director of the community. These committees promote resident involvement and satisfaction and enable community management to be more responsive to their residents' needs and desires.
Marketing and Sales
Our marketing efforts are intended to create awareness of our brand and services to educate prospects and referral sources about the Brookdale difference. We meet prospects where they are in their journey, whether they are learning about senior living for the first time or need to schedule a visit at one of our communities. We target a variety of audiences who have a role in the decision-making process for senior housing and our healthcare services, including potential residents, their family members and referral sources, including the medical community (hospital discharge planners, physicians, skilled nursing facilities, home health agencies, and social workers), professional organizations, employer groups, clergy, area agencies for the elderly, and paid referral organizations. Our marketing associates develop strategies to promote our communities at the local market and national level. We execute an integrated marketing campaign approach, including local media and outreach programs, digital advertising, social media, print advertising, e-mail, direct mail, and special events, such as health fairs and community receptions. All online forms and many calls are handled by trained senior living advisors in our Brookdale Connection Center, who schedule visits directly to our communities. Certain resident referral programs have been established and promoted at many communities within the limitations of federal and state laws. We will continue to leverage and grow our Brookdale brand to win locally in the markets we serve.
Human Capital Resources
Our Associates
We are dedicated to enriching the lives of those we serve with compassion, respect, excellence, and integrity. We know that our success is dependent on attracting, engaging, developing, and retaining the best associates. As of December 31, 2023, we employed approximately 36,000 associates, 70% of whom were full-time. Approximately 1,300 centralized and regional community support associates support our community-based associates. As of December 31, 2023, approximately 80% of our associates are women, who comprise approximately 70% of the leadership roles at our communities and community support centers. Approximately 60% of our associates and 17% of individuals in our leadership roles are people of color.
During 2023, we continued to focus on hiring the best associates and reducing turnover in order to decrease our use of more expensive premium labor. We seek to ensure that our communities are staffed with full and part-time associates. By increasing
the number of shifts staffed with full- and part-time Brookdale associates rather than contract labor, our reliance on contract labor has moderated to pre-pandemic levels in the second half of 2023. We continue to work to reduce our reliance on premium labor while maintaining focus on meeting our residents' needs, providing high-quality care and personalized service, and remaining in compliance with applicable regulatory requirements. We continue to optimize our recruiting efforts to fill open positions, analyze wage rates in our markets, and make competitive adjustments.
Inclusion and Diversity
To attract and retain associates, we are committed to maintaining a welcoming and inclusive environment where people have an equal chance to grow and succeed. We support our associates by providing an open door policy, offering training to help our people grow and to understand our commitment to providing a workplace free from discrimination and harassment, consistently enforcing our policies, and maintaining the expectation that all our associates will be treated with dignity and respect. Brookdale is committed to inclusion and diversity – built on a foundation of trust, partnership, courage, and passion. We define diversity as the representation of associates from different groups, ideas, perspectives, and values. We define inclusion as a culture of policies and practices that actively engages and provides each of our associates with the opportunity to be successful at Brookdale.
We believe an inclusive and diverse culture can help achieve our mission by:
•Attracting and retaining the best talent by recruiting from a broad array of backgrounds for all levels of the organization and investing in our talent;
•Increasing growth, productivity, and engagement by fostering a workplace where all associates feel valued and contribute to their fullest potential;
•Making Brookdale the place for top talent, driving outstanding service for our residents, and increasing stockholder value; and
•Equipping our associates with resources to serve the changing demographics and needs of residents.
In 2022, we launched our first six-month long development program focused on identifying a diverse mix of associates interested in an Executive Director career path, which continued with the selection of our second cohort in 2023. Approximately 40% of the program participants identify as people of color. This program helps equip future leaders with the skills they need to advance their career with Brookdale.
Talent Acquisition, Engagement, Development, and Retention
We want to attract people who want to do challenging yet rewarding work and who want to make a difference in the lives of others. We want our associates to feel valued, to find purpose and meaning in their work, and to know they make an impact that stretches beyond the walls of the communities and offices. In order to attract high-quality talent, we offer competitive wages and benefits as well as opportunities to grow a career at Brookdale through education, training, and on-the-job development experiences.
Recruitment strategies
In order to attract people who want the chance to be a part of something bigger than themselves, we use a variety of strategies to attract and hire diverse talent to our organization. We optimized our field recruiting strategy through close collaboration with local operational leadership on current and anticipated workforce planning needs, leveraging an agile market and region-based approach to provide targeted hiring support, while continuously improving systems and processes. We implemented additional ways to support recruiting from military settings. Additionally, we continue to source from employment websites created for under-represented groups to expand our pipeline of candidates.
Development
We offer learning opportunities for our associates when they join Brookdale and throughout their careers to better serve our residents and to grow their career. Our Brookdale University provides training and leadership development for leaders across the organization. In addition to internal development opportunities, we have also launched multiple programs to advance fees and tuition assistance for certain associates to pursue relevant certifications.
Retention
We believe the performance of our individual communities and of our company as a whole are correlated to retention of our key community leaders. Our 2023 annual incentive plan included the strategic objective of retaining key community leadership (Executive Directors, Health and Wellness Directors, and Sales Directors) in our same community portfolio. As a result of our retention initiatives, our retention of key community leaders in our same community portfolio increased for 2023 compared to 2022. We also believe that it is important to hear from our associates as a way to engage and retain them. To that end, in 2023, we conducted engagement pulse surveys for specific populations to focus on certain actions to engage and retain them.
Total Rewards
To attract and retain the best associates, we offer a competitive total rewards program, which we believe is an important aspect of our overall compensation. Both full-time and part-time associates are offered benefits, including a 401(k) retirement savings plan with the opportunity for matching contributions, as well as medical, dental, and other types of insurance. In 2023, approximately half of our eligible full-time associates participated in our medical plans.
We also know maintaining overall well-being is important, which is why we offer benefits to cover a spectrum of needs. For example, full-time associates enrolled in one of our medical plans can receive a wellness incentive for completing their annual physical. Associates enrolled in a Brookdale medical plan are also eligible to participate in a free coach-led digital program for chronic back, knee, or hip pain. They also are able to use a mobile phone application to help individuals process and cope with life’s challenges, for free. Brookdale also recognizes the importance of financial wellbeing, which is why we offer access to a financial wellness program for all associates.
Industry Regulation
The regulatory environment surrounding the senior living industry continues to intensify in the number and type of laws and regulations affecting it. Federal, state, and local officials are increasingly focusing their efforts on enforcement of these laws and regulations. This is particularly true for large for-profit, multi-community providers like us. Some of the laws and regulations that impact our industry include: state and local laws impacting licensure, protecting consumers against unfair and deceptive trade practices, and generally affecting the communities' management of property and equipment and how we otherwise conduct our operations, such as fire, health, safety, and privacy laws and regulations; federal and state laws governing Medicare and Medicaid, which regulate allowable costs, pricing, quality of services, quality of care, food service, resident rights (including abuse and neglect) and fraud; federal and state residents' rights statutes and regulations; anti-kickback and physician self-referral ("Stark") laws; safety and health standards set by the Occupational Safety and Health Administration; and federal, state, and local employment-related laws and regulations. We are unable to predict the future course of federal, state, and local legislation or regulation. Changes in the regulatory framework could have a material adverse effect on our business.
State and Local Regulation and Licensing
Many senior living communities are subject to regulation and licensing by state and local health and social service agencies and other regulatory authorities. Although requirements vary from state to state, these requirements may address, among others, the following: personnel education, training, and records; community services; staffing; physical plant specifications; furnishing of resident units; food and housekeeping services; emergency evacuation plans; emergency power generator requirements; professional licensing and certification of staff; and resident rights and responsibilities. In several of the states in which we operate there are different levels of care that may be provided based on the level of licensure. In several of the states in which we operate, or intend to operate, assisted living and memory care communities or skilled nursing facilities require a certificate of need before a community may be opened or the services at an existing community may be expanded. Senior living communities may also be subject to state and/or local building, zoning, fire, and food service codes and must be in compliance with these local codes before licensing or certification may be granted. These laws and regulatory requirements could affect our ability to expand into new markets and to expand our services and communities in existing markets.
Unannounced surveys or inspections may occur annually, bi- or tri-annually, or following a regulator's receipt of a complaint about a provider. From time to time in the ordinary course of business, we receive survey reports from state or federal regulatory bodies citing deficiencies resulting from such inspections or surveys. Most inspection deficiencies are resolved through a plan of corrective action relating to the community's operations, but the reviewing agency may have the authority to take further action against a licensed or certified community, which could result in the imposition of fines, imposition of a provisional or conditional license, suspension or revocation of a license, suspension or denial of admissions or denial of payment for admissions, loss of certification as a provider under federal and/or state reimbursement programs, or imposition of
other sanctions, including criminal penalties. Loss, suspension, or modification of a license may also cause us to default under our debt and lease documents and/or trigger cross-defaults. Sanctions may be taken against providers or facilities without regard to the providers' or facilities' history of compliance. In addition, states' Attorneys General vigorously enforce consumer protection laws as those laws relate to the senior living industry. State Medicaid Fraud and Abuse Units may also investigate assisted living and memory care communities even if the community or any of its residents do not receive federal or state funds. We may also expend considerable resources to respond to federal and state investigations or other enforcement action under applicable laws or regulations (including investigations and actions by state Attorneys General and other state and local authorities). To date, none of the deficiency reports received by us has resulted in a suspension, fine, or other disposition that has had a material adverse effect on our revenues, results of operations, or cash flows. However, any future substantial failure to comply with any applicable legal and regulatory requirements could result in a material adverse effect to our business as a whole.
Regulation of the senior living industry is evolving at least partly because of the growing interests of a variety of advocacy organizations and political movements attempting to standardize regulations for certain segments of the industry, particularly assisted living and memory care. Our operations could suffer from future regulatory developments, such as federal assisted living and memory care laws and regulations, as well as mandatory increases in the scope and severity of deficiencies determined by survey or inspection officials or an increase in the number of citations that can result in civil or criminal penalties. Certain current state laws and regulations allow enforcement officials to make determinations on whether the care provided by one or more of our communities exceeds the level of care for which the community is licensed. Furthermore, certain states may allow citations in one community to impact other communities in the state. Revocation or suspension of a license, or a citation, at a given community could therefore impact our ability to obtain new licenses or to renew existing licenses at other communities, which may also cause us to be in default under our loan or lease agreements and trigger cross-defaults or may also trigger defaults under certain of our credit agreements, or adversely affect our ability to operate and/or obtain financing in the future. If a state were to find that one community's citation will impact another of our communities, this will also increase costs and result in increased surveillance by the state survey agency. If regulatory requirements increase, whether through enactment of new laws or regulations or changes in the enforcement of existing rules, including increased enforcement brought about by advocacy groups, in addition to federal and state regulators, our operations could be adversely affected. Any adverse finding by survey and inspection officials may serve as the basis for false claims lawsuits by private plaintiffs and may lead to investigations under federal and state laws, which may result in civil and/or criminal penalties against the community or individual.
Regulation Against Fraud, Abuse, and False Claims
There are various extremely complex federal and state laws governing a wide array of referrals, relationships, and arrangements and prohibiting fraud by healthcare providers, including those in the senior living industry, and governmental agencies are devoting increasing attention and resources to such anti-fraud initiatives. The Health Insurance Portability and Accountability Act of 1996, or HIPAA, and the Balanced Budget Act of 1997 expanded the penalties for healthcare fraud. With respect to our participation in federal healthcare reimbursement programs, the government or private individuals acting on behalf of the government may bring an action under the False Claims Act alleging that a healthcare provider has defrauded the government and seek treble damages for false claims and the payment of additional monetary civil penalties. The False Claims Act allows a private individual with knowledge of fraud to bring a claim on behalf of the federal government and earn a percentage of the federal government's recovery. Because of these incentives, so-called "whistleblower" suits have become more frequent.
Additionally, since we operate communities that participate in federal and/or state healthcare reimbursement programs, we are subject to federal and state laws that prohibit anyone from presenting, or causing to be presented, claims for reimbursement which are false, fraudulent, or are for items or services that were not provided as claimed. Similar state laws vary from state to state. Violation of any of these laws can result in loss of licensure, citations, sanctions, and other criminal or civil fines and penalties, the refund of overpayments, payment suspensions, or termination of participation in Medicare and Medicaid programs, which may also cause us to default under our debt and lease documents and/or trigger cross-defaults.
Anti-Kickback Regulation
We are subject to certain federal and state laws that regulate financial arrangements by healthcare providers, such as the federal Anti-Kickback Statute, the Stark laws, and certain state referral laws. The federal Anti-Kickback Statute makes it unlawful for any person to offer or pay (or to solicit or receive) "any remuneration ... directly or indirectly, overtly or covertly, in cash or in kind" for referring or recommending for purchase any item or service which is eligible for payment under the Medicare and/or Medicaid programs. Authorities have interpreted this statute very broadly to apply to many practices and relationships between healthcare providers and sources of patient referral. If we were to violate the federal Anti-Kickback Statute, we may face criminal penalties and civil sanctions, including fines and possible exclusion from government reimbursement programs, which
may also cause us to default under our debt and lease documents and/or trigger cross-defaults. Adverse consequences may also result if we violate federal Stark laws related to certain Medicare and Medicaid physician referrals. While we endeavor to comply with all laws that regulate the licensure and operation of our business, it is difficult to predict how our revenues could be affected if we were subject to an action alleging such violations.
Confidentiality and Privacy Regulation
We are subject to federal and state laws designed to protect the confidentiality of patient health information. The United States Department of Health and Human Services has issued rules pursuant to HIPAA relating to the privacy of such information. Rules that became effective in 2003 govern our use and disclosure of health information at certain HIPAA covered communities. We established policies and procedures to comply with HIPAA privacy and security requirements at these communities. We were required to be in compliance with the HIPAA rule establishing administrative, physical, and technical security standards for health information by 2005. To the best of our knowledge, we are in compliance with these rules. In addition, states have begun to enact more comprehensive privacy laws and regulations addressing consumer rights to data protection or transparency. There are five states with comprehensive privacy laws effective in 2023. Additional state legislative and regulatory efforts to regulate consumer privacy protection have passed in 2023 with laws becoming effective in 2024 and beyond. These legislative and regulatory developments will continue to influence the design and operation of our business and our privacy and security efforts.
COVID-19 Regulation
We have been and may continue to be subject to federal and state laws, regulations and executive orders relating to healthcare providers’ response to the COVID-19 pandemic. While many of the regulatory requirements were temporary and expired with the end of the public health emergency in May 2023, these requirements generally may include mandatory requirements for vaccination of staff, testing of residents and/or staff, providing COVID-19 related paid leave, implementation of infection control standards and procedures, imposition of restrictions on new admissions or readmissions of residents, required screening of all persons entering a community, imposition of restrictions or limitations on who and how residents may be visited, and imposition of mandatory notification requirements to residents, families, staff, and regulatory bodies related to positive COVID-19 cases. Enhanced or additional penalties may apply for violation of such requirements.
Employment-Related Regulation
We are also subject to an increasing and wide variety of federal, state, and local employment-related laws and regulations which govern matters including, but not limited to, wage and hour requirements, equal employment opportunity obligations, leaves of absence and reasonable accommodations, employee benefits, the right of employees to engage in protected concerted activity (including union organizing), and occupational health and safety requirements. Because labor represents such a large portion of our operating expenses, changes in federal, state, and local employment-related laws and regulations could increase our cost of doing business. Furthermore, any failure to comply with these laws can result in significant protracted litigation, government investigation, penalties, or other damages which could harm our reputation and have a material adverse effect on our business.
Medicare and Medicaid Programs
Reimbursements from Medicare and Medicaid represented 1.5% and 3.3%, respectively, of our consolidated resident fee revenue for the year ended December 31, 2023. Medicare and Medicaid reimbursements represented 16.9% of our CCRCs segment's resident fee revenue during such period.
Medicare is a federal program that provides certain hospital and medical insurance benefits to persons age 65 and over and certain disabled persons. We receive revenue for our skilled nursing services from Medicare. Medicaid is a medical assistance program administered by each state, funded with federal and state funds pursuant to which healthcare benefits are available to certain indigent or disabled patients. We receive reimbursements under Medicaid (including state Medicaid waiver programs) for many of our assisted living and memory care communities.
Reimbursement levels under the Medicare and Medicaid programs may not remain at levels comparable to present levels or may not be sufficient to cover the costs allocable to patients eligible for reimbursement. Medicare reimbursement for skilled nursing services is subject to fixed payments under the Medicare prospective payment systems. In accordance with Medicare laws, the Centers for Medicare & Medicaid Services ("CMS") makes annual adjustments to Medicare payment rates.
Medicaid reimbursement rates for many of our assisted living and memory care communities also are based upon fixed payment systems. Generally, these rates are adjusted annually for inflation. However, those adjustments may not reflect actual
increases of the cost of providing healthcare services. In addition, Medicaid reimbursement can be impacted negatively by state budgetary pressures, which may lead to reduced reimbursement or delays in receiving payments.
The Medicare and Medicaid reimbursement programs are highly regulated, involve significant administrative discretion, and are subject to frequent and substantial legislative, administrative, and interpretive changes, which may significantly affect reimbursement rates and the methods and timing of payments made under these programs. As a result of our participation in such programs, we are subject to government reviews, audits, and investigations to verify compliance with these programs and applicable laws and regulations. CMS has engaged third-party firms to review claims data to evaluate appropriateness of billings. In addition to identifying overpayments, audit contractors can refer suspected violations to government authorities. An adverse outcome of government scrutiny may result in citations, sanctions, other criminal or civil fines and penalties, the refund of overpayments, payment suspensions, or termination of participation in Medicare and Medicaid programs.
Environmental Matters
Under various federal, state, and local environmental laws, a current or previous owner or operator of real property, such as us, may be held liable in certain circumstances for the costs of investigation, removal, or remediation of certain hazardous or toxic substances, including, among others, petroleum and materials containing asbestos, that could be located on, in, at, or under a property, regardless of how such materials came to be located there. Additionally, such an owner or operator of real property may incur costs relating to the release of hazardous or toxic substances, including government fines and payments for personal injuries or damage to adjacent property. The cost of any required investigation, remediation, removal, mitigation, compliance, fines, or personal or property damages and our liability therefore could exceed the property's value and/or our assets' value. The presence of such substances, or the failure to properly dispose of or remediate the damage caused by such substances, may adversely affect our ability to sell such property, to attract additional residents, retain existing residents, to borrow using such property as collateral, or to develop or redevelop such property. Such laws impose liability for investigation, remediation, removal, and mitigation costs on persons who disposed of or arranged for the disposal of hazardous substances at third-party sites. Such laws and regulations often impose liability without regard to whether the owner or operator knew of, or was responsible for, the presence, release, or disposal of such substances as well as without regard to whether such release or disposal was in compliance with law at the time it occurred. Moreover, the imposition of such liability upon us could be joint and several, which means we could be required to pay for the cost of cleaning up contamination caused by others who have become insolvent or otherwise judgment proof. We do not believe that we have incurred such liabilities that would have a material adverse effect on our business, financial condition, results of operations, and cash flow.
Our operations are subject to regulation under various federal, state, and local environmental laws, including those relating to: the handling, storage, transportation, treatment, and disposal of medical waste products generated at our communities; identification and warning of the presence of asbestos-containing materials in buildings, as well as removal of such materials; the presence of other substances in the indoor environment; and protection of the environment and natural resources in connection with development or construction of our properties.
Some of our communities generate infectious or other hazardous medical waste due to the illness or physical condition of the residents, including, for example, blood-contaminated bandages, swabs and other medical waste products, and incontinence products of those residents diagnosed with an infectious disease. The management of infectious medical waste, including its handling, storage, transportation, treatment, and disposal, is subject to regulation under various federal, state, and local environmental laws. These environmental laws set forth the management requirements for such waste, as well as related permit, record-keeping, notice, and reporting obligations. Our communities' engagement of waste management companies for the proper disposal of all infectious medical waste does not immunize us from alleged violations of such medical waste laws for operations for which we are responsible even if carried out by such waste management companies, nor does it immunize us from third-party claims for the cost to cleanup disposal sites at which such wastes have been disposed. Any finding that we are not in compliance with environmental laws could adversely affect our business, financial condition, results of operations, and cash flow.
Federal regulations require building owners and those exercising control over a building's management to identify and warn, via signs and labels, their employees and certain other employers operating in the building of potential hazards posed by workplace exposure to installed asbestos-containing materials and potential asbestos-containing materials in their buildings. The regulations also set forth employee training, record-keeping requirements, and sampling protocols pertaining to asbestos-containing materials and potential asbestos-containing materials. Significant fines can be assessed for violation of these regulations. Building owners and those exercising control over a building's management may be subject to an increased risk of personal injury lawsuits by workers and others exposed to asbestos-containing materials and potential asbestos-containing materials. The regulations may affect the value of a building containing asbestos-containing materials and potential asbestos-containing materials in which we have invested. Federal, state, and local laws and regulations also govern the removal,
encapsulation, disturbance, handling, and/or disposal of asbestos-containing materials and potential asbestos-containing materials when such materials are in poor condition or in the event of construction, remodeling, renovation, or demolition of a building. Such laws may impose liability for improper handling or a release to the environment of asbestos-containing materials and potential asbestos-containing materials and may provide for fines to, and for third parties to seek recovery from, owners or operators of real properties for personal injury or improper work exposure associated with asbestos-containing materials and potential asbestos-containing materials.
The presence of mold, lead-based paint, contaminants in drinking water, radon, and/or other substances at any of the communities we own or may acquire may lead to the incurrence of costs for remediation, mitigation, or the implementation of an operations and maintenance plan. Furthermore, the presence of mold, lead-based paint, contaminants in drinking water, radon, and/or other substances at any of the communities we own or may acquire may present a risk that third parties will seek recovery from the owners, operators, or tenants of such properties for personal injury or property damage. In some circumstances, areas affected by mold may be unusable for periods of time for repairs, and even after successful remediation, the known prior presence of extensive mold could adversely affect the ability of a community to retain or attract residents and could adversely affect a community's market value.
We believe that we are in material compliance with applicable environmental laws. We are unable to predict the future course of federal, state, and local environmental regulation and legislation. Changes in the environmental regulatory framework (including legislative or regulatory efforts designed to address climate change) could have a material adverse effect on our business.
Available Information
Information regarding our community and service offerings can be found at our website, www.brookdale.com. Our Annual Report on Form 10-K, Quarterly Reports on Form 10-Q, Current Reports on Form 8-K, and amendments to these reports are available free of charge through our website as soon as reasonably practicable after we electronically file such material with, or furnish it to, the SEC, at the following address: www.brookdaleinvestors.com. The information within, or that can be accessed through, our website addresses is not part of this report.
Item 1A. Risk Factors
Our business faces significant risks and uncertainties. The discussion below addresses the most material factors, of which we are currently aware, that could affect our business, financial condition, results of operations, cash flow, liquidity, stock price, and future prospects. However, other factors not currently known to us or that we currently deem immaterial could also adversely affect our business, financial condition, results of operations, cash flow, liquidity, stock price, and future prospects. Therefore, the risk factors below should not be considered a complete list of potential risks that we may face. If any of these risks actually occurs, our business, financial condition, results of operations, cash flow, liquidity, stock price, and future prospects could be materially and adversely affected. The ordering of the risk factors below is not intended to reflect an indication of priority or likelihood.
Business, Operations, and Strategy
Due to the dependency of our revenues on private pay sources, events which adversely affect the ability of seniors to afford our resident fees (including downturns in the economy, housing market, consumer confidence, or the equity markets, increased inflation, and unemployment among resident family members) could cause our occupancy, revenues, results of operations, and cash flow to decline.
Costs to seniors associated with independent living, assisted living, and memory care communities are not generally reimbursable under government reimbursement programs such as Medicare and Medicaid. For the year ended December 31, 2023, we generated 93.7% of our consolidated resident fee revenue from private pay residents. Only seniors with income or assets meeting or exceeding the comparable median in the regions where our communities are located typically can afford to pay our monthly resident fees. Economic downturns, increased inflation, softness in the housing market, higher levels of unemployment among resident family members, lower levels of consumer confidence, stock market volatility, and changes in demographics could adversely affect the ability of seniors to afford our resident fees. If we are unable to retain and attract seniors with sufficient income, assets, or other resources required to pay the fees associated with independent living, assisted living, and memory care services and other service offerings, our occupancy, revenues, results of operations, and cash flow could decline. We have recently made the annual rate adjustment effective January 1, 2024 for our in-place private pay residents. The average increase was lower than the prior year increase and was again higher than our typical annual rate adjustment in order to help offset our increased costs as a result of labor pressures, high inflation, and increased interest rates. Due to the competitive environment for new residents in our industry, the adjustment could slow our occupancy recovery progress or result in a decrease in occupancy in our communities. Any use of promotional or other discounting would offset a portion of such rate adjustments in our RevPAR and RevPOR results. In addition, the rate adjustment may not be sufficient to offset our increased costs. The increase we implemented in January 2024 (and any rate increases that we implement in future years) could also result in a higher amount of attrition among our residents, which could negatively impact our occupancy, revenues, results of operations and cash flows.
Changes in the reimbursement rates, methods, or timing of payment from government reimbursement programs could adversely affect our revenues, results of operations, and cash flow.
We rely on reimbursement from government programs for a portion of our revenues, primarily in our CCRCs segment. For the year ended December 31, 2023, Medicare and Medicaid reimbursements represented 16.9% of our CCRCs segment’s resident fee revenue and 4.8% of our consolidated resident fee revenue. We cannot provide assurance that reimbursement levels will not decrease in the future, which could adversely affect our revenues, results of operations, and cash flow. Government efforts to reduce medical spending, along with broader healthcare reform, could result in major changes in the healthcare delivery and reimbursement systems on both the national and state levels, including a reduction in funds available for our services or increases in our operating costs. Such reimbursement levels may not remain at levels comparable to present levels or may not be sufficient to cover the costs allocable to patients eligible for reimbursement.
Senior housing construction and development, lower industry occupancy, and increased competition, may have an adverse effect on our occupancy, revenues, results of operations, and cash flow.
The senior living industry is highly competitive. We compete with numerous organizations, including not-for-profit entities, that offer similar communities and services, community-based service programs, retirement communities, convalescent centers, and other senior living providers. In general, regulatory and other barriers to competitive entry in the independent living, assisted living, and memory care sectors of the senior living industry are not substantial. The industry has attracted additional investment resulting in increased construction and development of new senior housing supply in the last decade, prior to the start of the COVID-19 pandemic. In addition, the COVID-19 pandemic resulted in additional occupancy pressure for our industry, and industry data shows that nearly all markets had fallen to record low occupancy by the first quarter of 2021. While
the industry recovers occupancy, certain competitors may price aggressively in order to capture market share. In addition, advances in technology and at-home services may permit more seniors to age-in-place at home and could have an impact on the demand for senior living communities. Consequently, we may encounter competition that could limit our ability to attract and retain residents and associates, raise or maintain resident fees, and expand our business, which could have a material adverse effect on our occupancy, revenues, results of operations, and cash flow.
The geographic concentration of our communities could leave us vulnerable to an economic downturn, regulatory changes, acts of nature, or the effects of climate change in those areas, which could negatively impact our financial condition, revenues, results of operations, and cash flow.
We have a high concentration of communities in various geographic areas, including the states of California, Florida, and Texas. As a result of this concentration, the conditions of local economies and real estate markets, changes in governmental regulations, acts of nature, and other factors that may result in a decrease in demand for senior living services in these areas could have an adverse effect on our financial condition, revenues, results of operations, and cash flow. Given the location of our communities, we are particularly susceptible to revenue loss, cost increase, or damage caused by severe weather conditions including winter storms or natural disasters such as hurricanes, wildfires, earthquakes, or tornados. Any significant loss due to such an event may not be covered by insurance and may lead to an increase in the cost of insurance or unavailability on acceptable terms. Climate change may also have effects on our business by increasing the cost of property insurance or making coverage unavailable on acceptable terms. To the extent that significant changes in the climate occur in areas where our communities are located, we may experience increased frequency of severe weather conditions or natural disasters or other changes to weather patterns, all of which may result in physical damage to or a decrease in demand for properties affected by these conditions. Should the impact of climate change be material in nature or occur for lengthy periods of time, our financial condition, revenues, results of operations, or cash flow may be adversely affected. In addition, government regulation intended to mitigate the impact of climate change, severe weather patterns, or natural disasters could result in additional required capital expenditures to comply with such regulation without a corresponding increase in our revenues.
Termination of our resident agreements and vacancies in the living spaces we lease could adversely affect our occupancy, revenues, results of operations, and cash flow.
State regulations governing assisted living and memory care communities require written resident agreements with each resident. Several of these regulations also require that each resident have the right to terminate the resident agreement for any reason on reasonable notice. Consistent with these regulations, many of our assisted living and memory care resident agreements allow residents to terminate their agreements upon 30 days' or less notice. Our independent living resident agreements generally provide for termination of the lease upon death or allow a resident to terminate his or her lease upon the need for a higher level of care not provided at the community. If multiple residents terminate their resident agreements at or around the same time, our occupancy, revenues, results of operations, and cash flow could be adversely affected. In addition, because of the demographics of our typical residents, including age and health, resident turnover rates in our communities are difficult to predict. As a result, the living spaces we lease may be unoccupied for a period of time, which could adversely affect our occupancy, revenues, results of operations, and cash flow.
Failure to maintain the security and functionality of our information systems and data, to prevent a cybersecurity attack or breach, or to comply with applicable privacy and consumer protection laws, including HIPAA, could adversely affect our business, reputation, and relationships with our residents, associates, and referral sources and subject us to remediation costs, government inquiries, and liabilities, any of which could materially and adversely impact our revenues, results of operations, and cash flow.
We are dependent on the proper function and availability of our information systems, including hardware, software, applications, and electronic data storage, to store, process, and transmit our business information, including proprietary business information and personally identifiable information of our residents and associates. Though we have taken steps to protect the cybersecurity and physical security of our information systems and have implemented policies and procedures to comply with HIPAA and other privacy laws, rules, and regulations, there can be no assurance that our security measures and disaster recovery plan will prevent damage to, or interruption or breach of, our information systems or other unauthorized access to proprietary or private information.
Because the techniques used to obtain unauthorized access to systems change frequently and may be difficult to detect for long periods of time, including from emerging technologies, such as advanced forms of artificial intelligence and quantum computing, we may be unable to anticipate these techniques or implement adequate preventive measures. Components of our information systems that we develop or procure from third parties may contain defects in design or manufacture or other problems that could unexpectedly compromise the security or functionality of our information systems. Unauthorized parties
may also attempt to gain access to our systems or facilities, or those of third parties with whom we do business, through fraud or other forms of deceiving our associates or contractors such as email phishing attacks. As cyber threats continue to evolve, we may be required to expend significant additional resources to continue to modify or enhance our cybersecurity or to investigate and remediate any cybersecurity vulnerabilities, attacks, or incidents.
In addition, we rely on software support of third parties to secure and maintain our information systems. Our inability, or the inability of these third parties, to continue to maintain and upgrade our information systems could disrupt or reduce the efficiency of our operations. Costs and potential problems and interruptions associated with the implementation of new or upgraded systems and technology or with maintenance or adequate support of existing systems could disrupt or reduce the efficiency of our operations.
Failure to maintain the security and functionality of our information systems, to prevent a cybersecurity attack or other unauthorized access to our information systems, or to comply with applicable privacy and consumer protection laws, including HIPAA, could expose us to a number of adverse consequences, many of which are not insurable, including: (i) interruptions to our business, (ii) the theft, destruction, loss, misappropriation, or release of sensitive information, including proprietary business information and personally identifiable information of our residents and associates, (iii) significant remediation costs; (iv) negative publicity which could damage our reputation and our relationships with our residents, associates, and referral sources, (v) litigation and potential liability under privacy, security, and consumer protection laws, including HIPAA, or other applicable laws, rules, or regulations, and (vi) government inquiries which may result in sanctions and other criminal or civil fines or penalties. Any of the foregoing could materially and adversely impact our revenues, results of operations, and cash flow.
Failure to complete our capital expenditures in accordance with our plans may adversely affect our anticipated revenues, results of operations, and cash flow.
Our planned full-year 2024 non-development capital expenditures include maintenance, renovations, upgrades, and other major building infrastructure projects for our communities. Such projects may be needed to ensure that our communities are in appropriate physical condition to support our strategy and to protect the value of our community portfolio.
Our capital projects are in various stages of planning and development and are subject to a number of factors over which we may have little or no control. These factors include the necessity of arranging separate leases, mortgage loans, or other financings to provide the capital required to complete these projects; difficulties or delays in obtaining zoning, land use, building, occupancy, licensing, certificate of need, and other required governmental permits and approvals; failure to complete construction of the projects on budget and on schedule; failure of third-party contractors and subcontractors to perform under their contracts; shortages of labor or materials that could delay projects or make them more expensive (including due to supply chain disruptions); adverse weather conditions that could delay completion of projects; increased costs resulting from general economic conditions or increases in the cost of materials or labor (including as a result of inflation and general labor market conditions); and increased costs as a result of changes in laws and regulations.
We cannot provide assurance that we will undertake or complete all of our planned capital expenditures, or that we will not experience delays in completing those projects. In addition, we may incur substantial costs prior to achieving stabilized occupancy for certain capital projects and cannot assure that these costs will not be greater than we have anticipated. We also cannot provide assurance that any of our capital projects will be economically successful or provide a return on investment in accordance with our plans or at all. Furthermore, our failure to complete, or delays in completing, our planned community-level capital expenditures could harm the value of our communities and our revenues, results of operations, and cash flow.
To the extent we identify and pursue any future development, investment, or acquisition opportunities, we may encounter difficulties in identifying opportunities at attractive prices or integrating acquisitions with our operations, which may adversely affect our financial condition, results of operations, and cash flow.
We may not be able to identify development, investment, and acquisition opportunities on attractive terms and that are compatible with our strategy. To the extent we identify any such opportunities and enter into definitive agreements in connection therewith, we cannot provide assurance that the transactions will be completed. Failure to complete transactions after we have entered into definitive agreements may result in significant expenses to us. To the extent we identify and close on any such opportunities, the integration of acquired communities or companies into our existing business may result in unforeseen difficulties, divert managerial attention, or require significant financial or other resources. Any such closings may require us to incur additional indebtedness and contingent liabilities and may result in unforeseen expenses or compliance issues. Any future development, investment, or acquisition transactions may not generate any additional income for us or provide any benefit to our business.
Competition for the acquisition of strategic assets from buyers with greater financial resources or lower costs of capital than us or that have lower return expectations than we do could limit our ability to compete for strategic acquisitions and therefore to grow our business effectively.
There is significant competition among potential acquirers in the senior living industry, and there can be no assurance that we will be able to successfully complete acquisitions, which could limit our ability to grow our business. Several publicly-traded and non-traded real estate investment trusts, or REITs, and private equity firms have similar asset acquisition objectives as we do, along with greater financial resources and/or lower costs of capital than we are able to obtain. Partially as a result of tax law changes enacted through RIDEA, we now compete more directly with the various publicly-traded healthcare REITs for the acquisition of senior housing properties.
Any future disposition transactions will be, subject to various closing conditions, including the receipt of regulatory approvals where applicable, likely will result in reductions to our revenue, and may negatively impact our results of operations and cash flow.
We may dispose of owned or leased communities through asset sales and lease terminations and expirations. The closings of any such transactions, or those that we identify in the future, generally are or will be subject to closing conditions, which may include the receipt of regulatory approvals, and we cannot provide assurance that any such transactions will close or, if they do, when the actual closings will occur. The sales price for future dispositions may not meet our expectations due to the underlying performance of such communities or conditions beyond our control, and we may be required to take impairment charges in connection with such sales if the carrying amounts of such assets exceed the proposed sales prices, which could adversely affect our financial condition and results of operations. Further, we cannot provide assurance that we will be successful in identifying and pursuing disposition opportunities on terms that are acceptable to us, or at all. We may be required to pay significant amounts to restructure or terminate leases and we may be required to take charges in connection with such activity, which could adversely affect our financial condition and results of operations.
Completion of the dispositions of communities through sales or lease terminations, or the termination of our management arrangements, including pending transactions and those we enter into in the future, would result in reductions to our revenue and may negatively impact our results of operations and cash flow. Further, if we are unable to reduce our general and administrative expense with respect to completed dispositions or management arrangement terminations in accordance with our expectations, we may not realize the expected benefits of such transactions, which could negatively impact our anticipated results of operations and cash flow.
Our execution of our strategy may not be successful, and initiatives undertaken to execute on our strategic priorities may adversely affect our business, financial condition, results of operations, cash flow, and the price of our common stock.
The success of our strategy depends on our ability to successfully identify and implement initiatives to execute on our strategic priorities, as well as factors outside of our control. Such initiatives may not be successful in achieving our expectations or may require more time and resources than expected to implement. There can be no assurance that our strategy or initiatives undertaken to execute on our strategic priorities will be successful and, as a result, such initiatives may adversely affect our business, financial condition, results of operations, cash flow, and the price of our common stock.
The COVID-19 pandemic has adversely impacted, and while the recovery has continued in 2023, it could continue to adversely impact, our business, results of operations, cash flow, liquidity, and stock price, and such impacts may be material.
The pandemic adversely impacted our business, results of operations, cash flow, and liquidity. We cannot predict with reasonable certainty the pace and consistency of the recovery from the COVID-19 pandemic for our business, results of operations, cash flow, liquidity, and stock price, and the residual impacts of the pandemic may be material and persist for some time.
Due to the average age and prevalence of chronic medical conditions among our residents, they generally are at disproportionately higher risk of becoming severely ill from COVID-19. We believe potential residents and their families were more cautious, or temporarily delayed their decision, regarding moving into senior living communities during the pandemic, and while waning, such caution may persist for some time. From March 2020 through February 2021, we lost 1,330 basis points of weighted average consolidated senior housing occupancy. We continue to execute on key initiatives to rebuild occupancy lost due to the pandemic. By December 31, 2023, we had recovered 890 basis points of weighted average consolidated senior housing occupancy. We cannot predict with reasonable certainty when our occupancy will return to pre-COVID-19 pandemic
levels or the extent to which the pandemic’s effect on occupancy may adversely affect the amount of resident fees we are able to collect from our residents. Our efforts to adapt our sales and marketing efforts to meet demand may not be successful. In addition, expanded use of telemedicine and home healthcare by seniors, for which regulatory barriers were relaxed during the pandemic, may result in less demand for our services.
We continue to seek opportunities to preserve and enhance our liquidity, including through increasing our RevPAR, maintaining appropriate expense discipline, continuing to refinance maturing debt, continuing to evaluate our capital structure and the state of debt and equity markets, and monetizing non-strategic or underperforming owned assets.
The pandemic and uneven recovery has also caused substantial volatility in the market prices and trading volumes in the equity markets, including our stock. Our stock price and trading volume may continue to be subject to wide fluctuations as a result of recovery from the pandemic and may decline in the future.
The ultimate recovery from the COVID-19 pandemic on our business, results of operations, cash flow, liquidity, and stock price will depend on many factors, some of which cannot be foreseen, including any resurgence or variants of the disease; the impact of the COVID-19 pandemic on the nation’s economy and debt and equity markets and the local economies in our markets; any return of restrictions on visitors and move-ins at our communities as a result of infections at a community or as necessary to comply with regulatory requirements or at the direction of authorities having jurisdiction; perceptions regarding the safety of senior living communities after the pandemic; changes in demand for senior living communities and our ability to adapt our sales and marketing efforts to meet that demand; the impact of the COVID-19 pandemic on our residents’ and their families’ ability to afford our resident fees; changes in the acuity levels of our new residents; the disproportionate impact of the COVID-19 pandemic on seniors; the costs of our response efforts, including increased equipment, supplies, labor, litigation, testing, vaccination clinic, health plan, and other expenses; greater use of contract labor and other premium labor due to the COVID-19 pandemic and general labor market conditions; the impact of the COVID-19 pandemic on our ability to complete financings and refinancings of various assets or other transactions or to generate sufficient cash flow to cover required debt, interest, and lease payments and to satisfy financial and other covenants in our debt and lease documents; and the frequency and magnitude of legal actions and liability claims that may arise due to the COVID-19 pandemic or our response efforts.
Our ability to use net operating loss carryovers to reduce future tax payments may be limited.
Section 382 of the Internal Revenue code contains rules that limit the ability of a company that undergoes an ownership change, which is generally any change in ownership of 50% of its stock over a three-year period, to utilize its net operating loss carryforward and certain built-in losses recognized in years after the ownership change. These rules generally operate by focusing on ownership changes involving stockholders owning directly or indirectly 5% or more of the stock of a company and any change in ownership arising from a new issuance of stock by a company. Any such annual limitations may result in our being unable to utilize all of our net operating loss carryforwards generated in tax years prior to 2018 before their expiration.
Liquidity and Indebtedness
Disruptions in the financial markets or decreases in the appraised values or performances of our communities could affect our ability to obtain financing or to extend or refinance debt as it matures, which could negatively impact our liquidity, financial condition, and the market price of our common stock.
As of December 31, 2023, we had outstanding $3.5 billion principal amount of mortgage financing, $230.0 million of 2.00% convertible senior notes due 2026, $18.0 million principal amount of the senior amortizing notes component of tangible equity units, and $78.1 million letters of credit. If we are unable to extend or refinance our indebtedness prior to scheduled maturity dates, our liquidity and financial condition could be adversely impacted. Even if we are able to extend or refinance our maturing debt or credit or letter of credit facilities, the terms of the new financing may not be as favorable to us as the terms of the existing financing.
We are heavily dependent on mortgage financing provided by Federal National Mortgage Association (Fannie Mae) and Federal Home Loan Mortgage Corporation (Freddie Mac), which are currently operating under a conservatorship begun in 2008 and conducting business under the direction of the Federal Housing Finance Agency. Reform efforts related to Fannie Mae and Freddie Mac may make such financing sources less available or unavailable in the future and may cause us to seek alternative sources of financing, which may be less attractive or unavailable.
The amount of mortgage financing available for our communities is generally dependent on their appraised values and performance. Decreases in the appraised values of our communities, including due to adverse changes in real estate market conditions, or their performance, has resulted, and could continue to result, in available mortgage refinancing amounts that are
less than the communities' maturing indebtedness. In addition, our inability to satisfy underwriting criteria for individual communities may limit our access to our historical lending sources for such communities, including Fannie Mae and Freddie Mac. Due to lower operating performance for certain of our communities resulting from the COVID-19 pandemic, during 2021 and 2022 we sought and obtained non-agency mortgage financings to partially refinance maturing Freddie Mac and Fannie Mae indebtedness. We cannot provide assurance that such non-agency mortgage financing will continue to be available as an alternative to Fannie Mae and Freddie Mac financing. We have completed the refinancing of all of our debt maturities due in 2024. Our inability to obtain refinancing proceeds sufficient to cover 2025 and later maturing indebtedness could adversely impact our liquidity, and may cause us to seek additional alternative sources of financing, which may be less attractive or unavailable. There can be no assurance that any such additional financing will be available or on terms that are acceptable to us.
Disruptions or prolonged downturns in the financial markets may cause us to seek alternative sources of potentially less attractive financing and may require us to further adjust our business plan accordingly. These events also may make it more difficult or costly for us to raise capital, including through the issuance of common stock. Disruptions in the financial markets could have an adverse effect on our business. If we are not able to obtain additional financing on favorable terms, we also may have to forgo, delay, or abandon some or all of our planned capital expenditures, any potential lease restructuring opportunities that we identify, or investments to support our strategy, which could adversely affect our revenues, results of operations, and cash flow.
If we are unable to generate sufficient cash flow to cover required interest, principal, and lease payments, this could result in defaults of the related debt or leases and cross-defaults under our other debt or lease documents, which would adversely affect our capital structure, financial condition, results of operations, and cash flow.
We have significant indebtedness and lease obligations, and we intend to continue financing our communities through mortgage financing, long-term leases, and other types of financing. Our required lease payments are generally subject to an escalator that is either fixed or tied to changes in the consumer price index or leased property revenue. We cannot give any assurance that we will generate sufficient cash flow from operations to cover required interest, principal, and lease payments. Any non-payment or other default under our financing arrangements could, subject to cure provisions, cause the lender to foreclose upon the community or communities securing such indebtedness or, in the case of a lease, cause the lessor to terminate the lease, each with a consequent loss of revenue and asset value to us. In some cases, indebtedness is secured by both a mortgage on a community (or communities) and a guaranty by us and/or one or more of our subsidiaries. In the event of a default under one of these scenarios, the lender could avoid judicial procedures required to foreclose on real property by declaring all amounts outstanding under the guaranty immediately due and payable, and requiring the respective guarantor to fulfill its obligations to make such payments. The realization of any of these scenarios would have an adverse effect on our financial condition and capital structure. Because many of our outstanding debt and lease documents contain cross-default and cross-collateralization provisions, a default by us related to one community could affect a significant number of our other communities and their corresponding financing arrangements and leases (including documents with other lenders or lessors). In the event of such a default, we may not be able to obtain a waiver from the lender or lessor on terms acceptable or favorable to us, or at all, which would have a negative impact on our capital structure and financial condition.
Our indebtedness and long-term leases could adversely affect our liquidity and our ability to operate our business.
Our level of indebtedness and our long-term leases could adversely affect our future operations and/or impact our stockholders for several reasons, including, without limitation:
•We may have little or no cash flow apart from cash flow that is dedicated to required interest, principal, and lease payments;
•Increases in our outstanding indebtedness, leverage, and long-term lease obligations will increase our vulnerability to adverse changes in general economic and industry conditions, as well as to competitive pressure;
•Increases in our outstanding indebtedness may limit our ability to obtain additional financing for working capital, capital expenditures, acquisition and development, general corporate, and other purposes; and
•Our ability to pay dividends to our stockholders (should we initiate dividend payments in the future) may be limited.
If we are unable to generate sufficient cash flow from operations in the future to service our debt or to make lease payments on our leases, we may be required, among other things, to seek additional financing in the debt or equity markets, refinance or restructure all or a portion of our indebtedness or leases, sell selected assets, reduce or delay planned capital expenditures, or delay or abandon desirable acquisitions. These measures might not be sufficient to enable us to make required payments on our debt or leases, which could result in an adverse effect on our future ability to generate revenues and our results of operations and cash flow. Any contemplated financing, refinancing, restructuring, or sale of assets might not be available on economically favorable terms to us.
Our debt and lease documents contain financial and other covenants, and any default under such documents could result in the acceleration of our indebtedness and lease obligations, the foreclosure of our mortgaged communities, the termination of our leasehold interests, and/or cross-defaults under our other debt or lease documents, any of which could materially and adversely impact our capital structure, financial condition, results of operations, cash flow, and liquidity and interfere with our ability to pursue our strategy.
Certain of our debt and lease documents contain restrictions and financial covenants, such as those requiring us to maintain prescribed minimum liquidity, net worth, and stockholders' equity levels and debt service and lease coverage ratios, and requiring us not to exceed prescribed leverage ratios, in each case on a consolidated, portfolio-wide, multi-community, single-community, and/or entity basis. Net worth is generally calculated as stockholders' equity, as calculated in accordance with generally accepted accounting principles in the United States ("GAAP"), and in certain circumstances, reduced by intangible assets or liabilities and/or increased by accumulated depreciation and amortization, and/or further adjusted for certain other specified adjustments. The debt service and lease coverage ratios are generally calculated as revenues less operating expenses, including an implied management fee and a reserve for capital expenditures, divided by the debt (principal and interest) or lease payment. These covenants include a requirement contained in certain of our long-term debt documents for us to maintain liquidity of at least $130.0 million at each quarter-end determination date. As of December 31, 2023, our liquidity was $340.7 million.
In addition, our debt and lease documents generally contain non-financial covenants, such as those requiring us to comply with Medicare or Medicaid provider requirements and maintain insurance coverage. Our failure to comply with applicable covenants could constitute an event of default under the applicable debt or lease documents. Many of our debt and lease documents contain cross-default provisions so that a default under one of these instruments could cause a default under other debt and lease documents (including documents with other lenders and lessors).
These restrictions and covenants may interfere with our ability to obtain financing or to engage in other business activities, which may inhibit our ability to pursue our strategy. Certain of our outstanding indebtedness and leases limit or restrict, among other things, our ability and our subsidiaries' ability to borrow additional funds, engage in a change in control transaction, dispose of all or substantially all of our or their assets, or engage in mergers or other business combinations without consent of the applicable lender or lessor. In certain circumstances, the consent of the applicable lender or, if certain objective conditions are not satisfied, lessor may be based on the lender's or lessor's sole discretion. Our inability to obtain the consent of applicable lenders and landlords in connection with our pursuit of any such transactions may forestall our ability to consummate such transactions. Furthermore, the costs of obtaining such consents may reduce the value that our stockholders may realize in any such transactions.
The substantial majority of our lease arrangements are structured as master leases. Under a master lease, numerous communities are leased through an indivisible lease. We typically guarantee the performance and lease payment obligations of our subsidiary lessees under the master leases. Due to the nature of such master leases, it is difficult to restructure the composition of our leased portfolios or economic terms of the leases without the consent of the applicable landlord. In addition, an event of default related to an individual property or limited number of properties within a master lease portfolio could result in a default on the entire master lease portfolio.
Furthermore, our mortgage debt is secured by our communities and, in certain cases, our long-term debt and leases are secured by a guaranty by us and/or one or more of our subsidiaries. Therefore, if an event of default has occurred under any of our debt or lease documents, subject to cure provisions in certain instances, the respective lender or lessor would have the right to declare all the related outstanding amounts of indebtedness or cash lease obligations immediately due and payable, to foreclose on our mortgaged communities, to terminate our leasehold interests, to foreclose on other collateral securing the indebtedness and leases, to discontinue our operation of leased communities, and/or to pursue other remedies available to such lender or lessor. Further, an event of default could trigger cross-default provisions in our other debt and lease documents (including documents with other lenders or lessors). We cannot provide assurance that we would be able to pay the debt or lease obligations if they became due upon acceleration following an event of default.
In addition, certain of our master leases contain radius restrictions, which limit our ability to own, develop, or acquire new communities within a specified distance from certain existing communities covered by such agreements. These radius restrictions could negatively affect our ability to expand or develop or acquire senior housing communities and operating companies.
Lease obligations and mortgage debt expose us to increased risk of loss of property, which could harm our ability to generate future revenues and could have an adverse tax effect.
Lease obligations and mortgage debt increase our risk of loss because defaults on leases or indebtedness secured by properties may result in lease terminations by lessors and foreclosure actions by lenders. For tax purposes, a foreclosure of any of our properties would be treated as a sale of the property for a purchase price equal to the outstanding balance of the debt secured by the mortgage. If the outstanding balance of the debt secured by the mortgage exceeds our tax basis in the property, we would recognize taxable income on foreclosure, but would not receive any cash proceeds, which could negatively impact our results of operations and cash flow. Further, because many of our outstanding debt and lease documents contain cross-default and cross-collateralization provisions, a default by us related to one community could affect a significant number of our other communities and their corresponding financing arrangements and leases.
Our leases generally provide for renewal or extension options and, in certain cases, purchase options. We expect to renew, extend, or restructure leases or exercise purchase options with respect to certain leases where economically advantageous; however, there can be no assurance that any renewal, extension, or purchase rights will be exercised in the future, that we will be able to satisfy the conditions precedent to exercising any such renewal, extension, or purchase rights, or that we will be able to successfully negotiate and complete any lease restructuring transactions. The terms of any such purchase options that are based on fair market value are inherently uncertain and could be unacceptable or unfavorable to us depending on the circumstances at the time of exercise. If we are not able to renew, extend, or restructure our existing leases, or purchase the communities subject to such leases, at or prior to the end of the existing lease terms, or if the terms of such options are unfavorable or unacceptable to us, our business, results of operations, and cash flow could be adversely affected.
Increases in market interest rates could significantly increase the costs of our debt obligations, which could adversely affect our results of operations and cash flow.
Our variable-rate debt obligations expose us to interest rate risk. In the normal course of business, we enter into interest rate agreements with major financial institutions to manage our risk above certain interest rates on variable rate debt. These agreements only limit our exposure to increases in interest rates above certain levels and generally must be renewed every one to three years. Increases in prevailing interest rates will increase our payment obligations on our existing variable-rate obligations to the extent they are unhedged and may increase our future borrowing and hedging costs, which would negatively impact our results of operations and cash flow.
We may need additional capital to fund our operations, capital expenditure plans, and strategic priorities, and we may not be able to obtain it on terms acceptable to us, or at all.
Funding our capital expenditure plans, pursuing any acquisition, investment, development, or potential lease restructuring opportunities that we identify, or funding investments to support our strategy may require additional capital. Financing may not be available to us or may be available to us only on terms that are not favorable. In addition, certain of our outstanding indebtedness and long-term leases restrict, among other things, our (or our subsidiaries') ability to incur additional debt. If we are unable to raise additional funds or obtain them on terms acceptable to us, we may have to delay or abandon some or all of our plans or opportunities. Further, if additional funds are raised through the issuance of additional equity securities, the percentage ownership of our stockholders would be diluted. Any newly issued equity securities may have rights, preferences, or privileges senior to those of our common stock.
Human Capital
The transition of management or unexpected departure of our key officers could harm our business.
We are dependent on the efforts of our senior management. The transition of management, the unforeseen loss or limited availability of the services of any of our executive leaders, or our inability to recruit and retain qualified personnel in the future, could, at least temporarily, have an adverse effect on our business, results of operations, and financial condition and be negatively perceived in the capital markets.
Increased competition for, or a shortage of, associates, wage pressures resulting from increased competition, low unemployment levels, minimum wage increases, changes in overtime laws, and union activity may have an adverse effect on our business, results of operations, and cash flow.
Our success depends on our ability to attract and retain qualified management and other associates who are responsible for the day-to-day operations of each of our communities. We compete with various healthcare service providers, other senior living
providers, and hospitality and food services companies in attracting and retaining qualified associates. If we fail to attract and retain qualified associates, our ability to conduct our business operations effectively, our overall operating results, and cash flow could be harmed. In recent years, we experienced pressures associated with the intensely competitive labor environment, including increased associate turnover and difficulty in filling open positions timely. Continued increased competition for, or a shortage of, nurses or other associates, general labor market conditions, low levels of unemployment, or general inflationary pressures, have required and may require that we enhance our pay and benefits package to compete effectively for such associates. In addition, we have experienced and may continue to experience wage pressures due to minimum wage and minimum salary threshold increases mandated by state and local laws. Third-party staffing agencies from which we source contract labor have increased the rates they charge which has resulted in, and may further result in, increases in the cost of contract labor. If we are unable to fill open positions timely, our reliance on premium labor may continue or increase. Increases in wages and any further increased use of premium labor would result in higher operating costs, and we may not be able to offset the added costs by increasing the rates we charge to our residents or our service charges, which would negatively impact our results of operations and cash flow.
In addition, efforts by labor unions to organize any of our community personnel could divert management attention, lead to increased costs, and/or reduce our flexibility with respect to certain workplace rules. If we experience an increase in organizing activity, if onerous collective bargaining agreement terms are imposed upon us, or if we otherwise experience an increase in our staffing and labor costs, our results of operations and cash flow would be negatively affected.
Regulatory, Compliance, and Legal
Environmental contamination at any of our communities could result in substantial liabilities to us, which may exceed the value of the underlying assets and which could materially and adversely affect our financial condition, results of operations, and cash flow.
Under various federal, state, and local environmental laws, a current or previous owner or operator of real property, such as us, may be held liable in certain circumstances for the costs of investigation, removal, or remediation of, or related to the release of, certain hazardous or toxic substances, that could be located on, in, at, or under a property, regardless of how such materials came to be located there. The cost of any required investigation, remediation, removal, mitigation, compliance, fines, or personal or property damages and our liability therefore could exceed the property's value and/or our assets' value. In addition, the presence of such substances, or the failure to properly dispose of or remediate the damage caused by such substances, may adversely affect our ability to sell such property, to attract additional residents and retain existing residents, to borrow using such property as collateral, or to develop or redevelop such property. Such laws impose liability, which may be joint and several, for investigation, remediation, removal, and mitigation costs on persons who disposed of or arranged for the disposal of hazardous substances at third-party sites. Such laws and regulations often impose liability without regard to whether the owner or operator knew of, or was responsible for, the presence, release, or disposal of such substances as well as without regard to whether such release or disposal was in compliance with law at the time it occurred. Although we do not believe that we have incurred such liabilities as would have a material adverse effect on our business, financial condition, and results of operations, we could be subject to substantial future liability for environmental contamination that we have no knowledge about as of the date of this report and/or for which we may not be at fault.
Failure to comply with existing environmental laws could result in increased expenditures, litigation, and potential loss to our business and in our asset value, which would have an adverse effect on our financial condition, results of operations, and cash flow.
Our operations are subject to regulation under various federal, state, and local environmental laws, including those relating to: the handling, storage, transportation, treatment, and disposal of medical waste products generated at our communities; identification and warning of the presence of asbestos-containing materials in buildings, as well as removal of such materials; the presence of other substances in the indoor environment; and protection of the environment and natural resources in connection with development or construction of our properties.
Some of our communities generate infectious or other hazardous medical waste due to the illness or physical condition of the residents. Our communities’ engagement of waste management companies for the proper disposal of all infectious medical waste does not immunize us from alleged violations of such laws for operations for which we are responsible even if carried out by such waste management companies, nor does it immunize us from third-party claims for the cost to cleanup disposal sites at which such wastes have been disposed.
Federal regulations require building owners and those exercising control over a building's management to identify and warn their employees and certain other employers operating in the building of potential hazards posed by workplace exposure to
installed asbestos-containing materials and potential asbestos-containing materials in their buildings. Significant fines can be assessed for violation of these regulations. Building owners and those exercising control over a building's management may be subject to an increased risk of personal injury lawsuits. Federal, state, and local laws and regulations also govern the removal, encapsulation, disturbance, handling, and/or disposal of asbestos-containing materials and potential asbestos-containing materials when such materials are in poor condition or in the event of construction, remodeling, renovation, or demolition of a building. Such laws may impose liability for improper handling or a release to the environment of asbestos-containing materials and potential asbestos-containing materials and may provide for fines to, and for third parties to seek recovery from, owners or operators of real properties for personal injury or improper work exposure associated with asbestos-containing materials and potential asbestos-containing materials.
The presence of mold, lead-based paint, contaminants in drinking water, radon, and/or other substances at any of the communities we own or may acquire may lead to the incurrence of costs for remediation, mitigation, or the implementation of an operations and maintenance plan and may result in third-party litigation for personal injury or property damage. Furthermore, in some circumstances, areas affected by mold may be unusable for periods of time for repairs, and even after successful remediation, the known prior presence of extensive mold could adversely affect the ability of a community to retain or attract residents and could adversely affect a community's market value.
Although we believe that we are currently in material compliance with applicable environmental laws, if we fail to comply with such laws in the future, we would face increased expenditures both in terms of fines and remediation of the underlying problem(s), potential litigation relating to exposure to such materials, and potential decrease in value to our business and in the value of our underlying assets. Therefore, our failure to comply with existing environmental laws would have an adverse effect on our financial condition, results of operations, and cash flow. We are unable to predict the future course of federal, state, and local environmental regulation and legislation. Changes in the environmental regulatory framework (including legislative or regulatory efforts designed to address climate change) could have a material adverse effect on our business.
Significant legal actions and liability claims against us, including putative class action complaints, could subject us to increased operating costs and substantial uninsured liabilities, which may adversely affect our financial condition and results of operations.
We have been and are currently involved in litigation and claims incidental to the conduct of our business, which we believe are generally comparable to other companies in the senior living and healthcare industries, including, but not limited to, putative class action claims from time to time regarding staffing at our communities and compliance with consumer protection laws and the Americans with Disabilities Act. Certain claims and lawsuits allege large damage amounts and may require significant costs to defend and resolve. As a result, we maintain general liability, professional liability, and other insurance policies in amounts and with coverage and deductibles we believe are appropriate, based on the nature and risks of our business, historical experience, availability, and industry standards. Our current policies provide for deductibles for each claim and contain various exclusions from coverage. We use our wholly-owned captive insurance company for the purpose of insuring certain portions of our risk retention under our general and professional liability insurance programs. Accordingly, we are, in effect, self-insured for claims that are less than the deductible amounts, for claims that exceed the funding level of our wholly-owned captive insurance company, and for claims or portions of claims that are not covered by such policies and/or exceed the policy limits. If we experience a greater number of losses than we anticipate, or if certain claims are not covered by insurance, our results of operations and financial condition could be adversely affected.
The senior living industry entails an inherent risk of liability, particularly given the demographics of our residents and the services we provide. In recent years, we, as well as other participants in our industry, have been subject to an increasing number of claims and lawsuits alleging that our services have resulted in resident injury or other adverse effects. Many of these lawsuits involve large damage claims and significant legal costs. The frequency and magnitude of such alleged claims and legal costs may increase due to the COVID-19 pandemic or our response efforts and increased turnover and a higher use of contract labor. Many states continue to consider tort reform and how it will apply to the senior living industry. We may continue to be faced with the threat of large jury verdicts in jurisdictions that do not find favor with large senior living providers. There can be no guarantee that we will not have any claims that exceed our policy limits in the future, which could subject us to substantial uninsured liabilities.
If a successful claim is made against us and it is not covered by our insurance or exceeds the policy limits, our financial condition and results of operations could be materially and adversely affected. In some states, state law may prohibit or limit insurance coverage for the risk of punitive damages arising from professional liability and general liability claims and/or litigation. As a result, we may be liable for punitive damage awards in these states that either are not covered or are in excess of our insurance policy limits. Also, our insurance policies' deductibles, or self-insured retention, are accrued based on an actuarial projection of future liabilities. If these projections are inaccurate and if there is an unexpectedly large number of successful
claims that result in liabilities in excess of our accrued reserves, our operating results could be negatively affected. Claims against us, regardless of their merit or eventual outcome, also could have a material adverse effect on our reputation and ability to attract residents or expand our business and could require our management to devote time to matters unrelated to the day-to-day operation of our business. Negative publicity with respect to any lawsuits, claims, or other legal or regulatory proceedings may also negatively impact our reputation. We also have to renew our policies every year and negotiate terms for coverage, exposing us to the volatility of the insurance markets, including the possibility of rate increases and changes in coverage and other terms. There can be no assurance that we will be able to obtain liability insurance in the future or, if available, that such coverage will be available on acceptable terms.
We face periodic and routine inquiries, reviews, audits, and investigations by government agencies, and any adverse findings could negatively impact our business, financial condition, results of operations, and cash flow.
The senior living and healthcare industries are continuously subject to scrutiny by governmental regulators, which could result in inquiries, reviews, audits, investigations, enforcement actions, or litigation related to regulatory compliance matters. In addition, we are subject to various government reviews, audits, and investigations to verify our compliance with Medicare and Medicaid programs and other applicable laws and regulations. CMS has engaged third-party firms to review claims data to evaluate appropriateness of billings. In addition to identifying overpayments, audit contractors can refer suspected violations to government authorities. In addition, states' Attorneys General vigorously enforce consumer protection laws as those laws relate to the senior living industry. An adverse outcome of government scrutiny may result in citations, sanctions, other criminal or civil fines and penalties, the refund of overpayments, payment suspensions, termination of participation in Medicare and Medicaid programs, and damage to our business reputation. Our costs to respond to and defend any such audits, reviews, and investigations may be significant, and any resulting sanctions or criminal, civil, or regulatory penalties could have a material adverse effect on our business, financial condition, results of operations, and cash flow.
The cost and difficulty of complying with increasing and evolving regulation and enforcement could have an adverse effect on our business, results of operations, and cash flow.
The regulatory environment surrounding the senior living industry continues to intensify in the number and type of laws and regulations affecting it, many of which vary from state to state. Many senior living communities are subject to regulation and licensing by state and local health and social service agencies and other regulatory authorities. In several of the states in which we operate there are different levels of care that may be provided based on the level of licensure. Several of the states in which we operate, or intend to operate, assisted living and memory care communities, or skilled nursing facilities require a certificate of need before a community may be opened or the services at an existing community may be expanded. These regulatory requirements, and the increased enforcement thereof, could affect our ability to expand into new markets, to expand our services and communities in existing markets, and if any of our presently licensed communities were to operate outside of its licensing authority, may subject us to penalties including closure of the community.
Federal, state, and local officials are increasingly focusing their efforts on enforcement of these laws and regulations. This is particularly true for large for-profit, multi-community providers like us. Future regulatory developments as well as mandatory increases in the scope and severity of deficiencies determined by survey or inspection officials could cause our operations to suffer. We are unable to predict the future course of federal, state, and local legislation or regulation. If regulatory requirements increase, whether through enactment of new laws or regulations or changes in the enforcement of existing rules, our business, results of operations, and cash flow could be adversely affected.
The intensified regulatory and enforcement environment impacts providers like us because of the increase in the number of inspections or surveys by governmental authorities and consequent citations for failure to comply with regulatory requirements. We also expend considerable resources to respond to federal and state investigations or other enforcement action. From time to time in the ordinary course of business, we receive survey reports from state or federal regulatory bodies citing deficiencies resulting from such inspections or surveys. Although most inspection deficiencies are resolved through a plan of corrective action, the reviewing agency may have the authority to take further action against a licensed or certified community, which could result in the imposition of fines, imposition of a provisional or conditional license, suspension or revocation of a license, suspension or denial of admissions or denial of payment for admissions, loss of certification as a provider under federal reimbursement programs, or imposition of other sanctions, including criminal penalties. Furthermore, certain states may allow citations in one community to impact other communities in the state. Revocation or suspension of a license, or a citation, at a given community could therefore impact our ability to obtain new licenses or to renew existing licenses at other communities, which may also cause us to default under our debt and lease documents and/or trigger cross-defaults. The failure to comply with applicable legal and regulatory requirements could result in a material adverse effect to our business as a whole.
There are various extremely complex federal and state laws governing a wide array of referrals, relationships, and arrangements and prohibiting fraud by healthcare providers, including those in the senior living industry, and governmental agencies are devoting increasing attention and resources to such anti-fraud initiatives. Some examples are the Health Insurance Portability and Accountability Act of 1996, or HIPAA, the Balanced Budget Act of 1997, and the False Claims Act, which gives private individuals the ability to bring an action on behalf of the federal government. The violation of any of these laws or regulations may result in the imposition of fines or other penalties that could increase our costs and otherwise jeopardize our business. Because of incentives allowing a private individual to bring a claim on behalf of the federal government, so-called "whistleblower" suits have become more frequent.
Additionally, since we operate communities that participate in federal and/or state healthcare reimbursement programs, we are subject to federal and state laws that prohibit anyone from presenting, or causing to be presented, claims for reimbursement which are false, fraudulent, or are for items or services that were not provided as claimed. Similar state laws vary from state to state. Violation of any of these laws can result in loss of licensure, citations, sanctions, and other criminal or civil fines and penalties, the refund of overpayments, payment suspensions, or termination of participation in Medicare and Medicaid programs, which may also cause us to default under our debt and lease documents and/or trigger cross-defaults.
We are subject to certain federal and state laws that regulate financial arrangements by healthcare providers, such as the federal Anti-Kickback Statute, the Stark laws, and certain state referral laws. Authorities have interpreted the federal Anti-Kickback Statute very broadly to apply to many practices and relationships between healthcare providers and sources of patient referral. If we were to violate the federal Anti-Kickback Statute, we may face criminal penalties and civil sanctions, including fines and possible exclusion from government reimbursement programs, which may also cause us to default under our debt and lease documents and/or trigger cross-defaults. Adverse consequences may also result if we violate federal Stark laws related to certain Medicare and Medicaid physician referrals. While we endeavor to comply with all laws that regulate the licensure and operation of our business, it is difficult to predict how our revenues could be affected if we were subject to an action alleging such violations.
In addition, new disclosure standards and rules related to environmental matters have been adopted and may continue to be introduced in various states and other jurisdictions. In October 2023, California adopted new carbon and climate-related reporting requirements for large public and private companies doing business in the state. Further, the SEC is expected to finalize a climate change disclosure proposal in 2024. As the nature, scope and complexity of environmental and climate change reporting, diligence and disclosure requirements expand, significant effort and expenses could be required to comply with the evolving requirements. As our disclosure obligations increase, third parties may make claims or bring litigation relating to those disclosures which may be costly.
Compliance with the Americans with Disabilities Act and Fair Housing Act, safety and health standards of the Occupational Safety and Health Administration, and other fire, safety, health, and other regulations may require us to make unanticipated expenditures, which could increase our costs and therefore adversely affect our results of operations and financial condition.
Certain of our communities, or portions thereof, may be subject to compliance with the Americans with Disabilities Act, or ADA. The ADA has separate compliance requirements for "public accommodations" and "commercial properties," but generally requires that buildings be made accessible to people with disabilities. If applicable, compliance with ADA requirements could require removal of access barriers and non-compliance could result in imposition of government fines or an award of damages to private litigants.
We must also comply with the Fair Housing Act, which prohibits us from discriminating against individuals on certain bases in any of our practices if it would cause such individuals to face barriers in gaining residency in any of our communities. Additionally, the Fair Housing Act and other state laws require that we advertise our services in such a way that we promote diversity and not limit it. We may be required, among other things, to change our marketing techniques to comply with these requirements.
In addition, we are required to operate our communities in compliance with applicable safety and health standards of the Occupational Safety and Health Administration, and other fire, health, and safety regulations, building codes and other land use regulations, and food licensing or certification requirements as they may be adopted by governmental agencies and bodies from time to time. Like other healthcare facilities, senior living communities are subject to periodic survey or inspection by governmental authorities to assess and assure compliance with regulatory requirements. Surveys occur on a regular (often annual or bi-annual) schedule, and special surveys may result from a specific complaint filed by a resident, a family member, or one of our competitors. We may be required to make substantial capital expenditures to comply with those requirements.
Legislation was adopted in the State of Florida in March 2018 that requires skilled nursing homes and assisted living communities in Florida to obtain generators and fuel necessary to sustain operations and maintain comfortable temperatures in the event of a power outage. If other states or jurisdictions were to adopt similar legislation or regulation, the cost to comply with such requirements may be substantial and may not result in any additional revenues. The increased costs and capital expenditures that we may incur in order to comply with any of the above would result in a negative effect on our results of operations and financial condition.
Changes in federal, state, and local employment-related laws and regulations, or our failure to comply with these laws and regulations could have an adverse effect on our financial condition, results of operations, and cash flow.
We are subject to a wide variety of federal, state, and local employment-related laws and regulations which govern matters including, but not limited to, wage and hour requirements, equal employment opportunity obligations, leaves of absence and reasonable accommodations, employee benefits, the right of employees to engage in protected concerted activity (including union organizing), and occupational health and safety requirements. Because labor represents such a large portion of our operating expenses, changes in federal, state, and local employment-related laws and regulations could increase our cost of doing business. Furthermore, any failure to comply with these laws can result in significant protracted litigation, government investigation, penalties, or other damages which could have an adverse effect on our financial condition, results of operations, and cash flow.
Corporate Organization and Structure
Anti-takeover provisions in our organizational documents may delay, deter, or prevent a tender offer, merger, or acquisition that investors may consider favorable.
Certain provisions of our amended and restated certificate of incorporation and our amended and restated bylaws may delay, deter, or prevent a tender offer, merger, or acquisition that investors may consider favorable or prevent the removal of our current board of directors. Such provisions include:
•provisions allowing the Board of Directors to issue blank-check preferred stock;
•provisions preventing stockholders from calling special meetings or acting by written consent;
•advance notice requirements for stockholders with respect to director nominations and actions to be taken at annual meetings; and
•no provision in our amended and restated certificate of incorporation for cumulative voting in the election of directors, which means that the holders of a majority of the outstanding shares of our common stock can elect all the directors standing for election.
Additionally, our amended and restated certificate of incorporation provides that Section 203 of the Delaware General Corporation Law, which restricts certain business combinations with interested stockholders in certain situations, will not apply to us.
We are a holding company with no operations and rely on our operating subsidiaries to provide us with funds necessary to meet our financial obligations.
We are a holding company with no material direct operations. Our principal assets are the equity interests we directly or indirectly hold in our operating subsidiaries. As a result, we are dependent on loans, distributions, and other payments from our subsidiaries to generate the funds necessary to meet our financial obligations. Our subsidiaries are legally distinct from us and have no obligation to make funds available to us.
Other Market Factors
Various factors, including general economic conditions and the spread of contagious illnesses, could adversely affect our financial performance and other aspects of our business.
General economic conditions, such as inflation, the consumer price index, commodity costs, fuel and other energy costs, competition in the labor market, costs of salaries, wages, benefits and insurance, interest rates, and tax rates, affect our facility operating, facility lease, general and administrative and other expenses, and we have no control or limited ability to control such factors. Current global economic conditions and uncertainties, including geopolitical tensions, conflicts, potential recessions or economic downturns, uncertainty surrounding federal elections, the potential for failures or realignments of financial institutions, and the related impact on available credit may affect us and our business partners, landlords, counterparties, and residents or prospective residents in an adverse manner including, but not limited to, reducing access to liquid funds or credit, increasing the cost of credit, limiting our ability to manage interest rate risk, increasing costs and expenses to us, increasing the risk that certain of our business partners, landlords, or counterparties would be unable to fulfill their obligations to us, and other impacts which we are unable to fully anticipate. In addition to the impact of the COVID-19 pandemic on our occupancy, seasonal contagious illnesses such as cold and flu, which typically more severely impact seniors than the general population may negatively affect our occupancy. Severe cold and flu season, or an outbreak of COVID-19 or other contagious disease in the markets in which we operate could result in a regulatory ban on admissions, decreased occupancy, and otherwise adversely affect our business.
The market price and trading volume of our common stock may be volatile, which could result in rapid and substantial losses for our stockholders.
The market price of our common stock may be highly volatile and could be subject to wide fluctuations. In addition, the trading volume in our common stock may fluctuate and cause significant price variations to occur. If the market price of our common stock declines significantly, stockholders may be unable to resell their shares at or above their purchase price. The market price of our common stock may fluctuate or decline significantly in the future. Some of the factors that could negatively affect our share price, result in fluctuations in the price, or trading volume of our common stock include:
•variations in our reported results of operations and cash flow, and changes in our financial guidance;
•the contents of published research reports about us or the senior living, healthcare, or real estate industries, the failure of securities analysts to cover our common stock, or changes in market valuations of similar companies;
•additions or departures of key management personnel;
•any increased indebtedness we may incur, any inability to refinance maturing indebtedness, or lease obligations we may enter into in the future;
•actions by institutional stockholders;
•announcements by us or our competitors of significant contracts, acquisitions, strategic partnerships, joint ventures, or capital commitments;
•speculation or reports by the press or investment community with respect to us, other senior living operators or healthcare providers, or the senior living, healthcare, or real estate industries in general;
•proxy contests or other stockholder activism;
•increases in market interest rates that may lead purchasers of our shares to demand a higher yield or downturns in the real estate market;
•changes or proposed changes in laws or regulations affecting the senior living and healthcare industries or enforcement of these laws and regulations, or announcements relating to these matters; and
•general market and economic conditions.
Future offerings of debt or equity securities by us may adversely affect the market price of our common stock.
In the future, we may attempt to increase our capital resources by offering additional debt or equity securities, including commercial paper, medium-term notes, senior or subordinated notes, convertible securities, series of preferred shares, or shares of our common stock. Upon liquidation, holders of our debt securities and preferred stock, and lenders with respect to other borrowings, would receive a distribution of our available assets prior to the holders of our common stock. We may issue all of the shares of our common stock that are authorized but unissued (and not otherwise reserved for issuance under our stock incentive plan or purchase plans, outstanding warrants, outstanding convertible senior notes, or outstanding tangible equity units) without any action or approval by our stockholders. Additional equity offerings may dilute the economic and voting rights of our existing stockholders or reduce the market price of our common stock, or both. Shares of our preferred stock, if issued, could have a preference with respect to liquidating distributions or a preference with respect to dividend payments that could limit our ability to pay dividends to the holders of our common stock. Because our decision to issue securities in any
future offering will depend on market conditions and other factors beyond our control, we cannot predict or estimate the amount, timing, or nature of our future offerings. Thus, holders of our common stock bear the risk of our future offerings reducing the market price of our common stock and diluting their shareholdings in us.
Actions of activist stockholders could cause us to incur substantial costs, divert management's attention and resources, and have an adverse effect on our business, results of operations, cash flow, and the market price of our common stock.
We value constructive input from our stockholders and engage in dialogue with our stockholders regarding our governance practices, strategy, and performance. However, activist stockholders may disagree with the composition of our Board of Directors or management, our strategy, or capital allocation decisions and may seek to effect change through various strategies that range from private engagement to public campaigns, proxy contests, efforts to force proposals, or transactions not supported by our Board of Directors and litigation. Responding to these actions may be costly and time-consuming, disrupt our operations, divert the attention of our Board of Directors, management, and our associates and interfere with our ability to pursue our strategy and to attract and retain qualified Board and executive leadership. The perceived uncertainty as to our future direction that may result from actions of activist stockholders may also negatively impact our ability to attract and retain residents at our communities. We cannot provide assurance that constructive engagement with our stockholders will be successful. Any such stockholder activism may have an adverse effect on our business, results of operations, cash flow, and the market price of our common stock.
Item 1B. Unresolved Staff Comments
None.
Item 1C. Cybersecurity
The business of the Company is managed with the oversight of the Board of Directors. The Board of Directors has delegated to the Audit Committee the responsibility to discuss guidelines and policies governing the process by which our senior management and the relevant departments and functions of the Company assess and manage our exposure to risk. As part of that responsibility, the Audit Committee regularly reviews our exposure to cybersecurity risk, the effectiveness of our cybersecurity, and the knowledge, experience and capabilities of the Audit Committee and management with respect to cybersecurity and cybersecurity risk. The Company's Chief Information Officer ("CIO") and Chief Information Security Officer ("CISO") provide regular briefings to the Audit Committee, including on current and emerging cybersecurity threats, ongoing priorities and strategies to mitigate cybersecurity risk, and compliance with various regulations. In addition, our CIO and CISO periodically update the Board of Directors regarding the Company's cybersecurity efforts.
The CISO who reports to the CIO has primary responsibility for assessing, monitoring, and managing our cybersecurity risks. The CIO, in turn, reports directly to our President and Chief Executive Officer. Our CISO oversees our cybersecurity governance programs, tests our compliance with standards, takes action to mitigate known risks, and leads our cybersecurity associate training program. Our CISO has over 10 years’ experience leading large complex healthcare cybersecurity programs and holds Certified Information Systems Security Professional ("CISSP") and Certified Information Systems Auditor ("CISA") certifications in good standing. Our CIO is a member of our executive leadership team, having overall responsibility for all aspects of our information systems, including technology, data, and security. The focus of the CIO includes strategic use of technology to support execution on our strategic priorities and our longer-term growth plans, while also balancing risk. Our CIO has over 25 years' experience leading large complex healthcare organizations through successful transformation while developing and strengthening an effective cybersecurity program.
The CISO is continually informed about the latest developments in cybersecurity, including potential threats and innovative risk management techniques, including through attending educational programs and monitoring alerts from third-party vendors and government agencies. The CISO implements and oversees processes for the regular monitoring of our information systems. In the event of a cybersecurity incident, the CISO is equipped with a written incident response plan.
Failure to maintain the security and functionality of our information systems and data, to prevent a cybersecurity attack or breach, or to comply with applicable privacy and consumer protection laws, including HIPAA, could adversely affect our business, reputation, and relationships with our residents, associates, and referral sources and subject us to remediation costs, government inquiries, and liabilities, any of which could materially and adversely impact our revenues, results of operations, and cash flow. Further information is discussed in "Item 1A. Risk Factors." To date, the aforementioned cybersecurity risks and any incidents that we, or our third-party vendors, have experienced have not materially affected us, including our business, strategy, results of operations, or financial condition.
Recognizing the complexity and evolving nature of cybersecurity threats, we have engaged external experts and rely on software support from third-party vendors to assist with evaluating, monitoring, and testing our information technology systems. These relationships enable us to leverage specialized knowledge and insights, to help ensure our cybersecurity strategies and processes remain effective. Our collaboration with these third parties includes regular audits, routine system monitoring, threat assessments, and consultation on potential security enhancements. We require third-party service providers with access to personal, confidential, or proprietary information to implement and maintain comprehensive cybersecurity practices consistent with applicable legal standards and industry best practices.
Item 2. Properties
Communities
As of December 31, 2023, we operated and managed 652 communities across 41 states, with the capacity to serve approximately 59,000 residents. As of December 31, 2023, we owned 345 communities, leased 277 communities, and managed 30 communities on behalf of others. As of December 31, 2023, 86% of our owned communities are subject to mortgages. The following table sets forth certain information regarding our owned, leased, and managed communities as of December 31, 2023, or, for occupancy, represents the weighted average occupancy for the month of December 2023.
| Number of Communities | ||||||||||
|---|---|---|---|---|---|---|---|---|---|---|
| State | Units | Owned | Leased | Managed | Total | |||||
| Texas | 7,834 | 55 | 19 | 11 | 85 | |||||
| Florida | 5,907 | 43 | 25 | — | 68 | |||||
| California | 5,021 | 27 | 15 | — | 42 | |||||
| Colorado | 3,368 | 13 | 11 | 5 | 29 | |||||
| North Carolina | 3,192 | 7 | 45 | — | 52 | |||||
| Ohio | 2,887 | 15 | 14 | 6 | 35 | |||||
| Illinois | 2,818 | 3 | 9 | 1 | 13 | |||||
| Washington | 2,705 | 13 | 18 | — | 31 | |||||
| Arizona | 2,054 | 17 | 9 | — | 26 | |||||
| Michigan | 1,678 | 9 | 22 | — | 31 | |||||
| New York | 1,658 | 11 | 9 | 2 | 22 | |||||
| Tennessee | 1,519 | 16 | 6 | 1 | 23 | |||||
| Oregon | 1,499 | 11 | 11 | — | 22 | |||||
| Kansas | 1,119 | 8 | 10 | — | 18 | |||||
| New Jersey | 1,024 | 7 | 5 | — | 12 | |||||
| Virginia | 964 | 7 | 3 | — | 10 | |||||
| Massachusetts | 900 | 3 | 3 | — | 6 | |||||
| Pennsylvania | 766 | 7 | 3 | — | 10 | |||||
| Alabama | 760 | 4 | — | — | 4 | |||||
| Georgia | 656 | 8 | — | — | 8 | |||||
| Louisiana | 606 | 6 | — | 1 | 7 | |||||
| Connecticut | 590 | 2 | 3 | — | 5 | |||||
| Idaho | 548 | 6 | 1 | — | 7 | |||||
| Minnesota | 538 | — | 12 | — | 12 | |||||
| Wisconsin | 485 | 5 | 7 | — | 12 | |||||
| Missouri | 479 | 2 | — | 1 | 3 | |||||
| Oklahoma | 469 | 3 | 9 | — | 12 | |||||
| South Carolina | 439 | 4 | 3 | 1 | 8 | |||||
| New Mexico | 414 | 2 | 1 | — | 3 | |||||
| Rhode Island | 396 | 3 | — | — | 3 | |||||
| Mississippi | 386 | 5 | — | — | 5 | |||||
| Indiana | 373 | 4 | 4 | — | 8 | |||||
| Maryland | 359 | 3 | — | 1 | 4 | |||||
| Arkansas | 332 | 4 | — | — | 4 | |||||
| Nevada | 257 | 4 | — | — | 4 | |||||
| Kentucky | 163 | 2 | — | — | 2 | |||||
| Delaware | 105 | 2 | — | — | 2 | |||||
| Vermont | 101 | 1 | — | — | 1 | |||||
| West Virginia | 93 | 1 | — | — | 1 | |||||
| New Hampshire | 90 | 1 | — | — | 1 | |||||
| Montana | 76 | 1 | — | — | 1 | |||||
| Total | 55,628 | 345 | 277 | 30 | 652 | |||||
| December 2023 occupancy rate (weighted average) | 77.5 | % | 79.6 | % | 76.2 | % | 78.1 | % |
Community Support Centers
Our main community support centers are leased, including our 98,656 square foot support center in Brentwood, Tennessee and our 156,016 square foot support center in Milwaukee, Wisconsin. Our lease in Milwaukee, Wisconsin expires in 2024, and we have entered into a new lease for a 5,391 square foot support center in Milwaukee, Wisconsin.
Item 3. Legal Proceedings
The information contained in Note 11 to the consolidated financial statements contained in "Item 8. Financial Statements and Supplementary Data" is incorporated herein by reference.
Item 4. Mine Safety Disclosures
Not applicable.
Item 5. Market for Registrant's Common Equity, Related Stockholder Matters and Issuer Purchases of Equity Securities
Market Information
Our common stock is traded on the New York Stock Exchange, or the NYSE, under the symbol "BKD." As of February 19, 2024, there were approximately 357 holders of record of our common stock.
On November 25, 2022, our 7.00% tangible equity units began trading on the New York Stock Exchange under the symbol "BKDT."
Dividend Policy
On December 30, 2008, our Board of Directors voted to suspend our quarterly cash dividend indefinitely. We may determine to pay a regular quarterly dividend to the holders of our common stock in the future, but in the near term, we anticipate deploying capital to, among other uses, fund planned capital expenditures or investments to support our strategy.
Our ability to pay and maintain cash dividends in the future will be based on many factors, including then-existing contractual restrictions or limitations, our ability to execute our strategy, our ability to negotiate favorable lease and other contractual terms, anticipated operating expense levels, our capital expenditure plans, the level of demand for our units, occupancy rates, the rates we charge, and our liquidity position. Some of the factors are beyond our control and a change in any such factor could affect our ability to pay or maintain dividends. We can give no assurance as to our ability to pay or maintain dividends in the future. As we have done in the past, we may also pay dividends in the future that exceed our net income for the relevant period as calculated in accordance with GAAP.
Share Price Performance Graph
The following graph compares the five-year cumulative total return for Brookdale common stock with the comparable cumulative return of the Russell 3000 and S&P Health Care Indices.
The graph assumes that a person invested $100 in Brookdale stock and each of the indices on December 31, 2018 and that dividends are reinvested. The comparisons in this graph are not intended to forecast or be indicative of possible future performance of Brookdale shares or such indices.
| 12/18 | 12/19 | 12/20 | 12/21 | 12/22 | 12/23 | |||||||
|---|---|---|---|---|---|---|---|---|---|---|---|---|
| Brookdale Senior Living Inc. | $ | 100.00 | $ | 108.51 | $ | 66.12 | $ | 77.01 | $ | 40.75 | $ | 86.87 |
| Russell 3000 | 100.00 | 131.02 | 158.39 | 199.03 | 160.80 | 202.54 | ||||||
| S&P Health Care | 100.00 | 120.82 | 137.07 | 172.89 | 169.51 | 172.99 |
The performance graph and related information shall not be deemed to be filed as part of this Annual Report on Form 10-K and do not constitute soliciting material and shall not be deemed filed or incorporated by reference into any other filing by us under the Securities Act or the Exchange Act, except to the extent that we specifically incorporate them by reference into such filing.
Recent Sales of Unregistered Securities
None during the quarter ended December 31, 2023.
Purchases of Equity Securities by the Issuer and Affiliated Purchasers
The following table contains information regarding purchases of our common stock made during the three months ended December 31, 2023 by or on behalf of us or any ''affiliated purchaser,'' as defined by Rule 10b-18(a)(3) of the Exchange Act.
| Period | Total<br><br>Number of<br><br>Shares<br><br>Purchased (1) | Average<br>Price Paid<br>per Share | Total Number of<br>Shares Purchased as Part of Publicly Announced Plans or Programs | Approximate Dollar Value of<br><br>Shares that May Yet Be Purchased Under the Plans or Programs (in thousands) (2) | ||
|---|---|---|---|---|---|---|
| 10/1/2023 - 10/31/2023 | — | $ | — | — | $ | 44,026 |
| 11/1/2023 - 11/30/2023 | 3,039 | $ | 5.25 | — | $ | 44,026 |
| 12/1/2023 - 12/31/2023 | 3,213 | $ | 5.82 | — | $ | 44,026 |
| Total | 6,252 | $ | 5.54 | — |
(1)Consists entirely of shares withheld to satisfy tax liabilities due upon the vesting of restricted stock and restricted stock units. The average price paid per share for such share withholding is based on the closing price per share on the vesting date of the restricted stock and restricted stock units or, if such date is not a trading day, the trading day immediately prior to such vesting date.
(2)In 2016, our Board of Directors approved a share repurchase program that authorizes us to purchase up to $100.0 million in the aggregate of our common stock. The share repurchase program is intended to be implemented through purchases made from time to time using a variety of methods, which may include open market purchases, privately negotiated transactions, or block trades, or by any combination of such methods, in accordance with applicable insider trading and other securities laws and regulations. The size, scope, and timing of any purchases will be based on business, market, and other conditions and factors, including price, regulatory, and contractual requirements, and capital availability. The repurchase program does not obligate us to acquire any particular amount of common stock and the program may be suspended, modified, or discontinued at any time at our discretion without prior notice. Shares of stock repurchased under the program will be held as treasury shares. As of December 31, 2023, $44.0 million remained available under the repurchase program.
Item 6. (Reserved)
Item 7. Management's Discussion and Analysis of Financial Condition and Results of Operations
This discussion and analysis should be read in conjunction with our historical consolidated financial statements and related notes contained in "Item 8. Financial Statements and Supplementary Data." In addition to historical information, this discussion and analysis may contain forward-looking statements that involve risks, uncertainties, and assumptions, which could cause actual results to differ materially from management's expectations. See additional risks and uncertainties described in "Safe Harbor Statement Under the Private Securities Litigation Reform Act of 1995" for more information. Factors that could cause such differences include those described in this section and "Item 1A. Risk Factors" of this Annual Report on Form 10-K.
Executive Overview and Recent Developments
For information regarding our business, including our strategy and recent developments regarding macroeconomic conditions and resident fee increases, refer to "Item 1. Business."
Liquidity
In December 2023, we completed two financing transactions, which refinanced all of our remaining 2024 debt maturities. After giving effect to these transactions, our next debt maturity without extension options is September 2025. In the first transaction, we obtained $179.5 million of debt secured by non-recourse first mortgages on 47 communities, which also continue to secure $580.4 million of additional outstanding mortgages with a later maturity. The facility includes certain "borrow-up" provisions,
which we expect will enable us to obtain additional funding in 2024 under the loan based on the performance of the underlying communities. At the closing, we repaid $260.1 million of debt under the facility, which was scheduled to mature in 2024, using proceeds from the $179.5 million loan and cash on hand. In the second transaction, we amended our revolving credit agreement to provide an expanded commitment of up to $100.0 million which can be drawn in cash or as letters of credit and represents a $20.0 million increase from the previously existing commitment. Additionally, in December 2023, we sold our remaining 20% equity interest in our Health Care Services unconsolidated venture and received proceeds of $27.4 million. We recognized a non-cash impairment charge of $26.0 million as a result of our decision to sell the equity interest prior to the recovery of its market value. Refer to Notes 3 and 7 to the consolidated financial statements contained in "Item 8. Financial Statements and Supplementary Data" for additional information on the sale and financing transactions, respectively.
As of December 31, 2023, our total liquidity was $340.7 million, consisting of $278.0 million of unrestricted cash and cash equivalents, $29.8 million of marketable securities, and $32.9 million of availability on our secured credit facility. We continue to seek opportunities to preserve and enhance our liquidity, including through increasing our RevPAR, maintaining appropriate expense discipline, continuing to refinance maturing debt, continuing to evaluate our capital structure and the state of debt and equity markets, and monetizing non-strategic or underperforming owned assets. There is no assurance that financing will continue to be available on terms consistent with our expectations or at all, or that our efforts will be successful in monetizing certain assets.
On February 9, 2024, we obtained $50.0 million of debt secured by first priority mortgages on 11 communities. The loan bears interest at a variable rate equal to SOFR plus a margin of 350 basis points. The debt matures in February 2027 with two one-year renewal options, exercisable subject to certain performance criteria.
COVID-19 Pandemic Update
The COVID-19 pandemic has adversely impacted our occupancy and resident fee revenue beginning in March 2020. From March 2020 through February 2021, we lost 1,330 basis points of weighted average consolidated senior housing occupancy due to the pandemic, resulting in our lowest weighted average occupancy of 69.4% during February 2021. We continued to execute on key initiatives to rebuild our occupancy in recent years. As of December 2023, we recovered 890 basis points of weighted average consolidated senior housing occupancy, and December 2023 weighted average occupancy was 78.3%. While the Federal COVID-19 Public Health Emergency Declaration expired on May 11, 2023, we cannot predict with reasonable certainty the impacts that the COVID-19 pandemic and the continued recovery ultimately will have on our business, results of operations, cash flow, and liquidity. The table below sets forth our recent consolidated occupancy trend.
| Years Ended December 31, | ||||||||||
|---|---|---|---|---|---|---|---|---|---|---|
| 2019 | 2020 | 2021 | 2022 | 2023 | ||||||
| Weighted average occupancy | 83.9 | % | 77.5 | % | 71.5 | % | 75.4 | % | 77.2 | % |
Transaction Activity
Community Transactions
During 2023, we completed the sale of two owned communities for cash proceeds of $25.6 million, net of $29.6 million in mortgage debt repaid and transaction costs, and recognized a net gain on sale of communities of $36.3 million. During 2023, we elected not to exercise our lease renewal option under the current terms for a master lease and completed the termination of our triple-net lease obligations on the 18 communities for which the master lease was scheduled to expire on December 31, 2023. Additionally, we acquired the remaining 50% equity interest in one community during 2023 for $0.6 million. During 2022, we completed the sale of two owned communities for cash proceeds of $4.4 million, net of transaction costs, and the termination of triple-net lease obligations on four communities (including through the acquisition of one formerly leased community).
Welltower Lease Amendments
During the three months ended June 30, 2023, we entered into amendments to our existing lease arrangements with Welltower Inc. ("Welltower") pursuant to which we continue to lease 74 communities. In connection with the amendments, we extended the maturity of one lease involving 39 communities from December 31, 2026 until June 30, 2032. As a result, our amended lease arrangements provide that the current term for 69 of the communities will expire on June 30, 2032 and the current term for five of the communities will expire on December 31, 2024. The amendments did not change the amount of required lease payments over the previous term of the leases or the annual lease escalators. In addition, Welltower agreed to make available a pool in the aggregate amount of up to $17.0 million to fund costs associated with certain capital expenditure projects for 69 of
the communities. Upon reimbursement of such expenditures, the annual minimum rent under the lease will prospectively increase by the amount of the reimbursement multiplied by the sum of the then current SOFR (subject to a floor of 3.0%) and a margin of 4.0%, and such amount will escalate annually consistent with the minimum rent escalation provisions of the 39 community lease.
The amended leases for 35 of such communities were prospectively classified as operating leases subsequent to the amendment. For 2023, the classification of such lease costs as operating lease expense resulted in a $19.3 million increase in cash lease payments for operating leases and an offsetting decrease in cash lease payments for financing leases.
The amendments replaced the net worth covenant provisions requiring us to maintain at least $400.0 million of stockholders' equity with a consolidated tangible net worth covenant requiring us to maintain at least $2.0 billion of tangible net worth, generally calculated as stockholders' equity plus accumulated depreciation and amortization less intangible assets and further adjusted for certain other items. Such calculation is generally similar to the tangible net worth covenants within certain of our long-term debt documents. So long as we maintain tangible net worth as defined in the leases of at least $1.5 billion, we will also be able to cure any breach by posting collateral with Welltower.
Resident Fee Revenue and Facility Operating Expense Impacts of Transaction Activity
The table below sets forth our resident fee revenue and facility operating expense attributable to our former Health Care Services segment and communities disposed since January 1, 2021. Refer to Note 3 to the consolidated financial statements contained in "Item 8. Financial Statements and Supplementary Data" for more information about our former Health Care Services segment.
| Years Ended December 31, | ||||||
|---|---|---|---|---|---|---|
| (in thousands) | 2023 | 2022 | 2021 | |||
| Resident fee revenue attributable to Health Care Services and disposed communities | $ | 49,611 | $ | 67,667 | $ | 259,151 |
| Facility operating expense attributable to Health Care Services and disposed communities | 41,303 | 59,867 | 248,869 |
Results of Operations
As of December 31, 2023, our total operations included 652 communities with a capacity to serve approximately 59,000 residents. As of that date, we owned 345 communities (31,205 units), leased 277 communities (19,844 units), and managed 30 communities (4,579 units). The following discussion should be read in conjunction with our consolidated financial statements and the related notes, which are included in "Item 8. Financial Statements and Supplementary Data" of this Annual Report on Form 10-K. The results of operations for any particular period are not necessarily indicative of results for any future period. Transactions completed during the period of January 1, 2022 to December 31, 2023 affect the comparability of our results of operations, and summaries of such transactions and their impact on our results of operations are discussed above in "Transaction Activity."
We use the operating measures described below in connection with operating and managing our business and reporting our results of operations.
•Senior housing operating results and data presented on a same community basis reflect results and data of a consistent population of communities by excluding the impact of changes in the composition of our portfolio of communities. The operating results exclude natural disaster expense and related insurance recoveries. We define our same community portfolio as communities consolidated and operational for the full period in both comparison years. Consolidated communities excluded from the same community portfolio include communities acquired or disposed of since the beginning of the prior year, communities classified as assets held for sale, certain communities planned for disposition, certain communities that have undergone or are undergoing expansion, redevelopment, and repositioning projects, and certain communities that have experienced a casualty event that significantly impacts their operations. Our management uses same community operating results and data for decision making and components of executive compensation, and we believe such results and data provide useful information to investors, because it enables comparisons of revenue, expense, and other operating measures for a consistent portfolio over time without giving effect to the impacts of communities that were not consolidated and operational for the comparison periods, communities acquired or disposed during the comparison periods (or planned for disposition), and communities with results that are or likely will be impacted by completed or in-process development-related capital expenditure projects.
•RevPAR, or average monthly senior housing resident fee revenue per available unit, is defined as resident fee revenue for the corresponding portfolio for the period (excluding revenue from our former Health Care Services segment, revenue for private duty services provided to seniors living outside of our communities, and entrance fee amortization), divided by the weighted average number of available units in the corresponding portfolio for the period, divided by the number of months in the period. We measure RevPAR at the consolidated level, as well as at the segment level with respect to our Independent Living, Assisted Living and Memory Care, and CCRCs segments. Our management uses RevPAR for decision making and components of executive compensation, and we believe the measure provides useful information to investors, because the measure is an indicator of senior housing resident fee revenue performance that reflects the impact of both senior housing occupancy and rate.
•RevPOR, or average monthly senior housing resident fee revenue per occupied unit, is defined as resident fee revenue for the corresponding portfolio for the period (excluding revenue from our former Health Care Services segment, revenue for private duty services provided to seniors living outside of our communities, and entrance fee amortization), divided by the weighted average number of occupied units in the corresponding portfolio for the period, divided by the number of months in the period. We measure RevPOR at the consolidated level, as well as at the segment level with respect to our Independent Living, Assisted Living and Memory Care, and CCRCs segments. Our management uses RevPOR for decision making, and we believe the measure provides useful information to investors, because it reflects the average amount of senior housing resident fee revenue we derive from an occupied unit per month without factoring occupancy rates. RevPOR is a significant driver of our senior housing revenue performance.
•Weighted average occupancy rate reflects the percentage of units at our owned and leased communities being utilized by residents over a reporting period. We measure occupancy rates with respect to our Independent Living, Assisted Living and Memory Care, and CCRCs segments, and also measure this metric both on a consolidated senior housing and a same community basis. Our management uses weighted average occupancy, and we believe the measure provides useful information to investors, because it is a significant driver of our senior housing revenue performance.
This section includes the non-GAAP performance measure Adjusted EBITDA. See "Non-GAAP Financial Measures" below for our definition of the measure and other important information regarding such measure, including reconciliations to the most comparable measure in accordance with GAAP.
As of December 31, 2023, we had three reportable segments: Independent Living; Assisted Living and Memory Care; and CCRCs. These segments were determined based on the way that our chief operating decision maker organizes our business activities for making operating decisions, assessing performance, developing strategy, and allocating capital resources.
Discussion of our financial condition and results of operations for the year ended December 31, 2023 compared to the year ended December 31, 2022 is presented below. Discussion of our financial condition and results of operations for the year ended December 31, 2022 compared to the year ended December 31, 2021 can be found in "Item 7. Management's Discussion and Analysis of Financial Condition and Results of Operations" in our Annual Report on Form 10-K for the year ended December 31, 2022, filed with the SEC on February 22, 2023.
Comparison of Years Ended December 31, 2023 and 2022
Summary Operating Results
The following table summarizes our overall operating results for the years ended December 31, 2023 and 2022.
| Years Ended<br>December 31, | Increase (Decrease) | |||||||
|---|---|---|---|---|---|---|---|---|
| (in thousands) | 2023 | 2022 | Amount | Percent | ||||
| Total resident fees and management fees revenue | $ | 2,867,431 | $ | 2,597,549 | $ | 269,882 | 10.4 | % |
| Other operating income | 9,073 | 80,469 | (71,396) | (88.7) | % | |||
| Facility operating expense | 2,129,800 | 2,083,605 | 46,195 | 2.2 | % | |||
| Net income (loss) | (189,070) | (238,340) | (49,270) | (20.7) | % | |||
| Adjusted EBITDA | 335,538 | 241,305 | 94,233 | 39.1 | % |
The increase in total resident fees and management fees revenue was primarily attributable to an 11.4% increase in same community RevPAR, comprised of an 8.6% increase in same community RevPOR and a 190 basis point increase in same
community weighted average occupancy. The increase was partially offset by the disposition of 25 communities since the beginning of the prior year.
During the years ended December 31, 2023 and 2022, we recognized $9.1 million and $80.5 million, respectively, of government grants and employee retention credits as other operating income based on our estimates of our satisfaction of the conditions of the grants and credits during the year, including for the year ended December 31, 2022, $61.1 million of grants from the Phase 4 general distribution from the Public Health and Social Services Emergency Fund ("Provider Relief Fund").
The increase in facility operating expense was primarily attributable to a 3.3% increase in same community facility operating expense, primarily resulting from broad inflationary pressure and increased costs with higher occupancy, partially offset by a decrease in the use of premium labor, primarily contract labor. The increase was partially offset by the disposition of 25 communities since the beginning of the prior year.
The decrease in net loss was primarily attributable to the increase in resident fee revenue. These changes were partially offset by a decrease in other operating income recognized, an increase in debt interest expense, an increase in facility operating expense, and a $37.6 million decrease in gain on sale of communities, net recognized compared to the prior year.
The increase in Adjusted EBITDA was primarily attributable to an increase in resident fee revenue, partially offset by the decrease in other operating income, the increase in facility operating expense, and the change in classification of $41.6 million of lease payments for 51 communities as cash facility operating lease payments as a result of lease amendments subsequent to the beginning of the prior year.
Operating Results - Senior Housing Segments
The following table summarizes the operating results and data of our three senior housing segments (Independent Living, Assisted Living and Memory Care, and CCRCs) on a combined basis for the years ended December 31, 2023 and 2022 including operating results and data on a same community basis. See management's discussion and analysis of the operating results on an individual segment basis on the following pages.
| (in thousands, except communities, units, occupancy, RevPAR, and RevPOR) | Years Ended<br>December 31, | Increase (Decrease) | |||||||||||||
|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
| 2023 | 2022 | Amount | Percent | ||||||||||||
| Resident fees | $ | 2,857,270 | $ | 2,585,529 | $ | 271,741 | 10.5 | % | |||||||
| Other operating income | $ | 9,073 | $ | 80,469 | $ | (71,396) | (88.7) | % | |||||||
| Facility operating expense | $ | 2,129,800 | $ | 2,083,605 | $ | 46,195 | 2.2 | % | |||||||
| Number of communities (period end) | 622 | 641 | (19) | (3.0) | % | ||||||||||
| Total average units | 51,960 | 52,320 | (360) | (0.7) | % | ||||||||||
| RevPAR | $ | 4,577 | $ | 4,113 | $ | 464 | 11.3 | % | |||||||
| Occupancy rate (weighted average) | 77.2 | % | 75.4 | % | 180 | bps | n/a | ||||||||
| RevPOR | $ | 5,927 | $ | 5,457 | $ | 470 | 8.6 | % | |||||||
| Same Community Operating Results and Data | |||||||||||||||
| Resident fees | $ | 2,758,618 | $ | 2,476,619 | $ | 281,999 | 11.4 | % | |||||||
| Other operating income | $ | 8,729 | $ | 76,330 | $ | (67,601) | (88.6) | % | |||||||
| Facility operating expense | $ | 2,043,956 | $ | 1,978,262 | $ | 65,694 | 3.3 | % | |||||||
| Number of communities | 612 | 612 | — | — | % | ||||||||||
| Total average units | 50,209 | 50,215 | (6) | — | % | ||||||||||
| RevPAR | $ | 4,579 | $ | 4,110 | $ | 469 | 11.4 | % | |||||||
| Occupancy rate (weighted average) | 77.4 | % | 75.5 | % | 190 | bps | n/a | ||||||||
| RevPOR | $ | 5,912 | $ | 5,443 | $ | 469 | 8.6 | % |
Independent Living Segment
The following table summarizes the operating results and data for our Independent Living segment for the years ended December 31, 2023 and 2022, including operating results and data on a same community basis. All 68 of the communities in our Independent Living segment are included within our same community portfolio.
| (in thousands, except communities, units, occupancy, RevPAR, and RevPOR) | Years Ended<br>December 31, | Increase (Decrease) | |||||||||||||
|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
| 2023 | 2022 | Amount | Percent | ||||||||||||
| Resident fees | $ | 564,012 | $ | 507,793 | $ | 56,219 | 11.1 | % | |||||||
| Other operating income | $ | 487 | $ | 10,906 | $ | (10,419) | (95.5) | % | |||||||
| Facility operating expense | $ | 379,854 | $ | 359,749 | $ | 20,105 | 5.6 | % | |||||||
| Number of communities (period end) | 68 | 68 | — | — | % | ||||||||||
| Total average units | 12,569 | 12,569 | — | — | % | ||||||||||
| RevPAR | $ | 3,739 | $ | 3,367 | $ | 372 | 11.0 | % | |||||||
| Occupancy rate (weighted average) | 79.4 | % | 77.0 | % | 240 | bps | n/a | ||||||||
| RevPOR | $ | 4,711 | $ | 4,371 | $ | 340 | 7.8 | % |
The increase in the segment's resident fees was primarily attributable to an increase in the segment's RevPAR, comprised of a 7.8% increase in RevPOR and a 240 basis point increase in weighted average occupancy. The increase in the segment's RevPOR was primarily the result of the current year rate increase. The increase in the segment's weighted average occupancy primarily reflects the impact of our execution on key initiatives to rebuild occupancy lost due to the pandemic.
The increase in the segment's facility operating expense was primarily attributable to broad inflationary pressure and the costs of increased wireless internet access provided for residents, partially offset by a decrease in the use of premium labor, primarily contract labor. The labor component of the segment's facility operating expense increased 3.3% compared to the prior year.
Assisted Living and Memory Care Segment
The following table summarizes the operating results and data for our Assisted Living and Memory Care segment for the years ended December 31, 2023 and 2022, including operating results and data on a same community basis.
| (in thousands, except communities, units, occupancy, RevPAR, and RevPOR) | Years Ended<br>December 31, | Increase (Decrease) | |||||||||||||
|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
| 2023 | 2022 | Amount | Percent | ||||||||||||
| Resident fees | $ | 1,960,432 | $ | 1,755,092 | $ | 205,340 | 11.7 | % | |||||||
| Other operating income | $ | 8,008 | $ | 60,630 | $ | (52,622) | (86.8) | % | |||||||
| Facility operating expense | $ | 1,466,123 | $ | 1,435,764 | $ | 30,359 | 2.1 | % | |||||||
| Number of communities (period end) | 537 | 554 | (17) | (3.1) | % | ||||||||||
| Total average units | 34,414 | 34,555 | (141) | (0.4) | % | ||||||||||
| RevPAR | $ | 4,741 | $ | 4,230 | $ | 511 | 12.1 | % | |||||||
| Occupancy rate (weighted average) | 77.0 | % | 75.1 | % | 190 | bps | n/a | ||||||||
| RevPOR | $ | 6,158 | $ | 5,636 | $ | 522 | 9.3 | % | |||||||
| Same Community Operating Results and Data | |||||||||||||||
| Resident fees | $ | 1,898,771 | $ | 1,695,838 | $ | 202,933 | 12.0 | % | |||||||
| Other operating income | $ | 7,862 | $ | 57,988 | $ | (50,126) | (86.4) | % | |||||||
| Facility operating expense | $ | 1,415,671 | $ | 1,377,991 | $ | 37,680 | 2.7 | % | |||||||
| Number of communities | 528 | 528 | — | — | % | ||||||||||
| Total average units | 33,326 | 33,327 | (1) | — | % | ||||||||||
| RevPAR | $ | 4,748 | $ | 4,240 | $ | 508 | 12.0 | % | |||||||
| Occupancy rate (weighted average) | 77.1 | % | 75.1 | % | 200 | bps | n/a | ||||||||
| RevPOR | $ | 6,162 | $ | 5,646 | $ | 516 | 9.1 | % |
The increase in the segment's resident fees was primarily attributable to an increase in the segment's same community RevPAR, comprised of a 9.1% increase in same community RevPOR and a 200 basis point increase in same community weighted average occupancy. The increase in the segment's same community RevPOR was primarily the result of the current year rate increase. The increase in the segment's same community weighted average occupancy primarily reflects the impact of our execution on key initiatives to rebuild occupancy lost due to the pandemic. The increase in the segment's resident fees was partially offset by the disposition of 23 communities since the beginning of the prior year, which resulted in $5.3 million less in resident fees during the year ended December 31, 2023 compared to the prior year.
The increase in the segment's facility operating expense was primarily attributable to an increase in the segment's same community facility operating expense primarily resulting from broad inflationary pressure and increased costs with higher occupancy, partially offset by a decrease in the use of premium labor, primarily contract labor. The labor component of the segment's same community facility operating expense increased 0.4% compared to the prior year. The increase in the segment's facility operating expense was partially offset by the disposition of 23 communities since the beginning of the prior year, which resulted in $7.9 million less in facility operating expense during the year ended December 31, 2023 compared to the prior year. The segment's same community facility operating expense for the years ended December 31, 2023 and 2022 excludes $0.1 million and $5.9 million, respectively, of natural disaster expense, consisting primarily of remediation of storm damage as a result of Hurricane Ian and Winter Storm Elliott in 2022.
CCRCs Segment
The following table summarizes the operating results and data for our CCRCs segment for the years ended December 31, 2023 and 2022, including operating results and data on a same community basis.
| (in thousands, except communities, units, occupancy, RevPAR, and RevPOR) | Years Ended<br>December 31, | Increase (Decrease) | |||||||||||||
|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
| 2023 | 2022 | Amount | Percent | ||||||||||||
| Resident fees | $ | 332,826 | $ | 322,644 | $ | 10,182 | 3.2 | % | |||||||
| Other operating income | $ | 578 | $ | 8,933 | $ | (8,355) | (93.5) | % | |||||||
| Facility operating expense | $ | 283,823 | $ | 288,092 | $ | (4,269) | (1.5) | % | |||||||
| Number of communities (period end) | 17 | 19 | (2) | (10.5) | % | ||||||||||
| Total average units | 4,977 | 5,196 | (219) | (4.2) | % | ||||||||||
| RevPAR | $ | 5,560 | $ | 5,138 | $ | 422 | 8.2 | % | |||||||
| Occupancy rate (weighted average) | 73.4 | % | 73.4 | % | 0 | bps | n/a | ||||||||
| RevPOR | $ | 7,576 | $ | 6,997 | $ | 579 | 8.3 | % | |||||||
| Same Community Operating Results and Data | |||||||||||||||
| Resident fees | $ | 295,835 | $ | 272,988 | $ | 22,847 | 8.4 | % | |||||||
| Other operating income | $ | 380 | $ | 7,436 | $ | (7,056) | (94.9) | % | |||||||
| Facility operating expense | $ | 248,274 | $ | 242,196 | $ | 6,078 | 2.5 | % | |||||||
| Number of communities | 16 | 16 | — | — | % | ||||||||||
| Total average units | 4,314 | 4,319 | (5) | (0.1) | % | ||||||||||
| RevPAR | $ | 5,714 | $ | 5,267 | $ | 447 | 8.5 | % | |||||||
| Occupancy rate (weighted average) | 74.8 | % | 74.2 | % | 60 | bps | n/a | ||||||||
| RevPOR | $ | 7,639 | $ | 7,100 | $ | 539 | 7.6 | % |
The increase in the segment's resident fees was primarily attributable to an increase in the segment's same community RevPAR, comprised of a 7.6% increase in same community RevPOR and a 60 basis point increase in same community weighted average occupancy. The increase in the segment's same community RevPOR was primarily the result of the current year rate increase. The increase in the segment's resident fees was partially offset by the disposition of two communities since the beginning of the prior year, which resulted in $12.8 million less in resident fees during the year ended December 31, 2023 compared to the prior year.
The decrease in the segment's facility operating expense was primarily attributable to the disposition of two communities since the beginning of the prior year, which resulted in $10.6 million less in facility operating expenses expense during the year ended December 31, 2023 compared to the prior year. The decrease in the segment's facility operating expense was partially offset by an increase in the segment's same community facility operating expense primarily resulting from broad inflationary pressure. The labor component of the segment's same community facility operating expense increased 2.4% compared to the prior year.
Operating Results - Other Income and Expense Items
The following table summarizes other income and expense items in our operating results for the years ended December 31, 2023 and 2022.
| Years Ended<br>December 31, | Increase (Decrease) | |||||||
|---|---|---|---|---|---|---|---|---|
| (in thousands) | 2023 | 2022 | Amount | Percent | ||||
| Management fees | $ | 10,161 | $ | 12,020 | $ | (1,859) | (15.5) | % |
| Reimbursed costs incurred on behalf of managed communities | 139,325 | 147,361 | (8,036) | (5.5) | % | |||
| Costs incurred on behalf of managed communities | 139,325 | 147,361 | (8,036) | (5.5) | % | |||
| General and administrative expense | 178,894 | 168,594 | 10,300 | 6.1 | % | |||
| Facility operating lease expense | 202,410 | 165,294 | 37,116 | 22.5 | % | |||
| Depreciation and amortization | 342,712 | 347,444 | (4,732) | (1.4) | % | |||
| Asset impairment | 40,572 | 29,618 | 10,954 | 37.0 | % | |||
| Loss (gain) on sale of communities, net | (36,296) | (73,850) | (37,554) | (50.9) | % | |||
| Interest income | 23,146 | 6,935 | 16,211 | NM | ||||
| Interest expense | 238,274 | 204,717 | 33,557 | 16.4 | % | |||
| Gain (loss) on debt modification and extinguishment, net | (2,702) | (1,357) | 1,345 | 99.1 | % | |||
| Equity in earnings (loss) of unconsolidated ventures | (3,996) | (10,782) | (6,786) | (62.9) | % | |||
| Non-operating gain (loss) on sale of assets, net | 1,441 | 595 | 846 | 142.2 | % | |||
| Other non-operating income (loss) | 21,687 | 12,114 | 9,573 | 79.0 | % | |||
| Benefit (provision) for income taxes | (8,784) | 1,559 | (10,343) | NM |
Reimbursed Costs Incurred on Behalf of Managed Communities and Costs Incurred on Behalf of Managed Communities. The decrease in reimbursed costs and costs incurred on behalf of managed communities was primarily attributable to terminations of management agreements subsequent to the beginning of the prior year, partially offset by an increase in community costs incurred as a result of broad inflationary pressure for communities managed in both years.
General and Administrative Expense. The increase in general and administrative expense was primarily attributable to an increase in estimated incentive compensation costs and an increase in organizational restructuring costs compared to the prior year, primarily for severance costs for our senior leadership changes. General and administrative expense includes transaction and organizational restructuring costs of $3.9 million and $1.2 million for the years ended December 31, 2023 and 2022, respectively. Transaction costs include those directly related to acquisition, disposition, financing and leasing activity, and are primarily comprised of legal, finance, consulting, professional fees, and other third-party costs. Organizational restructuring costs include those related to our efforts to reduce general and administrative expense and our senior leadership changes, including severance costs.
Facility Operating Lease Expense. The increase in facility operating lease expense was primarily due to the change in classification of lease costs from financing leases to operating leases as a result of lease amendments subsequent to the beginning of the prior year.
Depreciation and Amortization. The decrease in depreciation and amortization expense was primarily due to the change in classification of lease costs from financing leases to operating leases as a result of lease amendments subsequent to the beginning of the prior year, partially offset by the completion of community renovations, apartment upgrades, and other major building infrastructure projects for leased communities since the beginning of the prior year.
Asset Impairment. During the current year, we recorded $40.6 million of non-cash impairment charges, primarily due to a non-cash impairment charge of $26.0 million on our investment in the Health Care Services venture (the "HCS Venture") as a result of our decision to sell our equity interest prior to the recovery of its market value. The impairment charges also include amounts for certain leased communities with lower than expected occupancy and decreased future cash flow estimates. During the prior year, we recorded $29.6 million of non-cash impairment charges, primarily for certain leased communities with decreased occupancy and future cash flow estimates as a result of the continued impacts of the COVID-19 pandemic and for natural
disaster related property damage sustained at certain communities during the year, including property damage sustained from Hurricane Ian in September 2022 and Winter Storm Elliott in December 2022.
Loss (Gain) on Sale of Communities, net. The decrease in gain on sale of communities, net was due to a $73.9 million non-cash gain on sale of communities in the prior year for the amendment of leases for 16 communities that were previously accounted for as failed sale-leaseback transactions, as the amendment resulted in the transfer of control of the assets of the communities for accounting purposes and qualification as a sale. Refer to Note 3 to the consolidated financial statements contained in "Item 8. Financial Statements and Supplementary Data" for more information about the amendment. The decrease was partially offset by the sale of our one remaining entrance fee community during the current year.
Interest Income. The increase in interest income was primarily due to higher interest rates on our cash, cash equivalents, and marketable securities.
Interest Expense. The increase in interest expense was primarily due to an increase in interest expense on long-term debt primarily as a result of increases in variable interest rates, partially offset by a decrease in interest expense on financing lease obligations primarily due to the change in classification of lease costs from financing leases to operating leases as a result of lease amendments subsequent to the beginning of the prior year.
Equity in Earnings (Loss) of Unconsolidated Ventures. The decrease in equity in loss of unconsolidated ventures was primarily due to improved operating results for the HCS Venture prior to the sale of our equity interest in December 2023.
Other Non-operating Income (Loss). The increase in other non-operating income was primarily due to increased income recognized for insurance recoveries from our property and casualty insurance policies.
Benefit (Provision) for Income Taxes. The difference between our effective tax rate for the years ended December 31, 2023 and 2022 was primarily due to an increase in the tax expense resulting from the valuation allowance recorded against state income tax operating losses. We recorded an aggregate deferred federal, state, and local tax benefit of $41.5 million for the year ended December 31, 2023, which was offset by an increase in the valuation allowance of $49.1 million. We recorded an aggregate deferred federal, state, and local tax benefit of $58.4 million for the year ended December 31, 2022, which was partially offset by an increase in the valuation allowance of $57.1 million.
Liquidity and Capital Resources
This section includes the non-GAAP liquidity measure Adjusted Free Cash Flow. See "Non-GAAP Financial Measures" below for our definition of the measure and other important information regarding such measure, including reconciliations to the most comparable GAAP measure.
Liquidity
The following is a summary of cash flows from operating, investing, and financing activities, as reflected in the consolidated statements of cash flows, and our Adjusted Free Cash Flow.
| Years Ended December 31, | Increase (Decrease) | |||||||
|---|---|---|---|---|---|---|---|---|
| (in thousands) | 2023 | 2022 | Amount | Percent | ||||
| Net cash provided by (used in) operating activities | $ | 162,923 | $ | 3,281 | $ | 159,642 | NM | |
| Net cash provided by (used in) investing activities | (113,364) | (67,429) | 45,935 | 68.1 | % | |||
| Net cash provided by (used in) financing activities | (174,439) | 100,382 | (274,821) | NM | ||||
| Net increase (decrease) in cash, cash equivalents, and restricted cash | (124,880) | 36,234 | (161,114) | NM | ||||
| Cash, cash equivalents, and restricted cash at beginning of year | 474,548 | 438,314 | 36,234 | 8.3 | % | |||
| Cash, cash equivalents, and restricted cash at end of year | $ | 349,668 | $ | 474,548 | $ | (124,880) | (26.3) | % |
| Adjusted Free Cash Flow | $ | (47,631) | $ | (201,385) | $ | 153,754 | 76.3 | % |
The increase in net cash provided by operating activities was primarily attributable to an increase in resident fee revenue compared to the prior year and $31.6 million paid during the prior year for previously deferred payroll taxes for 2020 pursuant to the Coronavirus Aid, Relief, and Economic Security Act of 2020, partially offset by a $41.2 million decrease in cash received
associated with government grants and credits, an increase in facility operating expense, and an increase in debt interest expense compared to the prior year.
The increase in net cash used in investing activities was primarily attributable to a $201.7 million decrease in proceeds from sales and maturities of marketable securities compared to the prior year, partially offset by an $89.2 million decrease in purchases of marketable securities and a $78.9 million increase in net proceeds from the sale of assets compared to the prior year.
The change in net cash provided by (used in) financing activities was primarily attributable to $139.4 million of proceeds from the 2022 issuance of the tangible equity units, an $86.1 million increase in repayment of debt and financing lease obligations, and a $48.7 million decrease in debt proceeds compared to the prior year.
The change in Adjusted Free Cash Flow was primarily attributable to the increase in net cash provided by operating activities and an increase in property and casualty insurance proceeds compared to the prior year, partially offset by a $48.3 million increase in non-development capital expenditures, net compared to the prior year.
Our principal sources of liquidity have historically been from:
•cash balances on hand, cash equivalents, and marketable securities;
•cash flows from operations;
•proceeds from our credit facilities;
•funds generated through unconsolidated venture arrangements;
•proceeds from mortgage financing or refinancing of various assets;
•funds raised in the debt or equity markets; and
•proceeds from the disposition of assets.
Over the longer-term, we expect to continue to fund our business through these principal sources of liquidity. In the past, we also have received pandemic-related government relief, including cash grants.
Over the near-term, we expect that our liquidity requirements will primarily arise from:
•working capital;
•operating costs such as labor costs, severance costs, general and administrative expense, and supply costs;
•debt, interest, and lease payments;
•transaction costs and investment in our healthcare and wellness initiatives;
•capital expenditures and improvements;
•cash collateral required to be posted in connection with our financial instruments and insurance programs; and
•other corporate initiatives (including information systems and other strategic projects).
We are highly leveraged and have significant debt and lease obligations. As of December 31, 2023, we had $3.7 billion of debt outstanding at a weighted average interest rate of 5.58%. As of such date, 91.9%, or $3.4 billion, of our total debt obligations represented non-recourse property-level mortgage financings.
As of December 31, 2023, we had $1.0 billion of operating and financing lease obligations, and for the twelve months ending December 31, 2024, we will be required to make approximately $281.0 million of cash lease payments in connection with our existing operating and financing leases.
As of December 31, 2023, we had $63.6 million of letters of credit and no cash borrowings were outstanding under our $100.0 million secured credit facility. We also had a separate secured letter of credit facility providing for up to $15.0 million of letters of credit as of December 31, 2023, under which $14.5 million had been issued as of that date.
Total liquidity of $340.7 million as of December 31, 2023 included $278.0 million of unrestricted cash and cash equivalents (excluding restricted cash of $71.7 million), $29.8 million of marketable securities, and $32.9 million of availability on our secured credit facility. Total liquidity as of December 31, 2023 decreased $111.9 million from total liquidity of $452.6 million as of December 31, 2022. The decrease was primarily attributable to repayment of debt of $358.8 million, negative $47.6 million of Adjusted Free Cash Flow, partially offset by $205.1 million of proceeds from debt and $83.5 million of net proceeds from the sale of assets, including two CCRCs and our equity interest in the HCS Venture.
As of December 31, 2023, our current liabilities exceeded current assets by $121.7 million. Included in our current liabilities is $193.7 million of the current portion of operating and financing lease obligations, for which the associated right-of-use assets are excluded from current assets on our consolidated balance sheet. We currently estimate our historical principal sources of liquidity, primarily our cash flows from operations, together with cash balances on hand, cash equivalents, and marketable securities, and proceeds from financings and refinancings of various assets will be sufficient to fund our liquidity needs for at least the next 12 months. We continue to seek opportunities to preserve and enhance our liquidity, including through increasing our RevPAR, maintaining appropriate expense discipline, continuing to refinance maturing debt, continuing to evaluate our capital structure and the state of debt and equity markets, and monetizing non-strategic or underperforming owned assets. There is no assurance that financing will continue to be available on terms consistent with our expectations or at all, or that our efforts will be successful in monetizing certain assets.
Our actual liquidity and capital funding requirements depend on numerous factors, including our operating results, our actual level of capital expenditures, general economic conditions, and the cost of capital, as well as other factors described in "Item 1A. Risk Factors." Since the amount of mortgage financing available for our communities is generally dependent on their appraised values and performance, decreases in their appraised values, including due to adverse changes in real estate market conditions, or their performance, could result in available mortgage refinancing amounts that are less than the communities’ maturing indebtedness. In addition, our inability to satisfy underwriting criteria for individual communities may limit our access to our historical lending sources for such communities, including Fannie Mae and Freddie Mac. Due to lower operating performance of our communities, generally, resulting from the COVID-19 pandemic, during 2021 and 2022 we sought and obtained non-agency mortgage financings to partially refinance maturing Freddie Mac and Fannie Mae indebtedness. In December 2023, we obtained a $179.5 million loan pursuant to Fannie Mae's DUS program to partially refinance maturing indebtedness. At the closing, we repaid $260.1 million of debt scheduled to mature in 2024, using proceeds from the $179.5 million loan and cash on hand. As of December 31, 2023, 14% of our owned communities were unencumbered by mortgage debt.
We have completed the refinancing of all of our debt maturities due in 2024. Our inability to obtain refinancing proceeds sufficient to cover 2025 and later maturing indebtedness could adversely impact our liquidity, and may cause us to seek additional alternative sources of financing, which may be less attractive or unavailable. Shortfalls in cash flows from estimated operating results or other principal sources of liquidity may have an adverse impact on our ability to fund our planned capital expenditures or to fund investments to support our strategy. In order to continue some of these activities at historical or planned levels, we may incur additional indebtedness or lease financing to provide additional funding. There can be no assurance that any such additional financing will be available or on terms that are acceptable to us.
Funding our planned capital expenditures or investments to support our strategy may require additional capital. We expect to continue to assess our financing alternatives periodically and access the capital markets opportunistically. If our existing resources are insufficient to satisfy our liquidity requirements, we may need to sell additional equity or debt securities. Any such sale of additional equity securities will dilute the percentage ownership of our existing stockholders, and we cannot be certain that additional public or private financing will be available in amounts or on terms acceptable to us, if at all. Any newly issued equity securities may have rights, preferences, or privileges senior to those of our common stock. If we are unable to raise additional funds or obtain them on terms acceptable to us, we may have to delay or abandon our plans.
Capital Expenditures
Our capital expenditures are comprised of community-level, corporate, and development capital expenditures. Community-level capital expenditures include maintenance expenditures (including routine maintenance of communities over $1,500 per occurrence), community renovations, unit upgrades (including unit turnovers over $500 per unit), and other major building infrastructure projects (including replacements of major building systems). Corporate capital expenditures include those for information technology systems and equipment and the remediation or replacement of assets as a result of casualty losses. Development capital expenditures include community expansions, major community redevelopment and repositioning projects, and the development of new communities.
The following table summarizes our capital expenditures for the year ended December 31, 2023 for our consolidated business.
| (in thousands) | ||
|---|---|---|
| Community-level capital expenditures, net (1) | $ | 161,683 |
| Corporate capital expenditures, net (2) | 54,828 | |
| Non-development capital expenditures, net (3) | 216,511 | |
| Development capital expenditures, net | 1,762 | |
| Total capital expenditures, net | $ | 218,273 |
(1)Reflects the amount invested, net of lessor reimbursements of $10.3 million.
(2)Includes $28.8 million of remediation costs at our communities resulting from natural disasters. A portion of such costs are reimbursable under our property and casualty insurance policies.
(3)Amount is included in Adjusted Free Cash Flow.
In the aggregate, we expect our full-year 2024 non-development capital expenditures, net of anticipated lessor reimbursements, to be approximately $180.0 million. We anticipate that our 2024 capital expenditures will be funded from cash on hand, cash equivalents, marketable securities, cash flows from operations, and reimbursements from lessors. As of December 31, 2023, the average age of the buildings in our consolidated senior housing portfolio was approximately 26 years. Our community-level non-development capital expenditures, net of lessor reimbursements, were $3,112 per unit in 2023, and our 2024 plans equate to approximately $3,100 per unit. To support our strategy and to protect the value of our community portfolio and ensure that our communities are in appropriate physical condition, over the intermediate term, we expect that our community-level non-development capital expenditures, net of lessor reimbursements, will be at annual levels in a similar range of recent and 2024 projected per unit spend.
We have no planned development capital expenditures for 2024, as we plan to prioritize our capital expenditures on community-level non-development expenditures for the near-term in order to support our communities and execution on our strategy. Over the longer term, we expect that we will also continue to invest in our development capital expenditures program through which we expand, reposition, and redevelop selected existing senior living communities where economically advantageous.
Indebtedness
As of December 31, 2023, we had $3.7 billion of debt outstanding, at a weighted average interest rate of 5.58%. As of such date, 91.9%, or $3.4 billion, of our total debt obligations represented non-recourse property-level mortgage financings. As of December 31, 2023, we had $2.2 billion of long-term fixed rate debt (including our $230.0 million principal amount of 2.00% convertible senior notes due 2026 and our $18.0 million principal amount of the senior amortizing notes component of our tangible equity units), at a weighted average interest rate of 4.07%.
As of December 31, 2023, we had $1.5 billion of long-term variable rate debt, at a weighted average interest rate of 7.74%. Increases in prevailing interest rates as a result of inflation or other factors will increase our payment obligations on our variable-rate obligations to the extent they are unhedged and may increase our future borrowing and hedging costs. In the normal course of business, we enter into interest rate agreements with major financial institutions to manage our risk above certain interest rates on variable rate debt. Although we have interest rate cap or swap agreements in place for a majority of our long-term variable-rate debt, these agreements only limit our exposure to increases in interest rates above certain levels and generally must be renewed every one to three years. As of December 31, 2023, our $1.5 billion of outstanding long-term variable rate debt is indexed to SOFR plus a weighted average margin of 239 basis points. As of such date, $1.4 billion, or 93%, of our long-term variable rate debt is subject to interest rate cap or swap agreements, and $0.1 billion of our long-term variable rate debt is not subject to any interest rate cap or swap agreements. For our SOFR interest rate cap and swap agreements as of December 31, 2023, the weighted average fixed interest rate is 3.91%, and the weighted average remaining term is 0.8 years. Many of our long-term variable rate debt instruments include provisions that obligate us to obtain additional interest rate cap agreements upon the maturity of the existing interest rate cap agreements.
The annual aggregate scheduled maturities (including recurring principal payments) of long-term debt outstanding as of December 31, 2023 are as follows (in thousands).
| Years Ending December 31, | Long-term<br>Debt | Weighted Rate | ||
|---|---|---|---|---|
| 2024 | $ | 49,485 | 6.46 | % |
| 2025 (1) | 573,035 | 7.30 | % | |
| 2026 | 305,614 | 2.71 | % | |
| 2027 | 960,971 | 6.00 | % | |
| 2028 | 563,548 | 5.79 | % | |
| Thereafter | 1,273,658 | 5.03 | % | |
| Total obligations | 3,726,311 | 5.58 | % | |
| Less amount representing deferred financing costs, net | (28,998) | |||
| Total | $ | 3,697,313 |
(1) Includes the initial maturity of $320.0 million of mortgage debt for which we have the option to extend the maturity for two additional terms of one year each subject to the satisfaction of certain conditions.
Convertible Senior Notes
On October 1, 2021, we issued $230.0 million principal amount of 2.00% convertible senior notes due 2026 (the "Notes"). We received net proceeds of $224.3 million at closing after the deduction of the initial purchasers’ discount. We used $15.9 million of the net proceeds to pay the cost of the capped call transactions described below.
The Notes were issued pursuant to, and are governed by, the Indenture dated as of October 1, 2021 by and between us and American Stock Transfer & Trust Company, LLC, as trustee. The Notes are our senior unsecured obligations and rank senior in right of payment to any of our indebtedness that is expressly subordinated in right of payment to the Notes, and equal in right of payment to any of our indebtedness that is not so subordinated. The Notes are effectively junior in right of payment to any of our secured indebtedness to the extent of the value of the assets securing such indebtedness; and structurally junior to all indebtedness and other liabilities (including trade payables) and any preferred equity of our current or future subsidiaries.
The Notes bear interest at 2.00% per year, payable semi-annually in arrears in cash on April 15 and October 15 of each year. The Notes will mature on October 15, 2026, unless earlier converted, redeemed or repurchased in accordance with their terms. Holders of the Notes may convert all or any portion of their Notes at their option at any time prior to the close of business on the business day immediately preceding July 15, 2026, only under the following circumstances: (1) during any calendar quarter commencing after the calendar quarter ending on December 31, 2021 (and only during such calendar quarter), if the last reported sale price of our common stock for at least 20 trading days (whether or not consecutive) during a period of 30 consecutive trading days ending on, and including, the last trading day of the immediately preceding calendar quarter is greater than or equal to 130% of the conversion price on each applicable trading day; (2) during the five business day period after any ten consecutive trading day period (the "measurement period") in which the trading price per $1,000 principal amount of Notes for each trading day of the measurement period was less than 98% of the product of the last reported sale price of our common stock and the conversion rate for the Notes on each such trading day; (3) if we call any or all of the Notes for redemption, at any time prior to the close of business on the second scheduled trading day immediately preceding the redemption date, but only with respect to the Notes called (or deemed called) for redemption; or (4) upon the occurrence of specified corporate events. On or after July 15, 2026, holders may convert all or any portion of their Notes at any time prior to the close of business on the second scheduled trading day immediately preceding the maturity date regardless of the foregoing conditions. Upon conversion, we will satisfy our conversion obligation by paying or delivering, as the case may be, cash, shares of our common stock or a combination of cash and shares of our common stock at our election.
The conversion rate for the Notes is initially 123.4568 shares of our common stock per $1,000 principal amount of Notes (equivalent to an initial conversion price of approximately $8.10 per share of common stock). The conversion rate will be subject to adjustment in some events but will not be adjusted for any accrued and unpaid interest. In addition, following certain corporate events that occur prior to the maturity date or following the issuance of a notice of redemption, we will increase the conversion rate for a holder who elects to convert our Notes in connection with such a corporate event or who elects to convert any Notes called (or deemed called) for redemption during the related redemption period in certain circumstances.
We may not redeem the Notes prior to October 21, 2024. We may redeem for cash all or (subject to certain limitations) any portion of the Notes, at our option, on or after October 21, 2024 and prior to the 51st scheduled trading day immediately preceding the maturity date if the last reported sale price of our common stock has been at least 130% of the conversion price then in effect for at least 20 trading days (whether or not consecutive) during any 30 consecutive trading day period (including the last trading day of such period) ending on, and including, the trading day immediately preceding the date on which we provide notice of redemption at a redemption price equal to 100% of the principal amount of the Notes to be redeemed, plus accrued and unpaid interest to, but excluding, the redemption date. No sinking fund is provided for the Notes.
If we undergo a fundamental change (as defined in the Indenture) prior to the maturity date, holders may require us to repurchase for cash all or any portion of their Notes at a fundamental change repurchase price equal to 100% of the principal amount of the Notes to be repurchased, plus accrued and unpaid interest to, but excluding, the fundamental change repurchase date.
The Notes and the shares of common stock issuable upon conversion of the Notes, if any, were issued to the initial purchasers in reliance upon Section 4(a)(2) of the Securities Act of 1933 (the "Securities Act"), as amended. The Notes were resold by the initial purchasers to persons whom the initial purchasers reasonably believed are "qualified institutional buyers," as defined in, and in accordance with, Rule 144A under the Securities Act.
In connection with the offering of the Notes, we entered into privately negotiated capped call transactions ("Capped Call Transactions") with each of Bank of America, N.A., Royal Bank of Canada, Wells Fargo Bank, National Association or their respective affiliates (the "Capped Call Counterparties"). The Capped Call Transactions initially cover, subject to customary anti-dilution adjustments, the number of shares of our common stock that initially underlie the Notes and initially have an exercise price of $8.10 per share of common stock. The cap price of the Capped Call Transactions is initially approximately $9.90 per share of our common stock, representing a premium of 65% above the last reported sale price of $6.00 per share of our common stock on September 28, 2021, and is subject to certain adjustments under the terms of the Capped Call Transactions. The Capped Call Transactions are expected generally to reduce or offset potential dilution to holders of our common stock upon conversion of the Notes and/or offset the potential cash payments that we could be required to make in excess of the principal amount of any converted Notes upon conversion thereof, with such reduction and/or offset subject to a cap based on the cap price.
The Capped Call Transactions are separate transactions entered into by us with the Capped Call Counterparties and are not part of the terms of the Notes. The Capped Call Transactions had a cost of $15.9 million, which was paid on October 1, 2021 from the proceeds of the Notes. We account for Capped Call Transactions separately from the Notes and recognized the cost as a reduction of additional paid-in capital in the year ended December 31, 2021 as the Capped Call Transactions are indexed to our common stock.
Credit Facilities
In December 2023, we amended our revolving credit agreement with Capital One, National Association, as administrative agent and lender and the other lenders from time to time parties thereto. The amended agreement provides an expanded commitment amount of up to $100.0 million which can be drawn in cash or as letters of credit. The credit facility matures in January 2027, and we have the option to extend the facility for two additional terms of approximately one year each subject to the satisfaction of certain conditions. Amounts drawn under the facility will bear interest at SOFR plus an applicable margin which was 3.00% as of December 31, 2023. Additionally, a quarterly commitment fee of 0.25% per annum was applicable on the unused portion of the facility as of December 31, 2023. The revolving credit facility is currently secured by first priority mortgages and negative pledges on certain of our communities. Available capacity under the facility will vary from time to time based upon certain calculations related to the appraised value and performance of the communities securing the credit facility and the variable interest rate of the credit facility.
As of December 31, 2023, $63.6 million of letters of credit and no cash borrowings were outstanding under our $100.0 million secured credit facility, and the facility had $32.9 million of availability. We also had a separate secured letter of credit facility providing up to $15.0 million of letters of credit as of December 31, 2023 under which $14.5 million had been issued as of that date.
Long-Term Leases
As of December 31, 2023, we operated 277 communities under long-term leases (263 operating leases and 14 financing leases). The substantial majority of our lease arrangements are structured as master leases. Under a master lease, numerous communities are leased through an indivisible lease. In certain cases, we guarantee the performance and lease payment obligations of our subsidiary lessees under the master leases. Due to the nature of such master leases, it is difficult to restructure the composition of our leased portfolios or economic terms of the leases without the consent of the applicable landlord. In addition, an event of default related to an individual property or limited number of properties within a master lease portfolio may result in a default on the entire master lease portfolio.
The leases relating to these communities are generally fixed rate leases with annual escalators that are either fixed or based upon changes in the consumer price index or leased property revenue. Approximately 89% of our community lease payments for the twelve months ended December 31, 2023 are subject to a weighted average maximum annual increase of 2.7% for community leases subject to fixed annual escalators or variable annual escalators based on the consumer price index subject to a cap. The remaining community lease payments are subject to variable annual escalators primarily based upon the change in the consumer price index. An additional 1% increase in the consumer price index would have resulted in additional cash lease payments of approximately $0.3 million for the twelve months ended December 31, 2023. We are responsible for all operating costs, including repairs, property taxes, and insurance. As of December 31, 2023, the weighted average remaining lease term of our operating and financing leases was 5.7 and 2.3 years, respectively. The lease terms generally provide for renewal or extension options from 5 to 20 years, and, in some instances, purchase options. The lease maturities of our senior housing community leases are as follows without giving effect to future renewals or extension options.
| Years Ending December 31, | Community Count | Total Units |
|---|---|---|
| 2024 | 6 | 857 |
| 2025 | 122 | 10,331 |
| 2026 | 2 | 153 |
| 2027 | 24 | 2,555 |
| 2028 | 12 | 1,344 |
| Thereafter | 111 | 4,604 |
| Total | 277 | 19,844 |
The community leases contain other customary terms, which may include assignment and change of control restrictions, maintenance and capital expenditure obligations, termination provisions, and financial covenants, such as those requiring us to maintain prescribed minimum liquidity, net worth, and stockholders' equity levels and lease coverage ratios. We are required to spend approximately $50.0 million in aggregate for the 24-month period ending December, 31, 2025 for capital expenditures under certain of our community leases and approximately $20.0 million in aggregate thereafter under the initial lease terms of such leases. Our lease documents generally contain non-financial covenants, such as those requiring us to comply with Medicare or Medicaid provider requirements and maintain insurance coverage. Certain leases contain cure provisions, which generally allow us to post an additional lease security deposit if the required covenant is not met.
Certain of our master leases contain radius restrictions, which limit our ability to own, develop, or acquire new communities within a specified distance from certain existing communities covered by such agreements. These radius restrictions could negatively affect our ability to expand, develop, or acquire senior housing communities and operating companies.
For the year ended December 31, 2023, our cash lease payments for our operating leases were $255.3 million and for our financing leases were $30.4 million. The aggregate amounts of future minimum lease payments, including community, office, and equipment leases, recognized on the consolidated balance sheet as of December 31, 2023 are as follows (in millions).
| Years Ending December 31, | Operating <br>Lease Payments | Financing <br>Lease Payments | Total Minimum Lease Payments | |||
|---|---|---|---|---|---|---|
| 2024 | $ | 260.7 | $ | 20.3 | $ | 281.0 |
| 2025 | 260.5 | 6.8 | 267.3 | |||
| 2026 | 145.8 | 6.9 | 152.7 | |||
| 2027 | 147.6 | 6.1 | 153.7 | |||
| 2028 | 84.8 | 5.9 | 90.7 | |||
| Thereafter | 251.6 | 20.6 | 272.2 | |||
| Total minimum lease payments | $ | 1,151.0 | $ | 66.6 | $ | 1,217.6 |
Debt and Lease Covenants
Certain of our long-term debt and lease documents contain restrictions and financial covenants, such as those requiring us to maintain prescribed minimum liquidity, net worth, and stockholders' equity levels and debt service and lease coverage ratios, and requiring us not to exceed prescribed leverage ratios, in each case on a consolidated, portfolio-wide, multi-community, single-community, and/or entity basis. Net worth is generally calculated as stockholders' equity as calculated in accordance with GAAP, and in certain circumstances, reduced by intangible assets or liabilities and/or increased by accumulated depreciation and amortization, and/or further adjusted for certain other specified adjustments. The debt service and lease coverage ratios are generally calculated as revenues less operating expenses, including an implied management fee and a reserve for capital expenditures, divided by the debt (principal and interest) or lease payment. These covenants include a requirement contained in certain of our long-term debt documents for us to maintain liquidity of at least $130.0 million at each quarter-end determination date. As of December 31, 2023, our liquidity was $340.7 million.
In addition, our debt and lease documents generally contain non-financial covenants, such as those requiring us to comply with Medicare or Medicaid provider requirements and maintain insurance coverage. Our failure to comply with applicable covenants could constitute an event of default under the applicable debt or lease documents. Many of our debt and lease documents contain cross-default provisions so that a default under one of these instruments could cause a default under other debt and lease documents (including documents with other lenders and lessors).
Furthermore, our mortgage debt is secured by our communities and, in certain cases, our long-term debt and leases are secured by a guaranty by us and/or one or more of our subsidiaries. Therefore, if an event of default has occurred under any of our debt or lease documents, subject to cure provisions in certain instances, the respective lender or lessor would have the right to declare all the related outstanding amounts of indebtedness or cash lease obligations immediately due and payable, to foreclose on our mortgaged communities, to terminate our leasehold interests, to foreclose on other collateral securing the indebtedness and leases, to discontinue our operation of leased communities, and/or to pursue other remedies available to such lender or lessor. Further, an event of default could trigger cross-default provisions in our other debt and lease documents (including documents with other lenders or lessors). We cannot provide assurance that we would be able to pay the debt or lease obligations if they became due upon acceleration following an event of default.
As of December 31, 2023, we are in compliance with the financial covenants of our debt agreements and long-term leases.
Summary of Contractual Obligations
The following table presents a summary of our material indebtedness and lease obligations, as of December 31, 2023.
| Payments Due during the Years Ending December 31, | ||||||||||||||
|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
| (in millions) | 2024 | 2025(1) | 2026 | 2027 | 2028 | Thereafter | Total | |||||||
| Principal on long-term debt(2) | $ | 49.5 | $ | 573.0 | $ | 305.6 | $ | 961.0 | $ | 563.5 | $ | 1,273.7 | $ | 3,726.3 |
| Interest on long-term debt(3) | 208.6 | 192.4 | 162.6 | 134.0 | 89.8 | 184.8 | 972.2 | |||||||
| Long-term debt obligations | 258.1 | 765.4 | 468.2 | 1,095.0 | 653.3 | 1,458.5 | 4,698.5 | |||||||
| Lease obligations(4) | 281.0 | 267.3 | 152.7 | 153.7 | 90.7 | 272.2 | 1,217.6 | |||||||
| Total long-term debt and lease obligations | $ | 539.1 | $ | 1,032.7 | $ | 620.9 | $ | 1,248.7 | $ | 744.0 | $ | 1,730.7 | $ | 5,916.1 |
(1)Principal on long-term debt includes the initial maturity of $320.0 million of mortgage debt for which we have the option to extend the maturity for two additional terms of one year each subject to the satisfaction of certain conditions.
(2)Excludes deferred financing costs of $29.0 million as of December 31, 2023.
(3)Represents contractual interest for all fixed-rate obligations and interest on variable rate instruments at the December 31, 2023 rate applicable for each instrument excluding the impact of interest rate cap and swap agreements. As of December 31, 2023, our long-term variable rate debt had a weighted average interest rate of 7.74%. We are subject to market risks from changes in interest rates and increases or decreases in prevailing interest rates would change our payment obligations on our variable-rate obligations.
(4)Reflects future minimum lease payments prior to giving effect to variable payments.
Critical Accounting Estimates
The preparation of our financial statements in conformity with GAAP, requires us to make estimates, assumptions, and judgments that affect the reported amounts of assets and liabilities at the date of the consolidated financial statements and revenues and expenses during the periods reported. We believe the following accounting estimates are the most critical as they require assumptions to be made that were uncertain at the time the estimate was made and changes in the estimate, or different estimates that could have been selected, could have a material impact on our consolidated results of operations or financial condition. These estimates are based on our best judgment about current and future conditions, but actual results could differ from those estimates. Our significant accounting policies are discussed in Note 2 to the consolidated financial statements contained in "Item 8. Financial Statements and Supplementary Data."
Long-Lived Asset Impairment
As of December 31, 2023, our long-lived assets were comprised primarily of $4.3 billion and $0.7 billion of net property, plant and equipment and leasehold intangibles and operating lease right-of-use assets, respectively.
We test long-lived assets for recoverability annually during our fourth quarter or whenever events or changes in circumstances indicate the carrying amount of an asset group may not be recoverable. Recoverability of an asset group is assessed by comparing its carrying amount to the estimated future undiscounted net cash flows expected to be generated by the asset group through operation or disposition, calculated utilizing the lowest level of identifiable cash flows. If this comparison indicates that the carrying amount of an asset group is not recoverable, we are required to recognize an impairment loss. The impairment loss is measured by the amount by which the carrying amount of the asset exceeds its estimated fair value.
In estimating the recoverability of asset groups for purposes of our long-lived asset impairment testing, we utilize future cash flow projections that are generally developed internally. Any estimates of future cash flow projections necessarily involve predicting unknown future circumstances and events and require significant management judgments and estimates. In arriving at our cash flow projections, we consider our historic operating results, approved budgets and business plans, future demographic factors, expected growth rates, estimated asset holding periods, and other factors. In estimating the future cash flows of asset groups for purposes of our long-lived asset impairment test, we make certain key assumptions. Those assumptions include future revenues, facility operating expenses, and cash flows, including sales proceeds that we would receive upon a sale of the assets using estimated capitalization rates in the case of communities. We corroborate the estimated capitalization rates we use in these calculations with capitalization rates observable from recent market transactions.
Determining the future cash flows of an asset group involves the use of significant estimates and assumptions that are unpredictable and inherently uncertain. These estimates and assumptions include revenue and expense growth rates, operating margins, and asset holding periods used to calculate projected future cash flows. Future events may indicate differences from management's current judgments and estimates which could, in turn, result in future impairments. Future events that may result in impairment charges include differences in the projected occupancy rates or monthly service fee rates, changes in the cost structure of existing communities, and our decision to dispose of assets, including through exiting non-strategic or underperforming owned assets or leases. Significant adverse changes in our future revenues and/or operating margins, significant changes in the market for senior housing, or the valuation of the real estate of senior living communities, as well as other events and circumstances, including, but not limited to, increased competition and changing economic or market conditions, could result in changes in estimated future cash flows and the determination that additional assets are impaired.
During 2023, 2022, and 2021, we evaluated long-lived depreciable assets and lease right-of-use assets and determined that the carrying amount of these assets exceeded the undiscounted cash flows for certain of our communities. Estimated fair values were determined for these certain properties, and we recorded asset impairment charges. The following is a summary of asset impairment expense for these assets.
| For the Years Ended December 31, | ||||||
|---|---|---|---|---|---|---|
| (in millions) | 2023 | 2022 | 2021 | |||
| Operating lease right-of-use assets | $ | 8.3 | $ | 13.7 | $ | 16.6 |
| Property, plant and equipment and leasehold intangibles, net | 6.3 | 15.9 | 6.4 | |||
| Total | $ | 14.6 | $ | 29.6 | $ | 23.0 |
These impairment charges are primarily due to decreased occupancy and future cash flow estimates at certain communities, including as a result of the impacts of the COVID-19 pandemic, and reflect the amount by which the carrying amounts of the assets exceeded their estimated fair value.
Our impairment loss assessment contains uncertainties because it requires us to apply judgment to estimate whether there have been changes in circumstances that indicate the carrying amount may not be recoverable, the recoverability of asset groups, and, if necessary, the fair value of our assets. As we periodically perform this assessment, changes in our estimates and assumptions may cause us to realize material impairment charges in the future. Although we make every reasonable effort to ensure the accuracy of our estimate of the future cash flows of assets, future changes in the assumptions used to make these estimates could result in the recording of an impairment loss. Additionally, future events may indicate differences from management's current judgments and estimates which could, in turn, result in future impairments.
Self-Insurance Liability Accruals
We are subject to various legal proceedings and claims that arise in the ordinary course of our business. Although we maintain general liability and professional liability insurance policies for our owned, leased, and managed communities under a master insurance program, our current policies provide for deductibles for each claim and contain various exclusions from coverage. We use our wholly-owned captive insurance company for the purpose of insuring certain portions of our risk retention under our general and professional liability insurance programs. Accordingly, we are, in effect, self-insured for claims that are less than the deductible amounts, for claims that exceed the funding level of our wholly-owned captive insurance company, and for claims or portions of claims that are not covered by such policies and/or exceed the policy limits. In addition, we maintain a high-deductible workers' compensation program. Third-party insurers are responsible for claim costs above program deductibles and retentions.
Outstanding losses and expenses for general liability, professional liability, and workers' compensation are estimated based on the recommendations of independent actuaries and management's estimates. The actuarial methods develop estimates of the future ultimate claim costs based on the claims incurred as of the balance sheet date. We review the adequacy of our accruals related to these liabilities on an ongoing basis, using historical claims, actuarial valuations, third-party administrator estimates, consultants, advice from legal counsel, and industry data, and adjust accruals periodically. Estimated costs related to these self-insurance programs are accrued based on known claims and projected claims incurred but not yet reported. These estimates require significant judgment, and as a result these estimates are uncertain and our actual exposure may be different from our estimates. Subsequent changes in actual experience are monitored and estimates are updated as information becomes available.
As of December 31, 2023, we accrued reserves of $100.8 million for general liability, professional liability, and workers' compensation programs. During the years ended December 31, 2022 and 2021, we reduced our estimate of the amount of
aggregate accrued liabilities for these programs based on recent claims experience, resulting in decreases to operating expenses of $12.0 million and $14.2 million, respectively. During the year ended December 31, 2023, there was no significant adjustment to our operating expenses for any change in our estimate of the amount of these liabilities.
Non-GAAP Financial Measures
This Annual Report on Form 10-K contains the financial measures Adjusted EBITDA and Adjusted Free Cash Flow, which are not calculated in accordance with GAAP. Presentations of these non-GAAP financial measures are intended to aid investors in better understanding the factors and trends affecting our performance and liquidity. However, investors should not consider these non-GAAP financial measures as a substitute for financial measures determined in accordance with GAAP, including net income (loss), income (loss) from operations, or net cash provided by (used in) operating activities. We caution investors that amounts presented in accordance with our definitions of these non-GAAP financial measures may not be comparable to similar measures disclosed by other companies because not all companies calculate non-GAAP measures in the same manner. We urge investors to review the following reconciliations of these non-GAAP financial measures from the most comparable financial measures determined in accordance with GAAP.
Adjusted EBITDA
Adjusted EBITDA is a non-GAAP performance measure that we define as net income (loss) excluding: benefit/provision for income taxes, non-operating income/expense items, and depreciation and amortization; and further adjusted to exclude income/expense associated with non-cash, non-operational, transactional, cost reduction, or organizational restructuring items that management does not consider as part of our underlying core operating performance and that management believes impact the comparability of performance between periods. For the periods presented herein, such other items include non-cash impairment charges, operating lease expense adjustment, non-cash stock-based compensation expense, gain/loss on sale of communities, and transaction and organizational restructuring costs. Transaction costs include those directly related to acquisition, disposition, financing, and leasing activity, and are primarily comprised of legal, finance, consulting, professional fees, and other third-party costs. Organizational restructuring costs include those related to our efforts to reduce general and administrative expense and our senior leadership changes, including severance.
We believe that presentation of Adjusted EBITDA as a performance measure is useful to investors because (i) it is one of the metrics used by our management for budgeting and other planning purposes, to review our historic and prospective core operating performance, and to make day-to-day operating decisions; (ii) it provides an assessment of operational factors that management can impact in the short-term, namely revenues and the controllable cost structure of the organization, by eliminating items related to our financing and capital structure and other items that management does not consider as part of our underlying core operating performance and that management believes impact the comparability of performance between periods; (iii) we believe that this measure is used by research analysts and investors to evaluate our operating results and to value companies in our industry; and (iv) we use the measure for components of executive compensation.
Adjusted EBITDA has material limitations as a performance measure, including: (i) excluded interest and income tax are necessary to operate our business under our current financing and capital structure; (ii) excluded depreciation, amortization, and impairment charges may represent the wear and tear and/or reduction in value of our communities, goodwill, and other assets and may be indicative of future needs for capital expenditures; and (iii) we may incur income/expense similar to those for which adjustments are made, such as gain/loss on sale of assets, facility operating lease termination, or debt modification and extinguishment, non-cash stock-based compensation expense, and transaction and other costs, and such income/expense may significantly affect our operating results.
The table below reconciles Adjusted EBITDA from net income (loss).
| Years Ended December 31, | ||||
|---|---|---|---|---|
| (in thousands) | 2023 | 2022 | ||
| Net income (loss) | $ | (189,070) | $ | (238,340) |
| Provision (benefit) for income taxes | 8,784 | (1,559) | ||
| Equity in (earnings) loss of unconsolidated ventures | 3,996 | 10,782 | ||
| Loss (gain) on debt modification and extinguishment, net | 2,702 | 1,357 | ||
| Non-operating loss (gain) on sale of assets, net | (1,441) | (595) | ||
| Other non-operating (income) loss | (21,687) | (12,114) | ||
| Interest expense | 238,274 | 204,717 | ||
| Interest income | (23,146) | (6,935) | ||
| Income (loss) from operations | 18,412 | (42,687) | ||
| Depreciation and amortization | 342,712 | 347,444 | ||
| Asset impairment | 40,572 | 29,618 | ||
| Loss (gain) on sale of communities, net | (36,296) | (73,850) | ||
| Operating lease expense adjustment | (45,739) | (34,896) | ||
| Non-cash stock-based compensation expense | 11,985 | 14,466 | ||
| Transaction and organizational restructuring costs | 3,892 | 1,210 | ||
| Adjusted EBITDA(1) | $ | 335,538 | $ | 241,305 |
(1)Adjusted EBITDA includes a $9.1 million and $80.5 million benefit for the years ended December 31, 2023 and 2022, respectively, of government grants and credits recognized in other operating income.
Adjusted Free Cash Flow
Adjusted Free Cash Flow is a non-GAAP liquidity measure that we define as net cash provided by (used in) operating activities before: distributions from unconsolidated ventures from cumulative share of net earnings, changes in prepaid insurance premiums financed with notes payable, changes in operating lease assets and liabilities for lease termination, cash paid/received for gain/loss on facility operating lease termination, and lessor capital expenditure reimbursements under operating leases; plus: property and casualty insurance proceeds and proceeds from refundable entrance fees, net of refunds; less: non-development capital expenditures and payment of financing lease obligations. Non-development capital expenditures are comprised of corporate and community-level capital expenditures, including those related to maintenance, renovations, upgrades, and other major building infrastructure projects for our communities and is presented net of lessor reimbursements. Non-development capital expenditures do not include capital expenditures for: community expansions, major community redevelopment and repositioning projects, and the development of new communities.
We believe that presentation of Adjusted Free Cash Flow as a liquidity measure is useful to investors because (i) it is one of the metrics used by our management for budgeting and other planning purposes, to review our historic and prospective sources of operating liquidity, and to review our ability to service our outstanding indebtedness, pay dividends to stockholders, engage in share repurchases, and make capital expenditures, including development capital expenditures; and (ii) it provides an indicator to management to determine if adjustments to current spending decisions are needed.
Adjusted Free Cash Flow has material limitations as a liquidity measure, including: (i) it does not represent cash available for dividends, share repurchases, or discretionary expenditures since certain non-discretionary expenditures, including mandatory debt principal payments, are not reflected in this measure; (ii) the cash portion of non-recurring charges related to gain/loss on facility lease termination generally represent charges/gains that may significantly affect our liquidity; and (iii) the impact of timing of cash expenditures, including the timing of non-development capital expenditures, limits the usefulness of the measure for short-term comparisons.
The table below reconciles Adjusted Free Cash Flow from net cash provided by (used in) operating activities.
| Years Ended December 31, | ||||
|---|---|---|---|---|
| (in thousands) | 2023 | 2022 | ||
| Net cash provided by (used in) operating activities | $ | 162,923 | $ | 3,281 |
| Net cash provided by (used in) investing activities | (113,364) | (67,429) | ||
| Net cash provided by (used in) financing activities | (174,439) | 100,382 | ||
| Net increase (decrease) in cash, cash equivalents, and restricted cash | $ | (124,880) | $ | 36,234 |
| Net cash provided by (used in) operating activities | $ | 162,923 | $ | 3,281 |
| Distributions from unconsolidated ventures from cumulative share of net earnings | (430) | (561) | ||
| Changes in assets and liabilities for lessor capital expenditure reimbursements under operating leases | (9,844) | (13,718) | ||
| Non-development capital expenditures, net | (216,511) | (168,166) | ||
| Property and casualty insurance proceeds | 24,704 | — | ||
| Payment of financing lease obligations | (8,473) | (22,221) | ||
| Adjusted Free Cash Flow(1) | $ | (47,631) | $ | (201,385) |
(1) Adjusted Free Cash Flow includes:
•$28.3 million and $69.5 million benefit for the years ended December 31, 2023 and 2022, respectively, from government grants and credits received.
•$3.1 million recoupment for the year ended December 31, 2022 of accelerated/advanced Medicare payments.
•$31.6 million paid during the year ended December 31, 2022 for deferred payroll taxes for the year ended December 31, 2020.
•$3.9 million and $1.2 million for the years ended December 31, 2023 and 2022, respectively, for transaction and organizational restructuring costs.
Item 7A. Quantitative and Qualitative Disclosures About Market Risk
We are subject to market risks from changes in interest rates charged on our credit facilities and other variable-rate indebtedness. The impact on earnings and the value of our long-term debt are subject to change as a result of movements in market rates and prices. As of December 31, 2023, 59.0%, or $2.2 billion, of our long-term debt had a weighted average fixed interest rate of 4.07%. As of December 31, 2023, we had $1.5 billion of long-term variable rate debt, at a weighted average interest rate of 7.74%.
In the normal course of business, we enter into certain interest rate cap and swap agreements with major financial institutions to manage our risk above certain interest rates on variable rate debt. As of December 31, 2023, our $1.5 billion of outstanding long-term variable rate debt is indexed to SOFR plus a weighted average margin of 239 basis points. Accordingly, our annual interest expense related to long-term variable rate debt is directly affected by movements in SOFR. As of December 31, 2023, $1.4 billion, or 93%, of our long-term variable rate debt is subject to interest rate cap or swap agreements and $0.1 billion of our variable rate debt is not subject to any interest rate cap or swap agreements. For our SOFR interest rate cap and swap agreements as of December 31, 2023, the weighted average fixed interest rate is 3.91%, and the weighted average remaining term is 0.8 years. Many of our long-term variable rate debt instruments include provisions that obligate us to obtain additional interest rate cap agreements upon the maturity of the existing interest rate cap agreements. The costs of obtaining additional interest rate cap agreements may offset the benefits of our existing interest rate cap agreements.
The table below reflects the additional annual debt interest expense that would have resulted for the respective basis point increases in SOFR as of December 31, 2023.
| Increase in Index<br><br>(in basis points) | Annual Interest Expense Increase (1)<br><br>(in millions) | |
|---|---|---|
| 100 | $ | 1.5 |
| 200 | 2.9 | |
| 500 | 6.4 | |
| 1,000 | 11.4 |
(1)Amounts are after consideration of interest rate cap and swap agreements in place as of December 31, 2023.
Item 8. Financial Statements and Supplementary Data
BROOKDALE SENIOR LIVING INC.
INDEX TO FINANCIAL STATEMENTS
| PAGE | |
|---|---|
| Report of Independent Registered Public Accounting Firm (PCAOB ID: 42) | 65 |
| Report of Independent Registered Public Accounting Firm (PCAOB ID: 42) | 67 |
| Consolidated Balance Sheets as of December 31, 2023and 2022 | 68 |
| Consolidated Statements of Operations for the Years Ended December 31, 2023, 2022, and 2021 | 69 |
| Consolidated Statements of Equity for the Years Ended December 31, 2023, 2022, and 2021 | 70 |
| Consolidated Statements of Cash Flows for the Years Ended December 31, 2023, 2022, and 2021 | 71 |
| Notes to Consolidated Financial Statements | 72 |
Report of Independent Registered Public Accounting Firm
To the Stockholders and the Board of Directors of Brookdale Senior Living Inc.
Opinion on the Financial Statements
We have audited the accompanying consolidated balance sheets of Brookdale Senior Living Inc. (the Company) as of December 31, 2023 and 2022, the related consolidated statements of operations, equity and cash flows for each of the three years in the period ended December 31, 2023, and the related notes (collectively referred to as the "consolidated financial statements"). In our opinion, the consolidated financial statements present fairly, in all material respects, the financial position of the Company at December 31, 2023 and 2022, and the results of its operations and its cash flows for each of the three years in the period ended December 31, 2023, in conformity with U.S. generally accepted accounting principles.
We also have audited, in accordance with the standards of the Public Company Accounting Oversight Board (United States) (PCAOB), the Company's internal control over financial reporting as of December 31, 2023, based on criteria established in Internal Control—Integrated Framework issued by the Committee of Sponsoring Organizations of the Treadway Commission (2013 framework), and our report dated February 21, 2024 expressed an unqualified opinion thereon.
Basis for Opinion
These financial statements are the responsibility of the Company's management. Our responsibility is to express an opinion on the Company's financial statements based on our audits. We are a public accounting firm registered with the PCAOB and are required to be independent with respect to the Company in accordance with the U.S. federal securities laws and the applicable rules and regulations of the Securities and Exchange Commission and the PCAOB.
We conducted our audits in accordance with the standards of the PCAOB. Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement, whether due to error or fraud. Our audits included performing procedures to assess the risks of material misstatement of the financial statements, whether due to error or fraud, and performing procedures that respond to those risks. Such procedures included examining, on a test basis, evidence regarding the amounts and disclosures in the financial statements. Our audits also included evaluating the accounting principles used and significant estimates made by management, as well as evaluating the overall presentation of the financial statements. We believe that our audits provide a reasonable basis for our opinion.
Critical Audit Matter
The critical audit matter communicated below is a matter arising from the current period audit of the financial statements that was communicated or required to be communicated to the audit committee and that: (1) relates to accounts or disclosures that are material to the financial statements and (2) involved our especially challenging, subjective or complex judgments. The communication of the critical audit matter does not alter in any way our opinion on the consolidated financial statements, taken as a whole, and we are not, by communicating the critical audit matter below, providing a separate opinion on the critical audit matter or on the accounts or disclosures to which it relates.
| Evaluation of Property, Plant and Equipment and Leasehold Intangibles, Net and Operating Lease Right-of-Use Assets for Impairment | |
|---|---|
| Description of the Matter | As of December 31, 2023, the Company's consolidated balance sheet included property, plant and equipment and leasehold intangibles, net and operating lease right-of-use assets of $4.3 billion and $0.7 billion, respectively. As discussed in Notes 2 and 4 to the consolidated financial statements, property, plant and equipment and leasehold intangibles, net and operating lease right-of-use assets are routinely evaluated for indicators of impairment. For property, plant and equipment and leasehold intangibles, net and operating lease right-of-use assets with indicators of impairment, the Company compares the estimated undiscounted future cash flows of each long-lived asset group to its carrying amount. If the long-lived asset group's carrying amount exceeds its estimated undiscounted future cash flows, the fair value of the long-lived asset group is then estimated by management and compared to its carrying amount. An impairment charge is recognized on these long-lived assets when carrying amount exceeds fair value.<br><br><br><br>Auditing management's evaluation of property, plant and equipment and leasehold intangibles, net and operating lease right-of-use assets for impairment was complex and involved a high degree of subjectivity due to the significant estimation required to determine the estimated undiscounted future cash flows and fair values of long-lived asset groups where indicators of impairment were determined to be present. In particular, the future cash flows and fair value estimates were sensitive to significant assumptions including the estimation of revenue and expense growth rates and capitalization rates, which are affected by expectations about future market or economic conditions. |
| How We Addressed the Matter in Our Audit | We obtained an understanding, evaluated the design and tested the operating effectiveness of controls over the Company's process to evaluate property, plant and equipment and leasehold intangibles, net and operating lease right-of-use assets for impairment, including controls over management's review of the significant assumptions described above.<br><br>To test the Company's evaluation of long-lived asset groups for impairment, we performed audit procedures that included, among others, assessing the methodologies used to estimate future cash flows and estimate fair values, testing the significant assumptions used to develop the estimates of future cash flows and fair values, and testing the completeness and accuracy of the underlying data used by the Company in its analysis. We compared the significant assumptions used by management to current industry and economic trends and evaluated whether changes to the Company's business and other relevant factors would affect the significant assumptions. The evaluation of the Company's methodology and key assumptions was performed with the assistance of our valuation specialists. We assessed the historical accuracy of the Company's estimates and performed sensitivity analyses of significant assumptions to evaluate the changes in the undiscounted future cash flows and fair values of the long-lived asset groups that would result from changes in the key assumptions. |
/s/ Ernst & Young LLP
We have served as the Company's auditor since 1993.
Chicago, Illinois
February 21, 2024
Report of Independent Registered Public Accounting Firm
To the Stockholders and the Board of Directors of Brookdale Senior Living Inc.
Opinion on Internal Control Over Financial Reporting
We have audited Brookdale Senior Living Inc.'s internal control over financial reporting as of December 31, 2023, based on criteria established in Internal Control—Integrated Framework issued by the Committee of Sponsoring Organizations of the Treadway Commission (2013 framework) (the COSO criteria). In our opinion, Brookdale Senior Living Inc. (the Company) maintained, in all material respects, effective internal control over financial reporting as of December 31, 2023, based on the COSO criteria.
We also have audited, in accordance with the standards of the Public Company Accounting Oversight Board (United States) (PCAOB), the consolidated balance sheets of the Company as of December 31, 2023 and 2022, the related consolidated statements of operations, equity and cash flows for each of the three years in the period ended December 31, 2023, and the related notes and our report dated February 21, 2024 expressed an unqualified opinion thereon.
Basis for Opinion
The Company's management is responsible for maintaining effective internal control over financial reporting and for its assessment of the effectiveness of internal control over financial reporting included in the accompanying Management's Assessment of Internal Control over Financial Reporting. Our responsibility is to express an opinion on the Company's internal control over financial reporting based on our audit. We are a public accounting firm registered with the PCAOB and are required to be independent with respect to the Company in accordance with the U.S. federal securities laws and the applicable rules and regulations of the Securities and Exchange Commission and the PCAOB.
We conducted our audit in accordance with the standards of the PCAOB. Those standards require that we plan and perform the audit to obtain reasonable assurance about whether effective internal control over financial reporting was maintained in all material respects.
Our audit included obtaining an understanding of internal control over financial reporting, assessing the risk that a material weakness exists, testing and evaluating the design and operating effectiveness of internal control based on the assessed risk, and performing such other procedures as we considered necessary in the circumstances. We believe that our audit provides a reasonable basis for our opinion.
Definition and Limitations of Internal Control Over Financial Reporting
A company's internal control over financial reporting is a process designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles. A company's internal control over financial reporting includes those policies and procedures that (1) pertain to the maintenance of records that, in reasonable detail, accurately and fairly reflect the transactions and dispositions of the assets of the company; (2) provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in accordance with generally accepted accounting principles, and that receipts and expenditures of the company are being made only in accordance with authorizations of management and directors of the company; and (3) provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use, or disposition of the company's assets that could have a material effect on the financial statements.
Because of its inherent limitations, internal control over financial reporting may not prevent or detect misstatements. Also, projections of any evaluation of effectiveness to future periods are subject to the risk that controls may become inadequate because of changes in conditions, or that the degree of compliance with the policies or procedures may deteriorate.
/s/ Ernst & Young LLP
Chicago, Illinois
February 21, 2024
BROOKDALE SENIOR LIVING INC.
CONSOLIDATED BALANCE SHEETS
(In thousands, except stock amounts)
| December 31, | ||||
|---|---|---|---|---|
| 2023 | 2022 | |||
| Assets | ||||
| Current assets | ||||
| Cash and cash equivalents | $ | 277,971 | $ | 398,850 |
| Marketable securities | 29,755 | 48,680 | ||
| Restricted cash | 41,341 | 27,735 | ||
| Accounts receivable, net | 48,393 | 55,761 | ||
| Prepaid expenses and other current assets, net | 80,908 | 106,067 | ||
| Total current assets | 478,368 | 637,093 | ||
| Property, plant and equipment and leasehold intangibles, net | 4,330,629 | 4,535,702 | ||
| Operating lease right-of-use assets | 670,907 | 597,130 | ||
| Restricted cash | 30,356 | 47,963 | ||
| Investment in unconsolidated ventures | 1,906 | 55,333 | ||
| Goodwill | 27,321 | 27,321 | ||
| Deferred tax asset | — | 1,604 | ||
| Other assets, net | 33,948 | 34,916 | ||
| Total assets | $ | 5,573,435 | $ | 5,937,062 |
| Liabilities and Equity | ||||
| Current liabilities | ||||
| Current portion of long-term debt | $ | 41,463 | $ | 66,043 |
| Current portion of financing lease obligations | 1,075 | 24,059 | ||
| Current portion of operating lease obligations | 192,631 | 176,758 | ||
| Trade accounts payable | 66,526 | 71,000 | ||
| Accrued expenses | 242,668 | 237,148 | ||
| Refundable fees and deferred revenue | 55,753 | 66,197 | ||
| Total current liabilities | 600,116 | 641,205 | ||
| Long-term debt, less current portion | 3,655,850 | 3,784,099 | ||
| Financing lease obligations, less current portion | 150,774 | 224,801 | ||
| Operating lease obligations, less current portion | 683,876 | 616,973 | ||
| Deferred tax liability | 5,987 | — | ||
| Other liabilities | 71,679 | 85,831 | ||
| Total liabilities | 5,168,282 | 5,352,909 | ||
| Preferred stock, $0.01 par value, 50,000,000 shares authorized at December 31, 2023 and 2022; no shares issued and outstanding | — | — | ||
| Common stock, $0.01 par value, 400,000,000 shares authorized at December 31, 2023 and 2022; 198,780,826 and 197,776,991 shares issued and 188,253,301 and 187,249,466 shares outstanding, respectively | 1,988 | 1,978 | ||
| Additional paid-in-capital | 4,342,362 | 4,332,302 | ||
| Treasury stock, at cost; 10,527,525 shares at December 31, 2023 and 2022 | (102,774) | (102,774) | ||
| Accumulated deficit | (3,837,912) | (3,648,901) | ||
| Total Brookdale Senior Living Inc. stockholders' equity | 403,664 | 582,605 | ||
| Noncontrolling interest | 1,489 | 1,548 | ||
| Total equity | 405,153 | 584,153 | ||
| Total liabilities and equity | $ | 5,573,435 | $ | 5,937,062 |
See accompanying notes to consolidated financial statements.
BROOKDALE SENIOR LIVING INC.
CONSOLIDATED STATEMENTS OF OPERATIONS
(In thousands, except per share data)
| For the Years Ended December 31, | ||||||
|---|---|---|---|---|---|---|
| 2023 | 2022 | 2021 | ||||
| Resident fees | $ | 2,857,270 | $ | 2,585,529 | $ | 2,543,848 |
| Management fees | 10,161 | 12,020 | 20,598 | |||
| Reimbursed costs incurred on behalf of managed communities | 139,325 | 147,361 | 181,445 | |||
| Other operating income | 9,073 | 80,469 | 12,368 | |||
| Total revenue and other operating income | 3,015,829 | 2,825,379 | 2,758,259 | |||
| Facility operating expense (excluding facility depreciation and amortization of $317,581, $324,904, and $313,830, respectively) | 2,129,800 | 2,083,605 | 2,075,863 | |||
| General and administrative expense (including non-cash stock-based compensation expense of $11,985, $14,466, and $16,270, respectively) | 178,894 | 168,594 | 184,916 | |||
| Facility operating lease expense | 202,410 | 165,294 | 174,358 | |||
| Depreciation and amortization | 342,712 | 347,444 | 337,613 | |||
| Asset impairment | 40,572 | 29,618 | 23,003 | |||
| Loss (gain) on sale of communities, net | (36,296) | (73,850) | — | |||
| Loss (gain) on facility operating lease termination, net | — | — | (2,003) | |||
| Costs incurred on behalf of managed communities | 139,325 | 147,361 | 181,445 | |||
| Income (loss) from operations | 18,412 | (42,687) | (216,936) | |||
| Interest income | 23,146 | 6,935 | 1,349 | |||
| Interest expense: | ||||||
| Debt | (209,772) | (157,869) | (141,409) | |||
| Financing lease obligations | (21,950) | (48,061) | (46,282) | |||
| Amortization of deferred financing costs | (7,696) | (6,446) | (7,297) | |||
| Change in fair value of derivatives | 1,144 | 7,659 | (152) | |||
| Gain (loss) on debt modification and extinguishment, net | (2,702) | (1,357) | (1,932) | |||
| Equity in earnings (loss) of unconsolidated ventures | (3,996) | (10,782) | 10,394 | |||
| Non-operating gain (loss) on sale of assets, net | 1,441 | 595 | 288,835 | |||
| Other non-operating income (loss) | 21,687 | 12,114 | 5,903 | |||
| Income (loss) before income taxes | (180,286) | (239,899) | (107,527) | |||
| Benefit (provision) for income taxes | (8,784) | 1,559 | 8,163 | |||
| Net income (loss) | (189,070) | (238,340) | (99,364) | |||
| Net (income) loss attributable to noncontrolling interest | 59 | (87) | 74 | |||
| Net income (loss) attributable to Brookdale Senior Living Inc. common stockholders | $ | (189,011) | $ | (238,427) | $ | (99,290) |
| Basic and diluted net income (loss) per share attributable to Brookdale Senior Living Inc. common stockholders | $ | (0.84) | $ | (1.25) | $ | (0.54) |
| Weighted average shares used in computing basic and diluted net income (loss) per share | 225,209 | 190,463 | 184,975 |
See accompanying notes to consolidated financial statements.
BROOKDALE SENIOR LIVING INC.
CONSOLIDATED STATEMENTS OF EQUITY
(In thousands)
| For the Years Ended December 31, | ||||||
|---|---|---|---|---|---|---|
| 2023 | 2022 | 2021 | ||||
| Total equity, balance at beginning of period | $ | 584,153 | $ | 699,623 | $ | 802,729 |
| Common stock: | ||||||
| Balance at beginning of period | $ | 1,978 | $ | 1,975 | $ | 1,983 |
| Restricted stock and restricted stock units, net | 16 | 9 | (1) | |||
| Shares withheld for employee taxes | (6) | (6) | (7) | |||
| Balance at end of period | $ | 1,988 | $ | 1,978 | $ | 1,975 |
| Additional paid-in-capital: | ||||||
| Balance at beginning of period | $ | 4,332,302 | $ | 4,208,675 | $ | 4,212,409 |
| Compensation expense related to restricted stock grants | 11,985 | 14,466 | 16,270 | |||
| Issuance of common stock under Associate Stock Purchase Plan | — | — | 699 | |||
| Issuance of tangible equity units, net of issuance costs | — | 113,457 | — | |||
| Purchase of capped call transactions | — | — | (15,916) | |||
| Restricted stock and restricted stock units, net | (16) | (9) | 1 | |||
| Shares withheld for employee taxes | (1,909) | (4,287) | (4,813) | |||
| Other, net | — | — | 25 | |||
| Balance at end of period | $ | 4,342,362 | $ | 4,332,302 | $ | 4,208,675 |
| Treasury stock: | ||||||
| Balance at beginning and end of period | $ | (102,774) | $ | (102,774) | $ | (102,774) |
| Accumulated deficit: | ||||||
| Balance at beginning of period | $ | (3,648,901) | $ | (3,410,474) | $ | (3,311,184) |
| Net income (loss) attributable to Brookdale Senior Living Inc. common stockholders | (189,011) | (238,427) | (99,290) | |||
| Balance at end of period | $ | (3,837,912) | $ | (3,648,901) | $ | (3,410,474) |
| Noncontrolling interest: | ||||||
| Balance at beginning of period | $ | 1,548 | $ | 2,221 | $ | 2,295 |
| Net income (loss) attributable to noncontrolling interest | (59) | 87 | (74) | |||
| Noncontrolling interest distribution | — | (760) | — | |||
| Balance at end of period | $ | 1,489 | $ | 1,548 | $ | 2,221 |
| Total equity, balance at end of period | $ | 405,153 | $ | 584,153 | $ | 699,623 |
| Common stock share activity | ||||||
| Outstanding shares of common stock: | ||||||
| Balance at beginning of period | 187,249 | 186,958 | 187,804 | |||
| Issuance of common stock under Associate Stock Purchase Plan | — | — | 124 | |||
| Restricted stock and restricted stock units, net | 1,580 | 911 | (159) | |||
| Shares withheld for employee taxes | (576) | (620) | (811) | |||
| Balance at end of period | 188,253 | 187,249 | 186,958 |
See accompanying notes to consolidated financial statements.
BROOKDALE SENIOR LIVING INC.
CONSOLIDATED STATEMENTS OF CASH FLOWS
(In thousands)
| For the Years Ended December 31, | ||||||
|---|---|---|---|---|---|---|
| 2023 | 2022 | 2021 | ||||
| Cash Flows from Operating Activities | ||||||
| Net income (loss) | $ | (189,070) | $ | (238,340) | $ | (99,364) |
| Adjustments to reconcile net income (loss) to net cash provided by (used in) operating activities: | ||||||
| Loss (gain) on debt modification and extinguishment, net | 2,702 | 1,357 | 1,932 | |||
| Depreciation and amortization, net | 350,408 | 353,890 | 344,910 | |||
| Asset impairment | 40,572 | 29,618 | 23,003 | |||
| Equity in (earnings) loss of unconsolidated ventures | 3,996 | 10,782 | (10,394) | |||
| Distributions from unconsolidated ventures from cumulative share of net earnings | 430 | 561 | 6,191 | |||
| Amortization of entrance fees | (732) | (2,307) | (1,758) | |||
| Proceeds from deferred entrance fee revenue | 477 | 4,222 | 3,562 | |||
| Deferred income tax (benefit) provision | 7,590 | (1,324) | (9,837) | |||
| Operating lease expense adjustment | (45,739) | (34,896) | (23,280) | |||
| Change in fair value of derivatives | (1,144) | (7,659) | 152 | |||
| Loss (gain) on sale of assets, net | (37,737) | (74,445) | (288,835) | |||
| Loss (gain) on facility operating lease termination, net | — | — | (2,003) | |||
| Non-cash stock-based compensation expense | 11,985 | 14,466 | 16,270 | |||
| Property and casualty insurance income | (18,920) | (11,379) | (4,689) | |||
| Other non-operating (income) loss | (2,542) | — | — | |||
| Changes in operating assets and liabilities: | ||||||
| Accounts receivable, net | 7,380 | (4,624) | 502 | |||
| Prepaid expenses and other assets, net | 21,629 | (21,240) | (15,483) | |||
| Trade accounts payable and accrued expenses | 2,448 | (27,185) | (54,032) | |||
| Refundable fees and deferred revenue | (654) | (1,934) | (10,066) | |||
| Operating lease assets and liabilities for lessor capital expenditure<br> reimbursements | 9,844 | 13,718 | 30,965 | |||
| Operating lease assets and liabilities for lease termination | — | — | (2,380) | |||
| Net cash provided by (used in) operating activities | 162,923 | 3,281 | (94,634) | |||
| Cash Flows from Investing Activities | ||||||
| Purchase of marketable securities | (174,476) | (263,669) | (362,257) | |||
| Sale and maturities of marketable securities | 197,100 | 398,752 | 352,988 | |||
| Capital expenditures, net of related payables | (233,205) | (196,924) | (176,657) | |||
| Acquisition of assets, net of cash acquired | (574) | (6,004) | — | |||
| Investment in unconsolidated ventures | (7,589) | (218) | (5,436) | |||
| Distributions received from unconsolidated ventures | — | 966 | 37,113 | |||
| Proceeds from sale of assets, net | 83,526 | 4,653 | 334,006 | |||
| Property and casualty insurance proceeds | 24,704 | — | — | |||
| Purchase of interest rate cap instruments | (12,454) | (1,632) | — | |||
| Proceeds from interest rate cap instruments | 9,890 | 788 | — | |||
| Other | (286) | (4,141) | 1,700 | |||
| Net cash provided by (used in) investing activities | (113,364) | (67,429) | 181,457 | |||
| For the Years Ended December 31, | ||||||
| 2023 | 2022 | 2021 | ||||
| Cash Flows from Financing Activities | ||||||
| Proceeds from debt | 205,549 | 254,259 | 352,962 | |||
| Repayment of debt and financing lease obligations | (367,242) | (281,185) | (441,571) | |||
| Proceeds from issuance of tangible equity units | — | 139,438 | — | |||
| Purchase of capped call transactions | — | — | (15,916) | |||
| Payment of financing costs, net of related payables | (10,831) | (7,077) | (3,904) | |||
| Payments of employee taxes for withheld shares | (1,915) | (4,293) | (4,820) | |||
| Other | — | (760) | (408) | |||
| Net cash provided by (used in) financing activities | (174,439) | 100,382 | (113,657) | |||
| Net increase (decrease) in cash, cash equivalents, and restricted cash | (124,880) | 36,234 | (26,834) | |||
| Cash, cash equivalents, and restricted cash at beginning of period | 474,548 | 438,314 | 465,148 | |||
| Cash, cash equivalents, and restricted cash at end of period | $ | 349,668 | $ | 474,548 | $ | 438,314 |
See accompanying notes to consolidated financial statements.
BROOKDALE SENIOR LIVING INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
- Description of Business
Brookdale Senior Living Inc. together with its consolidated subsidiaries ("Brookdale" or the "Company") is an operator of 652 senior living communities throughout the United States. The Company is committed to its mission of enriching the lives of the people it serves with compassion, respect, excellence, and integrity. The Company operates and manages independent living, assisted living, memory care, and continuing care retirement communities ("CCRCs"). The Company's senior living communities and its comprehensive network help to provide seniors with care, connection, and services in an environment that feels like home. As of December 31, 2023, the Company owned 345 communities, representing a majority of the Company's community portfolio, leased 277 communities, and managed 30 communities.
- Summary of Significant Accounting Policies
The consolidated financial statements have been prepared in accordance with U.S. generally accepted accounting principles ("GAAP"). The significant accounting policies are summarized below:
Principles of Consolidation
The consolidated financial statements include the accounts of Brookdale and its consolidated subsidiaries. The ownership interest of consolidated entities not wholly-owned by the Company are presented as noncontrolling interests in the accompanying consolidated financial statements. Intercompany balances and transactions have been eliminated in consolidation, and net income (loss) is reduced by the portion of net income (loss) attributable to noncontrolling interests.
Use of Estimates
The preparation of the consolidated financial statements and related disclosures in conformity with GAAP requires management to make estimates and assumptions that affect the amounts reported in the consolidated financial statements and accompanying notes. Estimates are used for, but not limited to, revenue, asset impairments, self-insurance reserves, performance-based compensation, allowance for credit losses, depreciation and amortization, leasing transactions, income taxes, and other contingencies. Although these estimates are based on management's best knowledge of current events and actions that the Company may undertake in the future, actual results may differ from the original estimates.
Revenue Recognition
Resident Fees
Resident fee revenue is reported at the amount that reflects the consideration the Company expects to receive in exchange for the services provided. These amounts are due from residents or third-party payors and include variable consideration for retroactive adjustments from estimated reimbursements, if any, under reimbursement programs. Performance obligations are determined based on the nature of the services provided. Resident fee revenue is recognized as performance obligations are satisfied.
Under the Company's senior living residency agreements, which are generally for a contractual term of 30 days to one year, the Company provides senior living services to residents for a stated daily or monthly fee. The Company has elected the lessor practical expedient within ASC 842, Leases ("ASC 842") and recognizes, measures, presents, and discloses the revenue for services under the Company's senior living residency agreements based upon the predominant component, either the lease or nonlease component, of the contracts. The Company has determined that the services included under the Company's independent living, assisted living, and memory care residency agreements have the same timing and pattern of transfer and are performance obligations that are satisfied over time. The Company recognizes revenue under ASC 606, Revenue Recognition from Contracts with Customers ("ASC 606") for its independent living, assisted living, and memory care residency agreements for which it has estimated that the nonlease components of such residency agreements are the predominant component of the contract.
The Company receives payment for services under various third-party payor programs which include Medicare, Medicaid, and other third-party payors. Estimates for settlements with third-party payors for retroactive adjustments from estimated reimbursements due to audits, reviews, or investigations are included in the determination of the estimated transaction price for providing services. The Company estimates the transaction price based on the terms of the contract with the payor,
correspondence with the payor, and historical payment trends. Changes to these estimates for retroactive adjustments are recognized in the period the change or adjustment becomes known or when final settlements are determined.
Billings for services under third-party payor programs are recorded net of estimated retroactive adjustments, if any. Retroactive adjustments are accrued on an estimated basis in the period the related services are rendered and adjusted in future periods or as final settlements are determined. Contractual or cost related adjustments from Medicare or Medicaid are accrued when assessed (without regard to when the assessment is paid or withheld). Subsequent adjustments to these accrued amounts are recorded in net revenues when known.
Management Services
The Company manages certain communities under contracts which provide periodic management fee payments to the Company and reimbursement for costs and expense related to such communities. Management fees are generally determined by an agreed upon percentage of gross revenues (as defined in the management agreement). Certain management contracts also provide for an annual incentive fee to be paid to the Company upon achievement of certain metrics identified in the contract. The Company has determined that all community management activities are a single performance obligation, which is satisfied over time as the services are rendered. The Company estimates the amount of incentive fee revenue expected to be earned, if any, during the annual contract period and revenue is recognized as services are provided. The Company's estimate of the transaction price for management services also includes the amount of reimbursement due from the owners of the communities for services provided and related costs incurred. Such revenue is included in reimbursed costs incurred on behalf of managed communities on the consolidated statements of operations. The related costs are included in costs incurred on behalf of managed communities on the consolidated statements of operations.
Government Grants
The Company recognizes income for government grants on a systematic and rational basis over the periods in which the Company recognizes the related expenses or loss of revenue for which the grants are intended to compensate when there is reasonable assurance that the Company will comply with the applicable terms and conditions of the grant and there is reasonable assurance that the grant will be received.
Lease Accounting
The Company, as lessee, recognizes a right-of-use asset and a lease liability on the Company's consolidated balance sheet for its long-term leases. As of the commencement date of a lease, a lease liability and corresponding right-of-use asset is established on the Company's consolidated balance sheet at the estimated present value of future minimum lease payments. The Company's community leases generally contain fixed annual rent escalators or annual rent escalators based on an index, such as the consumer price index. The future minimum lease payments recognized on the consolidated balance sheet include fixed payments (including in-substance fixed payments) and variable payments estimated utilizing the index or rate on the lease commencement date. The Company recognizes lease expense as incurred for additional variable payments. For the Company's leases for which the rate implicit in the lease is not readily determinable, the Company utilizes its estimated incremental borrowing rate to determine the present value of lease payments based on information available at commencement of the lease. The Company's estimated incremental borrowing rate reflects the fixed rate at which the Company could borrow a similar amount for the same term on a collateralized basis. For accounting purposes, renewal or extension options are included in the lease term at lease inception or modification when it is reasonably certain that the Company will exercise the option. The Company elected the short-term lease exception policy which permits leases with an initial term of 12 months or less to not be recorded on the Company's consolidated balance sheet.
The Company, as lessee, makes a determination with respect to each of its leases as to whether each should be accounted for as an operating lease or financing lease. The classification criteria is based on estimates regarding the fair value of the leased asset, minimum lease payments, effective cost of funds, economic life of the asset, and certain other terms in the lease agreements.
Lease right-of-use assets are reviewed for impairment whenever changes in circumstances indicate that the carrying amount of an asset group may not be recoverable. Recoverability of right-of-use assets are assessed by a comparison of the carrying amount of the asset group to the estimated future undiscounted net cash flows expected to be generated by the asset group, calculated utilizing the lowest level of identifiable cash flows. If estimated future undiscounted net cash flows are less than the carrying amount of the asset group then the fair value of the asset is estimated. The impairment loss is determined by comparing the estimated fair value of the asset to its carrying amount, with any amount in excess of fair value recognized as an impairment loss in the current period. Undiscounted cash flow projections and estimates of fair value amounts are based on a number of assumptions such as revenue and expense growth rates and estimated lease coverage ratios (Level 3).
Operating Leases
The Company recognizes operating lease expense for actual rent paid, generally plus or minus a straight-line adjustment for estimated minimum lease escalators if applicable. The right-of-use asset is generally reduced each period by an amount equal to the difference between the operating lease expense and the amount of expense on the lease liability utilizing the effective interest method. Subsequent to the impairment of an operating lease right-of-use asset, the Company recognizes operating lease expense consisting of the reduction of the right-of-use asset on a straight-line basis over the remaining lease term and the amount of expense on the lease liability utilizing the effective interest method.
Financing Leases
Financing lease right-of-use assets are recognized within property, plant and equipment and leasehold intangibles, net on the Company's consolidated balance sheets. The Company recognizes interest expense on the financing lease liabilities utilizing the effective interest method. The right-of-use asset is generally amortized to depreciation and amortization expense on a straight-line basis over the lease term unless the lease contains an option to purchase the underlying asset that the Company is reasonably certain to exercise. If the Company is reasonably certain to exercise the purchase option, the asset is amortized over the useful life.
Sale-Leaseback Transactions
For transactions in which an owned community is sold and leased back from the buyer (sale-leaseback transactions), the Company recognizes an asset sale and lease accounting is applied if the Company has transferred control of the community. For such transactions, the Company removes the transferred assets from the consolidated balance sheet and a gain or loss on the sale is recognized for the difference between the carrying amount of the asset and the transaction price for the sale transaction.
For sale‑leaseback transactions in which the Company has not transferred control of the underlying asset, the Company does not recognize an asset sale or derecognize the underlying asset until control is transferred. For such transactions, the Company recognizes the underlying assets within assets under financing leases as a component of property, plant and equipment and leasehold intangibles, net on the consolidated balance sheets and continues to depreciate the assets over their useful lives. Additionally, the Company accounts for any amounts received as a financing lease liability and the Company recognizes interest expense on the financing lease liability utilizing the effective interest method with the interest expense limited to an amount that is not greater than the cash payments on the financing lease liability over the term of the lease. The Company reviews for sale accounting whenever events or changes in circumstances indicate that control may have been transferred and the Company recognizes an asset sale and lease accounting is applied if the Company has transferred control of the underlying asset. When an asset sale is recognized for such transactions, the Company removes the transferred assets and financing lease liability from the consolidated balance sheet and a gain or loss on the sale is recognized for the difference between the carrying amount of the asset and the financing lease liability.
Gain (Loss) on Sale of Assets
The Company regularly enters into real estate transactions which may include the disposition of certain communities, including the associated real estate. The Company recognizes a gain or loss from real estate sales when the transfer of control is complete.
The Company recognizes a gain or loss from the sale of equity method investments when the transfer of control is complete and the Company has no continuing involvement with the transferred financial assets.
Purchase Accounting
For the acquisition of assets that do not meet the definition of a business, the Company accounts for the transaction as an asset acquisition at the purchase price, including acquisition costs, allocated among the acquired assets and assumed liabilities, including identified intangible assets and liabilities, based upon the relative fair values using Level 3 inputs at the date of acquisition.
For acquisitions of a business, the Company accounts for the transaction as a business combination pursuant to the acquisition method and assets acquired and liabilities assumed, including identified intangible assets and liabilities, are recorded at fair value. In determining the allocation of the purchase price of companies and communities to net tangible and identified intangible assets acquired and liabilities assumed, the Company makes estimates of fair value using information obtained as a result of pre-acquisition due diligence, marketing, leasing activities, and/or independent appraisals. In connection with a business combination, the excess of the fair value of liabilities assumed and common stock issued and cash paid over the fair
value of identifiable assets acquired is allocated to goodwill. Transaction costs associated with business combinations are expensed as incurred.
Deferred Financing Costs
Costs and fees incurred with third parties that directly relate to obtaining new long-term debt (excluding the Company's line-of-credit) are recorded as a direct adjustment to the carrying amount of long-term debt. The Company presents deferred financing costs related to line-of-credit facilities in other assets, net on the consolidated balance sheet. The Company amortizes deferred financing costs on a straight-line basis, which approximates the effective yield method over the term of the related debt arrangements.
Stock-Based Compensation
Measurement of the cost of employee services received in exchange for stock-based compensation is based on the grant-date fair value of the employee stock awards, which is based on the quoted price of the Company's common shares on the grant date for the majority of the Company's awards. The Company evaluates if grant-date fair value adjustments are necessary based on whether the Company is in possession of material non-public information at the grant date and the changes in the Company’s stock price subsequent to the release of such information and no adjustments were made. The Company recognizes forfeitures of stock-based awards as they occur and any previously recognized compensation expense is reversed for forfeited awards. Stock-based awards that vest over a requisite service period, other than those with performance or market conditions, generally vest ratably in annual installments over a period of three to four years. Incremental compensation costs arising from subsequent modifications of awards after the grant date are recognized when incurred.
Certain of the Company's employee stock-based awards vest only upon the achievement of performance conditions. The Company recognizes compensation cost only when achievement of performance conditions is considered probable. Consequently, the Company’s determination of the amount of stock-based compensation expense requires judgment in estimating the probability of achievement of these performance conditions. Performance conditioned awards that vest dependent upon attainment of various levels of performance that equal or exceed threshold levels generally vest based upon performance at the end of a three-year performance period. The number of shares that ultimately vest can range from 0% to 150% of the stock-based awards granted depending on the level of achievement of the performance criteria.
Certain of the Company's employee stock-based awards vest only upon the achievement of a market condition where the measurement period is three years and vesting of the awards is based on the Company's level of attainment of a specified total stockholder return relative to the percentage appreciation of a specified index of companies for the respective three-year measurement period. Compensation expense for awards with market conditions is recognized over the service period, which is generally four years, and the actual achievement of the market condition does not impact expense recognition. The Company uses a Monte Carlo valuation model to estimate the grant date fair value of such awards. Depending on the results achieved during the three-year measurement period, the number of shares that ultimately vest may range from 0% to 150% of the stock-based awards granted. The expected volatility of the Company's common stock at the date of grant is estimated based on a historical average volatility rate for the approximate three-year performance period and the estimated expected weighted average volatility was 83.3% and 76.0% for awards granted in 2023 and 2022, respectively. The risk-free interest rate assumption is based on observed interest rates consistent with the approximate three-year measurement period and the estimated weighted average risk free interest rate was 4.4% and 1.8% for awards granted in 2023 and 2022, respectively.
For all share-based awards with graded vesting other than performance conditioned awards, the Company records compensation expense for the entire award on a straight-line basis (or, if applicable, on the accelerated method) over the requisite service period. For performance conditioned awards, total compensation expense is recognized over the requisite service period for each separately vesting tranche of the award as if the award is, in substance, multiple awards once the performance condition is deemed probable of achievement. Performance conditions are evaluated quarterly. If such conditions are not ultimately met or it is not probable the conditions will be achieved, no compensation expense for performance conditioned awards is recognized and any previously recognized compensation expense is reversed.
Income Taxes
The Company accounts for income taxes under the asset and liability approach which requires recognition of deferred tax assets and liabilities for the differences between the financial reporting and tax basis of assets and liabilities using the tax rates in effect for the year in which the differences are expected to affect taxable income. A valuation allowance reduces deferred tax assets when it is more likely than not that some portion or all of the deferred tax assets will not be realized. When it is determined that it is more likely than not that the Company will be able to realize deferred tax assets in the future in excess of
the net recorded amount, an adjustment to the deferred tax asset is made and reflected in income. This determination is made by considering various factors, including the reversal and timing of existing temporary differences, tax planning strategies, and estimates of future taxable income exclusive of the reversal of temporary differences.
Fair Value of Financial Instruments
Fair value measurements are based on a three-level valuation hierarchy for disclosure of fair value measurements. The valuation hierarchy is based upon the transparency of inputs to the valuation of an asset or liability as of the measurement date. Categorization within the valuation hierarchy is based upon the lowest level of input that is significant to the fair value measurement. The three levels are defined as follows.
•Level 1 – quoted prices (unadjusted) for identical assets or liabilities in active markets;
•Level 2 – quoted prices for similar assets and liabilities in active markets; quoted prices for identical or similar instruments in markets that are not active; and model-derived valuations in which significant inputs and significant value drivers are observable in active markets; and
•Level 3 – fair value measurements derived from valuation techniques in which one or more significant inputs or significant value drivers are unobservable.
Marketable Securities
Marketable securities are investments in commercial paper and short-term corporate bond instruments with maturities of greater than 90 days as of their acquisition date by the Company.
Accounts Receivable, Net
Accounts receivable are reported net of an allowance for credit losses to represent the Company's estimate of expected losses at the balance sheet date. The adequacy of the Company's allowance for credit losses is reviewed on an ongoing basis, using historical payment trends, write-off experience, analyses of receivable portfolios by payor source and aging of receivables, a review of specific accounts, as well as expected future economic conditions and market trends, and adjustments are made to the allowance as necessary.
Property, Plant and Equipment and Leasehold Intangibles, Net
Property, plant and equipment and leasehold intangibles, net are recorded at cost. Depreciation and amortization is computed using the straight-line method over the estimated useful lives of the assets, which are as follows.
| Asset Category | Estimated<br>Useful Life<br>(in years) |
|---|---|
| Buildings and improvements | 40 |
| Furniture and equipment | 3 – 10 |
| Resident in-place lease intangibles | 1 – 3 |
Expenditures for ordinary maintenance and repairs are expensed to operations as incurred. Renovations and improvements, which improve and/or extend the useful life of the asset, are capitalized and depreciated over the estimated useful life of the renovations or improvements. For communities subject to operating or financing leases, leasehold improvements are depreciated over the shorter of the estimated useful life of the assets or the term of the lease. For financing leases that have a purchase option the Company is reasonably certain to exercise, the leasehold improvements are depreciated over their estimated useful life. Facility operating expense excludes facility depreciation and amortization.
Long-lived assets are reviewed for impairment whenever events or changes in circumstances indicate the carrying amount of an asset group may not be recoverable. Recoverability of an asset group is assessed by comparing its carrying amount to the estimated future undiscounted net cash flows expected to be generated by the asset group through operation or disposition, calculated utilizing the lowest level of identifiable cash flows. If this comparison indicates that the carrying amount of an asset group is not recoverable, the Company is required to recognize an impairment loss. The impairment loss is measured by the amount by which the carrying amount of the asset exceeds its estimated fair value, with any amount in excess of fair value
recognized as an expense in the current period. Undiscounted cash flow projections and estimates of fair value amounts are based on a number of assumptions such as revenue and expense growth rates, estimated holding periods, and estimated capitalization rates (Level 3).
Investment in Unconsolidated Ventures
The Company reports investments in unconsolidated entities over whose operating and financial policies it has the ability to exercise significant influence under the equity method of accounting. The initial carrying amount of investment in unconsolidated ventures is based on the amount paid to purchase the investment or its fair value in the case of a retained noncontrolling interest upon deconsolidation of a former subsidiary. The Company's reported share of earnings of an unconsolidated venture is adjusted for the impact, if any, of basis differences between its carrying amount of the equity investment and its share of the venture's underlying assets. Distributions received from an investee are recognized as a reduction in the carrying amount of the investment.
The Company evaluates realization of its investment in ventures accounted for using the equity method if circumstances indicate that the Company's investment is other than temporarily impaired. A current fair value of an investment that is less than its carrying amount may indicate a loss in value of the investment. If the Company determines that an equity method investment is other than temporarily impaired, it is recorded at its fair value with an impairment charge recognized in asset impairment expense for the difference between its carrying amount and fair value.
Goodwill
The Company tests goodwill for impairment annually during the fourth quarter or more frequently if indicators of impairment arise. Factors the Company considers important in its analysis of whether an indicator of impairment exists include a significant decline in the Company's stock price or market capitalization for a sustained period since the last testing date, significant underperformance relative to historical or projected future operating results, and significant negative industry or economic trends. The Company first assesses qualitative factors to determine if it is more likely than not that the fair value of a reporting unit is less than its carrying amount. If so, the Company performs a quantitative goodwill impairment test based upon a comparison of the estimated fair value of the reporting unit to which the goodwill has been assigned with the reporting unit's carrying amount. The fair values used in the quantitative goodwill impairment test are estimated using Level 3 inputs based upon discounted future cash flow projections for the reporting unit. These cash flow projections are based upon a number of estimates and assumptions such as revenue and expense growth rates, capitalization rates, and discount rates. The Company also considers market-based measures such as earnings multiples in its analysis of estimated fair values of its reporting units. If the quantitative goodwill impairment test results in a reporting unit's carrying amount exceeding its estimated fair value, an impairment charge will be recorded based on the difference, with the impairment charge limited to the amount of goodwill allocated to the reporting unit.
Self-Insurance Liability Accruals
The Company is subject to various legal proceedings and claims that arise in the ordinary course of its business. Although the Company maintains general liability and professional liability insurance policies for its owned, leased, and managed communities under a master insurance program, the Company's current policies provide for deductibles for each claim and contain various exclusions from coverage. The Company uses its wholly-owned captive insurance company for the purpose of insuring certain portions of its risk retention under its general and professional liability insurance programs. Accordingly, the Company is, in effect, self-insured for claims that are less than the deductible amounts, for claims that exceed the funding level of the Company’s wholly-owned captive insurance company, and for claims or portions of claims that are not covered by such policies and/or exceed the policy limits. In addition, the Company maintains a high deductible workers' compensation program and a self-insured employee medical program.
The Company reviews the adequacy of its accruals related to these liabilities on an ongoing basis using historical claims, actuarial valuations, third-party administrator estimates, consultants, advice from legal counsel, and industry data, and adjusts accruals periodically. Estimated costs related to these self-insurance programs are accrued based on known claims and projected claims incurred but not yet reported. Subsequent changes in actual experience are monitored, and estimates are updated as information becomes available.
Treasury Stock
The Company accounts for treasury stock under the cost method and includes treasury stock as a component of stockholders' equity.
Reclassifications
Certain prior period amounts have been reclassified to conform to the current financial statement presentation, with no effect on the Company's consolidated financial position or results of operations.
- Acquisitions, Dispositions, and Other Significant Leasing Transactions
Welltower Lease Amendments
During the three months ended June 30, 2023, the Company entered into amendments to its existing lease arrangements with Welltower Inc. ("Welltower") pursuant to which the Company continues to lease 74 communities. In connection with the amendments, the Company extended the maturity of one lease involving 39 communities from December 31, 2026 until June 30, 2032. As a result, the Company's amended lease arrangements provide that the current term for 69 of the communities will expire on June 30, 2032 and the current term for five of the communities will expire on December 31, 2024. The amendments did not change the amount of required lease payments over the previous term of the leases or the annual lease escalators. In addition, Welltower agreed to make available a pool in the aggregate amount of up to $17.0 million to fund costs associated with certain capital expenditure projects for 69 of the communities. Upon reimbursement of such expenditures, the annual minimum rent under the lease will prospectively increase by the amount of the reimbursement multiplied by the sum of the then current Secured Overnight Financing Rate ("SOFR") (subject to a floor of 3.0%) and a margin of 4.0%, and such amount will escalate annually consistent with the minimum rent escalation provisions of the 39 community lease.
The amended leases for 35 of such communities were prospectively classified as operating leases subsequent to the amendment. For 2023, the classification of such lease costs as operating lease expense resulted in a $19.3 million increase in cash lease payments for operating leases and an offsetting decrease in cash lease payments for financing leases. The amendment to the lease arrangements increased the right-of-use assets and lease obligations recognized on the Company's consolidated balance sheet each by $122.3 million.
The amendments replaced the net worth covenant provisions requiring the Company to maintain at least $400.0 million of stockholders' equity with a consolidated tangible net worth covenant requiring the Company to maintain at least $2.0 billion of tangible net worth, generally calculated as stockholders' equity plus accumulated depreciation and amortization less intangible assets and further adjusted for certain other items. Such calculation is generally similar to the tangible net worth covenants within certain of the Company’s long-term debt documents. So long as it maintains tangible net worth as defined in the leases of at least $1.5 billion, the Company will also be able to cure any breach by posting collateral with Welltower.
Community Transactions
During the year ended December 31, 2023, the Company completed the sale of two owned CCRCs for cash proceeds of $25.6 million, net of $29.6 million in mortgage debt repaid and transaction costs, and recognized a net gain on sale of communities of $36.3 million. During the year ended December 31, 2022, the Company completed the sale of two owned communities for cash proceeds of $4.4 million, net of transaction costs. During the year ended December 31, 2021, the Company completed the sale of three owned communities for cash proceeds of $16.5 million, net of transaction costs.
The Company's triple-net lease obligations on 24 communities were terminated from 2021 to 2023 (2 in 2021, 4 in 2022, and 18 in 2023), including through the acquisition of one formerly leased community in 2022. Additionally, the Company acquired the remaining 50% equity interest in one community during 2023.
Sale of Health Care Services
On July 1, 2021, the Company completed the sale of 80% of its equity in its Health Care Services segment to affiliates of HCA Healthcare, Inc. ("HCA Healthcare") for a purchase price of $400.0 million in cash, subject to certain adjustments set forth in the Securities Purchase Agreement (the "Purchase Agreement") dated February 24, 2021, including a reduction for the remaining outstanding balance as of the closing of Medicare advance payments and deferred payroll tax payments related to the Health Care Services segment (the "HCS Sale"). The Company received net cash proceeds of $312.6 million, including $305.8 million at closing on July 1, 2021 and $6.8 million upon completion of the post-closing net working capital adjustment in October 2021. The Purchase Agreement also contained certain agreed upon indemnities for the benefit of the purchaser. At closing of the transaction, the Company retained a 20% equity interest in the Health Care Services venture (the "HCS Venture").
The accompanying consolidated financial statements include the results of operations and cash flows of the Health Care Services segment through June 30, 2021. The results and financial position of the Health Care Services segment were deconsolidated from its consolidated financial statements as of July 1, 2021 and its 20% equity interest in the HCS Venture was accounted for under the equity method of accounting subsequent to that date. As of July 1, 2021, the Company recognized a $100.0 million asset within investment in unconsolidated ventures on its consolidated balance sheet for the estimated fair value of its retained 20% noncontrolling interest in the HCS Venture. The Company recognized a $286.5 million gain on sale, net of transaction costs, within its consolidated statement of operations for the year ended December 31, 2021 for the HCS Sale. Refer to Note 20 for selected financial data for the Health Care Services segment through June 30, 2021.
On November 1, 2021, the HCS Venture sold certain home health, hospice, and outpatient therapy agencies in areas not served by HCA Healthcare to LHC Group Inc. Upon the completion of the sale, the Company received $35.0 million of cash distributions from the HCS Venture from the net sale proceeds, which decreased its investment in unconsolidated ventures.
During the three months ended September 30, 2023, the Company contributed $7.5 million to the HCS Venture. During the three months ended December 31, 2023, the Company recognized a non-cash impairment charge of $26.0 million on its investment in the HCS Venture as a result of the Company's decision to sell its equity interest prior to the recovery of its market value. In December 2023, the Company completed the sale of its 20% equity interest in the HCS Venture to HCA Healthcare for cash proceeds of $27.4 million.
Master Lease Amendment
In the three months ended December 31, 2022, the Company and a lessor entered into an amendment to the Company’s existing master lease pursuant to which the Company continues to lease 24 communities. The amendment removed certain asset repurchase clauses and adjusted the extension option provisions. The amendment did not change the amount of required lease payments or the initial term of the lease. The leases for 16 of these communities were previously accounted for as failed sale-leaseback transactions as the Company had not previously transferred control of the underlying assets for accounting purposes. The Company determined that the adjustment of the extension option provisions and the removal of the asset repurchase clauses in December 2022 resulted in the transfer of control of the assets of the 16 communities for accounting purposes and resulted in qualification as a sale. The Company recognized a $73.9 million non-cash gain on sale of communities for the transaction in the three months ended December 31, 2022. In addition, the amended leases for such communities are prospectively classified as operating leases as of December 31, 2022, the effective date of the amendment. For 2023, the reclassification of such lease costs as operating lease expense resulted in a $22.2 million increase in cash lease payments for operating leases and an offsetting decrease in cash lease payments for financing leases. See Note 18 for more information regarding the impact to the Company’s consolidated balance sheet as a result of this transaction.
- Fair Value Measurements
Cash, Cash Equivalents, and Restricted Cash
Cash, cash equivalents, and restricted cash are reflected in the accompanying consolidated balance sheets at amounts considered by management to reasonably approximate fair value due to their short maturity of 90 days or less.
Marketable Securities
As of December 31, 2023 and 2022, marketable securities of $29.8 million and $48.7 million, respectively, are stated at fair value based on valuations provided by third-party pricing services and are classified within Level 2 of the valuation hierarchy.
Interest Rate Derivatives
The Company's derivative assets include interest rate cap and swap instruments that effectively manage the risk above certain interest rates for a portion of the Company's long-term variable rate debt. The Company has not designated the interest rate cap and swap instruments as hedging instruments and as such, changes in the fair value of the instruments are recognized in earnings in the period of the change. The interest rate derivative positions are valued using models developed by the respective counterparty that use as their basis readily available observable market parameters (such as forward yield curves) and are classified within Level 2 of the valuation hierarchy. The Company considers the credit risk of its counterparties when evaluating the fair value of its derivatives.
The following table summarizes the Company's SOFR interest rate cap instruments as of December 31, 2023.
| ( in thousands) | ||
|---|---|---|
| Current notional balance | 1,231,920 | |
| Weighted average fixed cap rate | % | |
| Earliest maturity date | ||
| Latest maturity date | ||
| Weighted average remaining term | ||
| Estimated asset fair value (included in other assets, net) at December 31, 2023 | 13,268 | |
| Estimated asset fair value (included in other assets, net) at December 31, 2022 | 10,599 |
All values are in US Dollars.
The following table summarizes the Company's SOFR interest rate swap instrument as of December 31, 2023.
| ( in thousands) | ||
|---|---|---|
| Current notional balance | 220,000 | |
| Fixed interest rate | % | |
| Remaining term | ||
| Estimated asset fair value (included in other assets, net) at December 31, 2023 | 1,611 | |
| Estimated asset fair value (included in other assets, net) at December 31, 2022 | 4,834 |
All values are in US Dollars.
Long-Term Debt
The Company estimates the fair value of its debt primarily using a discounted cash flow analysis based upon the Company's current borrowing rate for debt with similar maturities and collateral securing the indebtedness. The Company estimates the fair value of its convertible senior notes based on valuations provided by third-party pricing services. The Company had outstanding long-term debt with a carrying amount of approximately $3.7 billion and $3.9 billion as of December 31, 2023 and 2022, respectively. Fair value of the long-term debt is approximately $3.4 billion as of both December 31, 2023 and 2022. The Company's fair value of long-term debt disclosure is classified within Level 2 of the valuation hierarchy.
Asset Impairment Expense
The following is a summary of asset impairment expense.
| For the Years Ended December 31, | ||||||
|---|---|---|---|---|---|---|
| (in millions) | 2023 | 2022 | 2021 | |||
| Operating lease right-of-use assets | $ | 8.3 | $ | 13.7 | $ | 16.6 |
| Property, plant and equipment and leasehold intangibles, net | 6.3 | 15.9 | 6.4 | |||
| Investment in unconsolidated ventures | 26.0 | — | — | |||
| Asset impairment | $ | 40.6 | $ | 29.6 | $ | 23.0 |
Long-lived assets are reviewed for impairment whenever events or changes in circumstances indicate the carrying amount of an asset group may not be recoverable. In estimating the recoverability of asset groups for purposes of the Company’s long-lived asset impairment testing, the Company utilizes future cash flow projections that are developed internally. Any estimates of future cash flow projections necessarily involve predicting unknown future circumstances and events and require significant management judgments and estimates. In arriving at the cash flow projections, the Company considers its historic operating results, approved budgets and business plans, future demographic factors, expected revenue and expense growth rates, estimated asset holding periods, estimated capitalization rates, and other factors. Future events may indicate differences from management's current judgments and estimates which could, in turn, result in future impairments.
Operating Lease Right-of-Use Assets
During the years ended December 31, 2023, 2022, and 2021, the Company evaluated operating lease right-of-use assets for impairment and identified communities with a carrying amount of the assets in excess of the estimated future undiscounted net cash flows expected to be generated by the assets. The Company compared the estimated fair value of the assets to their carrying amount for these identified communities and recorded an impairment charge for the excess of carrying amount over fair value. During the year ended December 31, 2023, the Company recognized the right-of-use assets for the operating leases for 12 communities on the consolidated balance sheet at the estimated fair value of $16.4 million. During the year ended December 31, 2022, the Company recognized the right-of-use assets for the operating leases for eight communities on the consolidated balance sheet at the estimated fair value of $30.9 million. During the year ended December 31, 2021, the Company recognized the right-of-use assets for the operating leases for 11 communities on the consolidated balance sheet at the estimated fair value of $31.0 million. In the aggregate, the Company recorded a non-cash impairment charge of $8.3 million, $13.7 million, and $16.6 million for the years ended December 31, 2023, 2022, and 2021, respectively, to operating lease right-of-use assets. These impairment charges are primarily due to decreased occupancy and future cash flow estimates at certain leased communities, including as a result of the impacts of the COVID-19 pandemic, and reflect the amount by which the carrying amounts of the assets exceeded their estimated fair value.
The fair values of the operating lease right-of-use assets were estimated utilizing a discounted cash flow approach based upon projected community cash flows and market data, including management fees and a market supported lease coverage ratio, all of which are considered Level 3 inputs within the valuation hierarchy. The estimated future cash flows were discounted at a rate that is consistent with a weighted average cost of capital from a market participant perspective.
Property, Plant and Equipment and Leasehold Intangibles, Net
During the years ended December 31, 2023, 2022, and 2021, the Company evaluated property, plant and equipment and leasehold intangibles for impairment and identified properties with a carrying amount of the assets in excess of the estimated future undiscounted net cash flows expected to be generated by the assets. The Company compared the estimated fair value of the assets to their carrying amount for these identified properties and recorded an impairment charge for the excess of carrying amount over fair value.
The Company recorded property, plant and equipment and leasehold intangibles non-cash impairment charges in its operating results of $6.3 million, $15.9 million, and $6.4 million for the years ended December 31, 2023, 2022, and 2021, respectively. These impairment charges are primarily due to property damage sustained at certain communities, decreased occupancy and future cash flow estimates at certain communities, including as a result of the impacts of the COVID-19 pandemic, and/or the completed or potential disposition of underperforming communities and reflect the amount by which the carrying amounts of the assets exceeded their estimated fair value.
Investment in Unconsolidated Ventures
As of July 1, 2021, the Company recognized a $100.0 million asset within investment in unconsolidated ventures on its consolidated balance sheet for the estimated fair value of its retained 20% noncontrolling interest in the HCS Venture. The initial recognized amount of the Company’s 20% equity interest in the HCS Venture was determined based upon a pro-rata share of the total enterprise value of the HCS Venture considering the $400.0 million purchase price paid by HCA Healthcare, as the Company's 20% interest shared ratably in all of the benefits and losses expected to be generated by the HCS Venture. The fair value measurement is classified within Level 2 of the valuation hierarchy.
The Company evaluates realization of its investment in unconsolidated ventures accounted for using the equity method if circumstances indicate the Company's investment is other than temporarily impaired. During the three months ended December 31, 2023, the Company recognized a non-cash impairment charge of $26.0 million on its investment in the HCS Venture as a result of the Company's decision to sell its equity interest prior to the recovery of its market value. The Company determined the $27.4 million fair value of its investment based primarily on the sale agreements with the purchasers. The fair value measurement is classified within Level 2 of the valuation hierarchy.
- Revenue
Resident fee revenue by payor source is as follows.
| For the Years Ended December 31, | ||||||
|---|---|---|---|---|---|---|
| 2023 | 2022 | 2021 | ||||
| Private pay | 93.7 | % | 93.5 | % | 86.8 | % |
| Government reimbursement | 4.8 | % | 5.1 | % | 10.3 | % |
| Other third-party payor programs | 1.5 | % | 1.4 | % | 2.9 | % |
The sale of 80% of the Company's equity in its Health Care Services segment on July 1, 2021 reduced its revenue from government reimbursement programs. Government reimbursements represented 16.9%, 18.0%, and 18.8% of resident fee revenue for the CCRCs segment for the years ended December 31, 2023, 2022, and 2021, respectively. Refer to Note 20 for disaggregation of revenue by reportable segment.
The payment terms and conditions within the Company's revenue-generating contracts vary by contract type and payor source, although terms generally include payment to be made within 30 days. Resident fee revenue for recurring and routine monthly services is generally billed monthly in advance under the Company's independent living, assisted living, and memory care residency agreements. Resident fee revenue for standalone or certain healthcare services is generally billed monthly in arrears. Additionally, certain of the Company's revenue-generating contracts include non-refundable fees that are generally billed and collected in advance or upon move-in of a resident under the Company's independent living, assisted living, and memory care residency agreements. Amounts of revenue that are collected from residents in advance are recognized as deferred revenue until the performance obligations are satisfied.
The Company had total deferred revenue (included within refundable fees and deferred revenue, and other liabilities within the consolidated balance sheets) of $48.3 million and $67.3 million, including $24.1 million and $25.2 million of monthly resident fees billed and received in advance, as of December 31, 2023 and 2022, respectively. For the years ended December 31, 2023, 2022, and 2021 the Company recognized $50.2 million, $54.5 million, and $60.2 million respectively, of revenue that was included in the deferred revenue balance as of January 1, 2023, 2022, and 2021, respectively. The Company applies the practical expedient in ASC 606-10-50-14 and does not disclose amounts for remaining performance obligations that have original expected durations of one year or less.
The following table presents the changes in allowance for credit losses on accounts receivable for the periods indicated.
| For the Years Ended December 31, | ||||||
|---|---|---|---|---|---|---|
| (in millions) | 2023 | 2022 | 2021 | |||
| Balance at beginning of period | $ | 12.8 | $ | 13.3 | $ | 9.8 |
| Provision within facility operating expense | 22.6 | 20.0 | 21.6 | |||
| Write-offs | (22.5) | (22.2) | (19.2) | |||
| Recoveries and other | 1.2 | 1.7 | 1.1 | |||
| Balance at end of period | $ | 14.1 | $ | 12.8 | $ | 13.3 |
- Property, Plant and Equipment and Leasehold Intangibles, Net
As of December 31, 2023 and 2022, net property, plant and equipment and leasehold intangibles, which include assets under financing leases, consisted of the following.
| As of December 31, | ||||
|---|---|---|---|---|
| (in thousands) | 2023 | 2022 | ||
| Land | $ | 500,649 | $ | 506,968 |
| Buildings and improvements | 5,348,133 | 5,323,736 | ||
| Furniture and equipment | 1,111,408 | 1,055,304 | ||
| Resident in-place lease intangibles | 282,411 | 286,122 | ||
| Construction in progress | 33,905 | 41,778 | ||
| Assets under financing leases and leasehold improvements | 1,070,900 | 1,375,521 | ||
| Property, plant and equipment and leasehold intangibles | 8,347,406 | 8,589,429 | ||
| Accumulated depreciation and amortization | (4,016,777) | (4,053,727) | ||
| Property, plant and equipment and leasehold intangibles, net | $ | 4,330,629 | $ | 4,535,702 |
Long-lived assets with definite useful lives are depreciated or amortized on a straight-line basis over their estimated useful lives (or, in certain cases, the shorter of their estimated useful lives or the lease term) and are tested for impairment whenever indicators of impairment arise. Refer to Note 4 for information on impairment expense for property, plant and equipment and leasehold intangibles.
For the years ended December 31, 2023, 2022, and 2021, the Company recognized depreciation and amortization expense on its property, plant and equipment and leasehold intangibles of $342.7 million, $347.4 million, and $337.6 million, respectively.
- Debt
Long-term debt consists of the following.
| December 31, | ||||
|---|---|---|---|---|
| (in thousands) | 2023 | 2022 | ||
| Fixed mortgage notes payable due 2025 through 2047; weighted average interest rate of 4.26% and 4.14%, as of December 31, 2023 and 2022, respectively. | $ | 1,953,414 | $ | 2,055,867 |
| Variable mortgage notes payable due 2025 through 2030; weighted average interest rate of 7.74% and 6.68% as of December 31, 2023 and 2022, respectively. | 1,524,907 | 1,568,555 | ||
| Convertible notes payable due October 2026; interest rate of 2.00% as of both December 31, 2023 and 2022. | 230,000 | 230,000 | ||
| Tangible equity units senior amortizing notes due November 2025; interest rate of 10.25% as of both December 31, 2023 and 2022. | 17,990 | 25,586 | ||
| Deferred financing costs, net | (28,998) | (29,866) | ||
| Total long-term debt | 3,697,313 | 3,850,142 | ||
| Current portion | 41,463 | 66,043 | ||
| Total long-term debt, less current portion | $ | 3,655,850 | $ | 3,784,099 |
As of December 31, 2023, 91.9%, or $3.4 billion of the Company's total debt obligations represented non-recourse property-level mortgage financings.
The annual aggregate scheduled maturities (including recurring principal payments) of long-term debt outstanding as of December 31, 2023 are as follows (in thousands).
| Year Ending December 31, | Long-term<br>Debt | Weighted Rate | ||
|---|---|---|---|---|
| 2024 | $ | 49,485 | 6.46 | % |
| 2025 (1) | 573,035 | 7.30 | % | |
| 2026 | 305,614 | 2.71 | % | |
| 2027 | 960,971 | 6.00 | % | |
| 2028 | 563,548 | 5.79 | % | |
| Thereafter | 1,273,658 | 5.03 | % | |
| Total obligations | 3,726,311 | 5.58 | % | |
| Less amount representing deferred financing costs, net | (28,998) | |||
| Total | $ | 3,697,313 |
(1) Includes the initial maturity of $320.0 million of mortgage debt for which the Company has the option to extend the maturity for two additional terms of one year each subject to the satisfaction of certain conditions.
The Company's remaining variable rate mortgage notes payable arrangements indexed to London Interbank Offered Rate ("LIBOR") were modified to reference SOFR rather than LIBOR prospectively after the discontinuance of LIBOR in July 2023. The Company applied the optional expedient provided by Accounting Standards Codification 848, Reference Rate Reform, for debt contract modifications related to the discontinuation of reference rates to ease the potential burden in accounting for reference rate reform.
Convertible Debt Offering
On October 1, 2021, the Company issued $230.0 million principal amount of 2.00% convertible senior notes due 2026 (the "Notes"). The Company received net proceeds of $224.3 million at closing after the deduction of the initial purchasers' discount. The Company used $15.9 million of the net proceeds to pay the Company’s cost of the capped call transactions described below. Additionally, the Company used the remaining net proceeds together with cash on hand to repay $284.4 million of mortgage debt and a $45.0 million note payable.
The Notes were issued pursuant to, and are governed by, the Indenture dated as of October 1, 2021 by and between the Company and American Stock Transfer & Trust Company, LLC, as trustee. The Notes are the Company’s senior unsecured obligations and rank senior in right of payment to any of the Company’s indebtedness that is expressly subordinated in right of payment to the Notes, and equal in right of payment to any of the Company’s indebtedness that is not so subordinated. The Notes are effectively junior in right of payment to any of the Company’s secured indebtedness to the extent of the value of the assets securing such indebtedness; and structurally junior to all indebtedness and other liabilities (including trade payables) and any preferred equity of current or future subsidiaries of the Company.
The Notes bear interest at 2.00% per year, payable semi-annually in arrears in cash on April 15 and October 15 of each year. The Notes will mature on October 15, 2026, unless earlier converted, redeemed, or repurchased in accordance with their terms. Holders of the Notes may convert all or any portion of their Notes at their option at any time prior to the close of business on the business day immediately preceding July 15, 2026, only under the following circumstances: (1) during any calendar quarter commencing after the calendar quarter ending on December 31, 2021 (and only during such calendar quarter), if the last reported sale price of the common stock of the Company for at least 20 trading days (whether or not consecutive) during a period of 30 consecutive trading days ending on, and including, the last trading day of the immediately preceding calendar quarter is greater than or equal to 130% of the conversion price on each applicable trading day; (2) during the five business day period after any ten consecutive trading day period (the "measurement period") in which the trading price per $1,000 principal amount of Notes for each trading day of the measurement period was less than 98% of the product of the last reported sale price of the common stock of the Company and the conversion rate for the Notes on each such trading day; (3) if the Company calls any or all of the Notes for redemption, at any time prior to the close of business on the second scheduled trading day immediately preceding the redemption date, but only with respect to the Notes called (or deemed called) for redemption; or (4) upon the occurrence of specified corporate events. On or after July 15, 2026, holders may convert all or any portion of their Notes at any time prior to the close of business on the second scheduled trading day immediately preceding the maturity date regardless of the foregoing conditions. Upon conversion, the Company will satisfy its conversion obligation by paying or
delivering, as the case may be, cash, shares of the Company’s common stock or a combination of cash and shares of the Company’s common stock at the Company’s election.
The conversion rate for the Notes is initially 123.4568 shares of the Company’s common stock per $1,000 principal amount of Notes (equivalent to an initial conversion price of approximately $8.10 per share of common stock). The conversion rate will be subject to adjustment in some events but will not be adjusted for any accrued and unpaid interest. In addition, following certain corporate events that occur prior to the maturity date or following the issuance of a notice of redemption, the Company will increase the conversion rate for a holder who elects to convert its Notes in connection with such a corporate event or who elects to convert any Notes called (or deemed called) for redemption during the related redemption period in certain circumstances.
The Company may not redeem the Notes prior to October 21, 2024. The Company may redeem for cash all or (subject to certain limitations) any portion of the Notes, at the Company's option, on or after October 21, 2024 and prior to the 51st scheduled trading day immediately preceding the maturity date if the last reported sale price of the Company's common stock has been at least 130% of the conversion price then in effect for at least 20 trading days (whether or not consecutive) during any 30 consecutive trading day period (including the last trading day of such period) ending on, and including, the trading day immediately preceding the date on which the Company provides notice of redemption at a redemption price equal to 100% of the principal amount of the Notes to be redeemed, plus accrued and unpaid interest to, but excluding, the redemption date. No sinking fund is provided for the Notes.
The Company has recognized the Notes in their entirety as a liability on the consolidated balance sheet and no portion of the proceeds from the issuance of the convertible debt instrument was accounted for separately as an embedded conversion feature within stockholders’ equity. The Notes were initially recognized at $223.3 million, which reflects $230.0 million principal amount less the $5.7 million initial purchasers' discount and $1.0 million of debt issuance costs.
Capped Call Transactions
In connection with the offering of the Notes, the Company entered into privately negotiated capped call transactions ("Capped Call Transactions") with each of Bank of America, N.A., Royal Bank of Canada, Wells Fargo Bank, National Association or their respective affiliates (the "Capped Call Counterparties"). The Capped Call Transactions initially cover, subject to customary anti-dilution adjustments, the number of shares of the Company’s common stock that initially underlie the Notes and initially have an exercise price of $8.10 per share of common stock. The cap price of the Capped Call Transactions is initially approximately $9.90 per share of the Company’s common stock, representing a premium of 65% above the last reported sale price of $6.00 per share of the Company’s common stock on September 28, 2021, and is subject to certain adjustments under the terms of the Capped Call Transactions. The Capped Call Transactions are expected generally to reduce or offset potential dilution to holders of the Company’s common stock upon conversion of the Notes and/or offset the potential cash payments that the Company could be required to make in excess of the principal amount of any converted Notes upon conversion thereof, with such reduction and/or offset subject to a cap based on the cap price.
The Capped Call Transactions are separate transactions entered into by the Company with the Capped Call Counterparties and are not part of the terms of the Notes. The Capped Call Transactions had a cost of $15.9 million, which was paid on October 1, 2021 from the proceeds of the Notes. The Company accounted for the Capped Call Transactions separately from the Notes and recognized the $15.9 million cost as a reduction of additional paid-in capital in the year ended December 31, 2021 as the Capped Call Transactions are indexed to the Company’s common stock.
Credit Facilities
In December 2023, the Company amended its revolving credit agreement with Capital One, National Association, as administrative agent and lender and the other lenders from time to time parties thereto. The amended agreement provides an expanded commitment amount of up to $100.0 million which can be drawn in cash or as letters of credit. The credit facility matures in January 2027, and the Company has the option to extend the facility for two additional terms of approximately one year each subject to the satisfaction of certain conditions. Amounts drawn under the facility will bear interest at SOFR plus an applicable margin which was 3.00% as of December 31, 2023. Additionally, a quarterly commitment fee of 0.25% per annum was applicable on the unused portion of the facility as of December 31, 2023. The revolving credit facility is currently secured by first priority mortgages and negative pledges on certain of the Company’s communities. Available capacity under the facility will vary from time to time based upon certain calculations related to the appraised value and performance of the communities securing the credit facility and the variable interest rate of the credit facility.
As of December 31, 2023, $63.6 million of letters of credit and no cash borrowings were outstanding under the Company's $100.0 million secured credit facility. The Company also had a separate secured letter of credit facility providing up to $15.0 million of letters of credit as of December 31, 2023 under which $14.5 million had been issued as of that date.
2024 Financing
On February 9, 2024, the Company obtained $50.0 million of debt secured by first priority mortgages on 11 communities. The loan bears interest at a variable rate equal to SOFR plus a margin of 350 basis points. The debt matures in February 2027 with two one-year renewal options, exercisable subject to certain performance criteria.
2023 Financing
In December 2023, the Company obtained $179.5 million of debt secured by non-recourse first mortgages on 47 communities, which also continue to secure $580.4 million of additional outstanding mortgages with a later maturity. The $179.5 million loan bears interest at a fixed rate of 5.97%, and matures in January 2031. The mortgage facility includes certain provisions allowing for the Company to obtain additional funding based on the performance of the underlying communities. At the closing, the Company repaid $260.1 million of debt under the mortgage facility, which was scheduled to mature in 2024, using proceeds from the $179.5 million loan and cash on hand.
2022 Financing
In October 2022, the Company obtained $220.0 million of debt secured by first priority mortgages on 24 communities. The loan bears interest at a variable rate equal to SOFR plus a margin of 245 basis points and is interest only for the first three years. The debt matures in October 2025 with two one-year renewal options, exercisable by the Company subject to the satisfaction of certain conditions. The debt documents contain a requirement for the Company to maintain liquidity of at least $130.0 million and 25% of the loan amount is subject to a guaranty by the Company. The proceeds from the financing were primarily utilized to repay $199.6 million of outstanding mortgage debt previously scheduled to mature in 2023 and to purchase a SOFR interest rate swap instrument for $6.1 million. The interest rate swap instrument has a $220.0 million notional amount, a fixed interest rate of 3.0%, and a term of eighteen months.
Financial Covenants
Certain of the Company's debt documents contain restrictions and financial covenants, such as those requiring the Company to maintain prescribed minimum liquidity, net worth, and stockholders' equity levels and debt service ratios, and requiring the Company not to exceed prescribed leverage ratios, in each case on a consolidated, portfolio-wide, multi-community, single-community, and/or entity basis. In addition, the Company's debt documents generally contain non-financial covenants, such as those requiring the Company to comply with Medicare or Medicaid provider requirements and maintain insurance coverage.
The Company's failure to comply with applicable covenants could constitute an event of default under the applicable debt documents. Many of the Company's debt documents contain cross-default provisions so that a default under one of these instruments could cause a default under other debt and lease documents (including documents with other lenders and lessors). Furthermore, the Company's mortgage debt is secured by its communities and, in certain cases, a guaranty by the Company and/or one or more of its subsidiaries.
As of December 31, 2023, the Company is in compliance with the financial covenants of its debt agreements.
- Leases
As of December 31, 2023, the Company operated 277 communities under long-term leases (263 operating leases and 14 financing leases). The substantial majority of the Company's lease arrangements are structured as master leases. Under a master lease, numerous communities are leased through an indivisible lease. In certain cases, the Company guarantees the performance and lease payment obligations of its subsidiary lessees under the master leases. An event of default related to an individual property or limited number of properties within a master lease portfolio may result in a default on the entire master lease portfolio.
The leases relating to these communities are generally fixed rate leases with annual escalators that are either fixed or based upon changes in the consumer price index or the leased property revenue. The Company is responsible for all operating costs, including repairs, property taxes, and insurance. As of December 31, 2023, the weighted average remaining lease term of the Company's operating and financing leases was 5.7 and 2.3 years, respectively. The leases generally provide for renewal or
extension options from 5 to 20 years and in some instances, purchase options. As of December 31, 2023, none of the Company's renewal or extension option periods are included in the lease term for accounting purposes.
The community leases contain other customary terms, which may include assignment and change of control restrictions, maintenance and capital expenditure obligations, termination provisions, and financial covenants, such as those requiring the Company to maintain prescribed minimum liquidity, net worth, and stockholders' equity levels and lease coverage ratios, in each case on a consolidated, portfolio-wide, multi-community, single-community and/or entity basis. In addition, the Company's lease documents generally contain non-financial covenants, such as those requiring the Company to comply with Medicare or Medicaid provider requirements and maintain insurance coverage.
The Company's failure to comply with applicable covenants could constitute an event of default under the applicable lease documents. Many of the Company's debt and lease documents contain cross-default provisions so that a default under one of these instruments could cause a default under other debt and lease documents (including documents with other lenders and lessors). Certain leases contain cure provisions, which generally allow the Company to post an additional lease security deposit if the required covenant is not met. Furthermore, the Company's leases are secured by its communities and, in certain cases, a guaranty by the Company and/or one or more of its subsidiaries.
As of December 31, 2023, the Company is in compliance with the financial covenants of its long-term leases.
A summary of operating and financing lease expense (including the respective presentation on the consolidated statements of operations) and net cash outflows from leases is as follows.
| Years Ended December 31, | ||||||
|---|---|---|---|---|---|---|
| Operating Leases (in thousands) | 2023 | 2022 | 2021 | |||
| Facility operating expense | $ | 7,105 | $ | 6,329 | $ | 12,606 |
| Facility lease expense | 202,410 | 165,294 | 174,358 | |||
| Operating lease expense | 209,515 | 171,623 | 186,964 | |||
| Operating lease expense adjustment (1) | 45,739 | 34,896 | 23,280 | |||
| Changes in operating lease assets and liabilities for lessor capital expenditure reimbursements | (9,844) | (13,718) | (30,965) | |||
| Operating net cash outflows from operating leases | $ | 245,410 | $ | 192,801 | $ | 179,279 |
(1) Represents the difference between the amount of cash operating lease payments and the amount of operating lease expense.
| Years Ended December 31, | ||||||
|---|---|---|---|---|---|---|
| Financing Leases (in thousands) | 2023 | 2022 | 2021 | |||
| Depreciation and amortization | $ | 16,444 | $ | 38,126 | $ | 37,921 |
| Interest expense: financing lease obligations | 21,950 | 48,061 | 46,282 | |||
| Financing lease expense | $ | 38,394 | $ | 86,187 | $ | 84,203 |
| Operating cash outflows from financing leases | $ | 21,950 | $ | 48,061 | $ | 46,282 |
| Financing cash outflows from financing leases | 8,473 | 22,221 | 19,874 | |||
| Changes in financing lease assets and liabilities for lessor capital expenditure reimbursement | (475) | (11,932) | (11,135) | |||
| Total net cash outflows from financing leases | $ | 29,948 | $ | 58,350 | $ | 55,021 |
As of December 31, 2023, the weighted average discount rate of the Company's operating and financing leases was 8.4% and 10.3%, respectively.
The aggregate amounts of future minimum lease payments, including community, office, and equipment leases, recognized on the consolidated balance sheet as of December 31, 2023 are as follows (in thousands).
| Year Ending December 31, | Operating Leases | Financing Leases | ||
|---|---|---|---|---|
| 2024 | $ | 260,694 | $ | 20,266 |
| 2025 | 260,501 | 6,849 | ||
| 2026 | 145,832 | 6,833 | ||
| 2027 | 147,660 | 6,082 | ||
| 2028 | 84,767 | 5,917 | ||
| Thereafter | 251,579 | 20,625 | ||
| Total lease payments | 1,151,033 | 66,572 | ||
| Purchase option liability and non-cash gain on future sale of property | — | 145,136 | ||
| Imputed interest and variable lease payments | (274,526) | (59,859) | ||
| Total lease obligations | $ | 876,507 | $ | 151,849 |
- Tangible Equity Units
During 2022, the Company issued 2,875,000 of its 7.00% tangible equity units (the “Units”) at a public offering price of $50.00 per Unit for an aggregate offering of $143.8 million. The Company received proceeds of $139.4 million after the deduction of the underwriters’ discount. Each Unit is comprised of a prepaid stock purchase contract and a senior amortizing note with an initial principal amount of $8.8996. Under each purchase contract, the Company is obligated to deliver to the holder on November 15, 2025 a minimum of 12.9341, and a maximum of 15.1976, shares of the Company’s common stock depending on the daily volume-weighted average price ("VWAPs") of its common stock for the 20 trading days preceding the settlement date. Each amortizing note bears interest at the rate of 10.25% per annum, requires quarterly installment payments of principal and interest, and has a final installment payment date of November 15, 2025. The cash installment payments will be equivalent to 7.00% per year with respect to each $50.00 stated amount of Unit. The Units, purchase contracts, and amortizing notes are subject to the terms and conditions set forth in the Purchase Contract Agreement dated November 21, 2022 between the Company and American Stock Transfer & Trust Company, LLC ("AST") as purchase contract agent, and the Indenture and First Supplemental Indenture, each dated November 21, 2022, between the Company and AST as trustee, including certain early settlement, repurchase, and adjustment events as set forth therein.
Subsequent to issuance, each Unit may be legally separated into the two components, both of which are freestanding instruments and separate units of account. The Company allocated the proceeds from the issuance of the Units to the purchase contracts and amortizing notes based on the relative fair values of the respective components, determined as of the date of issuance of the Units. The Company recognized the issuance of the purchase contract portion of the Units, net of issuance costs, as additional paid-in-capital on the consolidated balance sheet. The Company separately recognized the amortizing notes portion of the Units, net of issuance costs, as long-term debt on the consolidated balance sheet.
The proceeds from the issuance of the Units were allocated to equity and debt based on the relative fair value of the respective components of each Unit as follows:
| (in thousands, except value per unit) | Equity Component | Debt Component | Total | |||
|---|---|---|---|---|---|---|
| Value per unit | $ | 41.10 | $ | 8.90 | $ | 50.00 |
| Gross proceeds | $ | 118,164 | $ | 25,586 | $ | 143,750 |
| Less: underwriters' discount | (3,544) | (768) | (4,312) | |||
| Proceeds from issuance of Units | $ | 114,620 | $ | 24,818 | $ | 139,438 |
| Less: issuance costs | (1,163) | (252) | (1,415) | |||
| Net proceeds | $ | 113,457 | $ | 24,566 | $ | 138,023 |
Unless settled early in accordance with the terms of the instruments, each prepaid stock purchase contract will automatically settle on November 15, 2025 (the mandatory settlement date) for a number of shares of the Company’s common stock based on the arithmetic average of the VWAPs of the Company’s common stock on each of the 20 consecutive trading days beginning on, and including, the 21st scheduled trading day immediately preceding November 15, 2025 (applicable market value) with reference to the following settlement rates:
| Applicable Market Value | Common Stock Issued |
|---|---|
| Equal to or greater than the threshold appreciation price | 12.9341 shares (minimum settlement rate) |
| Less than the threshold appreciation price, but greater than the reference price | $50 divided by applicable market value |
| Less than or equal to the reference price | 15.1976 shares (maximum settlement rate) |
The threshold appreciation price is initially approximately equal to $3.87 and the reference price is initially approximately equal to $3.29.
- Accrued Expenses
Accrued expenses reflected within current liabilities on the Company’s consolidated balance sheets consist of the following.
| As of December 31, | ||||
|---|---|---|---|---|
| (in thousands) | 2023 | 2022 | ||
| Employee compensation | $ | 104,322 | $ | 85,610 |
| Insurance reserves | 54,834 | 65,757 | ||
| Real estate taxes | 26,988 | 26,661 | ||
| Interest | 17,838 | 17,569 | ||
| Utilities | 8,444 | 8,533 | ||
| Income taxes payable | 2,071 | 2,081 | ||
| Other | 28,171 | 30,937 | ||
| Total | $ | 242,668 | $ | 237,148 |
- Commitments and Contingencies
Litigation
The Company has been and is currently involved in litigation and claims incidental to the conduct of its business, which it believes are generally comparable to other companies in the senior living and healthcare industries, including, but not limited to, putative class action claims from time to time regarding staffing at the Company’s communities and compliance with consumer protection laws and the Americans with Disabilities Act. Certain claims and lawsuits allege large damage amounts and may require significant costs to defend and resolve. As a result, the Company maintains general liability, professional liability, and other insurance policies in amounts and with coverage and deductibles the Company believes are appropriate, based on the nature and risks of its business, historical experience, availability, and industry standards. The Company's current policies provide for deductibles for each claim and contain various exclusions from coverage. The Company uses its wholly-owned captive insurance company for the purpose of insuring certain portions of its risk retention under its general and professional liability insurance programs. Accordingly, the Company is, in effect, self-insured for claims that are less than the deductible amounts, for claims that exceed the funding level of the Company's wholly-owned captive insurance company, and for claims or portions of claims that are not covered by such policies and/or exceed the policy limits.
The senior living and healthcare industries are continuously subject to scrutiny by governmental regulators, which could result in reviews, audits, investigations, enforcement actions, or litigation related to regulatory compliance matters. In addition, the Company is subject to various government reviews, audits, and investigations to verify compliance with Medicare and Medicaid programs and other applicable laws and regulations. The Centers for Medicare & Medicaid Services ("CMS") has engaged third-party firms to review claims data to evaluate appropriateness of billings. In addition to identifying overpayments, audit contractors can refer suspected violations to government authorities. In addition, states' Attorneys General vigorously enforce consumer protection laws as those laws relate to the senior living industry. An adverse outcome of government scrutiny may result in citations, sanctions, other criminal or civil fines and penalties, the refund of overpayments, payment suspensions,
termination of participation in Medicare and Medicaid programs, and damage to the Company’s business reputation. The Company’s costs to respond to and defend any such audits, reviews, and investigations may be significant.
In June 2020, the Company and several current and former executive officers were named as defendants in a putative class action lawsuit alleging violations of the federal securities laws filed in the federal court for the Middle District of Tennessee. The lawsuit asserted that the defendants made material misstatements and omissions concerning the Company's business, operational and compliance policies, compliance with applicable regulations and statutes, and staffing practices that caused the Company's stock price to be artificially inflated between August 2016 and April 2020. The district court dismissed the lawsuit and entered judgment in favor of the defendants in September 2021, and the plaintiffs did not file an appeal. Between October 2020 and June 2021, alleged stockholders of the Company filed several stockholder derivative lawsuits in the federal courts for the Middle District of Tennessee and the District of Delaware, which were subsequently transferred to the Middle District of Tennessee and consolidated into two lawsuits. In January 2024, the court dismissed one of the two derivative lawsuits. Plaintiffs have appealed the dismissal to the United States Court of Appeals for the Sixth Circuit. The other derivative lawsuit remains pending with the Middle District of Tennessee and asserts claims on behalf of the Company against certain current and former officers and directors for alleged breaches of duties owed to the Company. The complaint incorporates substantively similar allegations to the securities lawsuit previously described.
Other
The Company has employment or letter agreements with certain officers of the Company and has adopted policies to which certain officers of the Company are eligible to participate, which grant these employees the right to receive a portion or multiple of their base salary, pro-rata bonus, bonus, and/or continuation of certain benefits, for a defined period of time, in the event of certain terminations of the officers' employment, as described in those agreements and policies.
- Self-Insurance
The Company obtains various insurance coverages, including general and professional liability and workers' compensation programs, from commercial carriers at stated amounts as defined in the applicable policy. The Company's current general and professional liability policies provide for deductibles for each claim and contain various exclusions from coverage. The Company uses its wholly-owned captive insurance company for the purpose of insuring certain portions of its risk retention under its general and professional liability insurance programs. Accordingly, the Company is, in effect, self-insured for claims that are less than the deductible amounts, for claims that exceed the funding level of the Company’s wholly-owned captive insurance company, and for claims or portions of claims that are not covered by such policies and/or exceed the policy limits. Losses related to self-insured amounts are accrued based on the Company's estimate of expected losses for known claims and projected claims incurred but not yet reported.
As of December 31, 2023 and 2022, the Company accrued reserves of $122.6 million and $135.9 million, respectively, under the Company's insurance programs, of which $67.8 million and $70.2 million is classified as other liabilities as of December 31, 2023 and 2022, respectively. As of December 31, 2023 and 2022, the Company accrued $4.3 million and $9.9 million, respectively, of estimated amounts receivable from the insurance companies under these insurance programs.
The Company has secured self-insured retention risk under its primary workers' compensation programs with restricted cash deposits and other deposits of $8.3 million and $14.5 million and letters of credit of $57.2 million and $62.1 million as of December 31, 2023 and 2022, respectively. Additionally, the Company’s wholly-owned captive insurance company had restricted cash and other deposits of $10.3 million and $6.0 million as of December 31, 2023 and 2022, respectively.
- Stock-Based Compensation
The following table sets forth information about the Company's restricted stock units and stock awards.
| (in thousands, except for weighted average amounts) | Number of Restricted Stock Units and Stock Awards | Weighted<br>Average<br>Grant Date Fair Value | |
|---|---|---|---|
| Outstanding on January 1, 2021 | 8,505 | $ | 7.68 |
| Granted | 1,998 | 5.12 | |
| Vested | (2,641) | 8.40 | |
| Cancelled/forfeited | (2,851) | 6.77 | |
| Outstanding on December 31, 2021 | 5,011 | 6.80 | |
| Granted | 2,921 | 5.58 | |
| Vested | (2,039) | 7.15 | |
| Cancelled/forfeited | (520) | 6.88 | |
| Outstanding on December 31, 2022 | 5,373 | 6.00 | |
| Granted | 3,992 | 2.98 | |
| Vested | (2,001) | 5.87 | |
| Cancelled/forfeited | (961) | 5.90 | |
| Outstanding on December 31, 2023 | 6,403 | 4.17 |
As of December 31, 2023, there was $15.8 million of total unrecognized compensation cost related to outstanding, unvested share-based compensation. That cost is expected to be recognized over a weighted average period of 2.3 years and is based on grant date fair value.
As of December 31, 2022, the Company's outstanding shares included 422,542 unvested restricted shares. The Company did not have any unvested restricted shares as of December 31, 2023.
During 2023, grants of restricted stock units and stock awards under the Company's 2014 Omnibus Incentive Plan were as follows.
| (in thousands, except for weighted average amounts) | Restricted Stock Unit and Stock Award Grants | Weighted Average Grant Date Fair Value | Total Grant Date Fair Value | ||
|---|---|---|---|---|---|
| Three months ended March 31, 2023 | 3,959 | $ | 2.97 | $ | 11,778 |
| Three months ended June 30, 2023 | 10 | $ | 2.95 | $ | 29 |
| Three months ended September 30, 2023 | 16 | $ | 4.01 | $ | 65 |
| Three months ended December 31, 2023 | 7 | $ | 4.14 | $ | 29 |
- Earnings Per Share
Potentially dilutive common stock equivalents for the Company include convertible senior notes, warrants, unvested restricted stock, restricted stock units, and prepaid stock purchase contracts.
As of December 31, 2023, the maximum number of shares issuable upon settlement of the Notes is 38.3 million (after giving effect to additional shares that would be issuable upon conversion in connection with the occurrence of certain corporate or other events).
On July 26, 2020, the Company issued to Ventas, Inc. ("Ventas") a warrant (the "Warrant") to purchase 16.3 million shares of the Company’s common stock, $0.01 par value per share, at a price per share of $3.00. The Warrant is exercisable at Ventas' option at any time and from time to time, in whole or in part, until December 31, 2025. The exercise price and the number of shares issuable on exercise of the Warrant are subject to certain anti-dilution adjustments, including for cash dividends, stock
dividends, stock splits, reclassifications, non-cash distributions, certain repurchases of common stock, and business combination transactions.
As of December 31, 2023, the maximum number of shares issuable upon settlement of the Units' prepaid stock purchase contracts is 43.7 million.
Basic earnings per share ("EPS") is calculated by dividing net income (loss) by the weighted average number of shares of common stock outstanding, after giving effect to the minimum number of shares issuable upon settlement of the prepaid stock purchase contract component of the Units. For both the years ended December 31, 2023 and 2022, 37.2 million shares are included in weighted average basic shares outstanding for the minimum number of shares issuable upon settlement of the Units' prepaid stock purchase contracts.
| Years Ended December 31, | |||
|---|---|---|---|
| (in thousands) | 2023 | 2022 | 2021 |
| Weighted average common shares outstanding | 188,023 | 186,574 | 184,975 |
| Weighted average minimum shares issuable under purchase contracts | 37,186 | 3,889 | — |
| Weighted average shares outstanding - basic | 225,209 | 190,463 | 184,975 |
Diluted EPS includes the components of basic EPS and also gives effect to dilutive common stock equivalents. Diluted EPS reflects the potential dilution that could occur if securities or other instruments that are convertible into common stock were exercised or could result in the issuance of common stock. For the purposes of computing diluted EPS, weighted average shares outstanding do not include potentially dilutive securities that are anti-dilutive under the treasury stock method or if-converted method, and performance-based equity awards are included based on the attainment of the applicable performance metrics as of the end of the reporting period. The Company has the following potentially outstanding shares of common stock, which were excluded from the computation of diluted net income (loss) per share attributable to common stockholders in all periods as a result of the net loss.
| As of December 31, | |||
|---|---|---|---|
| (in millions) | 2023 | 2022 | 2021 |
| Convertible senior notes | 38.3 | 38.3 | 38.3 |
| Warrants | 16.3 | 16.3 | 16.3 |
| Restricted stock and restricted stock units | 6.4 | 5.4 | 5.0 |
| Incremental shares issuable under purchase contracts | 6.5 | 6.5 | — |
| Total | 67.5 | 66.5 | 59.6 |
Refer to Notes 7 and 9 for more information on the Notes and the Units, respectively.
- Share Repurchase Program
In 2016, the Company's Board of Directors approved a share repurchase program that authorizes the Company to purchase up to $100.0 million in the aggregate of the Company's common stock. The share repurchase program is intended to be implemented through purchases made from time to time using a variety of methods, which may include open market purchases, privately negotiated transactions, or block trades, or by any combination of these methods, in accordance with applicable insider trading and other securities laws and regulations.
The size, scope, and timing of any purchases will be based on business, market, and other conditions and factors, including price, regulatory, and contractual requirements or consents, and capital availability. The repurchase program does not obligate the Company to acquire any particular amount of common stock and the program may be suspended, modified, or discontinued at any time at the Company's discretion without prior notice. Shares of stock repurchased under the program will be held as treasury shares. The Company temporarily suspended purchases under the share repurchase plan in March 2020.
For the years ended December 31, 2023, 2022, and 2021, there were no repurchases under the share repurchase program. As of December 31, 2023, approximately $44.0 million remains available under the share repurchase program.
- Retirement Plans
The Company maintains a 401(k) retirement savings plan for all employees that meet minimum employment criteria. Such plan provides that the participants may defer eligible compensation subject to certain Internal Revenue Code maximum amounts. The Company makes matching contributions in amounts equal to 25.0% of the employee's contribution to such plan, for contributions up to a maximum of 4.0% of eligible compensation. An additional matching contribution of 12.5%, subject to the same limit on eligible compensation, may be made at the discretion of the Company based upon the Company's performance. For the years ended December 31, 2023, 2022, and 2021, the Company's expense for such plan was $4.8 million, $4.1 million, and $4.6 million, respectively.
- Income Taxes
The benefit (provision) for income taxes is comprised of the following.
| For the Years Ended December 31, | ||||||
|---|---|---|---|---|---|---|
| (in thousands) | 2023 | 2022 | 2021 | |||
| Federal: | ||||||
| Current | $ | (183) | $ | (17) | $ | 161 |
| Deferred | (7,590) | 1,325 | 9,837 | |||
| Total federal | (7,773) | 1,308 | 9,998 | |||
| State: | ||||||
| Current | (1,011) | 251 | (1,835) | |||
| Deferred (included in federal above) | — | — | — | |||
| Total state | (1,011) | 251 | (1,835) | |||
| Total | $ | (8,784) | $ | 1,559 | $ | 8,163 |
A reconciliation of the benefit (provision) for income taxes to the amount computed at the U.S. Federal statutory rate of 21% is as follows.
| For the Years Ended December 31, | ||||||
|---|---|---|---|---|---|---|
| (in thousands) | 2023 | 2022 | 2021 | |||
| Tax benefit (provision) at U.S. statutory rate | $ | 37,848 | $ | 50,397 | $ | 22,565 |
| State taxes, net of federal income tax | 5,766 | 10,811 | 7,673 | |||
| Valuation allowance | (49,109) | (57,080) | 13,027 | |||
| Goodwill derecognition | — | — | (31,829) | |||
| Stock compensation | (1,312) | (181) | (1,856) | |||
| Other | (1,977) | (2,388) | (1,417) | |||
| Total | $ | (8,784) | $ | 1,559 | $ | 8,163 |
Significant components of the Company's deferred tax assets and liabilities are as follows.
| As of December 31, | ||||
|---|---|---|---|---|
| (in thousands) | 2023 | 2022 | ||
| Deferred income tax assets: | ||||
| Operating loss carryforwards | $ | 392,577 | $ | 361,160 |
| Operating lease obligations | 220,003 | 199,226 | ||
| Tax credits | 50,415 | 50,415 | ||
| Accrued expenses | 46,814 | 42,828 | ||
| Intangible assets | 26,816 | 39,360 | ||
| Financing lease obligations | — | 12,749 | ||
| Capital loss carryforward | 2,102 | 2,140 | ||
| Other | 3,268 | 3,091 | ||
| Total gross deferred income tax asset | 741,995 | 710,969 | ||
| Valuation allowance | (474,152) | (425,043) | ||
| Net deferred income tax assets | 267,843 | 285,926 | ||
| Deferred income tax liabilities: | ||||
| Operating lease right-of-use assets | (168,398) | (149,881) | ||
| Property, plant and equipment | (92,580) | (122,377) | ||
| Investment in unconsolidated ventures | — | (12,064) | ||
| Financing lease obligations | (10,273) | — | ||
| Other | (2,579) | — | ||
| Total gross deferred income tax liability | (273,830) | (284,322) | ||
| Net deferred tax asset (liability) | $ | (5,987) | $ | 1,604 |
A reconciliation of the beginning and ending amounts of the deferred tax valuation allowance is as follows:
| Year Ended | Balance at beginning of period | Charged to deferred income tax (benefit) provision | Balance at end of period | ||||
|---|---|---|---|---|---|---|---|
| December 31, 2021 | $ | 380,990 | $ | (13,027) | (1) | $ | 367,963 |
| December 31, 2022 | $ | 367,963 | $ | 57,080 | (2) | $ | 425,043 |
| December 31, 2023 | $ | 425,043 | $ | 49,109 | (2) | $ | 474,152 |
(1) Reduction of valuation allowance for federal and state net operating losses and credits.
(2) Increase to valuation allowance for federal and state net operating losses and credits.
As of December 31, 2023 and 2022, the Company had federal net operating loss carryforwards generated in 2017 and prior of approximately $790.8 million and $802.2 million, respectively, which are available to offset future taxable income from 2024 through 2034. Additionally, as of December 31, 2023 and 2022, the Company had federal net operating loss carryforwards generated after 2017 of $799.3 million and $659.7 million, respectively, which have an indefinite life, but with usage limited to 80% of taxable income in any given year. The Company had state capital loss carryforwards of $2.1 million as of both December 31, 2023 and 2022, which are available to offset future capital gains through 2024, and are fully offset by a valuation allowance. The Company determined that a valuation allowance was required after consideration of the Company's estimated future reversal of existing timing differences as of December 31, 2023 and 2022. The Company does not consider estimates of future taxable income in its determination due to the existence of cumulative historical operating losses. The Company's valuation allowance as of December 31, 2023 and 2022 was $474.2 million and $425.0 million, respectively.
The Company has recorded valuation allowances of $421.6 million and $372.5 million against its federal and state net operating losses as of December 31, 2023 and 2022, respectively. The Company has recorded a valuation allowance against its state capital loss carryforward of $2.1 million as of both December 31, 2023 and 2022. The Company also recorded a valuation allowance against federal and state credits of $50.4 million as of both December 31, 2023 and 2022.
As of December 31, 2023 and 2022, the Company had gross tax affected unrecognized tax benefits of $18.2 million and $18.1 million, respectively, which, if recognized, would result in an income tax benefit recorded in the consolidated statement of operations. Interest and penalties related to these tax positions are classified as tax expense in the Company's consolidated financial statements. Total interest and penalties reserved is $0.2 million and $0.1 million as of December 31, 2023 and 2022, respectively. As of December 31, 2023, the Company's tax returns for years 2019 through 2022 are subject to future examination by tax authorities. In addition, the net operating losses from prior years are subject to adjustment under examination. The Company does not expect that unrecognized tax benefits for tax positions taken with respect to 2023 and prior years will significantly change in 2024.
A reconciliation of the unrecognized tax benefits is as follows.
| For the Years Ended December 31, | ||||
|---|---|---|---|---|
| (in thousands) | 2023 | 2022 | ||
| Balance at beginning of period | $ | 18,088 | $ | 18,089 |
| Additions for tax positions related to prior years | 173 | — | ||
| Reductions for tax positions related to prior years | (56) | (1) | ||
| Balance at end of period | $ | 18,205 | $ | 18,088 |
- Supplemental Disclosure of Cash Flow Information
| (in thousands) | For the Years Ended December 31, | |||||
|---|---|---|---|---|---|---|
| Supplemental Disclosure of Cash Flow Information: | 2023 | 2022 | 2021 | |||
| Interest paid | $ | 231,786 | $ | 200,308 | $ | 188,791 |
| Income taxes paid, net of (refunds) | $ | (1,429) | $ | (330) | $ | 5,923 |
| Capital expenditures, net of related payables: | ||||||
| Capital expenditures - non-development, net | $ | 216,511 | $ | 168,166 | $ | 137,410 |
| Capital expenditures - development, net | 1,762 | 6,193 | 3,208 | |||
| Capital expenditures - non-development - reimbursable from lessor | 10,319 | 25,650 | 42,100 | |||
| Trade accounts payable | 4,613 | (3,085) | (6,061) | |||
| Net cash paid | $ | 233,205 | $ | 196,924 | $ | 176,657 |
| For the Years Ended December 31, | ||||||
| --- | --- | --- | --- | --- | --- | --- |
| (in thousands) | 2023 | 2022 | 2021 | |||
| Acquisition of assets, net of cash acquired: | ||||||
| Prepaid expenses and other assets, net | $ | 23 | $ | — | $ | — |
| Property, plant and equipment and leasehold intangibles, net | 6,872 | 4 | — | |||
| Investment in unconsolidated ventures | (3,395) | — | — | |||
| Financing lease obligations | — | 6,000 | — | |||
| Other liabilities | (384) | — | — | |||
| Other non-operating loss (income) | (2,542) | — | — | |||
| Net cash paid | $ | 574 | $ | 6,004 | $ | — |
| Proceeds from HCS Sale, net: | ||||||
| Accounts receivable, net | $ | — | $ | — | $ | (57,582) |
| Property, plant and equipment and leasehold intangibles, net | — | — | (1,806) | |||
| Operating lease right-of-use assets | — | — | (8,145) | |||
| Investment in unconsolidated ventures | — | — | 100,000 | |||
| Goodwill | — | — | (126,810) | |||
| Prepaid expenses and other assets, net | — | — | (32,963) | |||
| Trade accounts payable | — | — | 1,387 | |||
| Accrued expenses | — | — | 25,226 | |||
| Refundable fees and deferred revenue | — | — | 57,314 | |||
| Operating lease obligations | — | — | 8,145 | |||
| Other liabilities | — | — | 9,165 | |||
| Non-operating loss (gain) on sale of assets, net | — | — | (286,489) | |||
| Net cash received | $ | — | $ | — | $ | (312,558) |
| Proceeds from sale of other assets, net: | ||||||
| Prepaid expenses and other assets, net | $ | (1,889) | $ | (1,308) | $ | (1,983) |
| Assets held for sale | — | (3,668) | (16,166) | |||
| Property, plant and equipment and leasehold intangibles, net | (36,545) | (107) | (878) | |||
| Investment in unconsolidated ventures | (27,392) | — | — | |||
| Refundable fees and deferred revenue | 9,347 | — | — | |||
| Other liabilities | 10,690 | 1,025 | (75) | |||
| Non-operating loss (gain) on sale of assets, net | (1,441) | (595) | (2,346) | |||
| Loss (gain) on sale of communities, net | (36,296) | — | — | |||
| Net cash received | $ | (83,526) | $ | (4,653) | $ | (21,448) |
| Supplemental Schedule of Non-cash Operating, Investing and Financing Activities: | ||||||
| --- | --- | --- | --- | --- | --- | --- |
| For the Years Ended December 31, | ||||||
| (in thousands) | 2023 | 2022 | 2021 | |||
| Gain on sale for master lease amendment: | ||||||
| Property, plant and equipment and leasehold intangibles, net | $ | — | $ | (220,477) | $ | — |
| Operating lease right-of-use assets | — | 91,641 | — | |||
| Financing lease obligations | — | 294,327 | — | |||
| Operating lease obligations | — | (91,641) | — | |||
| Loss (gain) on sale of communities, net | — | (73,850) | — | |||
| Net | $ | — | $ | — | $ | — |
| Other non-cash lease transactions, net: | ||||||
| Property, plant and equipment and leasehold intangibles, net | $ | (51,518) | $ | 11,098 | $ | 4,056 |
| Operating lease right-of-use assets | 223,309 | 11,419 | 17,197 | |||
| Operating lease obligations | (260,611) | (16,179) | (17,197) | |||
| Financing lease obligations | 88,820 | (6,338) | (4,056) | |||
| Net | $ | — | $ | — | $ | — |
Restricted cash consists principally of escrow deposits for interest rate caps, real estate taxes, property insurance, capital expenditures, and debt service reserves required by certain lenders under mortgage debt agreements, deposits as security for self-insured retention risk under workers' compensation programs and property insurance programs, and regulatory reserves for certain CCRCs. The components of restricted cash are as follows.
| December 31, | ||||
|---|---|---|---|---|
| (in thousands) | 2023 | 2022 | ||
| Current: | ||||
| Interest rate cap escrows | $ | 17,843 | $ | 3,797 |
| Real estate tax and property insurance escrows | 16,061 | 15,722 | ||
| Replacement reserve escrows | 7,194 | 7,999 | ||
| Other | 243 | 217 | ||
| Subtotal | 41,341 | 27,735 | ||
| Long term: | ||||
| Insurance deposits | 15,961 | 18,230 | ||
| CCRCs escrows | 10,813 | 15,847 | ||
| Debt service reserve | 3,472 | 13,779 | ||
| Letters of credit collateral | 110 | 107 | ||
| Subtotal | 30,356 | 47,963 | ||
| Total | $ | 71,697 | $ | 75,698 |
The following table provides a reconciliation of cash, cash equivalents, and restricted cash reported within the consolidated balance sheets that sums to the total of the same such amounts shown in the consolidated statements of cash flows.
| December 31, | ||||
|---|---|---|---|---|
| (in thousands) | 2023 | 2022 | ||
| Reconciliation of cash, cash equivalents, and restricted cash: | ||||
| Cash and cash equivalents | $ | 277,971 | $ | 398,850 |
| Restricted cash | 41,341 | 27,735 | ||
| Long-term restricted cash | 30,356 | 47,963 | ||
| Total cash, cash equivalents, and restricted cash | $ | 349,668 | $ | 474,548 |
- COVID-19 Pandemic
The COVID-19 pandemic has adversely impacted the Company's occupancy and resident fee revenue beginning in March 2020, resulted in incremental direct costs to respond to the pandemic, and for the year ended December, 31, 2021, resulted in net cash used in operating activities. While the Federal COVID-19 Public Health Emergency Declaration expired on May 11, 2023, the Company cannot predict with reasonable certainty the impacts that the COVID-19 pandemic and the continued recovery ultimately will have on the Company's business, results of operations, cash flow, and liquidity.
Government Provided Financial Relief. The Coronavirus Aid, Relief, and Economic Security Act of 2020 ("CARES Act"), signed into law on March 27, 2020, and Paycheck Protection Program and Health Care Enhancement Act, signed into law on April 24, 2020, provided liquidity and financial relief to certain businesses, among other things. Certain impacts of such programs are provided below.
•During the years ended December 31, 2022 and 2021, the Company accepted $61.1 million and $0.8 million, respectively, of cash from grants from the Public Health and Social Services Emergency Fund ("Provider Relief Fund") administered by U.S. Department of Health and Human Services, under which grants have been made available to eligible healthcare providers for healthcare related expenses or lost revenues attributable to the COVID-19 pandemic.
•During the year ended December 31, 2020, the Company received $87.5 million under the Accelerated and Advance Payment Program administered by CMS, $75.2 million of which related to its former Health Care Services segment and $12.3 million of which related to its CCRCs segment. During the years ended December 31, 2022 and 2021, $3.1 million and $20.8 million, respectively, of the advanced payments were recouped per the terms of the program. Pursuant to the sale of 80% of the Company's equity in its Health Care Services segment (as described in Note 3), $63.6 million of such obligations related to its former Health Care Services segment were retained by the unconsolidated HCS Venture. As of December 31, 2023, the Company has no remaining obligations under the program.
•During the year ended December 31, 2020, the Company deferred payment of $72.7 million of the employer portion of social security payroll taxes incurred from March 27, 2020 through December 31, 2020 pursuant to the CARES Act. Pursuant to the sale of 80% of the Company's equity in its Health Care Services segment, $9.6 million of such obligations related to its former Health Care Services segment were retained by the unconsolidated HCS Venture. In both December 2021 and 2022, the Company paid $31.6 million of its retained deferred amount. As of December 31, 2023, the Company has no remaining obligations for the deferred payroll tax program.
•The Company was eligible to claim the employee retention credit on wages paid from March 12, 2020 to December 31, 2021 for certain of its associates under the CARES Act and subsequent legislation. During the years ended December 31, 2022 and 2021, the Company recognized $9.4 million and $9.9 million, respectively, of employee retention credits on wages paid from March 12, 2020 to December 31, 2021 within other operating income. During the years ended December 31, 2023 and 2022, the Company received cash of $14.7 million and $4.6 million, respectively, for such employee retention credits. As of December 31, 2023, the Company has no remaining receivables under the program. The Company had a receivable for $14.7 million included within prepaid expenses and other current assets, net on the consolidated balance sheet as of December 31, 2022.
In addition to the grants previously described, during the years ended December 31, 2023, 2022, and 2021, the Company recognized $9.1 million, $10.0 million, and $1.7 million, respectively, of other operating income from grants from other government sources.
- Segment Information
The Company has three reportable segments: Independent Living; Assisted Living and Memory Care; and CCRCs. Operating segments are defined as components of an enterprise that engage in business activities from which it may earn revenues and incur expenses; for which separate financial information is available; and whose operating results are regularly reviewed by the chief operating decision maker to assess the performance of the individual segment and make decisions about resources to be allocated to the segment. Prior to July 1, 2021, the Company had an additional reportable segment, Health Care Services, as described in Note 3.
Independent Living. The Company's Independent Living segment includes owned or leased communities that are primarily designed for middle to upper income seniors who desire to live in a residential setting that feels like home, without the efforts of ownership. The majority of the Company's independent living communities consist of both independent and assisted living
units in a single community, which allows residents to age-in-place by providing them with a broad continuum of senior independent and assisted living services to accommodate their changing needs.
Assisted Living and Memory Care. The Company's Assisted Living and Memory Care segment includes owned or leased communities that offer housing and 24-hour assistance with activities of daily living for the Company's residents. The Company's assisted living and memory care communities include both freestanding, multi-story communities, as well as smaller, freestanding, single story communities. The Company also provides memory care services at freestanding memory care communities that are specially designed for residents with Alzheimer's disease and other dementias.
CCRCs. The Company's CCRCs segment includes large owned or leased communities that offer a variety of living arrangements and services to accommodate a broad spectrum of physical ability and healthcare needs. Most of the Company's CCRCs have independent living, assisted living, memory care, and skilled nursing available on one campus.
All Other. All Other includes communities operated by the Company pursuant to management agreements. Under the management agreements for these communities, the Company receives management fees as well as reimbursement of expenses it incurs on behalf of the owners.
Health Care Services. The Company's former Health Care Services segment included the home health, hospice, and outpatient therapy services provided to residents of many of its communities and to seniors living outside its communities. The Health Care Services segment did not include the skilled nursing and inpatient healthcare services provided in the Company's skilled nursing units, which are included in the Company's CCRCs segment.
The accounting policies of the Company's reportable segments are the same as those described in the summary of significant accounting policies in Note 2.
The following tables set forth selected segment financial data.
| For the Years Ended December 31, | ||||||
|---|---|---|---|---|---|---|
| (in thousands) | 2023 | 2022 | 2021 | |||
| Revenue and other operating income: | ||||||
| Independent Living (1)(2) | $ | 564,499 | $ | 518,699 | $ | 477,050 |
| Assisted Living and Memory Care (1)(2) | 1,968,440 | 1,815,722 | 1,595,684 | |||
| CCRCs (1)(2) | 333,404 | 331,577 | 306,213 | |||
| All Other (3) | 149,486 | 159,381 | 202,043 | |||
| Health Care Services (1)(2) | — | — | 177,269 | |||
| Total revenue and other operating income | 3,015,829 | 2,825,379 | 2,758,259 | |||
| Segment operating income:(4) | ||||||
| Independent Living | 184,645 | 158,950 | 146,108 | |||
| Assisted Living and Memory Care | 502,317 | 379,958 | 294,320 | |||
| CCRCs | 49,581 | 43,485 | 34,109 | |||
| All Other | 10,161 | 12,020 | 20,598 | |||
| Health Care Services | — | — | 5,816 | |||
| Total segment operating income | 746,704 | 594,413 | 500,951 | |||
| For the Years Ended December 31, | ||||||
| --- | --- | --- | --- | --- | --- | --- |
| (in thousands) | 2023 | 2022 | 2021 | |||
| General and administrative expense (including non-cash stock-based compensation expense) | 178,894 | 168,594 | 184,916 | |||
| Facility operating lease expense: | ||||||
| Independent Living | 39,114 | 39,700 | 42,162 | |||
| Assisted Living and Memory Care | 146,166 | 106,961 | 111,117 | |||
| CCRCs | 12,943 | 13,883 | 15,932 | |||
| Corporate and All Other | 4,187 | 4,750 | 5,147 | |||
| Depreciation and amortization: | ||||||
| Independent Living | 83,637 | 79,521 | 74,922 | |||
| Assisted Living and Memory Care | 196,994 | 207,344 | 200,677 | |||
| CCRCs | 36,951 | 38,039 | 37,891 | |||
| Corporate and All Other | 25,130 | 22,540 | 23,783 | |||
| Health Care Services | — | — | 340 | |||
| Asset impairment: | ||||||
| Independent Living | 1,647 | 10,893 | 3,483 | |||
| Assisted Living and Memory Care | 11,574 | 11,613 | 14,384 | |||
| CCRCs | 1,368 | 5,970 | 4,790 | |||
| Corporate and All Other | 25,983 | 1,142 | 346 | |||
| Loss (gain) on sale of communities, net | (36,296) | (73,850) | — | |||
| Loss (gain) on facility operating lease termination, net | — | — | (2,003) | |||
| Income (loss) from operations | $ | 18,412 | $ | (42,687) | $ | (216,936) |
| Total interest expense: | ||||||
| Independent Living | $ | 61,624 | $ | 48,788 | $ | 45,209 |
| Assisted Living and Memory Care | 141,330 | 133,139 | 121,785 | |||
| CCRCs | 24,889 | 21,251 | 18,756 | |||
| Corporate and All Other | 10,431 | 1,539 | 9,390 | |||
| $ | 238,274 | $ | 204,717 | $ | 195,140 | |
| Total capital expenditures for property, plant and equipment, and leasehold intangibles: | ||||||
| Independent Living | $ | 51,188 | $ | 44,857 | $ | 36,992 |
| Assisted Living and Memory Care | 121,240 | 111,978 | 105,177 | |||
| CCRCs | 37,414 | 20,467 | 19,086 | |||
| Corporate and All Other | 18,750 | 22,707 | 21,463 | |||
| $ | 228,592 | $ | 200,009 | $ | 182,718 | |
| As of December 31, | ||||||
| --- | --- | --- | --- | --- | ||
| (in thousands) | 2023 | 2022 | ||||
| Total assets: | ||||||
| Independent Living(5) | $ | 1,206,021 | $ | 1,267,825 | ||
| Assisted Living and Memory Care | 3,315,921 | 3,329,516 | ||||
| CCRCs | 612,521 | 664,502 | ||||
| Corporate and All Other | 438,972 | 675,219 | ||||
| Total assets | $ | 5,573,435 | $ | 5,937,062 |
(1)All revenue and other operating income is earned from external third parties in the United States.
(2)Includes other operating income recognized for the credits or grants pursuant to the Provider Relief Fund, employee retention credit, and other government sources, as described in Note 19. Allocations to the applicable segment generally reflect the credits earned by the segment, the segment’s receipt and acceptance of the grant, or the segment’s proportional utilization of the grant. Other operating income by segment is as follows.
| For the Years Ended December 31, | ||||||
|---|---|---|---|---|---|---|
| (in thousands) | 2023 | 2022 | 2021 | |||
| Independent Living | $ | 487 | $ | 10,906 | $ | 1,512 |
| Assisted Living and Memory Care | 8,008 | 60,630 | 5,963 | |||
| CCRCs | 578 | 8,933 | 1,788 | |||
| Health Care Services | — | — | 3,105 | |||
| Total other operating income | $ | 9,073 | $ | 80,469 | $ | 12,368 |
(3)All Other revenue and other operating income includes management fees and reimbursements of costs incurred on behalf of managed communities. For the years ended December 31, 2023, 2022, and 2021, revenue and other operating income includes $0.9 million, $4.2 million, and $17.2 million of revenue earned from unconsolidated ventures in which the Company had or has an ownership interest.
(4)Segment operating income is defined as segment revenues and other operating income less segment facility operating expenses (excluding facility depreciation and amortization) and costs incurred on behalf of managed communities.
(5)The Company's total carrying amount of goodwill is included on the Independent Living segment and was $27.3 million as of December 31, 2023, 2022, and 2021.
Item 9. Changes in and Disagreements with Accountants on Accounting and Financial Disclosure
None.
Item 9A. Controls and Procedures
Evaluation of Disclosure Controls and Procedures
The Company maintains disclosure controls and procedures (as defined under Rules 13a-15(e) and 15d-15(e) of the Securities Exchange Act of 1934, as amended). Our management, under the supervision of and with the participation of our Chief Executive Officer and Chief Financial Officer, has evaluated the effectiveness of our disclosure controls and procedures. Based on such evaluation, our Chief Executive Officer and Chief Financial Officer each concluded that, as of December 31, 2023, our disclosure controls and procedures were effective.
Management's Assessment of Internal Control over Financial Reporting
Our management is responsible for establishing and maintaining adequate internal control over financial reporting, as defined in Exchange Act Rule 13a-15(f). Under the supervision and with the participation of our management, including our Chief Executive Officer and Chief Financial Officer, we conducted an evaluation of the effectiveness of our internal control over financial reporting based on the framework in Internal Control - Integrated Framework issued by the Committee of Sponsoring Organizations of the Treadway Commission (2013 framework). Because of its inherent limitations, internal control over financial reporting may not prevent or detect misstatements. Therefore, even those systems determined to be effective can only provide reasonable assurance with respect to financial statement preparation and presentation.
Based on the Company's evaluation, management concluded that our internal control over financial reporting was effective as of December 31, 2023. Management reviewed the results of their assessment with our Audit Committee. The effectiveness of our internal control over financial reporting as of December 31, 2023 has been audited by Ernst & Young LLP, the independent registered public accounting firm that audited our consolidated financial statements included in this Annual Report on Form 10-K, as stated in their report which is included in "Item 8. Financial Statements and Supplementary Data" of this Annual Report on Form 10-K and incorporated herein by reference.
Internal Control Over Financial Reporting
There has not been any change in our internal control over financial reporting (as such term is defined in Rules 13a-15(f) and 15d-15(f) under the Exchange Act) during the fiscal quarter ended December 31, 2023 that has materially affected, or is reasonably likely to materially affect, our internal control over financial reporting.
Item 9B. Other Information
Insider Adoption or Termination of Trading Arrangements
During the fiscal year ended December 31, 2023, none of our directors or officers adopted or terminated a "Rule 10b5-1 trading arrangement" or "non-Rule 10b5-1 trading arrangement," as each term is defined in Item 408(a) of Regulation S-K.
Item 9C. Disclosure Regarding Foreign Jurisdictions that Prevent Inspections
Not applicable.
Item 10. Directors, Executive Officers and Corporate Governance
To the extent not set forth herein, the information required by this item is incorporated by reference from the discussions under the headings "Election of Directors," "Corporate Governance," and "Executive Officers" in our Definitive Proxy Statement for the 2024 Annual Meeting of Stockholders, to be filed with the SEC by April 29, 2024.
Our Board of Directors has adopted a Code of Business Conduct and Ethics that applies to all employees, directors, and officers, including our principal executive officer, our principal financial officer, our principal accounting officer or controller, or persons performing similar functions, as well as a Code of Ethics for Chief Executive and Senior Financial Officers, which applies to our President and Chief Executive Officer, Chief Financial Officer, Chief Accounting Officer, and Treasurer, both of which are available on our website at www.brookdaleinvestors.com. Any amendment to, or waiver from, a provision of such codes of ethics granted to a principal executive officer, principal financial officer, principal accounting officer or controller, or person performing similar functions, or to any executive officer or director, will be posted on our website.
Item 11. Executive Compensation
The information required by this item is incorporated by reference from the discussions under the headings "Director Compensation" and "Executive Compensation" in our Definitive Proxy Statement for the 2024 Annual Meeting of Stockholders, to be filed with the SEC by April 29, 2024.
Item 12. Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters
To the extent not set forth herein, the information required by this item regarding security ownership of certain beneficial owners and management is incorporated by reference from the discussion under the heading "Stock Ownership Information" in our Definitive Proxy Statement for the 2024 Annual Meeting of Stockholders, to be filed with the SEC by April 29, 2024.
The following table provides certain information as of December 31, 2023 with respect to our equity compensation plans (after giving effect to shares issued and/or vesting on such date).
Equity Compensation Plan Information
| Number of securities to be issued upon exercise of outstanding options, warrants, and rights | Weighted average exercise price of outstanding options, warrants, and rights | Number of securities remaining available for future issuance under equity compensation plans (excluding securities reflected in column (a)) | ||||
|---|---|---|---|---|---|---|
| Plan category | (a) (1) | (b) | (c) | |||
| Equity compensation plans approved by security holders (2) | $ | 7,061,805 | $ | — | $ | 5,149,718 |
| Equity compensation plans not approved by security holders (3) | — | — | 35,936 | |||
| Total | $ | 7,061,805 | — | $ | 5,185,654 |
(1)The table above includes 141,817 shares issuable pursuant to vested restricted stock units and 6,919,988 shares potentially issuable pursuant to unvested restricted stock units, including 658,877 shares that may be issued for performance achievement in excess of target. Our 2014 Omnibus Incentive Plan allows awards to be made in the form of stock options, stock appreciation rights, restricted shares, restricted stock units, unrestricted shares, performance awards, and other stock-based awards.
(2)The number of shares remaining available for future issuance under equity compensation plans approved by security holders consists of 5,149,718 shares remaining available for future issuance under our 2014 Omnibus Incentive Plan, excluding those reported in column (a).
(3)Represents shares remaining available for future issuance under our Director Stock Purchase Plan. Each non-employee director has the opportunity to elect to receive either immediately vested shares (issued pursuant to the Director Stock Purchase Plan) in lieu of up to 50%, or restricted stock units (issued pursuant to the 2014 Omnibus Incentive Plan) in lieu of up to 100%, of his or her quarterly cash compensation. Under the director compensation program, all cash amounts are
payable quarterly in arrears, with payments to be made on April 1, July 1, October 1 and January 1. Any immediately vested shares that a director elected to receive under the Director Stock Purchase Plan were to be issued at the same time that cash payments are made. The number of shares to be issued were to be based on the closing price of our common stock on the date of issuance (i.e., April 1, July 1, October 1 and January 1), or if such date is not a trading date, on the previous trading day's closing price. Fractional amounts were to be paid in cash. In addition, each non-employee director has the opportunity to elect to defer up to 100% of his or her quarterly cash compensation pursuant to the Brookdale Senior Living Inc. Non-Employee Director Deferred Compensation Plan. The Board of Directors initially reserved 100,000 shares of our common stock for issuance under the Director Stock Purchase Plan.
Item 13. Certain Relationships and Related Transactions, and Director Independence
The information required by this item is incorporated by reference from the discussions under the headings "Certain Relationships and Related Transactions" and "Director Independence" in our Definitive Proxy Statement for the 2024 Annual Meeting of Stockholders, to be filed with the SEC by April 29, 2024.
Item 14. Principal Accountant Fees and Services
The information required by this item is incorporated by reference from the discussion under the heading "Ratification of Appointment of Independent Registered Public Accounting Firm for 2024" in our Definitive Proxy Statement for the 2024 Annual Meeting of Stockholders, to be filed with the SEC by April 29, 2024.
Item 15. Exhibits and Financial Statement Schedules
The following documents are filed as part of this report:
1)Our Audited Consolidated Financial Statements
Report of the Independent Registered Public Accounting Firm
Report of the Independent Registered Public Accounting Firm
Consolidated Balance Sheets as of December 31, 2023and 2022
Consolidated Statements of Operations for the Years Ended December 31, 2023, 2022, and 2021
Consolidated Statements of Equity for the Years Ended December 31, 2023, 2022, and 2021
Consolidated Statements of Cash Flows for the Years Ended December 31, 2023, 2022, and 2021
Notes to Consolidated Financial Statements
All schedules have been omitted because they are not applicable or are not required, or the required information is included in the Consolidated Financial Statements or the notes thereto.
2) Exhibits:
* Management Contract or Compensatory Plan
† Schedules and exhibits have been omitted pursuant to Item 601 of Regulation S-K. The Company hereby undertakes to furnish supplementally a copy of any of the omitted schedules and exhibits upon request by the Securities and Exchange Commission.
†† Portions of this exhibit have been omitted pursuant to Item 601(b)(10)(iv) of Regulation S-K.
Item 16. Form 10-K Summary
None.
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.
| BROOKDALE SENIOR LIVING INC. | |
|---|---|
| By: | /s/ Lucinda M. Baier |
| Name: | Lucinda M. Baier |
| Title: | President and Chief Executive Officer |
| Date: | February 21, 2024 |
Pursuant to the requirements of the Securities Exchange Act of 1934, this report has been signed below by the following persons on behalf of the registrant and in the capacities and on the dates indicated.
| Signature | Title | Date |
|---|---|---|
| /s/ Guy P. Sansone | Non-Executive Chairman of the Board | February 21, 2024 |
| Guy P. Sansone | ||
| /s/ Lucinda M. Baier | President, Chief Executive Officer and Director | February 21, 2024 |
| Lucinda M. Baier | (Principal Executive Officer) | |
| /s/ Dawn L. Kussow | Executive Vice President and Chief Financial Officer | February 21, 2024 |
| Dawn L. Kussow | (Principal Financial and Accounting Officer) | |
| /s/ Jordan R. Asher | Director | February 21, 2024 |
| Jordan R. Asher | ||
| /s/ Marcus E. Bromley | Director | February 21, 2024 |
| Marcus E. Bromley | ||
| /s/ Frank M. Bumstead | Director | February 21, 2024 |
| Frank M. Bumstead | ||
| /s/ Victoria L. Freed | Director | February 21, 2024 |
| Victoria L. Freed | ||
| /s/ Denise W. Warren | Director | February 21, 2024 |
| Denise W. Warren | ||
| /s/ Lee S. Wielansky | Director | February 21, 2024 |
| Lee S. Wielansky |
109
Document
Exhibit 10.1.9
Portions of this exhibit that have been marked by [***] have been omitted because the Registrant has determined they are not material and would likely cause competitive harm to the Registrant if publicly disclosed.
AMENDMENT NO. 4 TO AMENDED AND RESTATED MASTER LEASE AND SECURITY AGREEMENT
(Approval of Additional Approved Projects; Requested Landlord UE Funds)
THIS AMENDMENT NO. 4 TO AMENDED AND RESTATED MASTER LEASE AND SECURITY AGREEMENT (hereinafter, this “Amendment”) is effective as of October 23, 2023 (the “Amendment Effective Date”), by and among each of the signatories hereto identified as "Landlord" (individually and collectively, “Landlord”), and each of the signatories hereto identified as "Tenant" (individually and collectively, “Tenant”).
RECITALS
A.Landlord and Tenant are parties to that certain Amended and Restated Master Lease and Security Agreement dated as of July 26, 2020, as amended by that certain Amendment No. 1 to Amended and Restated Master Lease and Security Agreement (McMinnville Lease Combination) effective as of April 15, 2021, that certain Amendment No. 2 to Amended and Restated Master Lease and Security Agreement (Extension of Deadline for Requested Landlord UE Funds) dated July 19, 2021, and that certain Amendment No. 3 to Amended and Restated Master Lease and Security Agreement (Extension of Deadline for, and Reallocation of, Requested Landlord UE Funds) (as amended, the “Master Lease”); and
B.Landlord and Tenant wish to amend the Master Lease to add certain Approved Projects, extend the deadline for Tenant to request Requested Landlord UE Funds with respect to such additional Approved Projects, and modify the Landlord Funds Rate with respect to such additional Approved Projects.
NOW, THEREFORE, in consideration of the foregoing Recitals, which by this reference are incorporated herein, and of other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Landlord and Tenant agree as follows:
1.Capitalized Terms. All capitalized terms used herein and not defined herein shall have the meanings ascribed thereto in the Master Lease.
2.Amendment to Lease.
2.1.Schedule 6.3.5.2 of the Master Lease is hereby amended to add the projects identified on Exhibit A attached hereto (the “Lisle and Des Plaines Projects”) on or prior to the date listed adjacent to the Lisle and Des Plaines Projects on Exhibit A, such Lisle and Des Plaines Projects shall hereafter constitute an “Approved Project”, and the approved budget for such Lisle and Des Plaines Projects is as set forth under the heading “Approved Budget” for each such project as set forth on Exhibit A.
2.2.Notwithstanding anything to the contrary set forth in Section 6.3.5.2 of the Master Lease, Tenant may make requests for disbursement of Requested Landlord UE Funds for
each of the Lisle and Des Plaines Projects on or prior to the date listed adjacent to such Lisle and Des Plaines Projects on Exhibit A.
2.3.Notwithstanding anything to the contrary set forth in Section 6.5 of the Master Lease, the “Landlord Funds Rate” for purposes of calculating the Landlord Funds Rent Increase applicable to disbursements of Landlord UE Funds in connection with the Lisle and Des Plaines Projects shall be deemed to be [***] percent ([***]%) per annum.
2.4.Landlord and Tenant acknowledge and agree that (i) the senior housing facility commonly known as “Brookdale Lisle IL/AL” (the “Lisle Facility”) is not a Facility under the Master Lease, but rather is the subject of that certain Amended and Restated Master Lease dated as of November 25, 2019 between The Ponds of Pembroke Limited Partnership and BLC-Devonshire of Lisle, LLC (the “Lisle Lease”), (ii) the Lisle Lease remains in full force and effect and is not modified by the terms of this Amendment, (iii) the portion of the Lisle and Des Plaines Projects relating to the Lisle Facility shall be treated as an “Approved Project” under the Master Lease as though the Lisle Facility were a Facility under the Master Lease, and (iv) disbursements made by Landlord with respect to the Lisle Facility under Section 6.3.5 of the Master Lease shall be deemed to have been made to the Tenant of the Facility known as “Brookdale Des Plaines” for purposes of the increase in Annual Minimum Rent contemplated by Section 6.5 of the Master Lease (as modified hereby).
3.Miscellaneous.
3.1.Integrated Agreement; Modifications; Waivers. This Amendment, and the Master Lease as amended hereby, together with the “Transaction Documents” as defined in the Master Transaction Letter, constitute the entire agreement between the parties hereto with respect to the subject matter hereof and supersede any and all prior representations, understandings and agreements, whether written or oral, with respect to such subject matter. Each of the parties hereto acknowledges that it has not relied upon, in entering into this Amendment, any representation, warranty, promise or condition not specifically set forth in this Amendment.
3.2.Sealed Writing.The parties acknowledge and agree that the Master Lease, as amended by this Amendment, is intended to be a sealed instrument and to comply with Virginia Code Sections 55-2 and 11-3, and shall be interpreted as if the words “this deed of Lease” were included in the body of the Master Lease.
3.3.Effect of Amendment. Except as expressly modified in this Amendment, the Master Lease shall remain in full force and effect and is expressly ratified and confirmed by the parties hereto, and Tenant shall lease the Facilities (as modified by this Amendment) from Landlord on the terms set forth in the Master Lease (as modified by this Amendment). In the event of any inconsistencies between the terms of this Amendment and any terms of the Master Lease, the terms of this Amendment shall control.
3.4.Counterparts. This Amendment may be executed and delivered (including by facsimile, Portable Document Format (pdf) transmission, or Docusign) in counterparts, all of which executed counterparts shall together constitute a single document. Signature pages may be detached from the counterparts and attached to a single copy of this document to physically form one document. Any such facsimile documents and signatures shall
have the same force and effect as manually-signed originals and shall be binding on the parties hereto.
[signature pages follow]
IN WITNESS WHEREOF, this Amendment has been executed by Landlord and Tenant as of the date first written above.
| TENANT: |
|---|
| BLC-THE HALLMARK, LLC, a Delaware limited liability company<br><br><br><br><br><br><br><br>By: /s/ Chad C. White<br><br><br><br>Name: Chad C. White<br><br>Title: President and Secretary |
| BLC-KENWOOD OF LAKE VIEW, LLC, a Delaware limited liability company<br><br><br><br><br><br><br><br>By: /s/ Chad C. White<br><br><br><br>Name: Chad C. White<br><br>Title: Executive Vice President and Secretary |
Signature Page-Amendment No. 4 to Amended and Restated Master Lease and Security Agreement
| BROOKDALE SENIOR LIVING COMMUNITIES, INC. a Delaware corporation (f/k/a Alterra Healthcare Corporation and Alternative Living Services, Inc.)<br><br><br><br><br><br><br><br>By: /s/ Chad C. White<br><br><br><br>Name: Chad C. White<br><br>Title: Executive Vice President and Secretary |
|---|
ACKNOWLEDGEMENT
STATE OF TENNESSEE )
) :ss.:
COUNTY OF WILLIAMSON )
Before me, the undersigned, a Notary Public in and for said County and State, personally appeared Brookdale Senior Living Communities, Inc., a Delaware corporation (“Company”), by Chad C. White, its Executive Vice President and Secretary, which Company executed the foregoing instrument, who acknowledged that she/he did sign the foregoing instrument for and on behalf of the Company, being thereunto duly authorized and that the same is her/his free act and deed individually and in said capacity and the free and deed of the Company.
IN TESTIMONY WHEREOF, I have hereunto set my hand and official seal at Brentwood, Tennessee, this 23rd day of October, 2023.
(SEAL) /s/ Terri Dunham
Notary Public
Print Name: Terri Dunham
My commission expires: 3-9-27
Acting in the County of: Williamson
Signature Page-Amendment No. 4 to Amended and Restated Master Lease and Security Agreement
| BLC-GABLES AT FARMINGTON, LLC, a Delaware limited liability company<br><br><br><br><br><br><br><br>By: /s/ Chad C. White<br><br><br><br>Name: Chad C. White<br><br>Title: Executive Vice President and Secretary |
|---|
| BLC-DEVONSHIRE OF HOFFMAN ESTATES, LLC, a Delaware limited liability company<br><br><br><br><br><br><br><br>By: /s/ Chad C. White<br><br><br><br>Name: Chad C. White<br><br>Title: Executive Vice President and Secretary |
| BLC-SPRINGS AT EAST MESA, LLC, a Delaware limited liability company<br><br><br><br><br><br><br><br>By: /s/ Chad C. White<br><br><br><br>Name: Chad C. White<br><br>Title: President and Secretary |
| BLC-RIVER BAY CLUB, LLC, a Delaware limited liability company<br><br><br><br><br><br><br><br>By: /s/ Chad C. White<br><br><br><br>Name: Chad C. White<br><br>Title: Executive Vice President and Secretary |
Signature Page-Amendment No. 4 to Amended and Restated Master Lease and Security Agreement
| BLC-WOODSIDE TERRACE, L.P., a Delaware limited partnership<br><br><br><br>By: BLC-Woodside Terrace, LLC, a Delaware limited liability company, its general partner<br><br><br><br><br><br><br><br>By: /s/ Chad C. White<br><br><br><br>Name: Chad C. White<br><br>Title: Executive Vice President and Secretary |
|---|
| BLC-ATRIUM AT SAN JOSE, L.P., a Delaware limited partnership<br><br><br><br>By: BLC-Atrium at San Jose, LLC, a Delaware limited liability company, its general partner<br><br><br><br><br><br><br><br>By: /s/ Chad C. White<br><br><br><br>Name: Chad C. White<br><br>Title: Executive Vice President and Secretary |
| BLC-BROOKDALE PLACE OF SAN MARCOS, L.P., a Delaware limited partnership<br><br><br><br>By: BLC-Brookdale Place of San Marcos, LLC, a Delaware limited liability company, its general partner<br><br><br><br><br><br><br><br>By: /s/ Chad C. White<br><br><br><br>Name: Chad C. White<br><br>Title: Executive Vice President and Treasurer |
Signature Page-Amendment No. 4 to Amended and Restated Master Lease and Security Agreement
| BLC-PONCE DE LEON, LLC, a Delaware limited liability company<br><br><br><br><br><br><br><br>By: /s/ Chad C. White<br><br><br><br>Name: Chad C. White<br><br>Title: Executive Vice President and Secretary |
|---|
| BLC-PARK PLACE, LLC, a Delaware limited liability company<br><br><br><br><br><br><br><br>By: /s/ Chad C. White<br><br><br><br>Name: Chad C. White<br><br>Title: Executive Vice President and Secretary |
| BLC-HAWTHORNE LAKES, LLC, a Delaware limited liability company<br><br><br><br><br><br><br><br>By: /s/ Chad C. White<br><br><br><br>Name: Chad C. White<br><br>Title: Executive Vice President and Secretary |
| BLC-THE WILLOWS, LLC, a Delaware limited liability company<br><br><br><br><br><br><br><br>By: /s/ Chad C. White<br><br><br><br>Name: Chad C. White<br><br>Title: Executive Vice President and Secretary |
Signature Page-Amendment No. 4 to Amended and Restated Master Lease and Security Agreement
| BLC-BRENDENWOOD, LLC, a Delaware limited liability company<br><br><br><br><br><br><br><br>By: /s/ Chad C. White<br><br><br><br>Name: Chad C. White<br><br>Title: Executive Vice President and Secretary |
|---|
| BLC-CHATFIELD, LLC, a Delaware limited liability company<br><br><br><br><br><br><br><br>By: /s/ Chad C. White<br><br><br><br>Name: Chad C. White<br><br>Title: Executive Vice President and Secretary |
| BROOKDALE LIVING COMMUNITIES OF FLORIDA, INC. a Delaware corporation<br><br><br><br><br><br><br><br>By: /s/ Chad C. White<br><br><br><br>Name: Chad C. White<br><br>Title: Executive Vice President and Secretary |
Signature Page-Amendment No. 4 to Amended and Restated Master Lease and Security Agreement
| BROOKDALE LIVING COMMUNITIES OF ILLINOIS-GV, LLC, a Delaware limited liability company<br><br><br><br><br><br><br><br>By: /s/ Chad C. White<br><br><br><br>Name: Chad C. White<br><br>Title: Executive Vice President and Secretary |
|---|
| BROOKDALE LIVING COMMUNITIES OF ILLINOIS-DNC, LLC, a Delaware limited liability company<br><br><br><br><br><br><br><br>By: /s/ Chad C. White<br><br><br><br>Name: Chad C. White<br><br>Title: Executive Vice President and Secretary |
| SW ASSISTED LIVING, LLC, a Delaware limited liability company<br><br><br><br><br><br><br><br>By: /s/ Chad C. White<br><br><br><br>Name: Chad C. White<br><br>Title: Executive Vice President and Secretary |
| SUMMERVILLE AT FAIRWOOD MANOR, LLC, a Delaware limited liability company<br><br><br><br><br><br><br><br>By: /s/ Chad C. White<br><br><br><br>Name: Chad C. White<br><br>Title: Executive Vice President and Secretary |
Signature Page-Amendment No. 4 to Amended and Restated Master Lease and Security Agreement
| SUMMERVILLE AT HERITAGE PLACE, LLC, a Delaware limited liability company<br><br><br><br><br><br><br><br>By: /s/ Chad C. White<br><br><br><br>Name: Chad C. White<br><br>Title: Executive Vice President and Secretary |
|---|
| SUMMERVILLE 5, LLC, a Delaware limited liability company<br><br><br><br><br><br><br><br>By: /s/ Chad C. White<br><br><br><br>Name: Chad C. White<br><br>Title: Executive Vice President and Secretary |
| SUMMERVILLE 4, LLC, a Delaware limited liability company<br><br><br><br><br><br><br><br>By: /s/ Chad C. White<br><br><br><br>Name: Chad C. White<br><br>Title: Executive Vice President and Secretary |
Signature Page-Amendment No. 4 to Amended and Restated Master Lease and Security Agreement
| SUMMERVILLE 14, LLC, a Delaware limited liability company<br><br><br><br><br><br><br><br>By: /s/ Chad C. White<br><br><br><br>Name: Chad C. White<br><br>Title: Executive Vice President and Secretary |
|---|
| SUMMERVILLE 15, LLC, a Delaware limited liability company<br><br><br><br><br><br><br><br>By: /s/ Chad C. White<br><br><br><br>Name: Chad C. White<br><br>Title: Executive Vice President and Secretary |
| SUMMERVILLE 16, LLC, a Delaware limited liability company<br><br><br><br><br><br><br><br>By: /s/ Chad C. White<br><br><br><br>Name: Chad C. White<br><br>Title: Executive Vice President and Secretary |
| SUMMERVILLE 17, LLC, a Delaware limited liability company<br><br><br><br><br><br><br><br>By: /s/ Chad C. White<br><br><br><br>Name: Chad C. White<br><br>Title: Executive Vice President and Secretary |
Signature Page-Amendment No. 4 to Amended and Restated Master Lease and Security Agreement
| SUMMERVILLE AT RIDGEWOOD GARDENS LLC, a Delaware limited liability company<br><br><br><br><br><br><br><br>By: /s/ Chad C. White<br><br><br><br>Name: Chad C. White<br><br>Title: Executive Vice President and Secretary |
|---|
| ALS PROPERTIES TENANT I, LLC,<br><br>a Delaware limited liability company<br><br><br><br><br><br><br><br>By: /s/ Chad C. White<br><br><br><br>Name: Chad C. White<br><br>Title: Executive Vice President and Secretary |
ACKNOWLEDGEMENT
STATE OF TENNESSEE )
) :ss.:
COUNTY OF WILLIAMSON )
Before me, the undersigned, a Notary Public in and for said County and State, personally appeared ALS Properties Tenant I, LLC, a Delaware limited liability company (“Company”), by Chad C. White, its Executive Vice President and Secretary, which Company executed the foregoing instrument, who acknowledged that she/he did sign the foregoing instrument for and on behalf of the Company, being thereunto duly authorized and that the same is her/his free act and deed individually and in said capacity and the free and deed of the Company.
IN TESTIMONY WHEREOF, I have hereunto set my hand and official seal at Brentwood, Tennessee, this 23rd day of October, 2023.
(SEAL) /s/ Terri Dunham
Notary Public
Print Name: Terri Dunham
My commission expires: 3-9-27
Acting in the County of: Williamson
Signature Page-Amendment No. 4 to Amended and Restated Master Lease and Security Agreement
| ALS PROPERTIES TENANT II, LLC, a Delaware limited liability company<br><br><br><br><br><br><br><br>By: /s/ Chad C. White<br><br><br><br>Name: Chad C. White<br><br>Title: Executive Vice President and Secretary |
|---|
| ALS LEASING, INC., a Delaware corporation<br><br><br><br><br><br><br><br>By: /s/ Chad C. White<br><br><br><br>Name: Chad C. White<br><br>Title: Executive Vice President and Secretary |
ACKNOWLEDGEMENT
STATE OF TENNESSEE )
) :ss.:
COUNTY OF WILLIAMSON )
Before me, the undersigned, a Notary Public in and for said County and State, personally appeared ALS Leasing, Inc., a Delaware corporation (“Company”), by Chad C. White, its Executive Vice President and Secretary, which Company executed the foregoing instrument, who acknowledged that she/he did sign the foregoing instrument for and on behalf of the Company, being thereunto duly authorized and that the same is her/his free act and deed individually and in said capacity and the free and deed of the Company.
IN TESTIMONY WHEREOF, I have hereunto set my hand and official seal at Brentwood, Tennessee, this 23rd day of October, 2023.
(SEAL) /s/ Terri Dunham
Notary Public
Print Name: Terri Dunham
My commission expires: 3-9-27
Acting in the County of: Williamson
Signature Page-Amendment No. 4 to Amended and Restated Master Lease and Security Agreement
| ASSISTED LIVING PROPERTIES, INC., a Kansas corporation<br><br><br><br><br><br><br><br>By: /s/ Chad C. White<br><br><br><br>Name: Chad C. White<br><br>Title: Executive Vice President and Secretary |
|---|
| BLC-THE HERITAGE OF DES PLAINES, LLC, a Delaware limited liability company<br><br><br><br><br><br><br><br>By: /s/ Chad C. White<br><br><br><br>Name: Chad C. White<br><br>Title: Executive Vice President and Secretary |
Signature Page-Amendment No. 4 to Amended and Restated Master Lease and Security Agreement
| LANDLORD: |
|---|
| VENTAS REALTY, LIMITED PARTNERSHIP, a Delaware limited partnership<br><br><br><br>By: Ventas, Inc., a Delaware corporation, its general partner<br><br><br><br><br><br><br><br>By: /s/ Christian N. Cummings<br><br><br><br>Name: Christian N. Cummings<br><br>Title: Senior Vice President |
Signature Page-Amendment No. 4 to Amended and Restated Master Lease and Security Agreement
| PSLT-ALS PROPERTIES I, LLC, a Delaware limited liability company<br><br><br><br>By: PSLT-ALS Properties Holdings, LLC, its sole member<br><br><br><br>By: PSLT OP, L.P., its sole member<br><br><br><br>By: PSLT GP, LLC, its general partner<br><br><br><br>By: Ventas Provident, LLC, its sole member<br><br><br><br><br><br><br><br>By: /s/ Christian N. Cummings<br><br><br><br>Name: Christian N. Cummings<br><br><br><br>Title: President |
|---|
| PSLT-ALS PROPERTIES II, LLC, a Delaware limited liability company<br><br><br><br>By: PSLT-ALS Properties Holdings, LLC, its sole member<br><br><br><br>By: PSLT OP, L.P., its sole member<br><br><br><br>By: PSLT GP, LLC, its general partner<br><br><br><br>By: Ventas Provident, LLC, its sole member<br><br><br><br><br><br><br><br>By: /s/ Christian N. Cummings<br><br><br><br>Name: Christian N. Cummings<br><br><br><br>Title: President |
Signature Page-Amendment No. 4 to Amended and Restated Master Lease and Security Agreement
| PSLT-ALS PROPERTIES IV, LLC, a Delaware limited liability company<br><br><br><br><br><br><br><br>By: /s/ Christian N. Cummings<br><br><br><br>Name: Christian N. Cummings<br><br><br><br>Title: President |
|---|
| PSLT-ALS PROPERTIES III, LLC, a Delaware limited liability company<br><br><br><br><br><br><br><br>By: /s/ Christian N. Cummings<br><br><br><br>Name: Christian N. Cummings<br><br><br><br>Title: President |
Signature Page-Amendment No. 4 to Amended and Restated Master Lease and Security Agreement
| BROOKDALE LIVING COMMUNITIES OF ILLINOIS-2960, LLC, a Delaware limited liability company<br><br><br><br>By: PSLT-BLC Properties Holdings, LLC, its sole member<br><br><br><br>By: PSLT OP, L.P., its sole member<br><br><br><br>By: PSLT GP, LLC, its general partner<br><br><br><br>By: Ventas Provident, LLC, its sole member<br><br><br><br><br><br><br><br>By: /s/ Christian N. Cummings<br><br><br><br>Name: Christian N. Cummings<br><br><br><br>Title: President |
|---|
| BROOKDALE LIVING COMMUNITIES OF ILLINOIS-HV, LLC, a Delaware limited liability company<br><br><br><br>By: PSLT-BLC Properties Holdings, LLC, its sole member<br><br><br><br>By: PSLT OP, L.P., its sole member<br><br><br><br>By: PSLT GP, LLC, its general partner<br><br><br><br>By: Ventas Provident, LLC, its sole member<br><br><br><br><br><br><br><br>By: /s/ Christian N. Cummings<br><br><br><br>Name: Christian N. Cummings<br><br><br><br>Title: President |
Signature Page-Amendment No. 4 to Amended and Restated Master Lease and Security Agreement
| RIVER OAKS PARTNERS, an Illinois general partnership<br><br><br><br>By: Brookdale Holdings, LLC, its managing partner<br><br><br><br>By: PSLT-BLC Properties Holdings, LLC, its sole member<br><br><br><br>By: PSLT OP, L.P., its sole member<br><br><br><br>By: PSLT GP, LLC, its general partner<br><br><br><br>By: Ventas Provident, LLC, its sole member<br><br><br><br><br><br><br><br>By: /s/ Christian N. Cummings<br><br><br><br>Name: Christian N. Cummings<br><br><br><br>Title: President |
|---|
| BROOKDALE LIVING COMMUNITIES OF CONNECTICUT, LLC, a Delaware limited liability company<br><br><br><br><br><br><br><br>By: /s/ Christian N. Cummings<br><br><br><br>Name: Christian N. Cummings<br><br><br><br>Title: President |
Signature Page-Amendment No. 4 to Amended and Restated Master Lease and Security Agreement
| PSLT-BLC PROPERTIES HOLDINGS, LLC, a Delaware limited liability company<br><br><br><br>By: PSLT OP, L.P., its sole member<br><br><br><br>By: PSLT GP, LLC, its general partner<br><br><br><br>By: Ventas Provident, LLC, its sole member<br><br><br><br><br><br><br><br>By: /s/ Christian N. Cummings<br><br><br><br>Name: Christian N. Cummings<br><br><br><br>Title: President |
|---|
| THE PONDS OF PEMBROKE LIMITED PARTNERSHIP, an Illinois limited partnership<br><br><br><br>By: Brookdale Holdings, LLC, its general partner<br><br><br><br>By: PSLT-BLC Properties Holdings, LLC, its sole member<br><br><br><br>By: PSLT OP, L.P., its sole member<br><br><br><br>By: PSLT GP, LLC, its general partner<br><br><br><br>By: Ventas Provident, LLC, its sole member<br><br><br><br><br><br><br><br>By: /s/ Christian N. Cummings<br><br><br><br>Name: Christian N. Cummings<br><br><br><br>Title: President |
Signature Page-Amendment No. 4 to Amended and Restated Master Lease and Security Agreement
| BROOKDALE LIVING COMMUNITIES OF ARIZONA-EM, LLC, a Delaware limited liability company<br><br><br><br>By: PSLT-BLC Properties Holdings, LLC, its sole member<br><br><br><br>By: PSLT OP, L.P., its sole member<br><br><br><br>By: PSLT GP, LLC, its general partner<br><br><br><br>By: Ventas Provident, LLC, its sole member<br><br><br><br><br><br><br><br>By: /s/ Christian N. Cummings<br><br><br><br>Name: Christian N. Cummings<br><br><br><br>Title: President |
|---|
| BROOKDALE LIVING COMMUNITIES OF MASSACHUSETTS-RB, LLC, a Delaware limited liability company<br><br><br><br>By: PSLT-BLC Properties Holdings, LLC, its sole member<br><br><br><br>By: PSLT OP, L.P., its sole member<br><br><br><br>By: PSLT GP, LLC, its general partner<br><br><br><br>By: Ventas Provident, LLC, its sole member<br><br><br><br><br><br><br><br>By: /s/ Christian N. Cummings<br><br><br><br>Name: Christian N. Cummings<br><br><br><br>Title: President |
Signature Page-Amendment No. 4 to Amended and Restated Master Lease and Security Agreement
| BROOKDALE LIVING COMMUNITIES OF CALIFORNIA-RC, LLC, a Delaware limited liability company<br><br><br><br>By: PSLT-BLC Properties Holdings, LLC, its sole member<br><br><br><br>By: PSLT OP, L.P., its sole member<br><br><br><br>By: PSLT GP, LLC, its general partner<br><br><br><br>By: Ventas Provident, LLC, its sole member<br><br><br><br><br><br><br><br>By: /s/ Christian N. Cummings<br><br><br><br>Name: Christian N. Cummings<br><br><br><br>Title: President |
|---|
| BROOKDALE LIVING COMMUNITIES OF CALIFORNIA, LLC, a Delaware limited liability company<br><br><br><br>By: PSLT-BLC Properties Holdings, LLC, its sole member<br><br><br><br>By: PSLT OP, L.P., its sole member<br><br><br><br>By: PSLT GP, LLC, its general partner<br><br><br><br>By: Ventas Provident, LLC, its sole member<br><br><br><br><br><br><br><br>By: /s/ Christian N. Cummings<br><br><br><br>Name: Christian N. Cummings<br><br><br><br>Title: President |
Signature Page-Amendment No. 4 to Amended and Restated Master Lease and Security Agreement
| BLC OF CALIFORNIA-SAN MARCOS, L.P., a Delaware limited partnership<br><br><br><br>By: Brookdale Living Communities of California-San Marcos, LLC, its general partner<br><br><br><br>By: PSLT-BLC Properties Holdings, LLC, its sole member<br><br><br><br>By: PSLT OP, L.P., its sole member<br><br><br><br>By: PSLT GP, LLC, its general partner<br><br><br><br>By: Ventas Provident, LLC, its sole member<br><br><br><br><br><br><br><br>By: /s/ Christian N. Cummings<br><br><br><br>Name: Christian N. Cummings<br><br><br><br>Title: President |
|---|
| BROOKDALE LIVING COMMUNITIES OF WASHINGTON-PP, LLC, a Delaware limited liability company<br><br><br><br>By: PSLT-BLC Properties Holdings, LLC, its sole member<br><br><br><br>By: PSLT OP, L.P., its sole member<br><br><br><br>By: PSLT GP, LLC, its general partner<br><br><br><br>By: Ventas Provident, LLC, its sole member<br><br><br><br><br><br><br><br>By: /s/ Christian N. Cummings<br><br><br><br>Name: Christian N. Cummings<br><br><br><br>Title: President |
Signature Page-Amendment No. 4 to Amended and Restated Master Lease and Security Agreement
| BROOKDALE LIVING COMMUNITIES OF ILLINOIS-II, LLC, a Delaware limited liability company<br><br><br><br>By: PSLT-BLC Properties Holdings, LLC, its sole member<br><br><br><br>By: PSLT OP, L.P., its sole member<br><br><br><br>By: PSLT GP, LLC, its general partner<br><br><br><br>By: Ventas Provident, LLC, its sole member<br><br><br><br><br><br><br><br>By: /s/ Christian N. Cummings<br><br><br><br>Name: Christian N. Cummings<br><br><br><br>Title: President |
|---|
| BROOKDALE LIVING COMMUNITIES OF NEW JERSEY, LLC, a Delaware limited liability company<br><br><br><br>By: PSLT-BLC Properties Holdings, LLC, its sole member<br><br><br><br>By: PSLT OP, L.P., its sole member<br><br><br><br>By: PSLT GP, LLC, its general partner<br><br><br><br>Ventas Provident, LLC, its sole member<br><br><br><br><br><br><br><br>By: /s/ Christian N. Cummings<br><br><br><br>Name: Christian N. Cummings<br><br><br><br>Title: President |
Signature Page-Amendment No. 4 to Amended and Restated Master Lease and Security Agreement
| BROOKDALE LIVING COMMUNITIES OF FLORIDA-CL, LLC, a Delaware limited liability company<br><br><br><br>By: PSLT-BLC Properties Holdings, LLC, its sole member<br><br><br><br>By: PSLT OP, L.P., its sole member<br><br><br><br>By: PSLT GP, LLC, its general partner<br><br><br><br>Ventas Provident, LLC, its sole member<br><br><br><br><br><br><br><br>By: /s/ Christian N. Cummings<br><br><br><br>Name: Christian N. Cummings<br><br><br><br>Title: President |
|---|
Signature Page-Amendment No. 4 to Amended and Restated Master Lease and Security Agreement
| NATIONWIDE HEALTH PROPERTIES, LLC, a Delaware limited liability company<br><br><br><br><br><br><br><br>By: /s/ Christian N. Cummings<br><br><br><br>Name: Christian N. Cummings<br><br><br><br>Title: President |
|---|
Signature Page-Amendment No. 4 to Amended and Restated Master Lease and Security Agreement
| 2010 UNION LIMITED PARTNERSHIP, a Washington limited partnership<br><br><br><br>By: Nationwide Health Properties, LLC, its general partner<br><br><br><br><br><br><br><br>By: /s/ Christian N. Cummings<br><br><br><br>Name: Christian N. Cummings<br><br><br><br>Title: President |
|---|
| NH TEXAS PROPERTIES LIMITED PARTNERSHIP, a Texas limited partnership<br><br><br><br>By: MLD Texas Corporation, its general partner<br><br><br><br><br><br><br><br>By: /s/ Christian N. Cummings<br><br><br><br>Name: Christian N. Cummings<br><br><br><br>Title: President |
| MLD PROPERTIES, INC., a Delaware corporation<br><br><br><br><br><br><br><br>By: /s/ Christian N. Cummings<br><br><br><br>Name: Christian N. Cummings<br><br><br><br>Title: President |
Signature Page-Amendment No. 4 to Amended and Restated Master Lease and Security Agreement
| JER/NHP SENIOR LIVING ACQUISITION, LLC, a Delaware limited liability company<br><br><br><br><br><br><br><br>By: /s/ Christian N. Cummings<br><br><br><br>Name: Christian N. Cummings<br><br><br><br>Title: President | | --- || JER/NHP SENIOR LIVING KANSAS, INC., a Kansas corporation<br><br><br><br><br><br><br><br>By: /s/ Christian N. Cummings<br><br><br><br>Name: Christian N. Cummings<br><br><br><br>Title: President | | --- | | JER/NHP SENIOR LIVING TEXAS, L.P., a Texas limited partnership<br><br><br><br>By: JER/NHP Management Texas, LLC, its general partner<br><br><br><br><br><br><br><br>By: /s/ Christian N. Cummings<br><br><br><br>Name: Christian N. Cummings<br><br><br><br>Title: President |
Signature Page-Amendment No. 4 to Amended and Restated Master Lease and Security Agreement
| MLD PROPERTIES LIMITED PARTNERSHIP, a Delaware limited partnership<br><br><br><br>By: MLD Properties II, Inc., its general partner<br><br><br><br><br><br><br><br>By: /s/ Christian N. Cummings<br><br><br><br>Name: Christian N. Cummings<br><br><br><br>Title: President |
|---|
| NHP MCCLAIN, LLC, a Delaware limited liability company<br><br><br><br><br><br><br><br>By: /s/ Christian N. Cummings<br><br><br><br>Name: Christian N. Cummings<br><br><br><br>Title: President |
Signature Page-Amendment No. 4 to Amended and Restated Master Lease and Security Agreement
| VENTAS FAIRWOOD, LLC, a Delaware limited liability company<br><br><br><br><br><br><br><br>By: /s/ Christian N. Cummings<br><br><br><br>Name: Christian N. Cummings<br><br><br><br>Title: President |
|---|
| VENTAS FRAMINGHAM, LLC, a Delaware limited liability company<br><br><br><br><br><br><br><br>By: /s/ Christian N. Cummings<br><br><br><br>Name: Christian N. Cummings<br><br><br><br>Title: President |
| VENTAS WHITEHALL ESTATES, LLC, a Delaware limited liability company<br><br><br><br><br><br><br><br>By: /s/ Christian N. Cummings<br><br><br><br>Name: Christian N. Cummings<br><br><br><br>Title: President |
Signature Page-Amendment No. 4 to Amended and Restated Master Lease and Security Agreement
| VTR-EMRTS HOLDINGS, LLC, a Delaware limited liability company<br><br><br><br><br><br><br><br>By: /s/ Christian N. Cummings<br><br><br><br>Name: Christian N. Cummings<br><br><br><br>Title: President |
|---|
Signature Page-Amendment No. 4 to Amended and Restated Master Lease and Security Agreement
CONSENT AND REAFFIRMATION OF GUARANTOR
THIS CONSENT AND REAFFIRMATION OF GUARANTOR (this “Reaffirmation”) is entered into concurrently with and is attached to and hereby made a part of Amendment No. 4 to Amended and Restated Master Lease and Security Agreement effective as of August _, 2023 (the “Lease Amendment”) between Landlord and Tenant (both, as defined therein).
BROOKDALE SENIOR LIVING INC., a Delaware corporation (“Guarantor”) executed and delivered that certain Amended and Restated Guaranty dated as of July 26, 2020 (the “Guaranty”), pursuant to which Guarantor guarantied for the benefit of Landlord, the obligations of Tenant under the BKD/VTR Documents (as defined in the Guaranty).
FOR VALUABLE CONSIDERATION, receipt of which is hereby acknowledged, Guarantor hereby acknowledges, reaffirms and agrees:
1.Capitalized terms used but not defined in this Reaffirmation shall have the same meanings for purposes of this Reaffirmation as provided in or for purposes of the Lease Amendment.
2.Guarantor hereby (i) acknowledges and consents to the Lease Amendment, (ii) reaffirms its obligations under the Guaranty with respect to the Master Lease as amended by the Lease Amendment, and (iii) confirms that the Guaranty remains in full force and effect.
3.Although Guarantor has been informed of the terms of the Lease Amendment, Guarantor understands and agrees that Landlord has no duty to so notify it or to seek this or any future acknowledgment, consent or reaffirmation, and nothing contained herein shall create or imply any such duty as to any transactions, past or future.
Guarantor has executed this Consent and Reaffirmation of Guarantor effective as of the Amendment Date.
GUARANTOR:
BROOKDALE SENIOR LIVING INC.,
a Delaware corporation
By: /s/ Chad C. White
Name: Chad C. White
Title: Executive Vice President,
General Counsel and Secretary
Document
Exhibit 10.2.2
AMENDMENT NO. 1 TO
MASTER CREDIT FACILITY AGREEMENT
(SENIORS HOUSING)
(Brookdale 49)
THIS AMENDMENT NO. 1 TO MASTER CREDIT FACILITY AGREEMENT (SENIORS HOUSING) (this "Amendment") is made as of November 1, 2018, by and among (i) the entities named on the signature pages hereto as Borrower (individually, and collectively, "Borrower"), (ii) AHC Sterling House of Venice, LLC, a Delaware limited liability company ("Released Borrower"), (iii) JONES LANG LASALLE MULTIFAMILY LLC, a Delaware limited liability company ("Lender"), and (iv) FANNIE MAE, the corporation duly organized under the Federal National Mortgage Association Charter Act, as amended, 12 U.S.C. §1716 et seq. and duly organized and existing under the laws of the United States ("Fannie Mae").
RECITALS
A.Borrower, Released Borrower and Lender are parties to that certain Master Credit Facility Agreement (Seniors Housing), dated as of August 31, 2017 (as amended, restated, modified, or supplemented from time to time, the "Master Agreement").
B.All of Lender's right, title and interest in the Master Agreement and the Loan Documents executed in connection with the Master Agreement or the transactions contemplated by the Master Agreement have been assigned to Fannie Mae pursuant to that certain Assignment of Master Credit Facility Agreement and Other Loan Documents, dated as of August 31, 2017 (the "Assignment"). Fannie Mae has not (i) assumed any of the obligations of Lender under the Master Agreement or the Loan Documents to make Future Advances, or (ii) any of the obligations of Lender which are servicing obligations delegated to Lender as servicer of the Advances contemplated by the Master Agreement. Fannie Mae has designated Lender as the servicer of the Advances contemplated by the Master Agreement. Lender is entering into this Amendment in its capacity as servicer of the Advances set forth in the Master Agreement.
C.Borrower and Released Borrower have requested and Fannie Mae and Lender have consented to the release from the Collateral Pool of (i) the Mortgaged Property commonly known as Brookdale Venice Island ("Venice Island Property"), which is owned by Released Borrower; (ii) the Mortgaged Properties known as Brookdale Leesburg AL, Brookdale Leesburg MC and Brookdale Pleasant Prairie, which, among other properties, are owned by AHC Purchaser, Inc. ("AHC Properties" and with the Venice Island Property, collectively, the "Released Properties"; such transaction being herein referred to as, the "Release"); and (iii) to the release of the Released Borrower as a Borrower under and a party to the Master Agreement.
D.The parties are executing this Amendment to reflect the Release in the Master Agreement.
Page 1
NOW, THEREFORE, the parties hereto, in consideration of the mutual promises and agreements contained in this Amendment and the Master Agreement, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, hereby agree as follows:
Section 1. Recitals. The recitals set forth above are incorporated herein by reference as if fully set forth in the body of this Amendment.
Section 2. Amendments to Master Agreement.
A.Fannie Mae and Lender hereby consent to the release from the Collateral Pool of the Released Properties, so that from and after the date hereof, Exhibit A of the Master Agreement is hereby amended to remove the Released Properties as Mortgaged Properties under the Collateral Pool.
B.The Master Agreement and the other Loan Documents are hereby amended to release the Released Borrower as a party thereto and a Borrower thereunder, except for any liabilities or obligations of the Released Borrower which arose prior to the date hereof or for any provisions of the Master Agreement and the other Loan Documents that are expressly stated to survive any release or termination. Exhibit A of the Master Agreement is hereby amended to remove the Released Borrower as a Borrower under the Master Agreement.
C.Each of Schedules 2, 5, 6, 10, 13, 16 and 23 of the Master Agreement is hereby amended to remove references to the Released Borrower and the Released Properties, as applicable.
Section 4. Full Force and Effect. Except as expressly modified hereby, the Master Agreement and all of the terms, conditions, covenants, agreements and provisions thereof remain in full force and effect and are hereby ratified and affirmed.
Section 5. Representations and Warranties. Borrower represents and warrants to Fannie Mae and Lender that all representations and warranties set forth in the Loan Documents are true and correct as of the date hereof and that no Event of Default or Potential Event of Default has occurred as of the date hereof.
Section 6. Counterparts. This Amendment may be executed in counterparts by the parties hereto, and each such counterpart shall be considered an original and all such counterparts shall constitute one and the same instrument.
Section 7. Exculpation and Governing Law. The provisions of Section 3.02 of the Master Agreement (entitled "Personal Liability of Borrower"), the provisions of Sections 15.01 of the Master Agreement (entitled "Choice of Law; Consent to Jurisdiction") and the provisions of Section 15.02 of the Master Agreement (entitled "Waiver of Jury Trial") are hereby
Page 2
incorporated into this Amendment by this reference to the fullest extent as if the text of such provisions were set forth in their entirety herein.
Section 3. Capitalized Terms. All capitalized terms used in this Amendment which are not specifically defined herein shall have the respective meanings set forth in the Master Agreement.
[The remainder of this page has been intentionally left blank.]
Page 3
IN WITNESS WHEREOF, the parties hereto have duly signed, sealed, and delivered this Amendment on the day and year first above written.
BORROWER:
FIT REN Nohl Ranch LP,
FIT REN Park LP,
FIT REN Mirage Inn LP,
FIT REN The Gables LP,
FIT REN Paulin Creek LP,
FIT REN Ocean House LP,
FIT REN Oak Tree LP,
FIT REN Pacific Inn LP,
each a Delaware limited partnership
By: FIT REN Holdings GP Inc., their general partner
By: /s/ George T. Hicks
Name: George T. Hicks
Title: Executive Vice President and Treasurer
AHC Purchaser, Inc.,
a Delaware corporation
By: /s/ George T. Hicks
Name: George T. Hicks
Title: Executive Vice President and Treasurer
ARC Scottsdale, LLC,
ARC Sweet Life Shawnee, LLC,
ARCLP Charlotte, LLC,
ARC Wilora Assisted Living, LLC,
each a Tennessee limited liability company
By: /s/ George T. Hicks
Name: George T. Hicks
Title: Executive Vice President and Treasurer of each Borrower
Page S-1
ARC Westlake Village, Inc.,
a Tennessee corporation
By: /s/ George T. Hicks
Name: George T. Hicks
Title: Executive Vice President and Treasurer
AHC Sterling House of Brighton, LLC,
AHC Villas of the Atrium, LLC,
AHC Sterling House of Jacksonville, LLC,
AHC Sterling House of Panama City, LLC,
CMCP-Pinecastle, LLC,
AHC Sterling House of Port Charlotte, LLC,
AHC Sterling House of Punta Gorda, LLC,
CMCP-Roswell, LLC,
AHC Villas-Wynwood of River Place, LLC,
CMCP-Montrose, LLC,
AHC Villas-Wynwood of Courtyard Albany, LLC,
AHC Villas of Albany Residential, LLC,
AHC Wynwood of Rogue Valley, LLC,
CMCP-Club Hill, LLC,
AHC Sterling House of Corsicana, LLC,
Brookdale Cypress Station, LLC,
Brookdale Lakeway, LLC,
AHC Sterling House of Lewisville, LLC,
AHC Sterling House of Mansfield, LLC,
Brookdale Northwest Hills, LLC,
AHC Sterling House of Weatherford, LLC,
CMCP-Williamsburg, LLC,
each a Delaware limited liability company
By: /s/ George T. Hicks
Name: George T. Hicks
Title: Executive Vice President and Treasurer of each Borrower
Page S-2
RELEASED BORROWER:
AHC Sterling House of Venice, LLC,
a Delaware limited liability company
By: /s/ George T. Hicks
Name: George T. Hicks
Title: Executive Vice President and Treasurer
Page S-3
LENDER:
JONES LANG LASALLE MULTIFAMILY, LLC,
a Delaware limited liability company
By: /s/ Beverly D. Berquam
Name: Beverly D. Berquam
Title: Vice President
Page S-4
FANNIE MAE:
FANNIE MAE, the corporation duly organized under the Federal National Mortgage Association Charter Act, as amended, 12 U.S.C. §1716 et seq. and duly organized and existing under the laws of the United States
By: /s/ Michael W. Dick
Name: Michael W. Dick
Title: Asst. Vice President
Page S-5
Schedule 1
RELEASED PROPERTIES
| Property | Address and Location | |
|---|---|---|
| 1 | Brookdale Leesburg AL | 700 South Lake St., Leesburg, FL 34748 |
| 2 | Brookdale Leesburg MC | 710 South Lake St., Leesburg, FL 34748 |
| 3 | Brookdale Venice Island | 1200 Avenida del Circo, Venice, FL 34285 |
| 4 | Brookdale Pleasant Prairie | 777 88th Avenue, Kenosha, WI 53142 |
Document
Exhibit 10.2.3
REAFFIRMATION, JOINDER AND SECOND AMENDMENT TO
MASTER CREDIT FACILITY AGREEMENT (Seniors Housing)
This REAFFIRMATION AND SECOND AMENDMENT TO MASTER CREDIT FACILITY AGREEMENT (this “Amendment”) is made as of December 15, 2023, by and among (i) the entities identified as Borrower set forth on Schedule I attached hereto (individually and collectively, “Borrower”); (ii) JLL Real Estate Capital, LLC, a Delaware limited liability company (as successor-in-interest to Jones Lang LaSalle Multifamily, LLC, a Delaware limited liability company) (“Lender”); (iii) Fannie Mae, the corporation duly organized under the Federal National Mortgage Association Charter Act, as amended, 12 U.S.C. §1716 et seq. and duly organized and existing under the laws of the United States (“Fannie Mae”), and (iv) joined into by (a) the entities identified as Affiliated Master Lessee on the Summary of Master Terms as Affiliated Master Lessees pursuant to the Joinder attached hereto, and (b) the entities identified as Affiliated Property Manager on the Summary of Master Terms as Affiliated Property Managers pursuant to the Joinder attached hereto.
RECITALS
A.Borrower and Lender are parties to or have joined into that certain Master Credit Facility Agreement dated as of August 31, 2017, as amended by that certain Amendment No. 1 to Master Credit Facility Agreement, dated as of November 1, 2018 (as amended by this Amendment, and as may be further amended, restated, supplemented, or otherwise modified from time to time, the “Master Agreement”).
B.All of Lender’s right, title and interest in the Master Agreement and the Loan Documents executed in connection with the Master Agreement or the transactions contemplated by the Master Agreement have been assigned to Fannie Mae pursuant to that certain Assignment of Master Credit Facility Agreement and Other Loan Documents, dated as of August 31, 2017, and by that certain Assignment of Reaffirmation and Second Amendment to Master Credit Facility Agreement and Other Loan Documents, dated as of the date hereof (the “Assignment”). Fannie Mae has not assumed (i) any of the obligations of Lender (once an agreement is made for Lender to make a Future Advance) under the Master Agreement to make Future Advances or (ii) any of the obligations of Lender which are servicing obligations delegated to Lender as servicer of the Advances. Fannie Mae has designated Lender as the servicer of the Advances contemplated by the Master Agreement.
C.Borrower has requested that Lender make a Future Advance pursuant to the Master Agreement (the “Refinance Advance”) to refinance the payoff of that certain Renewed, Amended and Restated Multifamily Note, in the sum of $292,500,000 (the “Payoff Note”).
D.The parties are executing this Amendment pursuant to the Master Agreement to reflect the repayment of the Payoff Note and to reflect the making of the Refinance Advance by Lender in the amount of $179,541,000.
Page 1
AGREEMENT
NOW, THEREFORE, the parties hereto, in consideration of the mutual promises and agreements contained in this Amendment and the Master Agreement, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, hereby agree as follows:
Section1. Recitals. The recitals set forth above are incorporated herein by reference as if fully set forth in the body of this Amendment.
Section 2. Future Advance. In connection with this Amendment, Lender is making the Refinance Advance to Borrower, and Borrower is repaying the Payoff Note.
Section 3. Borrow Up Advances. Section 2.02(c)(2)(B) (Advances, Making Advances, Future Advances) is herewith deleted and restated in its entirety as follows:
“(B)Any Future Advance shall be made in connection with the Addition of Additional Mortgaged Properties; provided, however, Borrower may request that a Future Advance made pursuant to Section 2.02(c)(2)(A) (Future Advances) above be made without the Addition of Additional Mortgaged Property based on compliance with the terms of the Future Advance Schedule and the Underwriting and Servicing Requirements subject to the terms of this Section 2.02(c)(2) (Future Advances) and Section 2.02(b) (Limitations on Executions). Such Future Advance shall be made during the period beginning on the First Anniversary and ending on December 31, 2024, but not more than once per year.”
Section 4. Summary of Master Terms. Schedule 2(I) to the Master Agreement (Summary of Master Terms, General Party and Multifamily Project Information) is hereby deleted in its entirety, and replaced with Schedule 2(I) attached hereto.
Section 5. Schedule of Advance Terms. Schedule 3 to the Master Agreement is hereby supplemented with Schedule 3.5 attached hereto, and deleting Schedule 3.2.
Section 6. Prepayment Premium Schedule. Schedule 4 to the Master Agreement is hereby supplemented with Schedule 4.5 attached hereto, and deleting Schedule 4.2.
Section 7. Ownership Interests Schedule. Schedule 13 to the Master Agreement is hereby deleted in its entirety and replaced with Schedule 13 attached hereto.
Section 8. Exceptions to Representations and Warranties. Schedule 16 to the Master Agreement is hereby supplemented with Schedule 16.1 attached hereto.
Section 9. Kansas No Oral Agreements Certificate. Schedule 26 to the Master Agreement is hereby supplemented with Schedule 26.1 attached hereto.
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Section 10. Capitalized Terms. All capitalized terms used in this Amendment which are not specifically defined herein shall have the respective meanings set forth in the Master Agreement.
Section 11. Full Force and Effect. Except as expressly modified by this Amendment, all terms and conditions of the Master Agreement shall continue in full force and effect.
Section 12. Counterparts. This Amendment may be executed in counterparts by the parties hereto, and each such counterpart shall be considered an original and all such counterparts shall constitute one and the same instrument.
Section 13. Applicable Law. The provisions of Section 15.01 of the Master Agreement (Choice of Law; Consent to Jurisdiction) and Section 15.02 (Waiver of Jury Trial) are hereby incorporated into this Amendment by this reference to the fullest extent as if the text of such provisions were set forth in their entirety herein.
Section 14. Authorization. Borrower represents and warrants that 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 Master Agreement, as amended hereby.
Section 15. Compliance with Loan Documents. The representations and warranties set forth in the Loan Documents executed or assumed by Borrower, as amended hereby, are true and correct with the same effect as if such representations and warranties had been made on the date hereof, except for such changes as are specifically permitted under the Loan Documents. In addition, Borrower has complied with and is in compliance with all of its covenants set forth in the Loan Documents, as amended hereby.
Section 16. No Event of Default. Borrower represents and warrants that, as of the date hereof, no Event of Default under the Loan Documents executed or assumed by Borrower, as amended hereby, or event or condition which, with the giving of notice or the passage of time, or both, would constitute an Event of Default, has occurred and is continuing.
Section 17. Costs. Borrower agrees to pay all fees and costs (including attorneys’ fees) incurred by Fannie Mae and Lender in connection with this Amendment.
Section 18. Continuing Force and Effect of Loan Documents. Except as specifically modified or amended by the terms of this Amendment, all other terms and provisions of the Master Agreement and the other Loan Documents are incorporated by reference herein and in all respects shall continue in full force and effect. Each Borrower, by execution of this Amendment, hereby reaffirms, assumes and binds itself to all of the obligations, duties, rights, covenants, terms and conditions that are contained in the Master Agreement and the other Loan Documents executed or assumed by it, including Section 15.01 of the Master Agreement (Choice of Law; Consent to Jurisdiction), Section 15.02 (Waiver of Jury Trial), Section 15.05 (Counterparts), Section 15.08 (Severability; Entire Agreement; Amendments) and Section 15.09 (Construction) of the Master Agreement.
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IN WITNESS WHEREOF, the parties hereto have signed and delivered this Amendment under seal (where applicable) or have caused this Amendment to be signed and delivered under seal (where applicable) by their duly authorized representatives. Where Applicable Law so provides, the parties hereto intend that this Amendment shall be deemed to be signed and delivered as a sealed instrument.
BORROWER:
FIT REN NOHL RANCH LP,
FIT REN PARK LP,
FIT REN MIRAGE INN LP,
FIT REN THE GABLES LP,
FIT REN PAULIN CREEK LP,
FIT REN OCEAN HOUSE LP,
FIT REN OAK TREE LP,
FIT REN PACIFIC INN LP,
each a Delaware limited partnership
By: FIT REN Holdings GP Inc., their general partner
By: /s/ George T. Hicks
Name: George T. Hicks
Title: Executive Vice President and Treasurer
AHC PURCHASER, INC.,
a Delaware corporation
By: /s/ George T. Hicks
Name: George T. Hicks
Title: Executive Vice President and Treasurer
ARC SCOTTSDALE, LLC,
ARC SWEET LIFE SHAWNEE, LLC,
ARCLP-CHARLOTTE, LLC,
ARC WILORA ASSISTED LIVING, LLC,
each a Tennessee limited liability company
By: /s/ George T. Hicks
Name: George T. Hicks
Title: Executive Vice President and Treasurer
Page S-1
ARC WESTLAKE VILLAGE, INC.,
a Tennessee corporation
By: /s/ George T. Hicks
Name: George T. Hicks
Title: Executive Vice President and Treasurer
AHC STERLING HOUSE OF BRIGHTON, LLC
AHC VILLAS OF THE ATRIUM, LLC,
AHC STERLING HOUSE OF JACKSONVILLE, LLC,
AHC STERLING HOUSE OF PANAMA CITY, LLC,
CMCP-PINECASTLE, LLC,
AHC STERLING HOUSE OF PORT CHARLOTTE, LLC,
AHC STERLING HOUSE OF PUNTA GORDA, LLC,
CMCP-ROSWELL, LLC,
AHC VILLAS-WYNWOOD OF RIVER PLACE, LLC,
CMCP-MONTROSE, LLC,
AHC VILLAS-WYNWOOD OF COURTYARD ALBANY, LLC,
AHC VILLAS OF ALBANY RESIDENTIAL, LLC,
AHC WYNWOOD OF ROGUE VALLEY, LLC,
CMCP-CLUB HILL, LLC,
AHC STERLING HOUSE OF CORSICANA, LLC,
BROOKDALE CYPRESS STATION, LLC,
BROOKDALE LAKEWAY, LLC,
AHC STERLING HOUSE OF LEWISVILLE, LLC,
AHC STERLING HOUSE OF MANSFIELD, LLC,
BROOKDALE NORTHWEST HILLS, LLC,
AHC STERLING HOUSE OF WEATHERFORD, LLC,
CMCP-WILLIAMSBURG, LLC,
each a Delaware limited liability company
By: /s/ George T. Hicks
Name: George T. Hicks
Title: Executive Vice President and Treasurer
Page S-2
LENDER:
JLL REAL ESTATE CAPITAL, LLC
a Delaware limited liability company
By: /s/ Alyssa D. Berguam
Name: Alyssa D. Berguam
Title: Closing Coordinator
Page S-3
FANNIE MAE:
FANNIE MAE, the corporation duly organized under the Federal National Mortgage Association Charter Act, as amended, 12 U.S.C. §1716 et seq. and duly organized and existing under the laws of the United States
By: /s/ Maria Elena Fleming
Name: Maria Elena Fleming
Title: Assistant Vice President
Page S-4
Each Affiliated Property Operator hereby joins into this Amendment, the Master Agreement and the other Loan Documents, as if it were otherwise an original party hereunder and thereunder. Each Affiliated Property Operator hereby ratifies and agrees to be bound by all of the covenants, terms, conditions, and provisions contained in the Loan Documents as they relate to such Affiliated Property Operator, including each covenant, term, condition and provision set forth in Article 4, Article 5, Article 6, Article 7, Article 8, Article 9, Article 10, Article 11, Article 12, Article 13, and Article 15, and Section 14.02(d) and Section 14.03(c). Each Affiliated Property Operator hereby acknowledges, agrees and confirms that, by its signature below, such Affiliated Property Operator will be deemed to be a party to this Amendment and the Master Agreement as an “Affiliated Property Operator,” and either a “Manager” or an “Operator”, as applicable, for all purposes under the Loan Documents, and shall have assumed all of the obligations of “Affiliated Property Operator” and “Manager” or “Operator,” as applicable, thereunder as if it had executed each of the Loan Documents. No Affiliated Property Operator shall have any obligations with respect to the provisions of Article 2 (payment) or the provisions of Article 3 (recourse) of the Master Agreement.
AFFILIATED PROPERTY OPERATORS:
BLC NOHL RANCH, LLC
BLC INN AT THE PARK, LLC
BROOKDALE SENIOR LIVING COMMUNITIES, INC.
BROOKDALE MANAGEMENT-II, LLC
SH ITHACA OPERATOR, INC.
SH NIAGARA OPERATOR, INC.
ARC WESTLAKE VILLAGE SNF, LLC
BLC-CLUB HILL, LLC
ARC MANAGEMENT, LLC
ALTERNATIVE LIVING SERVICES-NEW YORK, INC.
By: /s/ George T. Hicks
Name: George T. Hicks
Title: Executive Vice President and Treasurer
BLC MIRAGE INN, L.P.
By: BLC Mirage Inn, Inc., its general partner
By: /s/ George T. Hicks
Name: George T. Hicks
Title: Executive Vice President and Treasurer
[Borrowers continue on the following page]
Page S-5
BLC GABLES-MONROVIA, L.P.
By: BLC Gables-Monrovia, Inc., its general partner
By: /s/ George T. Hicks
Name: George T. Hicks
Title: Executive Vice President and Treasurer
BLC OCEAN HOUSE, L.P.
By: BLC Ocean House, Inc., its general partner
By: /s/ George T. Hicks
Name: George T. Hicks
Title: Executive Vice President and Treasurer
BLC OAK TREE VILLA, L.P.
By: BLC Oak Tree Villa, Inc., its general partner
By: /s/ George T. Hicks
Name: George T. Hicks
Title: Executive Vice President and Treasurer
BLC LODGE AT PAULIIN, L.P.,
By: BLC Lodge at Paulin, Inc., its general partner
By: /s/ George T. Hicks
Name: George T. Hicks
Title: Executive Vice President and Treasurer
BLC PACIFIC INN, L.P.
By: BLC Pacific Inn, Inc., its general partner
By: /s/ George T. Hicks
Name: George T. Hicks
Title: Executive Vice President and Treasurer
Page S-6
CLINTON STERLING COTTAGE OPERATOR, INC.
ITHACA STERLING COTTAGE OPERATOR, INC.
NIAGARA STERLING COTTAGE OPERATOR, INC.
By: /s/ Colleen Endsley
Name: Colleen Endsley
Title: President
Page S-7
SCHEDULES & EXHIBITS
The Schedules & Exhibits list attached to the Master Agreement is hereby deleted in its entirety and restated as follows:
| Schedules | ||
|---|---|---|
| Schedule 1 | Definitions Schedule – General | |
| Schedule 2 | Summary of Master Terms | |
| Schedule 2A | New York Gap Note Modifications | Form 6234 |
| Schedule 3.1 | Schedule of Advance Terms (Gap Note) | |
| Schedule 3.2 | Intentionally Deleted | |
| Schedule 3.3 | Schedule of Advance Terms (Fixed – 10 Years) | |
| Schedule 3.4 | Schedule of Advance Terms (Variable) | |
| Schedule 3.5 | Schedule of Advance Terms (Fixed) | |
| Schedule 4.1 | Prepayment Premium Schedule (Gap Note) | |
| Schedule 4.2 | Intentionally Deleted | |
| Schedule 4.3 | Prepayment Premium Schedule (Fixed – 10 Years) | Form 6104.01 [08 -13] |
| Schedule 4.4 | Prepayment Premium Schedule (Variable) | Form 6104.11[01-11] |
| Schedule 4.5 | Prepayment Premium Schedule (Fixed) | Form 6104.11 [modified] [05-20] |
| Schedule 5 | Required Replacement Schedule | |
| Schedule 6 | Required Repair Schedule | |
| Schedule 7 | General Conditions Schedule | |
| Schedule 8 | Property-Related Documents Schedule | |
| Schedule 9 | Conversion Schedule | |
| Schedule 10 | Mortgaged Property Release Schedule | |
| Schedule 11 | Mortgaged Property Addition Schedule | |
| Schedule 12 | Reserved | |
| Schedule 13 | Ownership Interests Schedule | |
| Schedule 14 | Future Advance Schedule | |
| Schedule 15 | Letter of Credit Schedule | |
| Schedule 16 | Exceptions to Representations and Warranties Schedule | |
| Schedule 16.1 | Exceptions to Representations and Warranties Schedule | |
| Schedule 17 | Waiver of Imposition Deposits | Form 6228 [modified] [04-<br>12] |
| Schedule 18 | Reserved | |
| Schedule 19 | Skilled Nursing | Form 6001 [01-16] |
| Schedule 19-A | Addenda to Schedule 2 | Form 6001.NR.SRS [01-<br>16] |
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| Schedule 20 | Expansion Structure General Terms | |
|---|---|---|
| Schedule 21 | Mineral Rights Conveyances | |
| Schedule 22 | Licenses, Permits and other Property Related Documents to be Delivered post closing | |
| Schedule 23 | Surveys | |
| Schedule 24 | Licenses | |
| Schedule 25 | Ground Lease Defaults | Form 6206 [07-11] |
| Schedule 26 | Kansas – No Oral Agreements | |
| Schedule 26.1 | Kansas – No Oral Agreements (for the Refi) | |
| Exhibits | ||
| Exhibits | ||
| Exhibit A | Mortgaged Properties | |
| Exhibit B | Conversion Request | |
| Exhibit C | Release Request | |
| Exhibit D | Addition Request | |
| Exhibit E | Future Advance Request | |
| Exhibit F | Termination Request | |
| Exhibit G | Annual Certification (Borrower) | |
| Exhibit H | Annual Certification (Guarantor) | |
| Exhibit I | Confirmation of Guaranty | |
| Exhibit J | Confirmation of Environmental Indemnity Agreement | |
| Exhibit K | Compliance Certificate | |
| Exhibit L-1 | Organizational Certificate (Borrower) | |
| Exhibit L-2 | Organizational Certificate (Guarantor) | |
| Exhibit M | Confirmation of Obligations |
Page 2
Borrower hereby acknowledges and agrees that the Schedules and Exhibits referenced above are hereby incorporated fully into this Master Agreement by this reference and each constitutes a substantive part of this Master Agreement.
/s/ GTH
Borrower Initials
Initial Page
SCHEDULE 2 TO
MASTER CREDIT FACILITY AGREEMENT
Summary of Master Terms
| I. GENERAL PARTY AND MULTIFAMILY PROJECT INFORMATION | |
|---|---|
| Borrower | ARC Scottsdale, LLC (TN)<br><br>FIT REN Nohl Ranch LP (DE)<br><br>FIT REN Park LP (DE)<br><br>FIT REN Mirage Inn LP (DE)<br><br>FIT REN The Gables LP (DE)<br><br>FIT REN Paulin Creek LP (DE)<br><br>FIT REN Ocean House LP (DE)<br><br>FIT REN Oak Tree LP (DE)<br><br>FIT REN Pacific Inn LP (DE)<br><br>AHC Sterling House of Brighton, LLC (DE)<br><br>AHC Villas of the Atrium, LLC (DE)<br><br>AHC Purchaser, Inc. (DE)<br><br>AHC Sterling House of Jacksonville, LLC (DE)<br><br>AHC Sterling House of Panama City, LLC (DE)<br><br>CMCP-Pinecastle, LLC (DE)<br><br>AHC Sterling House of Port Charlotte, LLC (DE)<br><br>AHC Sterling House of Punta Gorda, LLC (DE)<br><br>CMCP-Roswell, LLC (DE)<br><br>AHC Villas-Wynwood of River Place, LLC (DE)<br><br>ARC SWEET LIFE SHAWNEE, LLC (TN)<br><br>ARCLP-CHARLOTTE, LLC (TN)<br><br>ARC WILORA ASSISTED LIVING, LLC (TN)<br><br>CMCP-Montrose, LLC (DE)<br><br>ARC WESTLAKE VILLAGE, Inc. (TN)<br><br>AHC Villas-Wynwood of Courtyard Albany, LLC (DE)<br><br>AHC Villas of Albany Residential, LLC (DE) |
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| AHC Wynwood of Rogue Valley, LLC (DE)<br><br>CMCP-Club Hill, LLC (DE)<br><br>AHC Sterling House of Corsicana, LLC (DE)<br><br>Brookdale Cypress Station, LLC (DE)<br><br>Brookdale Lakeway, LLC (DE)<br><br>AHC Sterling House of Lewisville, LLC (DE)<br><br>AHC Sterling House of Mansfield, LLC (DE)<br><br>Brookdale Northwest Hills, LLC (DE)<br><br>AHC Sterling House of Weatherford, LLC (DE)<br><br>CMCP-Williamsburg, LLC (DE) | |
|---|---|
| Lender | JLL Real Estate Capital, LLC, a Delaware limited liability company (as successor-in-interest to Jones Lang LaSalle Multifamily, LLC. a Delaware limited liability company) |
| Key Principal | Brookdale Senior Living Inc., a Delaware corporation |
| Guarantor | Brookdale Senior Living Inc., a Delaware corporation |
| Multifamily Project | Brookdale North Scottsdale<br>Brookdale Nohl Ranch (fka Brookdale Anaheim Hills)<br>Brookdale Irvine<br>Brookdale Mirage Inn<br>Brookdale Monrovia<br>Brookdale Paulin Creek<br>Brookdale Ocean House (fka Brookdale Santa Monica)<br>Brookdale Scotts Valley<br>Brookdale South Bay<br>Brookdale Brighton AL<br>Brookdale North Boulder<br>Brookdale Mandarin Central<br>Brookdale Panama City<br>Brookdale Chambrel Pinecastle (fka Brookdale Pinecastle)<br>Brookdale Port Charlotte<br>Brookdale Port Orange<br>Brookdale Punta Gorda Isles<br>Brookdale Stuart<br>Brookdale Chambrel Roswell |
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| Brookdale Boise Parkcenter AL<br>Brookdale Boise Parkcenter IL<br>Brookdale Hays<br>Brookdale Shawnee MC<br>Brookdale W. Eisenhower Pkwy<br>Brookdale Carriage Club Providence<br>Brookdale Charlotte East<br>Brookdale Clinton MC<br>Brookdale Ithaca AL<br>Brookdale Ithaca MC<br>Brookdale Niagara AL<br>Brookdale Niagara MC<br>Brookdale Montrose<br>Brookdale Westlake Village<br>Brookdale Geary Street/Brookdale Grand Prairie IL<br>Brookdale Heritage Plaza<br>Brookdale Medford<br>Brookdale Club Hill<br>Brookdale Corsicana<br>Brookdale Cypress Station<br>Brookdale Lakeway AL/MC<br>Brookdale Lewisville<br>Brookdale Mansfield AL<br>Brookdale New Braunfels<br>Brookdale Northwest Hills<br>Brookdale Weatherford AL<br>Brookdale Chambrel Williamsburg (fka Brookdale Willamsburg) | |
|---|---|
| Portion of schedule omitted for SEC filing purposes. | |
| Property Operator(s) | Brookdale North Scottsdale (AZ)<br><br>Operator: N/A<br><br><br><br>Brookdale Nohl Ranch (CA)<br><br>Operator: BLC Nohl Ranch, LLC (DE)<br><br><br><br>Brookdale Irvine (CA)<br><br>Operator: BLC Inn at the Park, LLC (DE)<br><br><br><br>Brookdale Mirage Inn (CA)<br><br>Operator: BLC Mirage Inn, L.P. (DE)<br><br><br><br>Brookdale Monrovia (CA)<br><br>Operator: BLC Gables-Monrovia, L.P. (DE) |
Page 3
| Brookdale Paulin Creek (CA)<br><br>Operator: N/A<br><br><br><br>Brookdale Ocean House (CA)<br><br>Operator: BLC Ocean House, L.P. (DE)<br><br><br><br>Brookdale Scotts Valley (CA)<br><br>Operator: BLC Oak Tree Villa, L.P. (DE)<br><br><br><br>Brookdale South Bay (CA)<br><br>Operator: N/A<br><br><br><br>Brookdale Brighton AL (CO)<br><br>Operator: Brookdale Senior Living Communities, Inc. (DE)<br><br><br><br>Brookdale North Boulder (CO)<br><br>Operator: Brookdale Senior Living Communities, Inc. (DE)<br><br><br><br>Brookdale Mandarin Central (FL)<br><br>Operator: Brookdale Senior Living Communities, Inc. (DE)<br><br><br><br>Brookdale Panama City (FL)<br><br>Operator: Brookdale Senior Living Communities, Inc. (DE)<br><br><br><br>Brookdale Chambrel Pinecastle (FL)<br><br>Operator: N/A<br><br><br><br>Brookdale Port Charlotte (FL)<br><br>Operator: Brookdale Senior Living Communities, Inc. (DE)<br><br><br><br>Brookdale Port Orange (FL)<br><br>Operator: Brookdale Senior Living Communities, Inc. (DE)<br><br><br><br>Brookdale Punta Gorda Isles (FL)<br><br>Operator: Brookdale Senior Living Communities, Inc. (DE) |
|---|
Page 4
| Brookdale Stuart (FL)<br><br>Operator: Brookdale Senior Living Communities, Inc. (DE)<br><br><br><br>Brookdale Chambrel Roswell (GA)<br><br>Operator: Brookdale Management-II, LLC (DE)<br><br><br><br>Brookdale Boise Parkcenter AL (ID)<br><br>Operator: Brookdale Senior Living Communities, Inc. (DE)<br><br><br><br>Brookdale Boise Parkcenter IL (ID)<br><br>Operator: Brookdale Senior Living Communities, Inc. (DE)<br><br><br><br>Brookdale Hays (KS)<br><br>Operator: Brookdale Senior Living Communities, Inc. (DE)<br><br><br><br>Brookdale Shawnee MC (KS)<br><br>Operator: N/A<br><br><br><br>Brookdale W. Eisenhower Pkwy (MI)<br><br>Operator: Brookdale Senior Living Communities, Inc. (DE)<br><br><br><br>Brookdale Carriage Club Providence (NC)<br><br>Operator: N/A<br><br><br><br>Brookdale Charlotte East (NC)<br><br>Operator: N/A<br><br><br><br>Brookdale Clinton MC (NY)<br><br>Operator: Clinton Sterling Cottage Operator, Inc. (NY)<br><br><br><br>Brookdale Ithaca AL (NY)<br><br>Operator: SH Ithaca Operator, Inc. (VA)<br><br><br><br>Brookdale Ithaca MC (NY)<br><br>Operator: Ithaca Sterling Cottage Operator, Inc. (NY)<br><br><br><br>Brookdale Niagara AL (NY)<br><br>Operator: SH Niagara Operator, Inc. (VA) |
|---|
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| Brookdale Niagara MC (NY)<br><br>Operator: Niagara Sterling Cottage Operator, Inc. (NY)<br><br><br><br>Brookdale Montrose (OH)<br><br>Operator: N/A<br><br><br><br>Brookdale Westlake Village (OH)<br><br>Operator: ARC Westlake Village SNF, LLC (DE) (of SNF)<br><br><br><br>Brookdale Geary Street/Brookdale Grand Prairie IL (OR)<br><br>Operator: Brookdale Senior Living Communities, Inc. (DE)<br><br><br><br>Brookdale Heritage Plaza (OR)<br><br>Operator: Brookdale Senior Living Communities, Inc. (DE)<br><br><br><br>Brookdale Medford (OR)<br><br>Operator: Brookdale Senior Living Communities, Inc. (DE)<br><br><br><br>Brookdale Club Hill (TX)<br><br>Operator: BLC-Club Hill, LLC (DE)<br><br><br><br>Brookdale Corsicana (TX)<br><br>Operator: Brookdale Senior Living Communities, Inc. (DE)<br><br><br><br>Brookdale Cypress Station (TX)<br><br>Operator: N/A<br><br><br><br>Brookdale Lakeway AL/MC (TX)<br><br>Operator: N/A<br><br><br><br>Brookdale Lewisville (TX)<br><br>Operator: Brookdale Senior Living Communities, Inc. (DE)<br><br><br><br>Brookdale Mansfield AL (TX)<br><br>Operator: Brookdale Senior Living Communities, Inc. (DE) |
|---|
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| Brookdale New Braunfels (TX)<br><br>Operator: Brookdale Senior Living Communities, Inc. (DE)<br><br><br><br>Brookdale Northwest Hills (TX)<br><br>Operator: N/A<br><br><br><br>Brookdale Weatherford AL (TX)<br><br>Operator: Brookdale Senior Living Communities, Inc. (DE)<br><br><br><br>Brookdale Chambrel Williamsburg (VA)<br><br>Operator: N/A | |
|---|---|
| Affiliated Property Operator(s) | BLC Nohl Ranch, LLC (DE)<br><br>BLC Inn at the Park, LLC (DE)<br><br>BLC Mirage Inn, L.P. (DE)<br><br>BLC Gables-Monrovia, L.P. (DE)<br><br>BLC Ocean House, L.P. (DE)<br><br>BLC Oak Tree Villa, L.P. (DE)<br><br>Brookdale Senior Living Communities, Inc. (DE)<br><br>Brookdale Management-II, LLC (DE)<br><br>Clinton Sterling Cottage Operator, Inc. (NY)<br><br>SH Ithaca Operator, Inc. (VA)<br><br>Ithaca Sterling Cottage Operator, Inc. (NY)<br><br>SH Niagara Sterling Cottage Operator, Inc. (NY)<br><br>ARC Westlake Village SNF, LLC (DE)<br><br>BLC-Club Hill, LLC (DE)<br><br>ARC Management, LLC (TN)<br><br>BLC Lodge at Paulin, L.P. (DE)<br><br>BLC Pacific Inn, L.P. (DE)<br><br>Alternative Living Services-New York, Inc. (DE) |
| Maximum Permitted Equipment Financing (excluding vehicles) | 2% of Outstanding Advances |
| ADDRESSES | |
| Borrower’s General Business Address | 111 Westwood Place, Suite 400<br>Brentwood, TN 37027<br>Attention: General Counsel |
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| Borrower’s Notice Address | c/o Brookdale Senior Living Inc.<br>111 Westwood Place, Suite 400<br>Brentwood, TN 37027<br>Attention: General Counsel |
|---|---|
| Multifamily Project Address | Brookdale North Scottsdale<br>15436 North 64th St<br>Scottsdale, AZ 85254<br><br>Brookdale Nohl Ranch<br>380 S. Anaheim Hills Rd<br>Anaheim Hills, CA 92807<br><br>Brookdale Irvine<br>10 Marquette<br>Irvine, CA 92612<br><br>Brookdale Mirage Inn<br>72750 Country Club Dr<br>Rancho Mirage, CA 92270<br><br>Brookdale Monrovia<br>201 E. Foothill Blvd<br>Monrovia, CA 91016<br><br>Brookdale Paulin Creek<br>2375 Range Ave<br>Santa Rosa, CA 95403<br><br>Brookdale Ocean House<br>2107 Ocean Ave<br>Santa Monica, CA 90405<br><br>Brookdale Scotts Valley<br>100 Lockewood Lane<br>Scotts Valley, CA 95066<br><br>Brookdale South Bay<br>5481 W. Torrance Blvd<br>Torrance, CA 90503<br><br>Brookdale Brighton AL<br>2215 East Egbert St<br>Brighton, CO 80601 |
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| Brookdale North Boulder<br>3350 30th St<br>Boulder, CO 80301<br><br>Brookdale Mandarin Central<br>10875 Old Saint Augustine Rd<br>Jacksonville, FL 32257<br><br>Brookdale Panama City<br>2575 Harrison Ave<br>Panama City, FL 32405<br><br>Brookdale Chambrel Pinecastle<br>1801 SE 24th Rd<br>Ocala, FL 34471<br><br>Brookdale Port Charlotte<br>18440 Cochran Blvd<br>Port Charlotte, FL 33948<br><br>Brookdale Port Orange<br>955 Village Trail<br>Port Orange, FL 32127<br><br>Brookdale Punta Gorda Isles<br>250 Bal Harbor Blvd<br>Punta Gorda, FL 33950<br><br>Brookdale Stuart<br>3401 South East Aster Ln<br>Stuart, FL 34994<br><br>Brookdale Chambrel Roswell<br>1000 Applewood Dr<br>Roswell, GA 30076<br><br>Brookdale Boise Parkcenter AL<br>739 East Parkcenter Blvd<br>Boise, ID 83706<br><br>Brookdale Boise Parkcenter IL<br>767 East Parkcenter Blvd<br>Boise, ID 83706<br><br>Brookdale Hays<br>1801 East 27th St<br>Hays, KS 67601 |
|---|
Page 9
| Brookdale Shawnee MC<br>11400 West 65th St<br>Shawnee, KS 66203<br><br>Brookdale W. Eisenhower Pkwy<br>750 West Eisenhower Pkwy<br>Ann Arbor, MI 48103<br><br>Brookdale Carriage Club Providence<br>5800, 5802 and 5816 Old Providence Rd<br>Charlotte, NC 28226<br><br>Brookdale Charlotte East<br>6053 Wilora Lake Rd<br>Charlotte, NC 28212<br><br>Brookdale Clinton MC<br>115 Brookside Rd<br>Clinton, NY 13323<br><br>Brookdale Ithaca AL<br>103 Bundy Rd<br>Ithaca, NY 14850<br><br>Brookdale Ithaca MC<br>101 Bundy Rd<br>Ithaca, NY 14850<br><br>Brookdale Niagara AL<br>6741 Nash Rd<br>North Tonawanda, NY 14120<br><br>Brookdale Niagara MC<br>6751 Nash Rd<br>North Tonawanda, NY 14120<br><br>Brookdale Montrose<br>100 Brookmont Rd<br>Akron, OH 44333<br><br>Brookdale Westlake Village<br>28550 Westlake Village Dr<br>Westlake, OH 44145 |
|---|
Page 10
| Brookdale Geary Street/Brookdale Grand Prairie IL<br>2445 Southeast Geary St and 1929 Grand Prairie Rd South East<br>Albany, OR 97322<br><br>Brookdale Heritage Plaza<br>1560 Davidson St South East<br>Albany, OR 97322<br><br>Brookdale Medford<br>3033 E. Barnett Rd<br>Medford, OR 97504<br><br>Brookdale Club Hill<br>1245 Colonel Dr<br>Garland, TX 75043<br><br>Brookdale Corsicana<br>3329 West 7th Ave<br>Corsicana, TX 75110<br><br>Brookdale Cypress Station<br>303 Lantern Bend Dr<br>Houston, TX 77090<br><br>Brookdale Lakeway AL/MC<br>1915 Lohmans Crossing Rd<br>Austin, TX 78734<br><br>Brookdale Lewisville<br>965 N. Garden Ridge Rd<br>Lewisville, TX 75077<br><br>Brookdale Mansfield AL<br>1771 Country Club Dr<br>Mansfield, TX 76063<br><br>Brookdale New Braunfels<br>2457 Loop 337<br>New Braunfels, TX 78130<br><br>Brookdale Northwest Hills<br>5715 Mesa Dr<br>Austin, TX 78731<br><br>Brookdale Weatherford AL<br>904 South Lamar St<br>Weatherford, TX 76086 |
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Page 11
| Brookdale Chambrel Williamsburg<br>3800 Treyburn Dr<br>Williamsburg, VA 23185 | |
|---|---|
| Key Principal’s General Business Address | 111 Westwood Place, Suite 400<br>Brentwood, TN 37027 |
| Key Principal’s Notice Address | c/o Brookdale Senior Living Inc.<br>111 Westwood Place, Suite 400<br>Brentwood, TN 37027<br>Attention: General Counsel<br>cwhite@brookdaleliving.com<br><br>With a copy to:<br><br>Brookdale Senior Living Inc.<br>111 Westwood Place, Suite 400<br>Brentwood, TN 37027<br>Attention: George T. Hicks, Executive Vice President and Treasurer<br>GHicks@brookdaleliving.com |
| Guarantor’s General Business Address | 111 Westwood Place, Suite 400<br>Brentwood, TN 37027 |
| Guarantor’s Notice Address | c/o Brookdale Senior Living Inc.<br>111 Westwood Place, Suite 400<br>Brentwood, TN 37027<br>Attention: General Counsel<br>cwhite@brookdaleliving.com<br><br>With a copy to:<br><br>Brookdale Senior Living Inc.<br>111 Westwood Place, Suite 400<br>Brentwood, TN 37027<br>Attention: George T. Hicks, Executive Vice President and Treasurer<br>GHicks@brookdaleliving.com |
| Lender’s General Business Address | Jones Lang LaSalle Multifamily, LLC<br>2177 Youngman Avenue<br>St. Paul, MN 55116 |
Page 12
| Lender’s Notice Address | Jones Lang LaSalle Multifamily LLC<br>2177 Youngman Avenue<br>St. Paul, Minnesota 55116<br>Attn: Loan Servicing<br>Email: loan_servicing@am.jll.com |
|---|---|
| Lender’s Payment Address | Jones Lang LaSalle Multifamily LLC<br>7322 Solution Center<br>Chicago, Illinois 60677-7002 |
| Operator’s General Business Address | c/o Brookdale Senior Living Inc.<br>111 Westwood Place, Suite 400<br>Brentwood, TN 37027 |
| Operator’s Notice Address | c/o Brookdale Senior Living Inc.<br>111 Westwood Place, Suite 400<br>Brentwood, TN 37027 |
Page 13
SCHEDULE 3.5
TO MASTER CREDIT FACILITY AGREEMENT
Schedule of Advance Terms
FIXED ADVANCES
| I. INFORMATION FOR 179,541,000 FIXED ADVANCEMADE DECEMBER 15, 2023 |
|---|
| Advance Amount |
| Advance Term |
| Advance Year |
| Amortization Type |
| Effective Date |
| First Payment Date |
| First Principal and Interest Payment Date |
| Fixed Rate |
All values are in US Dollars.
Page 1
| Interest Accrual Method | [Select only one:]<br><br>☐ 30/360 (computed on the basis of a three hundred sixty (360) day year consisting of twelve (12) thirty (30) day months)<br><br>or<br><br>☒ Actual/360 (computed on the basis of a three hundred sixty (360) day year and the actual number of calendar days during the applicable month, calculated by multiplying the unpaid principal balance of the Advance by the Interest Rate, dividing the product by three hundred sixty (360), and multiplying the quotient obtained by the actual number of days elapsed in the applicable month) |
|---|---|
| Interest Only Term | Twenty-Four (24) months |
| Interest Rate | The Fixed Rate |
| Interest Rate Type | Fixed Rate |
| Last Interest Only Payment Date | The first day of January, 2026 |
| Maturity Date | The first day of January, 2031, or any earlier date on which the unpaid principal balance of the Advance becomes due and payable by acceleration or otherwise |
Page 2
| Monthly Debt Service Payment | (i) $922,990.36 for the First Payment Date<br><br>(ii) for each Payment Date thereafter through and including the Last Interest Only Payment Date<br><br>(a) $833,668.71 if the prior month was a 28-day month<br><br>(b) $863,442.59 if the prior month was a 29-day month<br><br>(c) $893,216.48 if the prior month was a 30-day month; and<br><br>(d) $922,990.36 if the prior month was a 31-day month; and<br><br>(iii) $1,072,978.54 for the First Principal and Interest Payment Date and each Payment Date thereafter until the Advance is fully paid |
|---|---|
| Prepayment Lockout Period | The 0 Advance Year of the term of the Advance |
| Remaining Amortization Period | As of the First Principal and Interest Payment Date and each Payment Date thereafter, the Amortization Period minus the number of scheduled principal and interest Monthly Debt Service Payments that have elapsed since the Effective Date |
| II. YIELD MAINTENANCE/PREPAYMENT PREMIUM INFORMATION | |
| --- | --- |
| Yield Maintenance Period End Date<br><br>or<br><br>Prepayment Premium Period End Date | The last day of June, 2030 |
| Yield Maintenance Period Term<br><br>or<br><br>Prepayment Premium Period Term | Seventy-eight (78) months |
Page 3
SCHEDULE 4.5
TO MASTER CREDIT FACILITY AGREEMENT
Prepayment Premium Schedule
(Standard Yield Maintenance – Fixed Rate)
1.Defined Terms.
All capitalized terms used but not defined in this Prepayment Premium Schedule shall have the meanings assigned to them in this Master Agreement.
2.Prepayment Premium.
Any Prepayment Premium payable under Section 2.04 (Prepayment; Prepayment Lockout; Prepayment Premium) of this Master Agreement shall be computed as follows:
(a) If the prepayment is made at any time after the Effective Date and before the Yield Maintenance Period End Date, the Prepayment Premium shall be the greater of:
(1) one percent (1%) of the amount of principal being prepaid; or
(2) the product obtained by multiplying:
(A) the amount of principal being prepaid,
by
(B) the difference obtained by subtracting from the Fixed Rate on the Advance, the Yield Rate (as defined below) on the twenty-fifth Business Day preceding (i) the Intended Prepayment Date, or (ii) the date Lender accelerates the Advance or otherwise accepts a prepayment pursuant to Section 2.06 (Application of Collateral) of this Master Agreement,
by
(C) the present value factor calculated using the following formula:
1 - (1 + r)-n/12
r
[r = Yield Rate
n = the number of months remaining between (i) either of the following: (x) in the case of a voluntary prepayment, the last day of the month in which the prepayment is made, or (y) in any other case, the date on which Lender accelerates the unpaid principal balance of the Advance and (ii) the Yield Maintenance Period End Date.
Page 1
For purposes of this clause (2), the “Yield Rate” means the yield calculated by interpolating the yields for the immediately shorter and longer term U.S. “Treasury constant maturities” (as reported in the Federal Reserve Statistical Release H.15 Selected Interest Rates (the “Fed Release”) under the heading “U.S. government securities”) closest to the remaining term of the Yield Maintenance Period Term, as follows (rounded to three (3) decimal places):
a = the yield for the longer U.S. Treasury constant maturity
b = the yield for the shorter U.S. Treasury constant maturity
x = the term of the longer U.S. Treasury constant maturity
y = the term of the shorter U.S. Treasury constant maturity
z = “n” (as defined in the present value factor calculation above) divided by twelve (12).
For purposes of this clause (2), if the Yield Rate is calculated to be zero, the number 0.00001 shall be deemed to be the Yield Rate.
Notwithstanding any provision to the contrary, if “z” equals a term reported under the U.S. “Treasury constant maturities” subheading in the Fed Release, the yield for such term shall be used, and interpolation shall not be necessary. If publication of the Fed Release is discontinued by the Federal Reserve Board, Lender shall determine the Yield Rate from another source selected by Lender. Any determination of the Yield Rate by Lender will be binding absent manifest error.]
(b) If the prepayment is made on or after the Yield Maintenance Period End Date but before the last calendar day of the fourth month prior to the month in which the Maturity Date occurs, the Prepayment Premium shall be one percent (1%) of the amount of principal being prepaid.
Page 2
(c) Notwithstanding the provisions of Section 2.04 (Prepayment; Prepayment Lockout; Prepayment Premium) of this Master Agreement, no Prepayment Premium shall be payable with respect to any prepayment made on or after the last calendar day of the fourth month prior to the month in which the Maturity Date occurs.
[Remainder of Page Intentionally Blank]
Page 3
SCHEDULE 13
TO MASTER CREDIT FACILITY AGREEMENT
[omitted for SEC filing purposes]
Page 1
SCHEDULE 16.1 TO
MASTER CREDIT FACILITY AGREEMENT
[omitted for SEC filing purposes]
Page 1
SCHEDULE 26.1 TO
MASTER CREDIT FACILITY AGREEMENT
CERTIFICATE
(KANSAS – NO ORAL AGREEMENTS)
This Certificate is attached to, and made an integral part of, the Master Agreement, pursuant to K.S.A. Sections 16‑117 and 16‑118, as follows:
The Master Agreement and all other Loan Documents collectively constitute the written credit agreement which is the final expression of the credit agreement between Borrower and Lender.
The Master Agreement and all other Loan Documents may not be contradicted by evidence of any prior oral credit agreement or of a contemporaneous oral credit agreement between Borrower and Lender.
The following space (which Borrower and Lender agree is sufficient space) is provided for the placement of nonstandard terms, if any:
__________________________________________________
[None]
Borrower and Lender affirm that there is no unwritten oral credit agreement between Borrower and Lender with respect to the subject matter of the Master Agreement and all other Loan Documents.
Page 1
Borrower’s Initials: /s/ GTH Lender’s Initials: /s/ adb
Page 2
Document
Exhibit 19
BROOKDALE SENIOR LIVING INC.
INSIDER TRADING POLICY
(as revised August 4, 2023)
1.Purpose
This Insider Trading Policy (this “Policy”) provides guidelines with respect to transactions in the securities of Brookdale Senior Living Inc. and its subsidiaries (the “Company”) and the handling of confidential information about the Company and the companies with which the Company does business. The Company’s Board of Directors has adopted this Policy to promote compliance with federal, state and foreign securities laws that prohibit certain persons who are aware of material nonpublic information about a company from: (i) trading in securities of that company; or (ii) providing material nonpublic information to other persons who may trade on the basis of that information.
2.Persons Subject to Policy
This Policy applies to all directors, officers and employees of the Company, as well as to consultants and contractors of the Company, who have or may have access to Material Nonpublic Information (as defined herein). This Policy also applies to such persons’ immediate family members and controlled entities. Any transactions in the Company’s securities by an immediate family member or controlled entity of a director, officer, employee, consultant or contractor of the Company will be viewed as if the transactions were for the director’s, officer’s, employee’s, consultant’s or contractor’s own account.
An “immediate family member” of a person includes such person’s family members (including a spouse, children, stepchildren, grandchildren, parents, stepparents, grandparents, siblings and in-laws) who reside with such person, anyone else who lives in such person’s household, and any other family members of such person who do not live in such person’s household but whose transactions in the Company’s securities are directed by such person or subject to his or her influence or control. A “controlled entity” of a person includes any corporation, limited liability company, partnership, trust or other entity that such person influences or controls.
3.Transactions Subject to Policy
This Policy applies to all transactions, including gifts, in the Company’s securities, including common stock, options for common stock, tangible equity units, debt securities and any other securities the Company may issue from time to time, such as preferred stock, warrants and convertible debentures, as well as to derivative securities relating to the Company’s stock, whether or not issued by the Company, such as exchange-traded options and swaps.
4.Individual Responsibility
Persons subject to this Policy have legal and ethical obligations to maintain the confidentiality of Material Nonpublic Information about the Company and not to engage in transactions in the Company’s securities while in possession of Material Nonpublic Information. Each person subject to this Policy is responsible for making sure that he or she complies with this Policy and that his or her immediate family members and controlled entities comply with this Policy. No action on the part of the Company, the General Counsel or any other employee of the Company shall in any way constitute legal advice or insulate any person subject to this Policy from liability or disciplinary action. In addition, although the General Counsel will assist Section 16 Individuals (as defined herein) in preparing and filing reports required under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), the reporting person retains responsibility for such reports.
5.Administration of the Policy
The Company’s General Counsel shall serve as the Compliance Officer for purposes of this Policy, and in his or her absence or at his or her direction, any Vice President in the Legal Department or Deputy, Associate or Assistant General Counsel as may be determined by the General Counsel shall be responsible for administration of this Policy. All determinations and interpretations by the Compliance Officer shall be final and not subject to further review. In addition to the duties described elsewhere in this Policy, the Compliance Officer shall be responsible for: assisting the Company with implementation of this Policy; periodically reviewing this Policy for changes that may be necessary or advisable to comply with securities laws; assisting in the preparation and filing of Section 16 reports for all Section 16 Individuals (as defined herein); serving as the designated recipient at the Company of copies of reports filed with the U.S. Securities and Exchange Commission (the “SEC”) by Section 16 Individuals; performing periodic cross-checks of available materials to determine trading activity by officers, directors and others who have, or may have, access to Material Nonpublic Information; periodically circulating this Policy (and/or a summary thereof) to all persons subject to this Policy; and providing the Policy and other appropriate materials to new officers, directors and others who have, or may have, access to Material Nonpublic Information.
6.General Policy
It is the policy of the Company to oppose the unauthorized disclosure of any Material Nonpublic Information acquired in the work place and the misuse of Material Nonpublic Information in securities trading. The Company is required under Regulation FD of the federal securities laws to avoid the selective disclosure of Material Nonpublic Information. The Company has established procedures for releasing Material Nonpublic Information in a manner that is designed to achieve broad public dissemination of such information immediately upon its release. Persons subject to this Policy may not, therefore, disclose Material Nonpublic Information to anyone outside the Company, including family members and friends, other than in accordance with those procedures.
7.Specific Policies
A.Trading on Material Nonpublic Information Prohibited. No person subject to this Policy shall engage in any transaction involving the Company’s securities, including any gift, offer to purchase or offer to sell, during any period commencing with the date that he or she possesses Material Nonpublic Information concerning the Company, and ending at the beginning of the third Trading Day following the date of public disclosure of that information, or at such time as such nonpublic information is no longer nonpublic or material. A gift includes any transfer of the Company’s securities in which a person other than the donor acquires a beneficial ownership interest in the securities. As used herein, the term “Trading Day” shall mean a day on which the New York Stock Exchange (the “NYSE”) is open for trading. A Trading Day begins at the time trading begins on such day.
Transactions that may be necessary or justifiable for independent reasons (such as the need to raise money for an emergency expenditure) are not excepted from the Policy. The securities laws do not recognize such mitigating circumstances, and, in any event, even the appearance of an improper transaction must be avoided to preserve the Company’s reputation for adhering to the highest standards of conduct.
Remember that anyone scrutinizing transactions will be doing so after the fact, with the benefit of hindsight. As a result, before engaging in any transaction all individuals should carefully consider how such transaction may be construed by enforcement authorities and others in hindsight.
B.Special and Prohibited Transactions.
i.Short Sales. A short sale is a sale of securities not owned by the seller or, if owned, not delivered against such sale within 20 days thereafter (a “short against the box”). Short sales of the Company’s securities may evidence an expectation on the part of the seller that the securities will decline in value, and therefore have the potential to signal to the market that the seller lacks confidence in the Company’s prospects. In addition, short sales may reduce a seller’s incentive to seek to improve the Company’s performance. Furthermore, Section 16(c) of the Exchange Act prohibits officers (as defined in Rule 16a-1) and directors from engaging in short sales. For these reasons, no person subject to this Policy shall engage in a short sale of the Company’s securities. Transactions in certain put and call options for the Company’s securities may in some instances constitute a short sale. Short sales arising from certain types of hedging transactions are governed by the paragraph below captioned “Hedging Transactions.”
ii.Publicly-Traded Options. A transaction in publicly-traded options is, in effect, a bet on the short-term movement of the Company’s stock and therefore creates the appearance that an insider is trading based on Material Nonpublic Information. Transactions in options also may focus a person’s attention on short-term performance at the expense of the Company’s long-term objectives. For these reasons, no person subject to this Policy shall engage in any transactions in puts, calls or other derivative securities involving the Company’s securities, on an exchange or in any other organized market. Option positions arising from
certain types of hedging transactions are governed by the paragraph below captioned “Hedging Transactions.”
iii.Hedging Transactions. Hedging or monetization transactions can be accomplished through a number of possible mechanisms, including through the use of financial instruments such as prepaid variable forward contracts, equity swaps, collars and exchange funds. Such hedging transactions may permit a person to continue to own the Company’s securities, but without the full risks and rewards of ownership. When that occurs, the person may no longer have the same objectives as the Company’s other stockholders. For these reasons, no person subject to this Policy shall engage in such transactions.
iv.Margin Accounts and Pledges. Securities held in a margin account may be sold by the broker without the customer’s consent if the customer fails to meet a margin call. Similarly, securities pledged (or hypothecated) as collateral for a loan may be sold in foreclosure if the borrower defaults on the loan. Because a margin sale or foreclosure sale may occur at a time when the pledgor is aware of Material Nonpublic Information or otherwise is not permitted to trade in Company securities, the Company strongly discourages such transactions, and persons subject to this Policy are prohibited from holding Company securities in a margin account or pledging Company securities as collateral for a loan.
v.Standing and Limit Orders. Standing and limit orders (except standing and limit orders under approved Rule 10b5-1 Trading Plans, as described below) create heightened risks for insider trading violations similar to the use of margin accounts. There is no control over the timing of purchases or sales that result from standing instructions to a broker, and as a result the broker could execute a transaction when a person is in possession of Material Nonpublic Information. The Company therefore discourages placing standing or limit orders on the Company’s securities. If a person subject to this Policy determines that they must use a standing order or limit order, the order should be limited to short duration and should otherwise comply with the applicable restrictions and procedures outlined below under the heading “Trading Procedures.”
C.Tipping. No person subject to this Policy shall disclose (“tip”) Material Nonpublic Information to any other person (including family members and friends) where such information may be used by such person to his or her profit by trading in the securities of companies to which such information relates, nor shall any person subject to this Policy make recommendations or express opinions as to the purchase or sale of the Company’s securities.
D.Post-Termination Transactions. This Policy continues to apply to transactions by individuals even after their employment or service with the Company has been terminated; however, the restrictions and procedures outlined under the heading “Trading Procedures” will cease to apply following termination of employment or service. If an individual is in possession of Material Nonpublic Information when employment or service terminates, he or she may not trade in the Company’s securities until that information has become public or is no longer material.
8.Trading Procedures
A.Designation of Certain Persons. The Compliance Officer shall maintain and update periodically a comprehensive list of Section 16 Individuals, Pre-Clearance Individuals and Trading Window Individuals, as described below, and notify any such designated individuals of their designation and the requirements applicable to them.
i.Section 16 Individuals. The Compliance Officer shall maintain a list of the directors, executive officers and other officers who are subject to the reporting and liability provisions of Section 16 of the Exchange Act and the rules and regulations promulgated thereunder (“Section 16 Individuals”). The Board of Directors will periodically determine which of the Company’s officers are “executive officers” for purposes of Section 16. The Section 16 Individuals (as well as their immediate family members and controlled entities) shall be subject to the trading window and pre-clearance requirements described below.
ii.Pre-Clearance Individuals. The Company recognizes that certain other employees have, or are likely to have, regular or special access to Material Nonpublic Information in the normal course of their duties. The Compliance Officer shall designate, from time to time, those employees (the “Pre-Clearance Individuals”) who should be subject to special pre-clearance procedures based on the likelihood of their obtaining access to Material Nonpublic Information. The Pre-Clearance Individuals (as well as their immediate family members and controlled entities) shall be subject to the trading window and pre-clearance requirements described below.
iii.Trading Window Individuals. The Compliance Officer shall designate, from time to time, those employees (the “Trading Window Individuals”) who, together with their immediate family members and controlled entities, should be subject to the trading window requirements described below.
B.Mandatory Trading Window; Limited Exceptions; Special Blackout Periods. All Section 16 Individuals, Pre-Clearance Individuals and Trading Window Individuals (and their immediate family members and controlled entities) shall be prohibited from trading in or gifting of the Company’s securities except during a mandatory trading window or a discretionary trading window. The Compliance Officer shall circulate quarterly reminders of the dates that the mandatory trading window described below opens and closes. The mandatory trading window will open at the open of the market on the third Trading Day following the date of public disclosure of the Company’s financial results for a particular fiscal quarter or year, and will close at the close of trading on the fourth business day of the third month of the next quarter. Under certain very limited circumstances, the Compliance Officer may exercise discretion to permit a person or persons to trade the Company’s securities outside of a mandatory trading window, but only if the Compliance Officer concludes that such person or persons are not in fact in possession of Material Nonpublic Information. Any person wishing to seek permission to trade outside the mandatory trading window must contact the Compliance Officer for approval at least two (2) business days prior to any proposed transaction involving the Company’s securities. The Compliance Officer is under no obligation to approve a transaction outside the mandatory trading
window and may require that any trade be completed within a specific number of days following any such approval. In addition, the Compliance Officer shall have the right to impose special blackout periods during which all or certain directors, officers, and employees (and their immediate family members and controlled entities) will be prohibited from trading any of the Company’s securities, even though the trading window would otherwise be open for such individuals.
C.Pre-Clearance of Transactions. The Company has determined that all Section 16 Individuals and Pre-Clearance Individuals (and their immediate family members and controlled entities) must refrain from trading in or gifting of the Company’s securities, even during an open trading window, without first complying with the Company’s “pre-clearance” process. A request for pre-clearance should be submitted to the Compliance Officer at least two (2) business days in advance of the proposed transaction. A pre-cleared transaction must be effected no later than five (5) business days (or such shorter period as may be prescribed in the pre-clearance form) after pre-clearance is received. If the requesting person becomes aware of Material Nonpublic Information before the trade is executed, the pre-clearance is void and the trade must not be completed. Transactions not effected within the time limit become subject to pre-clearance again. The Compliance Officer shall circulate quarterly reminders of the pre-clearance process to such individuals in connection with the open of a mandatory trading window. The Compliance Officer will consult as necessary with senior management of the Company before clearing any proposed trade. The Compliance Officer is under no obligation to approve a pre-clearance request. If a person seeks pre-clearance and permission is denied, then he or she should refrain from initiating any transaction in Company securities and should not inform any other person of the restriction. In addition, the Compliance Officer shall have the right to revoke any previously granted pre-clearance request for trades that have not been completed as of the time of such revocation. It should be noted that even if the Compliance Officer pre-clears a transaction, the ultimate responsibility rests with the individual to ensure that he or she is not trading while in possession of Material Nonpublic Information.
D.Reporting Trades and Short Swing Liability. When a Section 16 Individual makes a request for pre-clearance, such individual should indicate whether he or she has effected any non-exempt “opposite way” trade (i.e., an open market sale would be “opposite” any open market purchase, and vice versa) within the past six months. Section 16 Individuals may be required to disgorge to the Company all profits of any non-exempt opposite way transaction whether or not such individual had knowledge of any Material Nonpublic Information. Such Section 16 Individual must also report the transaction in Company securities to the Compliance Officer as soon as reasonably practicable but no later than one (1) day after any such transaction in order that an appropriate Form 4 or Form 5 may be prepared and filed with the SEC. The individual should also be prepared to comply with SEC Rule 144 and file Form 144, if necessary, at the time of any sale.
9.Transactions under Company Plans
This Policy does not apply in the case of the following transactions, except as specifically noted:
A.Stock Option Exercises. This Policy does not apply to the exercise of a stock option acquired pursuant to the Company’s incentive plans, or to the exercise of a tax withholding right pursuant to which a person has elected to have the Company withhold shares subject to an option to satisfy tax withholding requirements. This Policy does apply, however, to any sale of stock as part of a broker-assisted cashless exercise of an option, or any other market sale for the purpose of generating the cash needed to pay the exercise price of an option or to satisfy tax withholding requirements.
B.Restricted Stock or Units. This Policy does not apply to the vesting of restricted stock or restricted stock units, or the exercise of a tax withholding right pursuant to which an election has been made to have the Company withhold shares of stock to satisfy tax withholding requirements upon the vesting of any restricted stock or restricted stock units. The Policy does apply, however, to any market sale of restricted stock, including any sale of stock for the purpose of generating the cash needed to satisfy tax withholding requirements resulting from the vesting of restricted stock or restricted stock units.
10.10b5-1 Trading Plans
This Policy does not apply to purchases or sales of Company stock made pursuant to a pre-arranged trading plan that was entered into when the individual was not in possession of Material Nonpublic Information and otherwise satisfies the requirements of Rule 10b5-1 under the Exchange Act for a trading plan. Such trading plans may not be adopted when the individual is in possession of Material Nonpublic Information about the Company. Anyone subject to this Policy who wishes to enter into a trading plan must submit the trading plan to the Compliance Officer for his or her approval prior to the adoption or amendment of the trading plan. The Compliance Officer may establish guidelines for establishing such trading plans.
11.Definition of Material Nonpublic Information
A.Material. Information should be regarded as “material” if there is a reasonable likelihood that it would be considered important to an investor in deciding whether to buy, hold or sell the Company’s securities. Any information that could be expected to affect the Company’s stock price, whether it is positive or negative, should be considered material. Materiality will be judged by enforcement authorities with the benefit of hindsight. Therefore, questions concerning the materiality of particular information should be resolved in favor of materiality. It is not possible to define all categories of material information; however, there are various categories of information that are particularly sensitive and, as a general rule, should ordinarily be considered material. Examples of such information may include:
•Financial or operating results;
•Known but unannounced future earnings or losses or other earnings guidance;
•Execution or termination of significant contracts with distributors, collaborators and other business partners;
•News of a pending or proposed merger or other acquisition, the disposition, construction or acquisition of significant assets, a pending or proposed joint venture, or any restructuring;
•Impending bankruptcy or financial liquidity problems;
•Patent or other intellectual property milestones;
•Scientific achievements or other developments from research efforts;
•Significant developments involving corporate relationships;
•Changes in dividend or stock buy-back policy;
•New product or services announcements of a significant nature;
•Stock splits;
•New equity or debt offerings;
•Positive or negative developments in outstanding litigation;
•Significant litigation exposure due to actual or threatened litigation;
•Change in auditors or notification that the auditor’s reports may no longer be relied upon;
•Significant cybersecurity incidents, such as a data breach, or any other significant disruption in the Company’s operations or loss, potential loss, breach or unauthorized access of its property or assets, whether at its facilities or through its information technology system; or
•Major changes in senior management.
B.Nonpublic. Information should be regarded as “nonpublic” if it has not been previously disclosed to the general public and is otherwise not available to the general public. In order for information to be considered public, it must be widely disseminated in a manner making it generally available to investors, such as by a press release or a filing with the SEC. The circulation of rumors, even if accurate and reported in the media, does not constitute effective public dissemination. Even after nonpublic information has been effectively disclosed, a reasonable period of time must elapse in order for the market to react to the information. Therefore, persons subject to this Policy must wait until the third Trading Day following the date of public disclosure of material information before trading in the Company’s securities.
12.Potential Criminal and Civil Liability and/or Disciplinary Action
The purchase or sale of securities while aware of Material Nonpublic Information, or the disclosure of Material Nonpublic Information to others who then trade in the Company’s securities (commonly referred to as a “tippee”), is prohibited by the federal and state laws. Insider trading and tipping violations are pursued vigorously by the SEC, U.S. Attorneys and state enforcement authorities as well as the laws of foreign jurisdictions. Punishment for insider trading and tipping violations is severe, and could include significant fines and imprisonment, including penalties up to $5,000,000 and up to 25 years in jail. The SEC has imposed large penalties even when the disclosing person did not profit from the trading. The SEC and the stock exchanges use sophisticated electronic surveillance techniques to uncover insider trading.
The federal securities laws also impose potential liability on companies and other “controlling persons” if they fail to take reasonable steps to prevent illegal insider trading by
company personnel. These penalties include a civil penalty up to $1,200,000 or, if greater, three times the profit gained or loss avoided as a result of the person’s violation, and a criminal penalty of up to $25,000,000.
Officers, employees, consultants or contractors of the Company who violate this Policy shall also be subject to disciplinary action by the Company, which may include ineligibility for future participation in the Company’s equity incentive plans or termination of employment or service, whether or not such person’s failure to comply results in a violation of law.
13.Applicability of Policy to Inside Information Regarding Other Companies
This Policy and the guidelines described herein also apply to material nonpublic information relating to other companies, including the Company’s lessors, distributors, vendors or suppliers (“business partners”), when that information is obtained in the course of employment with, or other services performed on behalf of, the Company. Civil and criminal penalties, and termination of employment, may result from trading on inside information regarding the Company’s business partners. All persons subject to this Policy should treat material nonpublic information about the Company’s business partners with the same care required with respect to information related directly to the Company.
14.Inquiries
Any person who has a question about this Policy or its application to any proposed transaction may obtain additional guidance from the General Counsel. Ultimately, however, the responsibility for adhering to this Policy and avoiding unlawful transactions rests with the person subject to this Policy.
15.Certifications
All directors, officers, employees who are granted awards under the Company’s equity incentive plans and employees in the Company’s corporate offices must certify their understanding of, and intent to comply with, this Policy, either in writing or electronically.
Document
Exhibit 21
| Subsidiary | Jurisdiction of Incorporation or Formation |
|---|---|
| Abingdon Place of Gastonia Limited Partnership | NC |
| AH Battery Park Owner, LLC | DE |
| AH Illinois Huntley Member, LLC | OH |
| AH Illinois Huntley Owner, LLC | OH |
| AH Illinois Owner, LLC | DE |
| AH North Carolina Owner, LLC | DE |
| AH Ohio Columbus Owner, LLC | DE |
| AH Pennsylvania Owner, LP | OH |
| AH Texas CGP, Inc. | OH |
| AH Texas Owner Limited Partnership SL | OH |
| AHC ALS FM Holding Company, LLC | DE |
| AHC Bayside, Inc. | DE |
| AHC Exchange Corporation | DE |
| AHC Florham Park, LLC | DE |
| AHC Kansas II, Inc. | DE |
| AHC Monroe Township, LLC | DE |
| AHC PHN I, Inc. | DE |
| AHC Properties, Inc. | DE |
| AHC Purchaser Parent, LLC | DE |
| AHC Purchaser, Inc. | DE |
| AHC Richland Hills, LLC | DE |
| AHC Shoreline, LLC | DE |
| AHC Southland Lakeland, LLC | DE |
| AHC Southland Ormond Beach, LLC | DE |
| AHC Sterling House of Brighton, LLC | DE |
| AHC Sterling House of Corsicana, LLC | DE |
| AHC Sterling House of Greenville, LLC | DE |
| AHC Sterling House of Harbison, LLC | DE |
| AHC Sterling House of Jacksonville, LLC | DE |
| AHC Sterling House of Lewisville, LLC | DE |
| AHC Sterling House of Mansfield, LLC | DE |
| AHC Sterling House of Panama City, LLC | DE |
| AHC Sterling House of Port Charlotte, LLC | DE |
| AHC Sterling House of Punta Gorda, LLC | DE |
| AHC Sterling House of Weatherford, LLC | DE |
| AHC Trailside, LLC | DE |
| AHC Villas of Albany Residential, LLC | DE |
| AHC Villas of the Atrium, LLC | DE |
| AHC Villas Wynwood of Courtyard Albany, LLC | DE |
| AHC Villas Wynwood of River Place, LLC | DE |
| --- | --- |
| AHC Wynwood of Rogue Valley, LLC | DE |
| Alabama Somerby, LLC | DE |
| ALS Clare Bridge, Inc. | DE |
| ALS Holdings, Inc. | DE |
| ALS Kansas, Inc. | DE |
| ALS Leasing, Inc. | DE |
| ALS National SPE I, Inc. | DE |
| ALS National, Inc. | DE |
| ALS North America, Inc. | DE |
| ALS Properties Holding Company, LLC | DE |
| ALS Properties Tenant I, LLC | DE |
| ALS Properties Tenant II, LLC | DE |
| ALS Stonefield, Inc. | DE |
| ALS Venture II, Inc. | DE |
| ALS Wisconsin Holdings, Inc. | DE |
| ALS Wovenhearts, Inc. | DE |
| Alternative Living Services Home Care, Inc. | NY |
| Alternative Living Services New York, Inc. | DE |
| American Retirement Corporation | TN |
| ARC Aurora, LLC | TN |
| ARC Bahia Oaks, Inc. | TN |
| ARC Belmont, LLC | TN |
| ARC Brookmont Terrace, Inc. | TN |
| ARC Carriage Club of Jacksonville, Inc. | TN |
| ARC Cleveland Park, LLC | TN |
| ARC Corpus Christi, LLC | TN |
| ARC Deane Hill, LLC | TN |
| ARC Epic Holding Company, Inc. | TN |
| ARC Epic OpCo Holding Company, Inc. | DE |
| ARC FM Holding Company, LLC | DE |
| ARC Fort Austin Properties, LLC | TN |
| ARC Freedom Square Management, Inc. | TN |
| ARC Freedom, LLC | TN |
| ARC Greenwood Village, Inc. | TN |
| ARC Heritage Club, Inc. | TN |
| ARC Holland, Inc. | TN |
| ARC Holley Court Management, Inc. | TN |
| ARC Holley Court, LLC | TN |
| ARC Homewood Corpus Christi, LLC | DE |
| ARC Lakeway ALF Holding Company, LLC | DE |
| ARC Lakeway SNF, LLC | TN |
| ARC Lakewood, LLC | TN |
| ARC LP Holdings, LLC | TN |
| --- | --- |
| ARC Management Corporation | TN |
| ARC Management, LLC | TN |
| ARC North Chandler, LLC | TN |
| ARC Oakhurst, Inc. | TN |
| ARC Parklane, Inc. | TN |
| ARC Partners II, Inc. | TN |
| ARC Pearland, LP | TN |
| ARC Pecan Park Padgett, Inc. | TN |
| ARC Peoria II, Inc. | TN |
| ARC Peoria, LLC | TN |
| ARC Pinegate, LP | TN |
| ARC Rossmoor, Inc. | TN |
| ARC Santa Catalina, Inc. | TN |
| ARC SCC, Inc. | TN |
| ARC Scottsdale, LLC | TN |
| ARC Shadowlake, LP | TN |
| ARC Somerby Holdings, LLC | TN |
| ARC Spring Shadow, LP | TN |
| ARC Sweet Life Rosehill, LLC | TN |
| ARC Sweet Life Shawnee, LLC | TN |
| ARC Tarpon Springs, Inc. | TN |
| ARC Tennessee GP, Inc. | TN |
| ARC Westlake Village SNF, LLC | DE |
| ARC Westlake Village, Inc. | TN |
| ARC Westover Hills, LP | TN |
| ARC Willowbrook, LLC | TN |
| ARC Wilora Assisted Living, LLC | TN |
| ARC Wilora Lake, Inc. | TN |
| ARCLP Charlotte, LLC | TN |
| ARCPI Holdings, Inc. | DE |
| Asheville Manor, LP | NC |
| Assisted Living Properties, Inc. | KS |
| BAH CA, LLC | DE |
| Batus, LLC | DE |
| BKD Adrian PropCo, LLC | DE |
| BKD AGC, Inc. | DE |
| BKD Alabama SNF, LLC | DE |
| BKD Altamonte Springs, LLC | DE |
| BKD Apache Junction Operator, LLC | DE |
| BKD Apache Junction PropCo, LLC | DE |
| BKD Arbors of Santa Rosa, LLC | DE |
| BKD Archer 10, LLC | DE |
| BKD Archer 6, LLC | DE |
| --- | --- |
| BKD Archer 7, LLC | DE |
| BKD Archer 8, LLC | DE |
| BKD Archer 9, LLC | DE |
| BKD Ballwin, LLC | DE |
| BKD Belle Meade, LLC | DE |
| BKD Bossier City Operator, LLC | DE |
| BKD Bossier City Propco, LLC | DE |
| BKD BRE Knight Member Holding, LLC | DE |
| BKD BRE Knight Member, LLC | DE |
| BKD Brentwood at Niles, LLC | DE |
| BKD Brookdale Marketplace, LLC | DE |
| BKD Brookdale Place of Brookfield, LLC | DE |
| BKD Brookfield Opco, LLC | DE |
| BKD Carrollton Operator, LLC | DE |
| BKD Carrollton Propco, LLC | DE |
| BKD CCRC OpCo HoldCo Member, LLC | DE |
| BKD CCRC PropCo HoldCo Member, LLC | DE |
| BKD Chambrel Holding, LLC | DE |
| BKD Chandler Operator, LLC | DE |
| BKD Chandler PropCo, LLC | DE |
| BKD Charleston South Carolina, LLC | DE |
| BKD Clare Bridge and Sterling House of Battle Creek, LLC | DE |
| BKD Clare Bridge of Beaverton, LLC | DE |
| BKD Clare Bridge of Brookfield, LLC | DE |
| BKD Clare Bridge of Dublin, LLC | DE |
| BKD Clare Bridge of Meridian, LLC | DE |
| BKD Clare Bridge of Oklahoma City SW, LLC | DE |
| BKD Clare Bridge of Olympia, LLC | DE |
| BKD Clare Bridge of Spokane, LLC | DE |
| BKD Clare Bridge of Troutdale, LLC | DE |
| BKD Clare Bridge of Wichita, LLC | DE |
| BKD Clare Bridge Place Brookfield, LLC | DE |
| BKD College Place, LLC | DE |
| BKD Conway SC, LLC | DE |
| BKD Corona, LLC | DE |
| BKD Cortona Park, LLC | DE |
| BKD Emeritus EI, LLC | DE |
| BKD Employee Services RIDEA 49, LLC | DE |
| BKD Englewood Colorado, LLC | DE |
| BKD Finance Holdco, LLC | DE |
| BKD FM Holding Company, LLC | DE |
| BKD FM Nine Holdings, LLC | DE |
| BKD FM PNC Holding Company I, LLC | DE |
| --- | --- |
| BKD FM PNC Holding Company II, LLC | DE |
| BKD FM PNC Holding Company III, LLC | DE |
| BKD FM21 Holdings I, LLC | DE |
| BKD FM21 Holdings II, LLC | DE |
| BKD FM21 Holdings III, LLC | DE |
| BKD FM7 HoldCo CA, LLC | DE |
| BKD FM7 HoldCo MI CO, LLC | DE |
| BKD FM7 HoldCo VA, LLC | DE |
| BKD Folsom, LLC | DE |
| BKD Franklin, LLC | DE |
| BKD Freedom Plaza Arizona Peoria, LLC | DE |
| BKD Gaines Ranch, LLC | DE |
| BKD Gallatin, LLC | DE |
| BKD Gardens Tarzana Propco, LLC | DE |
| BKD GC FM Holdings, LLC | DE |
| BKD Germantown, LLC | DE |
| BKD Goodlettsville PropCo, LLC | DE |
| BKD GV Investor, LLC | DE |
| BKD Hamilton Wolfe San Antonio, LLC | DE |
| BKD Harrisburg Opco, LLC | DE |
| BKD Hartwell, LLC | DE |
| BKD HB Acquisition Sub, Inc. | DE |
| BKD HCR Master Lease 3 Tenant, LLC | DE |
| BKD Hillside Holdco, LLC | DE |
| BKD Hillside Opco, LLC | DE |
| BKD Hillside, LLC | DE |
| BKD Homewood Corpus Christi Propco, LLC | DE |
| BKD Horsham, LLC | DE |
| BKD Illinois Retail, LLC | DE |
| BKD Island Lake Holdings, LLC | DE |
| BKD Island Lake, LLC | DE |
| BKD Jones Farm, LLC | DE |
| BKD Kettleman Lane, LLC | DE |
| BKD Kingsport, LLC | DE |
| BKD Lake Orienta, LLC | DE |
| BKD Lawrenceville, LLC | DE |
| BKD Lebanon/Southfield, LLC | DE |
| BKD Lodi, LLC | DE |
| BKD Lubbock GP, LLC | DE |
| BKD Management Holdings FC, Inc. | DE |
| BKD Minnetonka Assisted Living, LLC | DE |
| BKD Murray, LLC | DE |
| BKD Nashville Office Bistro, LLC | DE |
| --- | --- |
| BKD New England Bay, LLC | DE |
| BKD Newnan, LLC | DE |
| BKD North Chandler, LLC | DE |
| BKD North Gilbert, LLC | DE |
| BKD North Glendale, LLC | DE |
| BKD North Tucson, LLC | DE |
| BKD Northampton OpCo,, LLC | DE |
| BKD Northport Operator, LLC | DE |
| BKD Northport Propco Member, LLC | DE |
| BKD Northport Propco, LLC | DE |
| BKD Oak Park, LLC | DE |
| BKD Oklahoma Management, LLC | DE |
| BKD Ormond Beach Propco, LLC | DE |
| BKD Oswego, LLC | DE |
| BKD Palm Beach Gardens, LLC | DE |
| BKD Paradise Valley Propco, LLC | DE |
| BKD Parkplace, LLC | DE |
| BKD Patriot Heights, LLC | DE |
| BKD Pearland, LLC | DE |
| BKD Personal Assistance Services, LLC | DE |
| BKD PHS Investor, LLC | DE |
| BKD Project 3 Holding Co, LLC | DE |
| BKD Project 3 Manager, LLC | DE |
| BKD Richmond Place Propco, LLC | DE |
| BKD River Road, LLC | DE |
| BKD Roanoke PropCo, LLC | DE |
| BKD Rome Operator, LLC | DE |
| BKD Rome PropCo, LLC | DE |
| BKD Sakonnet Bay, LLC | DE |
| BKD San Marcos South, LLC | DE |
| BKD Shadowlake, LLC | DE |
| BKD Sherwood Odessa, LLC | DE |
| BKD Shoreline, LLC | DE |
| BKD Skyline PropCo, LLC | DE |
| BKD South Bay, LLC | DE |
| BKD Southpaw Holdco, LLC | DE |
| BKD Sparks, LLC | DE |
| BKD Spring Shadows, LLC | DE |
| BKD St. Augustine, LLC | DE |
| BKD Sterling House of Bloomington, LLC | DE |
| BKD Sterling House of Bowling Green, LLC | DE |
| BKD Sterling House of Colorado Springs Briargate, LLC | DE |
| BKD Sterling House of Deland, LLC | DE |
| --- | --- |
| BKD Sterling House of Denton Parkway, LLC | DE |
| BKD Sterling House of Edmond, LLC | DE |
| BKD Sterling House of Enid, LLC | DE |
| BKD Sterling House of Junction City, LLC | DE |
| BKD Sterling House of Lawton, LLC | DE |
| BKD Sterling House of Loveland Orchards, LLC | DE |
| BKD Sterling House of Palestine, LLC | DE |
| BKD Sterling House of Waxahachie, LLC | DE |
| BKD Sterling House of West Melbourne I and II, LLC | DE |
| BKD Sterling House of Wichita Tallgrass, LLC | DE |
| BKD Tamarac Square PropCo, LLC | DE |
| BKD Tanque Verde, LLC | DE |
| BKD The Heights, LLC | DE |
| BKD Thirty Five OpCo, Inc. | DE |
| BKD Thirty Five Propco, Inc. | DE |
| BKD Tullahoma, LLC | DE |
| BKD Twenty One Management Company, Inc. | DE |
| BKD Twenty One Opco, Inc. | DE |
| BKD Twenty One Propco, Inc. | DE |
| BKD University Park Holding Company, LLC | DE |
| BKD Vista, LLC | DE |
| BKD Wekiwa Springs, LLC | DE |
| BKD Wellington Fort Walton Beach, LLC | DE |
| BKD Wellington Muscle Shoals, LLC | DE |
| BKD West Melbourne Propco, LLC | DE |
| BKD Westover Hills, LLC | DE |
| BKD Willowbrook Propco, LLC | DE |
| BKD Wilsonville, LLC | DE |
| BKD Wooster MC, LLC | DE |
| BKD Wynwood of Madison West Real Estate, LLC | DE |
| BKD Wynwood of Richboro Northhampton, LLC | DE |
| BKD X Holdings, LLC | DE |
| BLC Acquisitions, Inc. | DE |
| BLC Adrian GC, LLC | DE |
| BLC Albuquerque GC, LLC | DE |
| BLC Atrium at San Jose, LLC | DE |
| BLC Atrium at San Jose, LP | DE |
| BLC Atrium Jacksonville SNF, LLC | DE |
| BLC Atrium Jacksonville, LLC | DE |
| BLC Brendenwood, LLC | DE |
| BLC Bristol GC, LLC | DE |
| BLC Brookdale Place of San Marcos, LLC | DE |
| BLC Brookdale Place of San Marcos, LP | DE |
| --- | --- |
| BLC Cedar Springs, LLC | DE |
| BLC Chancellor Lodi LH, LLC | DE |
| BLC Chancellor Murrieta LH, LLC | DE |
| BLC Chancellor Windsor, Inc. | DE |
| BLC Chancellor Windsor, LP | DE |
| BLC Chatfield, LLC | DE |
| BLC Club Hill, LLC | DE |
| BLC Crystal Bay, LLC | DE |
| BLC Dayton GC, LLC | DE |
| BLC Devonshire of Hoffman Estates, LLC | DE |
| BLC Devonshire of Lisle, LLC | DE |
| BLC Edina Park Plaza, LLC | DE |
| BLC Emerald Crossings, LLC | DE |
| BLC Farmington Hills GC, LLC | DE |
| BLC Federal Way LH, LLC | DE |
| BLC Federal Way, LLC | DE |
| BLC Finance I, LLC | DE |
| BLC FM Holding Company, LLC | DE |
| BLC Fort Myers GC, LLC | DE |
| BLC Gables at Farmington, LLC | DE |
| BLC Gables Monrovia, Inc. | DE |
| BLC Gables Monrovia, LP | DE |
| BLC Gardens Santa Monica LH, LLC | DE |
| BLC Gardens Santa Monica, Inc. | DE |
| BLC Gardens Santa Monica, LLC | DE |
| BLC Gardens Tarzana Holding, LLC | DE |
| BLC Gardens Tarzana, Inc. | DE |
| BLC Gardens Tarzana, LLC | DE |
| BLC Gardens Tarzana, LP | DE |
| BLC GC Member, LLC | DE |
| BLC GFB Member, LLC | DE |
| BLC Glenwood Gardens AL LH, LLC | DE |
| BLC Glenwood Gardens AL, LLC | DE |
| BLC Glenwood Gardens SNF LH, LLC | DE |
| BLC Glenwood Gardens SNF, Inc. | DE |
| BLC Glenwood Gardens SNF, LLC | DE |
| BLC Glenwood Gardens, Inc. | DE |
| BLC Hawthorne Lakes, LLC | DE |
| BLC Inn at the Park, Inc. | DE |
| BLC Inn at the Park, LLC | DE |
| BLC Jackson Oaks, LLC | DE |
| BLC Kansas City GC, LLC | DE |
| BLC Kenwood of Lake View, LLC | DE |
| --- | --- |
| BLC Las Vegas GC, LLC | DE |
| BLC Lexington SNF, LLC | DE |
| BLC Liberty FM Holding Company, LLC | DE |
| BLC Lodge at Paulin, Inc. | DE |
| BLC Lodge at Paulin, LP | DE |
| BLC Lubbock GC, LLC | DE |
| BLC Lubbock GC, LP | DE |
| BLC Management 3, LLC | DE |
| BLC Management of Texas, LLC | DE |
| BLC Mirage Inn, Inc. | DE |
| BLC Mirage Inn, LP | DE |
| BLC New York Holdings, Inc. | DE |
| BLC Nohl Ranch, Inc. | DE |
| BLC Nohl Ranch, LLC | DE |
| BLC Novi GC, LLC | DE |
| BLC Oak Tree Villa, Inc. | DE |
| BLC Oak Tree Villa, LP | DE |
| BLC Ocean House, Inc. | DE |
| BLC Ocean House, LP | DE |
| BLC Overland Park GC, LLC | DE |
| BLC Pacific Inn, Inc. | DE |
| BLC Pacific Inn, LP | DE |
| BLC Park Place, LLC | DE |
| BLC Patriot Heights, LLC | DE |
| BLC Phoenix GC, LLC | DE |
| BLC Ponce de Leon, LLC | DE |
| BLC River Bay Club, LLC | DE |
| BLC Southerland Place Germantown, LLC | DE |
| BLC Southerland Place Midlothian, LLC | DE |
| BLC Springs at East Mesa, LLC | DE |
| BLC Tampa GC, LLC | DE |
| BLC Tavares GC, LLC | DE |
| BLC The Fairways LH, LLC | DE |
| BLC The Fairways, LLC | DE |
| BLC The Hallmark, LLC | DE |
| BLC The Heritage of Des Plaines, LLC | DE |
| BLC The Willows, LLC | DE |
| BLC Victorian Manor, LLC | DE |
| BLC Village at Skyline, LLC | DE |
| BLC Wellington Cleveland, LLC | DE |
| BLC Wellington Colonial Heights, LLC | DE |
| BLC Wellington FM Holding Company, LLC | DE |
| BLC Wellington Fort Walton Beach, LLC | DE |
| --- | --- |
| BLC Wellington Gardens PropCo, LLC | DE |
| BLC Wellington Gardens, LLC | DE |
| BLC Wellington Greeneville TN, LLC | DE |
| BLC Wellington Hampton Cove, LLC | DE |
| BLC Wellington Hixson, LLC | DE |
| BLC Wellington Johnson City, LLC | DE |
| BLC Wellington Maryville, LLC | DE |
| BLC Wellington Sevierville, LLC | DE |
| BLC Wellington Shoals, LLC | DE |
| BLC Windsor Place, LLC | DE |
| BLC Woodside Terrace, LLC | DE |
| BLC Woodside Terrace, LP | DE |
| BREA BREA, LLC | DE |
| BREA Charlotte, LLC | DE |
| BREA Citrus Heights, LLC | DE |
| BREA Denver, LLC | DE |
| BREA East Mesa PropCo, LLC | DE |
| BREA East Mesa, LLC | DE |
| BREA Emeritus, LLC | DE |
| BREA Emerson, LLC | DE |
| BREA FM Holding Company, LLC | DE |
| BREA Overland Park, LLC | DE |
| BREA Palmer Ranch, LLC | DE |
| BREA Peoria, LLC | DE |
| BREA Reno, LLC | DE |
| BREA Roanoke, LLC | DE |
| BREA Sarasota, LLC | DE |
| BREA Sun City West, LLC | DE |
| BREA Wayne, LLC | DE |
| BREA West Orange, LLC | DE |
| BREA Whittier, LLC | DE |
| Brookdale 20 Property Springing Member, Inc. | DE |
| Brookdale Bend OR, LLC | DE |
| Brookdale Castle Hills, LLC | DE |
| Brookdale Chancellor, Inc. | DE |
| Brookdale Corporate, LLC | DE |
| Brookdale Cypress Station, LLC | DE |
| Brookdale Development, LLC | DE |
| Brookdale Employee Services - Corporate, LLC | DE |
| Brookdale Employee Services, LLC | DE |
| Brookdale F&B, LLC | DE |
| Brookdale Gardens, Inc. | DE |
| Brookdale Lakeway, LLC | DE |
| --- | --- |
| Brookdale Liberty, LLC | DE |
| Brookdale Living Communities GC Texas, Inc. | DE |
| Brookdale Living Communities GC, LLC | DE |
| Brookdale Living Communities of Florida PO, LLC | DE |
| Brookdale Living Communities of Florida, Inc. | DE |
| Brookdale Living Communities of Illinois DNC, LLC | DE |
| Brookdale Living Communities of Illinois GE, Inc. | DE |
| Brookdale Living Communities of Illinois GV, LLC | DE |
| Brookdale Living Communities of Illinois Huntley, LLC | DE |
| Brookdale Living Communities of Missouri CC, LLC | DE |
| Brookdale Living Communities of New York BPC, Inc. | DE |
| Brookdale Living Communities of North Carolina, Inc. | DE |
| Brookdale Living Communities of Ohio SP, LLC | DE |
| Brookdale Living Communities of Pennsylvania-ML, Inc. | DE |
| Brookdale Living Communities of Texas Club Hill, LLC | DE |
| Brookdale Living Communities, Inc. | DE |
| Brookdale Management II, LLC | DE |
| Brookdale Management of California, LLC | DE |
| Brookdale Management of Florida PO, LLC | DE |
| Brookdale Management of Illinois GV, LLC | DE |
| Brookdale Northwest Hills, LLC | DE |
| Brookdale Operations, LLC | DE |
| Brookdale Place at Finneytown, LLC | DE |
| Brookdale Place at Kenwood, LLC | DE |
| Brookdale Place at Oakwood, LLC | DE |
| Brookdale Place of Albuquerque, LLC | DE |
| Brookdale Place of Ann Arbor, LLC | DE |
| Brookdale Place of Augusta, LLC | DE |
| Brookdale Place of Bath, LLC | DE |
| Brookdale Place of Colorado Springs, LLC | DE |
| Brookdale Place of Englewood, LLC | DE |
| Brookdale Place of South Charlotte, LLC | DE |
| Brookdale Place of West Hartford, LLC | DE |
| Brookdale Place of Wilton, LLC | DE |
| Brookdale Place of Wooster, LLC | DE |
| Brookdale Provident Management, LLC | DE |
| Brookdale Provident Properties, LLC | DE |
| Brookdale Real Estate, LLC | DE |
| Brookdale Senior Housing, LLC | DE |
| Brookdale Senior Living Communities, Inc. | DE |
| Brookdale University Park CO, LLC | DE |
| Brookdale Vehicle Holding, LLC | DE |
| Brookdale Wellington Lessee, Inc. | DE |
| --- | --- |
| Brookdale Wellington, Inc. | DE |
| Brookdale.com, LLC | DE |
| Burlington Manor ALZ, LLC | NC |
| Burlington Manor, LLC | NC |
| Carolina House of Asheboro, LLC | NC |
| Carolina House of Cary, LLC | NC |
| Carolina House of Chapel Hill, LLC | NC |
| Carolina House of Durham, LLC | NC |
| Carolina House of Elizabeth City, LLC | NC |
| Carolina House of Forest City, LLC | NC |
| Carolina House of Greenville, LLC | NC |
| Carolina House of Lexington, LLC | NC |
| Carolina House of Morehead City, LLC | NC |
| Carolina House of Reidsville, LLC | NC |
| Carolina House of Smithfield, LLC | NC |
| Carolina House of the Village of Pinehurst, LLC | NC |
| Carolina House of Wake Forest, LLC | NC |
| CCRC OpCo Ventures II, LLC | DE |
| CCRC OpCo-Foxwood Springs, LLC | DE |
| CCRC OpCo-Robin Run, LLC | DE |
| CCRC PropCo Ventures II, LLC | DE |
| CCRC PropCo-Foxwood Springs, LLC | DE |
| CCRC PropCo-Robin Run, LLC | DE |
| Champion Oaks Investors, LLC | DE |
| Clare Bridge of Carmel, LLC | DE |
| Clare Bridge of Virginia Beach Estates, LLC | DE |
| Cloverset Place, LP | MO |
| CMCP Club Hill, LLC | DE |
| CMCP Island Lake, LLC | DE |
| CMCP Montrose, LLC | DE |
| CMCP Pinecastle, LLC | DE |
| CMCP Roswell, LLC | DE |
| CMCP Williamsburg, LLC | DE |
| Collin Oaks Investors, LLC | DE |
| Community Staffing Advantage, LLC | DE |
| Concord Manor Limited Partnership | NC |
| Crossings International Corporation | WA |
| Danville Place I, LLC | VA |
| Danville Place Special Management, LLC | NC |
| Duval Oaks Investors, LLC | DE |
| Eden Estates, LLC | NC |
| EmeriCal, Inc. | DE |
| EmeriCare DME, LLC | DE |
| --- | --- |
| EmeriCare Heritage, LLC | DE |
| EmeriCare Kingwood, LLC | DE |
| EmeriCare NOC, LLC | DE |
| EmeriCare Palmer Ranch, LLC | DE |
| EmeriCare Rehab, LLC | DE |
| EmeriCare Sugarland, LLC | DE |
| EmeriCare, Inc. | DE |
| EmeriChenal, LLC | DE |
| Emerichip Alexandria, LLC | DE |
| Emerichip Allentown, LLC | DE |
| Emerichip Auburn, LLC | DE |
| Emerichip Biloxi, LLC | DE |
| Emerichip Bozeman, LLC | DE |
| Emerichip Dover, LLC | DE |
| Emerichip Emerald Hills, LLC | DE |
| Emerichip Everett, LLC | DE |
| Emerichip Holdings, LLC | DE |
| Emerichip La Casa Grande, LLC | DE |
| Emerichip Lafayette, LLC | DE |
| Emerichip Lake Charles, LLC | DE |
| Emerichip Latrobe, LLC | DE |
| Emerichip Lewiston, LLC | DE |
| Emerichip Ocala East, LLC | DE |
| Emerichip Ocala West, LLC | DE |
| Emerichip Odessa, LP | DE |
| Emerichip Ontario, LLC | DE |
| Emerichip Painted Post, LLC | DE |
| Emerichip Pine Park, LLC | DE |
| Emerichip Puyallup, LLC | DE |
| Emerichip Renton, LLC | DE |
| Emerichip San Antonio AO, LP | DE |
| Emerichip San Antonio HH, LP | DE |
| Emerichip San Marcos, LP | DE |
| Emerichip Texas, LLC | DE |
| Emerichip Voorhees, LLC | DE |
| Emerichip Walla Walla, LLC | DE |
| Emerifrat, LLC | DE |
| Emerihrt Bloomsburg, LLC | DE |
| Emerihrt Creekview, LLC | DE |
| Emerihrt Harrisburg, LLC | DE |
| Emerihrt Harrisonburg, LLC | DE |
| Emerihrt Henderson, LLC | DE |
| Emerihrt Medical Center, LP | DE |
| --- | --- |
| Emerihrt Oakwell Farms, LLC | DE |
| Emerihrt Stonebridge Ranch, LLC | DE |
| Emerihud II, LLC | DE |
| Emerihud, LLC | DE |
| Emerikeyt Liberal Springs, LLC | DE |
| Emerikeyt Lo of Broadmoor, LLC | DE |
| Emerikeyt Palms at Loma Linda, Inc. | CA |
| Emerikeyt Springs at Oceanside, Inc. | CA |
| EmeriMand, LLC | DE |
| EmeriMandeville, LLC | DE |
| EmeriMesa, LLC | DE |
| Emerimont, LLC | DE |
| Emeripalm, LLC | DE |
| Emeriport, Inc. | CA |
| EmeriPrez, LLC | DE |
| EmeriRock, LLC | DE |
| EmeriRose, LLC | DE |
| Emerishire, LLC | DE |
| Emeritol Canterbury Ridge, LLC | DE |
| Emeritol Colonial Park Club, LLC | DE |
| Emeritol Dowlen Oaks, LLC | DE |
| Emeritol Eastman Estates, LLC | DE |
| Emeritol Elmbrook Estates, LLC | DE |
| Emeritol Evergreen Lodge, LLC | DE |
| Emeritol Fairhaven Estates, LLC | DE |
| Emeritol Grand Terrace, LLC | DE |
| Emeritol Harbour Pointe Shores, LLC | DE |
| Emeritol Hearthstone Inn, LLC | DE |
| Emeritol Highland Hills, LLC | DE |
| Emeritol Lakeridge Place, LLC | DE |
| Emeritol Lo Coeur D'Alene, LLC | DE |
| Emeritol Lo Flagstaff, LLC | DE |
| Emeritol Lo Hagerstown, LLC | DE |
| Emeritol Lo Hattiesburg, LLC | DE |
| Emeritol Lo Lakewood, LLC | DE |
| Emeritol Lo Phoenix, LLC | DE |
| Emeritol Lo Staunton, LLC | DE |
| Emeritol Meadowbrook, LLC | DE |
| Emeritol Meadowlands Terrace, LLC | DE |
| Emeritol Park Club Oakbridge, LLC | DE |
| Emeritol Ridge Wind, LLC | DE |
| Emeritol Saddleridge Lodge, LLC | DE |
| Emeritol Seville Estates, LLC | DE |
| --- | --- |
| Emeritol Stonecreek Lodge, LLC | DE |
| Emeritol Woods at Eddy Pond, LLC | DE |
| Emeritrace, LLC | DE |
| Emeritrog, LLC | DE |
| Emeritus Corporation | WA |
| Emeritus Nebraska, LLC | DE |
| Emeritus Properties Ark Wildflower, LLC | DE |
| Emeritus Properties Ark Willow Brook, LLC | DE |
| Emeritus Properties Arkansas, LLC | DE |
| Emeritus Properties II, Inc. | WA |
| Emeritus Properties III, Inc. | WA |
| Emeritus Properties IV, Inc. | WA |
| Emeritus Properties IX, LLC | WA |
| Emeritus Properties V, Inc. | WA |
| Emeritus Properties X, LLC | WA |
| Emeritus Properties XI, LLC | WA |
| Emeritus Properties XII, LLC | WA |
| Emeritus Properties XIV, LLC | WA |
| Emeritus Properties XVI, Inc. | NV |
| Emeritus Properties-NGH, LLC | WA |
| Emerivent Atherton Court, Inc. | DE |
| Emerivent Bradenton, LLC | DE |
| Emerivent Brighton, LLC | DE |
| Emerivent Lake Mary, LLC | DE |
| Emerivent Mentor, LLC | DE |
| Emerivill SC, LLC | DE |
| EmeriVista, LLC | DE |
| Emeriweg Troy, LLC | DE |
| Emeriweg Vestal, LLC | DE |
| Emeriyaf, LLC | DE |
| ESC Arbor Place, LLC | DE |
| ESC G.P. II, Inc. | WA |
| ESC III, LP | WA |
| ESC IV, LP | WA |
| ESC New Port Richey, LLC | WA |
| ESC NGH, LP | WA |
| ESC Ridgeland, LLC | WA |
| FEBC ALT Holdings, Inc. | DE |
| FEBC ALT Investors, LLC | DE |
| FIT REN Holdings GP, Inc. | DE |
| FIT REN Mirage Inn, LP | DE |
| FIT REN Nohl Ranch, LP | DE |
| FIT REN Oak Tree, LP | DE |
| --- | --- |
| FIT REN Ocean House, LP | DE |
| FIT REN Pacific Inn, LP | DE |
| FIT REN Park, LP | DE |
| FIT REN Paulin Creek, LP | DE |
| FIT REN The Gables, LP | DE |
| FIT REN, LLC | DE |
| Fort Austin Limited Partnership | TX |
| Fortress CCRC Acquisition, LLC | DE |
| Foxwood Springs Garden Homes, LLC | DE |
| Freedom Village of Holland Michigan | MI |
| Freedom Village of Sun City Center Ltd | FL |
| Fretus Investors Austin, LLC | DE |
| Fretus Investors Chandler, LLC | DE |
| Fretus Investors Dallas, LP | DE |
| Fretus Investors Farmers Branch, LP | DE |
| Fretus Investors Fort Wayne, LLC | DE |
| Fretus Investors Fort Worth, LLC | DE |
| Fretus Investors Glendale, LLC | DE |
| Fretus Investors Greenwood, LLC | DE |
| Fretus Investors Hollywood Park, LP | DE |
| Fretus Investors Houston, LP | DE |
| Fretus Investors Jacksonville, LLC | DE |
| Fretus Investors Las Vegas, LLC | DE |
| Fretus Investors Melbourne, LLC | DE |
| Fretus Investors Memorial Oaks Houston, LLC | DE |
| Fretus Investors Mesa, LLC | DE |
| Fretus Investors Orange Park, LLC | DE |
| Fretus Investors Orlando, LLC | DE |
| Fretus Investors Plano, LLC | DE |
| Fretus Investors San Antonio, LP | DE |
| Fretus Investors Sugar Land, LLC | DE |
| Fretus Investors, LLC | WA |
| Gaston Manor, LLC | NC |
| Gaston Place, LLC | NC |
| Gastonia Village, LLC | NC |
| Greensboro Manor, LP | NC |
| HB Employee Services CCRC, LLC | DE |
| HB Employee Services, LLC | DE |
| HBBHT Gen-Par, LLC | DE |
| HBC II Manager, LLC | DE |
| HBC Manager, LLC | DE |
| HBP Leaseco, LLC | DE |
| HC3 Sunrise, LLC | DE |
| --- | --- |
| Heartland Retirement Services, Inc. | WI |
| Hickory Manor, LLC | NC |
| High Point Manor at Skeet Club, LP | NC |
| High Point Manor, LP | NC |
| High Point Place, LLC | NC |
| Home Health Care Holdings, LLC | DE |
| Homewood at Brookmont Terrace, LLC | TN |
| Horizon Bay Chartwell II L.L.C. | DE |
| Horizon Bay Chartwell L.L.C. | DE |
| Horizon Bay Management II L.L.C. | DE |
| Horizon Bay Management, LLC | DE |
| Horizon Bay Realty, LLC | DE |
| Inn at Grove City, LLC The | DE |
| Inn at Medina, LLC The | DE |
| KG Missouri CC Owner, LLC | DE |
| KGC Operator, Inc. | DE |
| KGC Shoreline Operator, Inc. | DE |
| Kingsley Oaks Investors, LLC | DE |
| Memorial Oaks Investors, LLC | DE |
| Meriweg-Fayetteville, LLC | DE |
| Meriweg-Liverpool, LLC | DE |
| Meriweg-Syracuse, LLC | DE |
| Meriweg-Williamsville BM, LLC | DE |
| Northwest Oaks Investors, LLC | DE |
| Park Place Investments of Kentucky, LLC | CO |
| Park Place Investments, LLC | KY |
| Peaks Home Health, LLC | DE |
| PHNTUS Beckett Meadows, LLC | DE |
| PHNTUS Canterbury Woods, LLC | DE |
| PHNTUS Charleston Gardens, LLC | DE |
| PHNTUS Creekside, LLC | DE |
| PHNTUS Heritage Hills, LLC | DE |
| PHNTUS KP Shreveport, LLC | DE |
| PHNTUS Lakes, LLC | DE |
| PHNTUS LO Cape May, LLC | DE |
| PHNTUS Oak Hollow, LLC | DE |
| PHNTUS Pine Meadow, LLC | DE |
| PHNTUS Pinehurst, LLC | DE |
| PHNTUS Pines at Goldsboro, LLC | DE |
| PHNTUS Quail Ridge, LLC | DE |
| PHNTUS Richland Gardens, LLC | DE |
| PHNTUS Silverleaf Manor, LLC | DE |
| PHNTUS Stonebridge, LLC | DE |
| --- | --- |
| Plaza Professional Pharmacy, Inc. | VA |
| Reynolda Park, LP | NC |
| Ridgeland Assisted Living, LLC | WA |
| Robin Run Garden Homes, LLC | DE |
| SALI Acquisition 1 A/GP, LLC | NC |
| SALI Acquisition 1 A/LP, LLC | NC |
| SALI Acquisition III/GP, LLC | NC |
| SALI Assets, LLC | NC |
| SALI Management Services I, LLC | NC |
| SALI Management Services II, LLC | NC |
| SALI Management Services III, LLC | NC |
| SALI Monroe Square, LLC | NC |
| SALI Tenant, LLC | NC |
| Salisbury Gardens, LLC | NC |
| Senior Lifestyle Emerald Bay Limited Partnership | DE |
| Senior Lifestyle Heritage L.L.C. | DE |
| Senior Lifestyle North Bay Limited Partnership | DE |
| Senior Lifestyle Sakonnet Bay Limited Partnership | DE |
| Senior Living Properties, LLC | DE |
| Senior Service Insurance LTD Cayman Island entity | Cayman Islands |
| Silver Lake Assisted Living, LLC | DE |
| SLC East Bay, Inc. | DE |
| SLC Emerald Bay, Inc. | DE |
| SLC North Bay, Inc. | DE |
| SLC Sakonnet Bay, Inc. | DE |
| South Bay Manor L.L.C. | DE |
| Southern Assisted Living, LLC | NC |
| Statesville Manor on Peachtree ALZ, LLC | NC |
| Statesville Manor, LP | NC |
| Statesville Place, LLC | NC |
| Sugar Land Investors, LLC | DE |
| Summerville 1, LLC | DE |
| Summerville 13, LLC | DE |
| Summerville 14, LLC | DE |
| Summerville 15, LLC | DE |
| Summerville 16, LLC | DE |
| Summerville 17, LLC | DE |
| Summerville 2, LLC | DE |
| Summerville 3, LLC | DE |
| Summerville 4, LLC | DE |
| Summerville 5, LLC | DE |
| Summerville 7, LLC | DE |
| Summerville 8, LLC | DE |
| --- | --- |
| Summerville at Atherton Court, LLC | DE |
| Summerville at Barrington Court, LLC | DE |
| Summerville at Camelot Place, LLC | DE |
| Summerville at Cobbco, Inc. | CA |
| Summerville at Fairwood Manor, LLC | DE |
| Summerville at Gainesville, LLC | DE |
| Summerville at Golden Pond, LLC | DE |
| Summerville at Harden Ranch, LLC | DE |
| Summerville at Hazel Creek, LLC | DE |
| Summerville at Heritage Place, LLC | DE |
| Summerville at Hillen Vale, LLC | DE |
| Summerville at Hillsborough, LLC | NJ |
| Summerville at Irving Associates, LP | DE |
| Summerville at Irving, LLC | DE |
| Summerville at Lakeview, LLC | DE |
| Summerville at Mandarin, LLC | DE |
| Summerville at Mentor, LLC | DE |
| Summerville at North Hills, LLC | DE |
| Summerville at Ocala East, LLC | DE |
| Summerville at Ocala West, LLC | DE |
| Summerville at Ocoee, Inc. | DE |
| Summerville at Potomac, LLC | DE |
| Summerville at Prince William, LLC | DE |
| Summerville at Ridgewood Gardens, LLC | DE |
| Summerville at Roseville Gardens, LLC | DE |
| Summerville at St Augustine, LLC | DE |
| Summerville at Stafford, LLC | NJ |
| Summerville at Voorhees, LLC | NJ |
| Summerville at Wekiwa Springs, LLC | DE |
| Summerville Investors, LLC | DE |
| Summerville Management, LLC | DE |
| Summerville Senior Living, Inc. | DE |
| SW Assisted Living, LLC | DE |
| Tanglewood Oaks Investors, LLC | DE |
| Texas-ESC-Lubbock, L.P. | WA |
| Trinity Towers Limited Partnership | TN |
| Union Park, LLC | NC |
| Village Oaks Farmers Branch Investors, LLC | DE |
| Village Oaks Hollywood Park Investors, LLC | DE |
| Weddington Park, LP | NC |
| Wovencare Systems, Inc. | WI |
Document
EXHIBIT 23
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We consent to the incorporation by reference in the Registration Statements (Form S-3 No. 333-244394 and Form S-3ASR No. 333-268404; and Forms S-8 No. 333-160354, No. 333-197709, No. 333-221489, and No. 333-234736) of Brookdale Senior Living Inc. of our reports dated February 21, 2024 with respect to the consolidated financial statements of Brookdale Senior Living Inc. and the effectiveness of internal control over financial reporting of Brookdale Senior Living Inc. included in this Annual Report (Form 10-K) of Brookdale Senior Living Inc. for the year ended December 31, 2023.
/s/ Ernst & Young LLP
Chicago, Illinois
February 21, 2024
Document
EXHIBIT 31.1
CERTIFICATION OF CHIEF EXECUTIVE OFFICER
PURSUANT TO SECTION 302 OF THE SARBANES-OXLEY ACT OF 2002
I, Lucinda M. Baier, certify that:
1.I have reviewed this Annual Report on Form 10-K of Brookdale Senior Living Inc.;
2.Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
3.Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
4.The registrant's other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:
(a)Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
(b)Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
(c)Evaluated the effectiveness of the registrant's disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
(d)Disclosed in this report any change in the registrant's internal control over financial reporting that occurred during the registrant's most recent fiscal quarter (the registrant's fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant's internal control over financial reporting; and
5.The registrant's other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant's auditors and the audit committee of the registrant's board of directors (or persons performing the equivalent functions):
(a)All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant's ability to record, process, summarize and report financial information; and
(b)Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant's internal control over financial reporting.
| Date: | February 21, 2024 | /s/ Lucinda M. Baier |
|---|---|---|
| Lucinda M. Baier | ||
| President and Chief Executive Officer |
Document
EXHIBIT 31.2
CERTIFICATION OF CHIEF FINANCIAL OFFICER
PURSUANT TO SECTION 302 OF THE SARBANES-OXLEY ACT OF 2002
I, Dawn L. Kussow, certify that:
1.I have reviewed this Annual Report on Form 10-K of Brookdale Senior Living Inc.;
2.Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
3.Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
4.The registrant's other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:
(a)Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
(b)Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
(c)Evaluated the effectiveness of the registrant's disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
(d)Disclosed in this report any change in the registrant's internal control over financial reporting that occurred during the registrant's most recent fiscal quarter (the registrant's fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant's internal control over financial reporting; and
5.The registrant's other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant's auditors and the audit committee of the registrant's board of directors (or persons performing the equivalent functions):
(a)All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant's ability to record, process, summarize and report financial information; and
(b)Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant's internal control over financial reporting.
| Date: | February 21, 2024 | /s/ Dawn L. Kussow |
|---|---|---|
| Dawn L. Kussow | ||
| Executive Vice President and Chief Financial Officer |
Document
EXHIBIT 32
CERTIFICATION OF CHIEF EXECUTIVE OFFICER AND CHIEF FINANCIAL
OFFICER PURSUANT TO 18 U.S.C. SECTION 1350, AS ADOPTED
PURSUANT TO SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002
In connection with the Annual Report on Form 10-K of Brookdale Senior Living Inc. (the "Company") for the fiscal year ended December 31, 2023, as filed with the Securities and Exchange Commission on the date hereof (the "Report"), Lucinda M. Baier, as President and Chief Executive Officer of the Company, and Dawn L. Kussow, as Executive Vice President and Chief Financial Officer of the Company, each hereby certifies, pursuant to 18 U.S.C. § 1350, as adopted pursuant to § 906 of the Sarbanes-Oxley Act of 2002, that:
(1) The Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934; and
(2) The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.
| /s/ Lucinda M. Baier | |
|---|---|
| Name: | Lucinda M. Baier |
| Title: | President and Chief Executive Officer |
| Date: | February 21, 2024 |
| /s/ Dawn L. Kussow | |
| --- | --- |
| Name: | Dawn L. Kussow |
| Title: | Executive Vice President and Chief Financial Officer |
| Date: | February 21, 2024 |
Document
Exhibit 97
BROOKDALE SENIOR LIVING INC.
CLAWBACK AND FORFEITURE POLICY
Purpose
Brookdale Senior Living Inc. (the “Company”) is committed to conducting business with integrity, in accordance with high ethical standards and in compliance with all applicable laws, rules and regulations, including those applicable to the presentation of the Company’s financial information to the public. As a result, the Board of Directors of the Company (the “Board”) has adopted this Clawback and Forfeiture Policy (this “Policy”), which provides for the potential recoupment and/or forfeiture or cancellation of certain officer incentive compensation as provided below. This Policy is designed to comply with, and shall be interpreted to be consistent with, Section 10D of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), Rule 10D-1 promulgated under the Exchange Act (“Rule 10D-1”) and Section 303A.14 of the New York Stock Exchange (“NYSE”) Listed Company Manual.
Administration
This Policy will be administered by the Compensation Committee of the Board of Directors of the Company (the “Committee”). The Committee may amend or terminate this Policy from time to time in its discretion, and may amend this Policy as it deems necessary to comply with applicable law or any rules or standards adopted by the NYSE. The Committee is authorized to interpret and construe this Policy and to make all determinations necessary, appropriate or advisable for the administration of this Policy. Any determination of the Committee shall be made in its discretion and shall be conclusive and binding on the Company and the applicable Covered Executive (as defined below). The determination of the Committee need not be uniform with respect to one or more Covered Executives.
Covered Executives; Compensation Covered
This Policy will cover the Company’s current and former executive officers as determined by the Board from time to time in accordance with the definition of executive officer set forth in Rule 10D-1 and Section 303A.14 of the NYSE Listed Company Manual (the “Covered Executives”). Each Covered Executive shall be required to sign and return to the Company the Acknowledgement Form attached hereto as Exhibit A pursuant to which such Covered Executive will agree to be bound by the terms and comply with this Policy.
The Policy will apply to any compensation that is granted, earned or vested wholly or in part upon attainment of a Financial Reporting Measure (as defined below) (“Incentive-Based Compensation”); provided, however, that this Policy will not apply to other compensation paid, earned, vested or otherwise awarded to a Covered Executive, including, without limitation, base salary, stock options, time-based restricted stock, and time-based restricted stock units. The Policy applies to Incentive-Based Compensation received by a Covered Executive (a) after beginning services as a Covered Executive; (b) if that person served as a Covered Executive at any time during the performance period for such Incentive-Based Compensation; and (c) while
the Company had a listed class of securities on a national securities exchange. Incentive-Based Compensation is “received” for purposes of this Policy in the Company’s fiscal period during which the Financial Reporting Measure specified in the Incentive-Based Compensation award is attained, even if the payment or grant of such Incentive-Based Compensation occurs after the end of that period.
A “Financial Reporting Measure” is any measure that is determined and presented in accordance with the accounting principles used in preparing the Company’s financial statements, and any measure that is derived wholly or in part from such measure. Stock price and total shareholder return (and any measures that are derived wholly or in part from stock or total shareholder return) shall for purposes of this Policy be considered Financial Reporting Measures. For the avoidance of doubt, a Financial Reporting Measure need not be presented in the Company’s financial statements or included in a filing with the Securities and Exchange Commission (the “SEC”).
Accounting Restatement Trigger
Triggering Event
In the event that the Company is required to prepare an Accounting Restatement (as defined below), then the Company must recover, reasonably promptly, the Erroneously Awarded Compensation received by any Covered Executive, as calculated pursuant to “—Recoupment of Erroneously Awarded Compensation” below, during the Applicable Period.
“Accounting Restatement” means an accounting restatement of the Company’s financial statements due to the Company’s material noncompliance with any financial reporting requirement under the securities laws, including any required accounting restatement to correct an error in previously issued financial statements that is material to the previously issued financial statements (a “Big R” restatement), or that would result in a material misstatement if the error were corrected in the current period or left uncorrected in the current period (a “little r” restatement).
“Applicable Period” means the three completed fiscal years immediately preceding the date on which the Company is required to prepare an Accounting Restatement, as well as any transition period (that results from a change in the Company’s fiscal year) within or immediately following those three completed fiscal years (except that a transition period that comprises a period of at least nine months shall count as a completed fiscal year). The “date on which the Company is required to prepare an Accounting Restatement” is the earlier to occur of (a) the date the Audit Committee concludes, or reasonably should have concluded, that the Company is required to prepare an Accounting Restatement or (b) the date a court, regulator or other legally authorized body directs the Company to prepare an Accounting Restatement, in each case regardless of if or when the restated financial statements are filed.
Recoupment of Erroneously Awarded Compensation
The amount of “Erroneously Awarded Compensation” subject to recovery under the Policy, as determined by the Committee, is the amount of Incentive-Based Compensation received by the Covered Executive that exceeds the amount of Incentive-Based Compensation that would have been received by the Covered Executive had it been determined based on the restated amounts in the Accounting Restatement; provided, however, that for Incentive-Based Compensation based on stock price or total stockholder return, where the amount of Erroneously Awarded Compensation is not subject to mathematical recalculation directly from the information in an Accounting Restatement: (i) the amount of Erroneously Awarded Compensation must be based on a reasonable estimate of the effect of the Accounting Restatement on the stock price or total stockholder return upon which the Incentive-Based Compensation was received; and (ii) the Company must maintain documentation of the determination of that reasonable estimate and provide such documentation to the NYSE. Erroneously Awarded Compensation shall be computed by the Committee without regard to any taxes paid by the Covered Executive in respect of the Erroneously Awarded Compensation.
Method of Recoupment and/or Forfeiture
The Committee will determine, in its discretion, the timing and method for promptly recouping or cancelling, as the case may be, Erroneously Awarded Compensation hereunder, which method may include, without limitation, any one or more of the following:
•requiring reimbursement of cash or equity-based Incentive-Based Compensation previously paid;
•seeking recovery of gain realized on the vesting, exercise, settlement, sale, transfer or other disposition of any equity-based awards;
•cancelling or rescinding some or all outstanding vested or unvested equity-based awards;
•adjusting or withholding from unpaid compensation or other set-off;
•forfeiture of deferred compensation, subject to compliance with Section 409A of the Internal Revenue Code and the regulations promulgated thereunder;
•cancelling or setting-off against planned future grants of equity-based awards; and/or
•any other method authorized by applicable law or contract.
Subject to compliance with any applicable law, the Committee may affect recovery under this Policy from any amount otherwise payable to the Covered Executive, including amounts payable to such individual under any otherwise applicable Company plan or program, including base
salary, bonuses or commissions and compensation previously deferred by the Covered Executive.
The Company is authorized and directed pursuant to this Policy to recoup Erroneously Awarded Compensation in compliance with this Policy unless the Committee has determined that recovery would be impracticable solely for the following limited reasons, and subject to the following procedural and disclosure requirements:
•the direct expense paid to a third party to assist in enforcing the Policy would exceed the amount to be recovered. Before concluding that it would be impracticable to recover any amount of Erroneously Awarded Compensation based on expense of enforcement, the Committee must make a reasonable attempt to recover such erroneously awarded compensation, document such reasonable attempt(s) to recover and provide that documentation to NYSE; or
•recovery would likely cause an otherwise tax-qualified retirement plan, under which benefits are broadly available to employees of the Company, to fail to meet the requirements of Section 401(a)(13) or Section 411(a) of the Internal Revenue Code and regulations thereunder.
Not Exclusive
Any recoupment, forfeiture, or cancellation under this Policy is in addition to, and not in lieu of, any other remedies or rights of recoupment that may be available to the Company pursuant to (1) the terms of any similar policy in any employment agreement, incentive or equity compensation plan or award or other agreement, (2) any other legal requirements, including, but not limited to, the provisions of Section 304 of the Sarbanes-Oxley Act of 2002, and (3) any other legal rights or remedies available to the Company; provided, however, that amounts recouped, forfeited, or cancelled under this Policy shall not be subject to duplicate recovery.
No Indemnification
The Company will not indemnify or agree to indemnify any Covered Executive against the loss of any Incentive-Based Compensation recovered under this Policy.
Successors
This Policy shall be binding and enforceable against all Covered Executives and their beneficiaries, heirs, executors, administrators or other legal representatives.
Effective Date
The effective date of this Policy is October 2, 2023 (the “Effective Date”) and amends and restates the Clawback and Forfeiture Policy effective February 12, 2020. This Policy will apply to all Incentive-Based Compensation that is received by Covered Executives on or after the
Effective Date, even if such Incentive-Based Compensation was approved, awarded, granted to, or paid to Covered Executives prior to the Effective Date.
Disclosure Requirements
The Company shall file all disclosures with respect to this Policy in accordance with the requirements of the federal securities laws, including the disclosure required by the applicable SEC filings. The Company will also publicly post a copy of this Policy on the Investor Relations portion of the Company’s website.
EXHIBIT A
BROOKDALE SENIOR LIVING INC.
CLAWBACK AND FORFEITURE POLICY
ACKNOWLEDGEMENT FORM
By signing below, the undersigned acknowledges and confirms that the undersigned has received and reviewed a copy of the Brookdale Senior Living Inc. (the “Company”) Clawback and Forfeiture Policy (the “Policy”).
By signing this Acknowledgement Form, the undersigned acknowledges and agrees that the undersigned is and will continue to be subject to the Policy and that the Policy will apply both during and after the undersigned’s employment with the Company. Further, by signing below, the undersigned agrees to abide by the terms of the Policy, including, without limitation, by returning any Erroneously Awarded Compensation (as defined in the Policy) to the Company to the extent required by, and in a manner consistent with, the Policy.
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Signature
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Print Name
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Date