1
EXHIBIT 10.10
INDIANA RETURNED FACILITY NOTE
$3,000,000 Ann Arbor, Michigan
Effective As Of January 31, 1999
1. Promise to Pay. The undersigned, BRITWILL INDIANA PARTNERSHIP, an
Arizona general partnership, having its principal office at 00000 Xxxxx 00xx
Xxxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxx 00000 (hereinafter, "Borrower"), promises
to pay to OMEGA HEALTHCARE INVESTORS, INC., a Maryland corporation, at its
principal office at 000 Xxxxxxx Xxx, Xxxxx 000, Xxx Xxxxx, Xxxxxxxx 00000
(hereinafter "Lender"), or at such other place as Lender may designate in
writing, or to order, in lawful money of the United States of America, the
principal sum of THREE MILLION AND NO/100 DOLLARS ($3,000,000), or such lesser
sum as is indicated on Xxxxxx's records, with interest thereon as provided in
Section 3 hereof and all other amounts which may become owing hereunder.
2. Definitions. Capitalized terms used but not otherwise defined in
this Indiana Returned Facility Note (the "Note") shall have the meaning set
forth in the Debtor's First Amended Joint Plan of Reorganization dated October
15, 1998, as amended, entered in the United States Bankruptcy Court for the
District of Arizona in the matters of In Re: Unison HealthCare Corporation (Case
Nos. B-98-06583-PHX-GBN through B-98-06612 PHX-GBN) and In Re: BritWill
Investments-I, Inc. (Case Nos. B-98-0173-PHX-GBN through B-98-1075-PHX-GBN)
("Plan") and confirmed effective January 31, 1999. For all purposes of this Note
except as otherwise expressly provided or unless the context otherwise requires,
(i) the terms defined in this Section have the meanings assigned to them in this
Section and include the plural as well as the singular, (ii) all accounting
terms not otherwise defined herein have the meanings assigned to them in
accordance with generally accepted accounting principles as at the time
applicable, and (iii) the words "herein", "hereof" and "hereunder" and other
words of similar import refer to this Note as a whole and not to any particular
Section or other subsection:
Accrual Rate: An annual rate of interest of seven percent (7%)
per year.
Affiliate: As defined in the New Omega Master Lease.
Default Interest Rate: The interest rate that is three hundred
(300) basis points above the Accrual Rate.
Event of Default: The occurrence of any of the following shall
constitute an Event of Default: (i) Borrower fails to pay when due, whether by
acceleration or otherwise, any amount payable under this Note; or (ii) an Event
of Default under the Omega New Master Lease.
2
Indiana Returned Facility Note Guarantee: The Indiana Returned
Facility Note Guarantee dated as of January 31, 1999.
Indiana Returned Facility Guarantors: RainTree Healthcare
Corporation (formally known as Unison HealthCare Corporation), a Delaware
corporation, and BritWill HealthCare Company, a Delaware corporation.
LBO Transaction: Any transaction or series of related
transactions whereby, directly or indirectly, the acquisition of a majority or
controlling equity interest in RainTree (or any successor to RainTree by merger,
consolidation or otherwise) is, to any material degree, financed by indebtedness
which is the obligation of (or is secured by any property of) RainTree or any
such successor or any subsidiary of RainTree.
Maturity Date: The earlier of: (a) January 31, 2006, (b) the
date on which the Lender duly exercises its acceleration right under Section 9
hereof, or (c) the effective date of any LBO Transaction. Notwithstanding the
foregoing, clause (c) shall not be the Maturity Date (x) unless the Senior Notes
are fully paid either prior to the LBO Transaction or out of the proceeds
thereof and (y) if the BritWill Acquisition Promissory Notes (which are entered
into pursuant to the Plan) in the aggregate principal amount of $1,530,000, are
not paid out of the proceeds of an LBO Transaction and are paid pursuant to the
Scheduled Maturity Date (as defined in the BritWill Acquisition Promissory
Notes).
Omega Indiana Leasehold Mortgage: The Amended and Restated
Omega Indiana Leasehold Mortgage dated as of February 2, 1999.
Omega Indiana Leasehold Security Agreement: The First
Amendment to Security Agreement dated as of February 2, 1999.
Omega New Master Lease: The Master Lease entered into between
Borrower and certain companies affiliated with Borrower as Lessees and Lender as
Lessor, dated December 31, 1998 as amended by the First Amendment to Omega New
Master Lease dated as of February 1, 1999 and the Second Amendment to Omega New
Master Lease dated as of February 2, 1999, as the same may be further amended
from time to time.
Payment Date: Any due date for the payment of the installments
of principal and interest or any other sums payable under this Note, which
occurs on a Business Day.
Pledge Agreements: The Pledge Agreements dated as of February
2, 1999 between Lender and BritWill HealthCare Company with respect to the stock
of BritWill
2
3
Investments-I, Inc. and BritWill Investments-II, Inc., and the Pledge Agreement
dated as of February 2, 1999 between Lender and BritWill Investments-I, Inc.
with respect to the stock of Cedar Care, Inc. and Sherwood HealthCare
Corporation.
RainTree: RainTree Healthcare Corporation, a Delaware
corporation, formerly known as Unison Healthcare Corporation.
Security Agreement: The Amended and Restated Security
Agreement dated as of February 2, 1999 between Lender and the Lessees under the
Omega New Master Lease.
Security Deposit Agreement: The Security Deposit Agreement to
be entered into between Lender and the entities which are the Lessees under the
Omega New Master Lease.
Sharing Agreement: The Sharing Agreement of even date herewith
between Lender and Debtors, as defined in the Plan, a copy of which is attached
hereto as EXHIBIT A.
3. Payments of Interest and Principal.
3.1 Accrual of Interest. Interest shall accrue on the
principal amount of this Note at the Accrual Rate calculated on the
basis of a 360-day year for the actual number of days elapsed, until
the Maturity Date.
3.2 Payment of Principal and Interest. Subject to Section 14
hereof, principal and accrued interest shall be paid to Lender as
follows: (a) Accrued interest only shall be payable on March 31, 1999;
(b) commencing June 30, 1999, the balance of principal and interest
shall be paid in twenty-seven (27) successive quarterly installments of
ONE HUNDRED FORTY THOUSAND THREE HUNDRED EIGHTY-FIVE AND 48/100
DOLLARS ($140,385.48) each, or more, on or before the last day of each
calendar quarter.
3.3 Default Interest. Notwithstanding anything to the contrary
contained in this Note, if an Event of Default occurs, interest shall
be due and payable on the outstanding principal balance from the date
of such occurrence until the Event of Default is fully cured at the
Default Interest Rate.
3
4
4. Method of Payment. All payments to be paid by Borrower to Lender
under this Note shall be paid by wire transfer to such account or accounts as
may be designated by Lender in writing.
5. Usury Not To Be Collected. In no event shall the interest rate in
effect from time to time under this Note exceed the highest rate allowed by law.
If Lender shall reasonably determine that the interest rate under this Note has
been adjudicated to be usurious or is otherwise limited by statute, interest in
excess of the applicable legal rate paid or collected by Lender, shall be deemed
to have been automatically and immediately credited by Xxxxxx to the principal
balance under this Note and shall not be charged to interest, it being the
intention of Lender that no interest in excess of the legal rate shall be taken
or received.
6. Payment on Maturity Date. The entire unpaid principal balance hereof
not yet paid, together with all accrued and unpaid interest under Section 3, and
any other amounts owing to Lender under this Note, shall be due and payable on
the Maturity Date.
7. Payments to be Made Without Regard to Setoffs and Counterclaims. All
payments by Borrower shall be paid in full without setoff or counterclaim and
without reduction for and free from any and all taxes, levies, imposts, duties,
fees, charges, deductions or withholdings of any type or nature imposed by any
government or any political subdivision or taxing authority thereof.
8. Prepayment. The amount then owing under this Note, including without
limitation all accrued and unpaid interest under Section 3 hereof, may be paid
in full or in part at any time without premium or penalty.
9. Acceleration Upon Event of Default. Upon the occurrence of any Event
of Default hereunder, the entire principal balance owing under this Note
together with all accrued and unpaid interest, and any other amounts owing under
this Note and any other Loan Document, at Lender's option, will become
immediately due and payable, all without formal demand, presentment or notice of
any kind, all of which are expressly waived.
Acceptance by Lender of any payment in an amount less than the amount
then due shall be deemed an acceptance on account only, and Xxxxxx's acceptance
of any such partial payment shall not constitute a waiver of Lender's right to
receive the entire amount due. Upon any Event of Default, neither the failure of
the Lender to promptly exercise its right to declare the outstanding principal
and accrued unpaid interest hereunder to be immediately due and payable, nor the
failure of Lender to demand strict performance of any other obligation of
Borrower or any other person who may be liable hereunder, shall
4
5
constitute a waiver of any such rights, nor a waiver of such rights in
connection with any future default on the part of Borrower or any other person
who may be liable hereunder.
10. Application of Payments; Partial Payments. Unless an Event of
Default has occurred and not been fully cured, all payments received by Lender
hereunder shall be applied first against interest which has accrued and not been
paid under Section 3.2 and then to principal, with the balance applied against
any other amounts which may be owing to Lender hereunder. Following the
occurrence of an Event of Default, and until such Event of Default is fully
cured, Lender may apply any payment that it receives, whether directly from
Borrower or as a consequence of realizing upon any security which it holds, in
its sole and absolute discretion, to any amount owing to it under this Note.
11. Security for Note. This Note is secured by: (i) the Security
Agreement, (ii) the Pledge Agreements, (iii) the Omega Indiana Leasehold
Mortgage, (iv) the Omega Indiana Leasehold Security Agreement, and (v) the
Security Deposit made by the entities which are the Lessees under the Omega New
Master Lease as set forth in the Security Deposit Agreement.
12. Choice of Law; Venue; Jurisdiction. This Note shall be deemed to
have been made and delivered by Borrower to Lender at Xxxxxx's principal place
of business in Ann Arbor, Michigan, and shall be deemed to have been made
thereat. This Note shall be governed and controlled as to validity, enforcement,
interpretation, construction, effect and in all other respects, including, but
not limited to, the legality of the interest charged hereunder, by the statues,
laws and decisions of the State of Michigan. Xxxxxxxx, in order to induce Xxxxxx
to accept this Note and for other good and valuable consideration, the receipt
and sufficiency of which hereby is acknowledged, agrees that all actions or
proceedings arising directly, indirectly or otherwise in connection with, out
of, related to or from this Note shall be litigated, in Xxxxxx's sole discretion
and at Xxxxxx's sole election, only in courts having a situs within the County
of Washtenaw, State of Michigan. For the purposes of the foregoing, Borrower
hereby consents and submits to the jurisdiction of any local, state or federal
court located within the County of Washtenaw, State of Michigan. Borrower hereby
waives any right Borrower may have to transfer or change the venue of any
litigation brought against Borrower by Xxxxxx in accordance with this paragraph.
13. Miscellaneous Provisions.
13.1 This Note may not be amended or modified, and revision hereto
shall not be effective, except by an instrument in writing executed by both
Xxxxxxxx and Xxxxxx.
5
6
13.2 Notices and other communications hereunder shall be in writing and
personally served, mailed (by registered or certified mail, return receipt
requested and postage prepaid) or delivered by national overnight delivery
service such as Federal Express or D.H.L., or sent by facsimile transmission
addressed to the respective parties, as follows:
(i) if to Borrower:
BritWill Indiana Partnership
00000 Xxxxx 00xx Xxxxxx
Xxxxx 000
Xxxxxxxxxx, Xxxxxxx 00000
ATTN: Xxxxxxx X. Xxxxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
with a copy to:
ATTN: Xxx X. Xxxxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
(ii) if to Lender:
Omega Healthcare Investors, Inc.
000 Xxxxxxx Xxx
Xxxxx 000
Xxx Xxxxx, XX 00000
ATTN: Xxxxx X. Xxxxxx, Xx.
Tel: (000) 000-0000
Fax: (000) 000-0000
with a copy to:
Xxxxxx Xxxxxxx PLLC
0000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxxxxxxx Xxxxx, Xxxxxxxx 00000-0000
ATTN: Xxxx X. Xxxxxxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
6
7
or to such other address as a party may by notice hereafter designate in
writing. All notices required or permitted to be given hereunder shall be given
and deemed effective as provided in the Omega New Master Lease.
13.3 Nothing contained in this Note shall be deemed or construed as
creating a partnership or joint venture between Borrower and Lender or between
Lender and any other person, or cause the holder hereof to be responsible in any
way for the debts or obligations of Borrower or any other person.
13.4 Borrower hereby waives presentment, protest and demand, notice of
protest, dishonor and nonpayment of this Note, and expressly agrees that,
without in any way affecting the liability of Borrower hereunder, Xxxxxx may
extend the time for payment of any amount due hereunder, accept additional
security, release any party liable hereunder and release any security now or
hereafter securing this Note without in any other way affecting the liability
and obligation of Borrower.
13.5 Every provision of this Note is intended to be severable. In the
event any term or provision hereof is declared by a court of competent
jurisdiction to be illegal or invalid for any reason whatsoever, such illegality
or invalidity shall not affect the balance of the terms and provisions hereof,
which terms and provisions shall remain binding and enforceable.
13.6 Headings at the beginning of each numbered Section of this Note
are intended solely for convenience of reference and are not to be deemed or
construed to be a part of this Note.
13.7 Xxxxxxxx, and any other person who may be liable hereunder in any
capacity, agree(s) to pay all costs of collection, including reasonable attorney
fees, in case the principal of this Note or any payment of interest thereon is
not paid as it becomes due, or in case it becomes necessary to protect the
security for this Note, whether suit is brought or not.
14. Sharing Agreement. This Promissory Note is subject to the terms and
conditions of the Sharing Agreement. In accordance therewith, if principal
payments under this Note are deferred pursuant to the Sharing Agreement, such
deferral shall not constitute an Event of Default hereunder.
7
8
IN WITNESS WHEREOF, Xxxxxxxx has executed this Promissory Note as of
the date first set forth above.
BORROWER:
BRITWILL INDIANA PARTNERSHIP,
AN ARIZONA GENERAL PARTNERSHIP
By: BritWill Investments-I, Inc.,
a Delaware corporation
Its: General Partner
By: ________________________
Name: ________________________
Its: President
8
9
EXHIBIT A
[TO BE ATTACHED]
Exhibit A
