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EXHIBIT 10.7
(Indiana Leasehold)
FIRST AMENDMENT TO SECURITY AGREEMENT
THIS FIRST AMENDMENT TO SECURITY AGREEMENT ("FIRST AMENDMENT") is made
and entered into as of February 1, 1999 by and among OMEGA HEALTHCARE INVESTORS,
INC., a Maryland corporation ("OMEGA") and BRITWILL INDIANA PARTNERSHIP, an
Arizona general partnership ("BRITWILL INDIANA") as Successor in Interest to
BRITWILL INVESTMENTS-I, INC., a Delaware corporation ("BRITWILL I")(collectively
"Debtor").
RECITALS:
This First Amendment is given pursuant to Debtors' 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)(the "PLAN") which was confirmed
effective January 31, 1999.
1. BritWill I and the Secured Party entered into a Master Lease as of
November 1, 1992 pursuant to which the Secured Party leased to BritWill I nine
(9) healthcare facilities located in Indiana ("INDIANA MASTER LEASE").
2. To secure its obligations under the Indiana Master Lease, BritWill I
executed and delivered to Secured Party a Leasehold Mortgage, Security
Agreement, Financing Statement and Fixture Filing dated as of November 25, 1992
("OMEGA INDIANA LEASEHOLD MORTGAGE") and a Security Agreement dated as of
November 25, 1992 ("OMEGA INDIANA LEASEHOLD SECURITY AGREEMENT") covering the
leasehold interest of BritWill I in certain other healthcare facilities in
Indiana, more particularly described on attached Exhibit A, and the personal
property therein. BritWill Indiana is the assignee of the leasehold interest of
BritWill I, has assumed the liability of BritWill I under the Omega Indiana
Leasehold Mortgage and Omega Indiana Leasehold Security Agreement and is the
Debtor as defined in the Omega Indiana Leasehold Security Agreement.
3. In accordance with the Plan, the Indiana Master Lease has been
assumed, amended, restated and supplemented by the Omega New Master Lease (as
hereinafter defined).
4. In accordance with the Plan, the Indiana Leasehold Security
Agreement is to secure, in addition to the Omega Indiana Leasehold Mortgage, the
obligations of the
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(Indiana Leasehold)
Omega New Master Lessees under the Omega New Master Lease and the obligations of
BritWill Indiana under the Indiana Returned Facility Note (as hereinafter
defined).
5. Capitalized terms used but not defined herein shall have the
respective meanings given them in the Omega Indiana Leasehold Security
Agreement.
NOW, THEREFORE, for good and valuable consideration the receipt and
sufficiency of which hereby are acknowledged, the parties agree as follows:
1. The following provision is added to the Omega Indiana Leasehold Security
Agreement:
" DEFINITIONS. The following terms shall have the following
meanings:
"INDIANA RETURNED FACILITY NOTE " means the Three
Million Dollar ($3,000,000.00) Indiana Returned
Facility Note dated January 31, 1999 given by
BritWill Indiana Partnership to Secured Party.
"OMEGA NEW MASTER LEASE" means the Omega New Master
Lease entered into as of December 31, 1998, as
amended by First Amendment to Omega New Master Lease
of even date herewith and as the same may be amended
from time to time hereafter.
"OMEGA NEW MASTER LEASE LESSEES" means the Lessees
named in the Omega New Master Lease.
2. The definition of "Liabilities" in the Omega Indiana Leasehold
Security Agreement is hereby amended to include the payment of all amounts now
or hereafter due and owing to Secured Party (i) from the Omega New Master Lease
Lessees under the Omega New Master Lease and (ii) from BritWill Indiana under
the Indiana Returned Facility Note, or any extensions or renewals thereof, and
the performance of any and all other obligations incurred thereunder or in
connection therewith, however created, evidenced or arising, whether direct or
indirect, absolute or contingent, now or hereafter existing, due or to become
due, plus all interest, costs, out-of-pocket expenses and reasonable attorneys'
fees which may be made or incurred by Secured Party in the administration, and
collection thereof and in the protection, maintenance, and liquidation of the
Collateral.
3. BritWill Indiana ratifies the grant of a security interest in the
Collateral to Omega by BritWill I as set forth in the Indiana Leasehold Security
Agreement and reaffirms the warranties and covenants of BritWill I as set forth
in the Omega Indiana Leasehold
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(Indiana Leasehold)
Security Agreement as fully as if the same were repeated in full herein. All
references in the Omega Indiana Leasehold Security Agreement to BritWill I and
Debtor shall be deemed to be references to BritWill Indiana.
4. The phrase "Event of Default under the Master Lease and the
Leasehold Mortgage" wherever it appears in the Omega Indiana Leasehold Security
Agreement is hereby amended to read "Event of Default under the Leasehold
Mortgage, Event of Default under the Omega New Master Lease or Event of Default
under the Indiana Returned Facility Note."
5. The following provisions of the Omega Indiana Leasehold Security
Agreement are amended as follows:
a. Section 6(c) is hereby deleted.
b. Section 9(a) is hereby amended to read as follows: "The
occurrence of any Event of Default under the Omega New Master
Lease or any Event of Default under the Indiana Returned
Facility Note shall constitute an Event of Default ("Event of
Default") for purposes of this Security Agreement."
c. The last sentence of Section 10 is hereby amended to read
as follows: "The obligations of BritWill Indiana under this
Section 10 shall survive the termination of the Omega New
Master Lease and the payment in full of the Indiana Returned
Facility Note."
d. The first sentence of Section 11(c) is hereby amended to
read as follows: "Any delay on the part of Omega in exercising
any power, privilege or right under the Omega New Master Lease
or the Indiana Returned Facility Note, this Security Agreement
or under any other instrument or document executed by BritWill
Indiana in connection herewith shall not operate as a waiver
thereof."
e. Section 11(d) is hereby amended to read as follows: "All
rights, remedies and powers of Omega hereunder are irrevocable
and cumulative, and not alternative or exclusive, and shall be
in addition to all rights, remedies and powers given by the
Omega New Master Lease, the Indiana Returned Facility Note,
the Leasehold Mortgage, the other Lease Documents, or the
Commercial Code, or any other applicable laws now existing or
hereafter enacted."
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(Indiana Leasehold)
f. Section 11(l) is hereby amended by the substitution of
"Michigan" for "Indiana."
g. Section 11(p) is hereby amended to read in its entirety:
"All notices, demands, requests, consents, approvals and other
communications ("Notice" or "Notices") hereunder shall be in
writing and personally served upon an Executive Officer (as
defined below) of the party being served or 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 BritWill Indiana:
BritWill Indiana Partnership
c/o Unison HealthCare Corporation
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 Omega:
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
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(Indiana Leasehold)
with a copy to:
Xxxxxx Xxxxxxx
ATTN: Xxxx X. Xxxxxxxxxx
0000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxxxxxxx Xxxxx, Xxxxxxxx 00000-0000
Tel: (000) 000-0000
Fax: (000) 000-0000
or to such other address as a party may by Notice hereafter
designate. Notice shall be deemed to have been given on the
date of delivery if such delivery is made on a Business Day,
or if not, on the first Business Day after delivery, or if
delivery is refused, on the date delivery was first attempted,
provided however that a Notice sent by facsimile transmission
shall be deemed given upon confirmation to the sender by the
recipient that such Notice was received. "Executive Officer"
shall mean the Chairman of the Board of Directors, the
President, any Vice President and the Secretary of any
corporation upon which service is to be made."
12. This First Amendment may be executed in separate counterparts, each
of which shall be considered as original when each party has executed and
delivered to the other one or more copies of this First Amendment.
13. Except as expressly modified by this Amended Indiana Leasehold
Security Agreement, the Indiana Leasehold Security Agreement remains in full
force and effect without amendment or modification.
SIGNATURE PAGES FOLLOW
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(Indiana Leasehold)
IN WITNESS WHEREOF the parties have executed this First Amendment to
Security Agreement.
OMEGA HEALTHCARE INVESTORS, INC., a Maryland
corporation
By: ________________________________
Name: _________________
Title: _________________
BRITWILL INDIANA PARTNERSHIP, an Arizona
general partnership
By: BritWill Investments-I, Inc.,
a Delaware corporation,
its General Partner
By: ________________________________
Name: _________________
Title: _________________
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(Indiana Leasehold)
EXHIBIT A
EXHIBIT A CONSISTS OF THE FOLLOWING EXHIBITS A-1 THROUGH A-4.
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(Indiana Leasehold)
EXHIBIT A-1
INDIANA LEASEHOLD MORTGAGE FACILITIES
WILLOW MANOR CONVALESCENT CENTER
LEGAL DESCRIPTION OF REAL ESTATE:
Part of Lower Prairie Survey No. One (1), Township Three (3) North,
Range Ten (10) West, bounded and described as follows:
Beginning Two Hundred (200) feet South, Fourteen (14) degrees East,
from the intersection of the center line of Thirteenth Street and the
Southwest right-of-way line of Federal Highway No. 41, said
right-of-way line being the Northeast line of Lower Prairie Survey No.
One (1); thence South, Fourteen (14) degrees East, on the Southwest
right-of-way line of said Highway No. 41, Three Hundred (300) feet to a
stake; thence South, Seventy-six (76) degrees West, Three Hundred (300)
feet to a stake; thence North Fourteen degrees (14) West, Three Hundred
(300) feet to a stake; thence North, Seventy-six (76) degrees East,
Three Hundred (300) feet to the place of beginning.
Also, part of Lower Prairie Survey No. One (1), Township Three (3)
North, Range Ten (10) West, being a rectangular strip of real property
Five Hundred (500) feet long and Twenty (20) feet wide bounded and
described as follows, to-wit:
Beginning Three Hundred (300) feet South, Seventy-six (76) degrees
West, of the intersection of the center line of Thirteenth Street with
the Southwest right-of-way line of U.S. Xxxxxxx Xx. 00; said
right-of-way line being the Northeast line of Lower Prairie Survey No.
One (1); thence South, Fourteen (14) degrees East, Five Hundred (500)
feet to an iron stake; thence South, Seventy-six (76) degrees West,
Twenty (20) feet to a point, thence North, Fourteen (14) degrees West,
Five Hundred (500) feet to a point in the center line of Thirteenth
Street; thence North, Seventy-four (74) degrees Thirty-seven (37)
minutes East, along the center of Xxxxxxxxxx Xxxxxx, Xxxxxx (20) feet
to the point of beginning.
MORTGAGOR AND DEBTOR: BritWill Indiana Partnership
ADDRESS: 5950 Berkshire, Suite 1100
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(Indiana Leasehold)
Xxxxxx, Xxxxx 00000
MORTGAGEE AND SECURED PARTY: Omega Healthcare Investors, Inc.
ADDRESS: 000 Xxxxxxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxx, Xxxxxxxx 00000
FEE TITLE OWNER: Xxxxxxx X. Xxxxxxxx and Xxxxxx Xxxxxxxx and
Xxxxxxx X. Xxxx and Xxxx Xxx Xxxx
NAME AND LOCATION
OF REAL ESTATE: Willow Manor Convalescent Center
0000 Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxx 00000
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(Indiana Leasehold)
EXHIBIT A-2
INDIANA LEASEHOLD MORTGAGE FACILITIES
HOLIDAY MANOR
LEGAL DESCRIPTION OF REAL ESTATE:
Part of Lots One Hundred Ninety-two (192), One Hundred Ninety-three
(193), One Hundred Ninety-four (194), One Hundred Ninety-five (195) and
One Hundred Ninety-six (196) in Tower Heights Subdivision of the City
of Princeton, Xxxxxx County, Indiana (as said subdivision is platted
and recorded in Plat Book 1, page 259 in the Office of the Recorder of
Xxxxxx County, Indiana), and further described as follows:
Begin at an iron at the Southwest corner of said Lot 196; thence North,
along the West line of Xxxx 000, 000, 000, 000 xxx 000, Xxxx Xxxxxxx
Fifty and no hundredths (450.00) feet to an iron at the Northwest
corner of Lot 192; thence East, along the North line of said Xxx 000,
Xxx Xxxxxxx Xxxxxx and no hundredths (220.00) feet; thence South Four
Hundred Fifty and no hundredths (450.00) feet to the South line, Two
Hundred Twenty-two and Ninety Hundredths (222-90) feet to the place of
beginning.
MORTGAGOR AND DEBTOR: BritWill Indiana Partnership
ADDRESS: 0000 Xxxxxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
MORTGAGEE AND
SECURED PARTY: Omega Healthcare Investors, Inc.
ADDRESS: 000 Xxxxxxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxx, Xxxxxxxx 00000
FEE TITLE OWNER: Xxxxxxx X. Xxxxxxxx and Xxxxxx Xxxxxxxx
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(Indiana Leasehold)
and Xxxxxxx X. Xxxx and Xxxx Xxx Xxxx
NAME AND LOCATION
OF REAL ESTATE: Holiday Manor
000 Xxxxx 0xx Xxxxxx
Xxxxxxxxx, Xxxxxxx 00000-0000
A-2 Page 2
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(Indiana Leasehold)
EXHIBIT A-3
OWENSVILLE CONVALESCENT CENTER
LEGAL DESCRIPTION OF REAL ESTATE:
Part of the West Half of the Northwest Quarter of Section Twelve (12),
Township Three (3) South, Range Twelve (12) West, in Xxxxxxxxxx
Township, Xxxxxx County, Indiana, and further described as follows:
Begin at a 5/8 inch iron, which iron may be found by measuring East
along the South line of the Northwest Quarter of Section Twelve (12),
Township Three (3) South, Range Twelve (12) West, from the Southwest
corner of said Quarter Section, One Thousand One Hundred Forty-three
and Seventy Hundredths (1143.70) feet, and by measuring thence North,
parallel to the West line of said Quarter Section, Seven Hundred
Twenty-nine and Ten Hundredths (729.10) feet; and from said point of
beginning, bear West, perpendicular to the West line of said Quarter
Section, Three Hundred Thirty (330.0) feet to a 5/8 inch iron; thence
bear North, parallel to the West line of said Quarter Section, Six
Hundred Twenty-two (622.0) feet to a railroad spike in the centerline
of State Road #165, which point is witnessed with a 5/8 inch iron set
South Forty-six and Fifteen Hundredths (46.15) feet; thence measure
North 77 degrees and 02 minutes East, more or less, Three Hundred
Thirty-eight and Seventy-three Hundredths (338.73) feet, which
measurement is the long chord measurement of a part of a 3 degree curve
left to a railroad spike in the center of Xxxxx Xxxx #000; thence
measure South, parallel to the West line of the said Quarter Section,
Forty-four and Forty-five Hundredths (44.45) feet to a 5/8 inch iron;
continue measuring South, along said parallel line, Six Hundred
Fifty-three and Fifty-five Hundredths (653.55) feet to the place of
beginning.
MORTGAGOR AND DEBTOR: BritWill Indiana Partnership
ADDRESS: 0000 Xxxxxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
MORTGAGEE AND
SECURED PARTY: Omega Healthcare Investors, Inc.
A-3 Page 1
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ADDRESS: 000 Xxxxxxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxx, Xxxxxxxx 00000
FEE TITLE OWNER: Owensville Convalescent Center, Inc., an Indiana corporation
NAME AND LOCATION
OF REAL ESTATE: Xxxxxxxxxx Xxxxxxxxxxxx Xxxxxx
Xxxxxxx 000 Xxxx
Xxxxxxxxxx, Xxxxxxx 00000
A-3 Page 2
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(Indiana Leasehold)
EXHIBIT A-4
BOONVILLE CONVALESCENT CENTER
LEGAL DESCRIPTION OF REAL ESTATE:
Part of Block Fifteen (15) in the South Half of the Northwest Quarter
of Section Thirty-five (35), Township Five (5) South, Range Eight (8)
West, according to the partition of realty in the Estate of Xxxxx
XxXxxxx, deceased, among his heirs-at-law as shown by Deed Record 17 at
page 100 in the Office of the Recorder of Xxxxxxx County, Indiana, set
off to Xxxxxxxx Day West, bounded as follows:
Commencing at the Northeast corner of said Lot Fifteen (15); thence
Southwesterly along the center of, Indiana State Road #61, also known
as Boonville-Yankeetown Road, Four Hundred Ninety-one and Six Tenths
(491.6) feet; thence West Seven Hundred Ninety-five and Seventy-five
Hundredths (795.75) feet to an iron pin; thence North Four Hundred
Eighty (480) feet; thence East Nine Hundred Seven and Five Tenths
(907.5) feet to the center of Indiana State Road #61 and the point of
beginning, according to the plat of survey thereof recorded on May 12,
1966 in Plat Book 4, at page 253 in the Office of the Recorder of
Xxxxxxx County, Indiana.
MORTGAGOR AND DEBTOR: BritWill Indiana Partnership
ADDRESS: 0000 Xxxxxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
MORTGAGEE AND
SECURED PARTY: Omega Healthcare Investors, Inc.
ADDRESS: 000 Xxxxxxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxx, Xxxxxxxx 00000
FEE TITLE OWNER: Boonville Convalescent Center, Inc., an Indiana corporation
NAME AND LOCATION
OF REAL ESTATE: Boonville Convalescent Center
000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxx 00000
A-4 Page 1
