Exhibit 10.4
THIS NOTE HAS NOT BEEN REGISTERED PURSUANT TO THE SECURITIES ACT OF 1933 OR ANY
STATE SECURITIES LAW. NEITHER THIS NOTE NOR ANY PORTION HEREOF OR INTEREST
HEREIN MAY BE SOLD, ASSIGNED, TRANSFERRED, PLEDGED OR OTHERWISE DISPOSED OF
UNLESS THE SAME IS REGISTERED UNDER SAID ACT AND ANY APPLICABLE STATE SECURITIES
LAW, OR UNLESS AN EXEMPTION FROM SUCH REGISTRATION IS AVAILABLE AND BALANCED
CARE CORPORATION SHALL HAVE RECEIVED, AT THE EXPENSE OF THE HOLDER HEREOF,
EVIDENCE OF SUCH EXEMPTION REASONABLY SATISFACTORY TO BALANCED CARE CORPORATION
(WHICH MAY INCLUDE, AMONG OTHER THINGS, AN OPINION OF COUNSEL SATISFACTORY TO
BALANCED CARE CORPORATION).
THE INDEBTEDNESS EVIDENCED BY THIS INSTRUMENT IS SUBORDINATED TO THE PRIOR
PAYMENT IN FULL OF THE SENIOR DEBT (AS DEFINED IN THE SUBORDINATION AGREEMENT
HEREINAFTER REFERRED TO) PURSUANT TO, AND TO THE EXTENT PROVIDED IN, THAT
CERTAIN SUBORDINATION AGREEMENT, DATED AS OF APRIL 4, 2001, AMONG BALANCED CARE
CORPORATION, XXXXXX HEALTHCARE FINANCE, INC., VXM INVESTMENTS LIMITED, HR
INVESTMENTS LIMITED, RH INVESTMENTS LIMITED AND THE OTHER PARTIES IDENTIFIED
THEREIN (THE "SUBORDINATION AGREEMENT"). ANY HOLDER OF THIS INSTRUMENT SHALL BE
DEEMED TO BE BOUND BY, AND SUBJECT TO, THE TERMS OF THE SUBORDINATION AGREEMENT.
NOTE
$525,000 December 11, 2001
FOR VALUE RECEIVED, the undersigned, Balanced Care Corporation, a
Delaware corporation (the "Maker"), hereby promises to pay to the order of VXM
Investments Limited, a Cayman Islands corporation, as agent (the "Agent") for
the Lenders identified in the Bridge Loan Agreement, dated as of April 4, 2001,
among the Company, such Lenders and the Agent, as amended as of June 12, 2001,
as further amended as of July 6, 2001, as further amended as of August 8, 2001,
as further amended as of September 6, 2001, as further amended as of October 4,
2001, as further amended as of October 29, 2001, as further amended as of
November 19, 2001, as further amended the date hereof (as the same may be
further amended, modified or supplemented from time to time in accordance with
its terms, the "Loan Agreement"), at the office of the Agent c/o Unsworth &
Associates, Xxxxxxxxxxx 000, Xxxxxxxxx, The
Netherlands, to be distributed in accordance with the terms of the Loan
Agreement, the principal sum of FIVE HUNDRED TWENTY FIVE THOUSAND DOLLARS
($525,000), in lawful money of the United States of America in immediately
available funds, and to pay interest from the date thereof on the principal
amount hereof from time to time outstanding, in like funds, at said office, at a
rate or rates per annum and, in each case, payable on such dates as determined
pursuant to the terms of the Loan Agreement.
The Maker promises to pay interest, on demand, on any overdue
principal and fees and, to the extent permitted by law, overdue interest from
their due dates at a rate or rates determined as set forth in the Loan
Agreement.
The Maker hereby waives diligence, presentment, demand, protest and
notice of any kind whatsoever. The non-exercise by the holder of any of its
rights hereunder in any particular instance shall not constitute a waiver
thereof in that or any subsequent instance.
All payments and prepayments of the principal hereof and interest
hereon and the respective dates thereof shall be endorsed by the holder hereof
on the schedule attached hereto and made a part hereof, or on a continuation
thereof which shall be attached hereto and made a part hereof, or otherwise
recorded by such holder in its internal records; provided, however, that the
failure of the holder hereof to make such a notation or any error in such a
notation shall not in any manner affect the obligations of the Maker to make
payments of principal and interest in accordance with the terms of this Note and
the Loan Agreement.
This Note is one of the Notes referred to in the Loan Agreement (and
is secured by the Collateral referred to therein), which, among other things,
contains provisions for the acceleration of the maturity hereof upon the
happening of certain events, for optional and mandatory prepayment of the
principal hereof prior to the maturity hereof and for the amendment or waiver of
certain provisions of the Loan Agreement, all upon the terms and conditions
therein specified. THIS NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED
BY THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CHOICE OF LAW DOCTRINE,
AND ANY APPLICABLE LAWS OF THE UNITED STATES OF AMERICA.
2
BALANCED CARE CORPORATION
By: /s/Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Title: Senior Vice President,
Legal Counsel & Assistant
Secretary
3
Loans and Payment
Unpaid
Principal
Amount Payments Balance of Person Making
Date of Loan Principal Interest Note Notation
