Exhibit 10.3
TERM NOTE
Columbus, Ohio
$9,153,356.00 March 31, 2002
On or before September 30, 2003 (the "Initial Due Date"), which Initial
Due Date may be extended by Ocwen Financial Corporation, a Florida corporation
("Ocwen"), in accordance with Section 1.3(a) of the Term Loan Agreement (defined
hereinafter), as reproduced below, for value received, the undersigned, Balanced
Care Realty (OFC), Inc., a Delaware corporation ("Borrower"), promises to pay to
the order of Ocwen or its successors or assigns, the principal amount of Nine
Million One Hundred Fifty-Three Thousand Three Hundred Fifty-Six Dollars
($9,153,356.00) together with interest on the unpaid principal balance of the
loan made hereunder ("Loan") until paid in full. Both principal and interest are
payable in federal funds or other immediately-available money of the United
States of America at Ocwen Financial Corporation, 0000 Xxxx Xxxxx Xxxxx Xxxx.,
Xxxx Xxxx Xxxxx, XX 00000.
Section 1. Term Loan Agreement. This Term Note is the Term Note referred
to in the Term Loan Agreement, of even date herewith, by and among Ocwen,
Borrower, Balanced Care Corporation, a Delaware corporation, Balanced Care at
Xxxxxx, Inc., a Delaware corporation, Balanced Care at Centerville, Inc., a
Delaware corporation, Balanced Care at Shippensburg, Inc., a Delaware
corporation, and Senior Care Operators of Shippensburg, LLC, a Delaware limited
liability company, as the same may be amended, modified, or supplemented from
time to time, which Term Loan Agreement is incorporated by reference herein
("Term Loan Agreement"). All capitalized terms used herein shall have the same
meanings as are assigned to such terms in the Term Loan Agreement. This Term
Note is entitled to the benefits of and is subject to the terms, conditions and
provisions of the Term Loan Agreement. The Term Loan Agreement, among other
things, contains provisions for acceleration of the maturity hereof upon the
happening of certain stated events, additional payments owed by Borrower to
Ocwen upon to occurrence of certain stated events, as described in Section 1.6
(attached hereto as Exhibit A) of the Term Loan Agreement, as well as additional
terms and conditions that are binding upon Borrower as set forth in the Term
Loan Agreement.
Section 1.3(a) of the Term Loan Agreement contains the terms and
provisions pursuant to which an extension of the Initial Due Date may be granted
by Xxxxx. Section 1.3(a) is reproduced below:
(a) Term. The Term Note shall be dated as of the date of the Effective
Date and shall be due and payable in full on or before September 30, 2003
("Initial Due Date") unless this Agreement is sooner terminated in
accordance with the terms and conditions of this Agreement. Provided that
no Event of Default has occurred (other than a Default that has been cured
during any applicable cure period) or is continuing, Ocwen shall allow one
extension of eighteen (18) months from the Initial Due Date ("Extension"),
in which case the Term Note shall be due and payable in full on or before
March 31, 2005 ("Extended Due Date"); provided, however, that the
following conditions are met by Borrower: (i) Borrower must request such
Extension by providing written notice of same to Ocwen no later than sixty
(60) days prior to the Initial Due Date; (ii) Borrower makes a principal
payment under the Loan and Term Note of at least One Million Dollars
($1,000,000.00) prior to the Initial Due Date; and (iii) Borrower pays to
Ocwen a nonrefundable fee for the Extension of Ninety Thousand One Hundred
Sixty Dollars ($90,160.00) prior to the Initial Due Date. Except for the
Extension, Ocwen shall not be required to extend the term of the Loan or
otherwise amend, modify, or supplement this Agreement; provided, however,
that Ocwen may, in its sole and absolute discretion, upon such
preconditions as Ocwen may establish, in its sole and absolute discretion,
extend the term of the Loan or otherwise agree with Borrower to an
amendment, modification, or supplement to this Agreement. Except for the
Extension, Xxxxx's agreement, if any, to take any of the foregoing actions
must be in writing to be enforceable against Xxxxx. In the event Ocwen
allows any extension of the Loan beyond the initial Extension contemplated
above, the term "Extension" used hereinafter shall also include the
extended term permitted by Ocwen not originally contemplated by this
Agreement.
Section 2. Interest Rate. This Term Note shall bear interest during the
period from the date hereof on the unpaid principal balance of the Loan made
hereunder until paid in full at a fixed rate of eight percent (8%) per annum,
provided, (i) that during an Event of Default, a Default Rate shall apply under
the
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terms of Section 2.1 et. al of the Term Loan Agreement, and (ii) that in no
event shall such interest rate exceed the maximum interest rate which is
permissible from time to time pursuant to applicable laws. Such interest shall
be computed on the basis of a 360-day year consisting of twelve (12) consecutive
thirty (30) day months.
Section 3. Interest Payment. Interest for the prior month shall be payable
on the eleventh (11th) day of each month commencing May 11, 2002, and thereafter
payable on the eleventh (11th) day of each month during the term of the Term
Loan Agreement. If a monthly interest payment is not made by Xxxxxxxx and
received by Ocwen by the sixteenth (16th) day of any month during the term of
the Loan, including during any Extension, Borrower shall pay to Ocwen a late fee
equal to five percent (5%) of the monthly interest payment that was due on the
11th day of the month.
Section 4. Principal Payments. Unless Borrower desires an Extension, and
makes the principal payment required in connection therewith, as set forth in
Section 1.3(a) of the Term Loan Agreement (reproduced herein), Borrower shall
not be required to make principal payments during the term of the Loan. That is,
interest only is payable on the Loan during the term of the Loan until the
Initial Due Date, when the entire principal balance and any accrued interest
thereon is due and payable in full, unless Borrower elects an Extension, in
accordance with the provisions of Section 1.3(a) of the Term Loan Agreement, in
which case Borrower shall continue to pay Ocwen monthly interest payments as
described above until the Extended Due Date (as defined in the Term Loan
Agreement), when the entire principal balance and any accrued interest thereon
is due and payable in full.
Section 5. Prepayments. Subject to the provisions of Section 1.6 of the
Term Loan Agreement (attached hereto as Exhibit A), the principal of this Term
Note may be prepaid in whole at any time or in part from time to time in any
amount. Each prepayment shall be accompanied by the payment of accrued interest
on the principal so prepaid to the date of such prepayment and such additional
amounts as may be due pursuant to the Term Loan Agreement. All payments received
under this Term Note, whether interest or principal, shall be credited to
Borrower in inverse order of their maturities. That is, the most recent payment
received shall be credited to the first of the payments due and owing by
Borrower to Xxxxx.
Section 6. Additional Payments. Xxxxxxxx acknowledges, understands, and
agrees that terms and conditions set forth in
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Section 1.6 of the Term Loan Agreement, describing additional payments due Ocwen
from Borrower upon the occurrence of certain specified events, are binding upon
Borrower as if fully set forth herein and such additional payments are in
addition to, and not in lieu of, the repayment of the Loan. Such provisions are
attached hereto as Exhibit A.
Section 7. Setoff. Any and all moneys now or at any time hereafter owing
to the Borrower from the holder hereof, are hereby pledged for the security of
this and all other Indebtedness from the Borrower to the holder hereof, and may,
upon the occurrence of any Event of Default, be paid and applied thereon whether
such Indebtedness be then due or is to become due.
Section 8. Term Loan Agreement. As described above, all of the terms,
conditions, and provisions of the Term Loan Agreement are applicable to this
Term Note and are incorporated herein by reference. Borrower is a party to such
Term Loan Agreement and hereby acknowledges receipt of a copy of same. Nothing
set forth in this Term Note is intended or shall be construed to release,
mitigate, or limit any obligation or duty of any party to the Term Loan
Agreement which is set forth in the Term Loan Agreement, or to waive, discharge
or abrogate any right or interest of any party to the Term Loan Agreement of any
right or interest set forth therein. In the event of any conflict between the
terms of this Term Note and the Term Loan Agreement, the terms of the Term Loan
Agreement shall control.
Section 9. Jury Waiver. XXXXXXXX AND OCWEN (BY ITS ACCEPTANCE HEREOF)
HEREBY VOLUNTARILY, KNOWINGLY, IRREVOCABLY AND UNCONDITIONALLY WAIVE ANY RIGHT
TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE (WHETHER BASED ON CONTRACT,
TORT, OR OTHERWISE) BETWEEN OR AMONG THEM ARISING OUT OF OR IN ANY WAY RELATED
TO, IN CONNECTION WITH, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED AMONG
THEM IN CONNECTION WITH THIS TERM NOTE OR THE TRANSACTIONS CONTEMPLATED BY THIS
TERM NOTE. THIS PROVISION IS A MATERIAL INDUCEMENT TO OCWEN TO PROVIDE THE
FINANCING EVIDENCED BY THIS TERM NOTE. THIS PROVISION SHALL NOT IN ANY WAY
AFFECT, WAIVE, LIMIT, AMEND OR MODIFY OCWEN'S ABILITY TO PURSUE ITS REMEDIES
INCLUDING, BUT NOT LIMITED TO, ANY CONFESSION OF JUDGMENT OR COGNOVIT PROVISION
CONTAINED IN THIS TERM NOTE.
Section 10. Warrant of Attorney. Borrower hereby authorizes any attorney
at law to appear for Borrower in any action on any or all of the monetary
obligations of Borrower set forth herein at any time after such obligations
become due, whether by acceleration or otherwise, in any federal court or court
of record
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in or of the State of Ohio or elsewhere, to waive the issuing and service of
process against, and to confess judgment against the Borrower in favor of Xxxxx
for the amount that may be due, including interest, late charges, collection
costs, attorneys' fees and the like, and costs of suit, and to waive and release
all errors in said proceedings and judgments, and all petitions in error and
rights of appeal from the judgments rendered. The foregoing warrants of attorney
shall survive any judgment, and, if any judgment be vacated for any reason, the
holder hereof nevertheless may thereafter use the foregoing warrant of attorney
to obtain an additional judgment or judgments against the Borrower. The Borrower
hereby waives any conflict of interest in Xxxxx's attorney confessing judgment
against the Borrower pursuant to the foregoing warrant of attorney and further
agrees that the attorney confessing judgment pursuant to the foregoing warrant
of attorney may receive a legal fee or other thing of value from Xxxxx.
Section 11. Pennsylvania Cognovit Provisions. The following provisions in
this Section 11 shall apply only in the event that Xxxxx elects to seek a
judgment on this Term Note in any court in Pennsylvania, as opposed to Ohio, and
are included herein for no other purpose. In the event that Xxxxx so elects,
Xxxxx agrees to provide any notice required by Pennsylvania law with respect to
the exercise by Xxxxx of its rights under the following provisions.
(i) POWER TO CONFESS JUDGMENT: BORROWER HEREBY AUTHORIZES AND EMPOWERS THE
PROTHONOTARY OR ANY ATTORNEY OF ANY COURT OF RECORD WITHIN THE COMMONWEALTH OF
PENNSYLVANIA OR ELSEWHERE TO APPEAR FOR XXXXXXXX, AND, WITH OR WITHOUT
DECLARATION FILED, CONFESS JUDGMENT AGAINST XXXXXXXX AND IN FAVOR OF OCWEN, AS
OF ANY TERM, FOR THE UNPAID OBLIGATIONS HEREUNDER, INCLUDING WITHOUT LIMITATION
ALL ACCRUED AND UNPAID CHARGES PAYABLE HEREUNDER, WHETHER BY ACCELERATION OR
OTHERWISE, WITH COSTS OF SUIT AND A REASONABLE ATTORNEY'S COMMISSION OF 15%,
WITH RELEASE OF ALL ERRORS, WAIVING ALL LAWS EXEMPTING REAL OR PERSONAL PROPERTY
FROM EXECUTION, TO THE EXTENT THAT SUCH LAWS MAY LAWFULLY BE WAIVED. NO SINGLE
EXERCISE OF THE FOREGOING POWER TO CONFESS JUDGMENT SHALL BE DEEMED TO EXHAUST
THE POWER, WHETHER OR NOT ANY SUCH EXERCISE SHALL BE HELD BY ANY COURT TO BE
VALID, VOIDABLE, OR VOID, BUT THE POWER SHALL CONTINUE UNDIMINISHED AND IT MAY
BE EXERCISED FROM TIME TO TIME AND AS OFTEN AS OCWEN SHALL ELECT, UNTIL SUCH
TIME AS ALL AMOUNTS AND ALL OTHER MATERIAL OBLIGATIONS OF BORROWER HEREUNDER
SHALL HAVE BEEN SATISFIED.
BY SIGNING THIS INSTRUMENT, BORROWER HEREBY ACKNOWLEDGES THAT XXXXXXXX HAS
READ THIS AGREEMENT (INCLUDING WITHOUT LIMITATION THE
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CONFESSION OF JUDGMENT SET FORTH HEREIN), HAS HAD THE OPPORTUNITY TO HAVE THE
SAME REVIEWED BY LEGAL COUNSEL, UNDERSTANDS THE SAME, AND AGREES TO THE
PROVISIONS CONTAINED HEREIN, INCLUDING, WITHOUT LIMITATION, THE CONFESSION OF
JUDGMENT PROVISIONS AND UNDERSTANDS THAT A CONFESSION OF JUDGMENT CONSTITUTES A
WAIVER OF RIGHTS BORROWER OTHERWISE WOULD HAVE TO PRIOR NOTICE AND A HEARING
BEFORE A JUDGMENT IS ENTERED AGAINST BORROWER AND WHICH MAY RESULT IN A COURT
JUDGMENT AGAINST BORROWER WITHOUT PRIOR NOTICE OR HEARING AND THAT THE
OBLIGATIONS MAY BE COLLECTED FROM BORROWER REGARDLESS OF ANY CLAIM BORROWER MAY
HAVE AGAINST OCWEN OR OTHERWISE.
/s/Xxxxx X. Xxxxxx
SIGNATURE
(ii) POWER TO EXECUTE ON A JUDGMENT WITHOUT HEARING: BORROWER HEREBY
AUTHORIZES AND EMPOWERS THE PROTHONOTARY OR ANY ATTORNEY OF ANY COURT OF RECORD
OR THE SHERIFF (OR THE LAWFUL DESIGNEE OF THE SHERIFF) WITHIN ANY COUNTY OF THE
COMMONWEALTH OF PENNSYLVANIA OR ELSEWHERE, TO TAKE ALL ACTION ALLOWED BY OR
PROVIDED FOR IN THE PENNSYLVANIA RULES OF CIVIL PROCEDURE OR OTHER APPLICABLE
RULES OF CIVIL PROCEDURE TO EXECUTE ON ANY JUDGMENT ENTERED AGAINST BORROWER
PURSUANT TO THE CONFESSION OF JUDGMENT SET FORTH ABOVE WITHOUT PRIOR NOTICE OR
HEARING OF ANY NATURE WHATSOEVER, WAIVING ALL LAWS EXEMPTING REAL OR PERSONAL
PROPERTY FROM EXECUTION TO THE EXTENT THAT SUCH LAWS MAY LAWFULLY BE WAIVED. NO
SINGLE EXERCISE OF THE FOREGOING POWER TO EXECUTE ON JUDGMENTS WITHOUT A HEARING
SHALL BE DEEMED TO EXHAUST THE POWER, WHETHER OR NOT ANY SUCH EXERCISE SHALL BE
HELD BY ANY COURT TO BE VALID, VOIDABLE OR VOID, BUT THE POWER SHALL CONTINUE
UNDIMINISHED AND IT MAY BE EXERCISED FROM TIME TO TIME AS OFTEN AS OCWEN SHALL
ELECT.
BY SIGNING THIS AGREEMENT, XXXXXXXX HEREBY ACKNOWLEDGES THAT XXXXXXXX HAS
READ THIS AGREEMENT (INCLUDING, WITHOUT LIMITATION, THE CONFESSION OF JUDGMENT
AND THE POWER TO EXECUTE ON A JUDGMENT WITHOUT A HEARING), HAS HAD THE
OPPORTUNITY TO HAVE THIS AGREEMENT REVIEWED BY LEGAL COUNSEL, UNDERSTANDS AND
AGREES TO THE PROVISIONS CONTAINED HEREIN, INCLUDING, WITHOUT LIMITATION, THE
POWERS TO EXECUTE ON JUDGMENT WITHOUT A HEARING, AND UNDERSTANDS THAT THE POWER
TO EXECUTE ON A JUDGMENT WITHOUT A HEARING CONSTITUTES A WAIVER OF RIGHTS
BORROWER OTHERWISE WOULD HAVE TO PRIOR NOTICE AND A HEARING BEFORE EXECUTION ON
A JUDGMENT, AND THAT THE OBLIGATIONS MAY BE COLLECTED FROM BORROWER REGARDLESS
OF ANY CLAIM THAT BORROWER MAY HAVE AGAINST OCWEN OR OTHERWISE.
/s/Xxxxx X. Xxxxxx
SIGNATURE
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IN WITNESS WHEREOF, the Borrower has caused this TERM NOTE to be duly
executed and delivered by its duly authorized representative as of the date
first above written.
BORROWER:
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WARNING-BY SIGNING THIS PAPER YOU GIVE UP YOUR RIGHT TO NOTICE AND COURT TRIAL.
IF YOU DO NOT PAY ON TIME A COURT JUDGMENT MAY BE TAKEN AGAINST YOU WITHOUT YOUR
PRIOR KNOWLEDGE AND THE POWERS OF A COURT CAN BE USED TO COLLECT FROM YOU
REGARDLESS OF ANY CLAIMS YOU MAY HAVE AGAINST THE CREDITOR WHETHER FOR RETURNED
GOODS, FAULTY GOODS, FAILURE ON HIS PART TO COMPLY WITH THE AGREEMENT, OR ANY
OTHER CAUSE.
================================================================================
BALANCED CARE REALTY (OFC), INC.
By:/s/Xxxxx X. Xxxxxx
Print Name: Xxxxx X. Xxxxxx
Its: Vice President and Secretary
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EXHIBIT A
ADDITIONAL PAYMENT PROVISIONS
Section 1.6 Additional Payments. The Borrower shall make the additional payments
described below ("Additional Payments") to Ocwen, in addition to repaying the
Loan at the Interest Rate, which Additional Payments shall be due and payable as
follows:
(a) If, on or prior to the (i) Initial Due Date; or (ii) the date that the
Loan is paid in full, in the event that the Loan is not paid in full on the
Initial Due Date and an Extension has not been granted, there occurs:
(A) a sale of a Project by Borrower to any Person other than an
Affiliate of Borrower, after the requirements of Section 8 of the Negative
Covenants set forth on Exhibit B hereof have been satisfied, or in violation
thereof ("Sale"); or,
(B) a repayment in full of the Loan by Xxxxxxxx, Balanced Care, LMR
or any other party, as a result of a refinancing, payment at maturity, or for
any reason whatsoever ("Payoff"), and within six (6) months thereafter, there is
a Sale of a Project; or, a Project is completely condemned or is conveyed by
Borrower in lieu of condemnation proceedings (as used hereinafter
"Condemnation"),
then, the Borrower shall pay Ocwen, as additional consideration for
the funds advanced pursuant to the Loan, and as a prepayment or default penalty,
as applicable, a sum equal to fifty percent (50%) of the Net Proceeds ("Proceeds
Payment").
(b) After an Extension, if, on or prior to an (i) Extended Due Date
(hereinafter defined); or (ii) the date that the Loan is paid in full, in the
event that the Loan is not paid in full on the Extended Due Date and another
Extension has not been granted, there occurs:
(A) a Sale; or,
(B) a Payoff, and within six (6) months thereafter, there is a Sale
of a Project, or a Condemnation,
then, the Borrower shall pay Ocwen, as additional consideration for
the funds advanced pursuant to the Loan, and as a prepayment or default penalty,
as applicable, a sum equal to
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thirty-five percent (35%) of the Net Proceeds ("Extended Proceeds Payment").
(c) If, within the six (6) month period following the payment in full of
the Loan by Xxxxxxxx, there is not a Sale of any Project, or a Condemnation,
then the Borrower shall have no obligation to make either a Proceeds Payment or
an Extended Proceeds Payment to Ocwen.
(d) Any Proceeds Payment or Extended Proceeds Payment due Ocwen pursuant
to this Section 1.6 shall be paid by Borrower to Ocwen in immediately available
funds of U.S. currency on one of the following, as applicable: (i) the closing
date of any Sale, or (ii) the date on which the condemnation proceeds are
received by Xxxxxxxx, including proceeds from a conveyance in lieu of a
condemnation proceeding, in the event of a Condemnation.
(e) As used herein, "Net Proceeds" shall mean the following:
(i) With respect to a Sale, the amount, if any, by which the gross
proceeds of any Sale plus (1) the amount of any casualty insurance proceeds
previously received by Borrower or due Borrower but not yet paid at the time of
the Sale relating to a particular Project, and (2) the amount of any
previously-received condemnation proceeds, or such proceeds that are due
Borrower but not yet paid at the time of the Sale, including proceeds received
as a result of a partial conveyance of a Project (or real property constituting
a Project) in lieu of condemnation thereof, both of which have not been applied
or used by Borrower to repair or restore the Projects as a result of the
casualty or condemnation, or which have not otherwise been used to pay down the
outstanding balance of the Loan, less (3) actual, and to the extent reasonable,
third-party sales costs, including without limitation, broker commissions,
standard pro-rations, transfer tax, title premiums, and other similar actual and
reasonable third - party costs and expenses required in order to consummate the
Sale, exceed $14,183,812.45.
(ii) With respect to a Condemnation, the amount, if any, by which
the gross proceeds of any Condemnation plus (1) the amount of any casualty
insurance proceeds previously received by Borrower or due Borrower but not yet
paid at the time of the Condemnation relating to a particular Project, and (2)
the amount of any previously-received condemnation proceeds, or such proceeds
that are due Borrower but not yet paid to Borrower at the time of the
Condemnation, including proceeds received as a result of a partial conveyance of
a Project (or real property constituting a
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Project) in lieu of condemnation thereof, both of which have not been applied or
used by Borrower to repair or restore the Projects as a result of the casualty
or condemnation, or which have not otherwise been used to pay down the
outstanding balance of the Loan, less (3) actual, to the extent reasonable,
third-party costs, including legal fees, incurred by Borrower in connection with
the Condemnation, exceed $14,183,812.45.
(f) Notwithstanding any provision to the contrary contained in this
Agreement or in any other Loan Document, at the time of the closing of a Sale or
Payoff, provided that the Term Note (without regard to payments that may be due
as a result of this Section 1.6), and if required pursuant to the terms hereof
and thereof, the BCC Note and the Deferred Purchase Price Note, are paid in full
on or prior to the closing of such Sale or Payoff, Ocwen shall file appropriate
documentation to release the Mortgages, security interests granted pursuant to
the Security Agreement, and the Subordinate Mortgages, all of the foregoing at
Borrower's expense. The Proceeds Payment and the Extended Proceeds Payment shall
be secured thereafter only by the Guarantee provided by Balanced Care.
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