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Exhibit 10.1
NOTE
$900,000.00 October 31, 2000
Mechanicsburg, Pennsylvania
FOR VALUE RECEIVED, BALANCED CARE CORPORATION, a corporation
organized under the laws of the State of Delaware ("Borrower"), shall pay to the
order of HEALTH CARE REIT, INC., a corporation organized under the laws of the
State of Delaware ("Lender"), the principal sum of Nine Hundred Thousand and
00/100 Dollars ($900,000.00), or so much thereof as shall have been advanced to
Borrower, with interest on so much thereof as shall from time to time be
outstanding at the rate of interest set forth below, until fully paid.
1. Definitions.
"Amortization Date" means the fourth anniversary of
the Commencement Date.
"Business Day" means any day which is not a Saturday
or Sunday or a public holiday under the laws of the United States of America or
the State of Ohio.
"Closing Date" means the date of this note.
"Collateral Document" means any document providing
security for or guarantee of repayment of this note.
"Commencement Date" means [i] the Closing Date if the
Closing Date occurs on the first day of a month or [ii] the first day of the
month after the Closing Date if the Closing Date occurs on any day other than
the first day of the month.
"Default Rate" means 2.50% plus the then applicable
interest rate.
"Event of Default" has the meaning set forth in
Section 7.
"Facilities" have the meaning set forth in the
Leases.
"Leases" means the Lease Agreement by which
affiliates of Lender lease the Facilities to Tenants.
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"Loan" means the loan evidenced by this note.
"Loan Advance" means each advance of proceeds of the
Loan.
"Maturity Date" means the earlier of [i] November 1,
2008; or [ii] the date on which Tenants acquire fee simple title to the
Facilities pursuant to the Options to Purchase the Facilities under the Leases.
"Mortgages" means the leasehold mortgages from
Tenants for the benefit of Lender on the leasehold interest of Tenants arising
under the Leases, any amendments thereto or substitutions or replacements
thereof.
"State" means the Commonwealth of Pennsylvania.
"Tenants" mean Financial Care Investors of Lebanon,
LLC, Financial Care Investors of Loyalsock, LLC, Financial Care Investors of
Morristown, LLC, Financial Care Investors of Oak Ridge, LLC, Financial Care
Investors of Westerville, LLC, and Financial Care Investors of Sagamore Hills,
LLC.
2. Interest Rate.
(a) Initial Rate. Interest shall accrue on the principal
amount outstanding from and after the Closing Date until the Maturity Date at
the rate of 12% per annum.
(b) Post-Maturity Rate. If the outstanding balance of this
note has not been paid in full by the Maturity Date, the interest rate on this
note shall be at the Default Rate.
(c) Default Rate. After the occurrence and during the
continuance of an Event of Default, Borrower shall pay interest on this note,
and on any judgment on this note, at the Default Rate.
(d) Computation Method. All interest rates shall be calculated
based on the actual number of days elapsed over a 360-day year (365/360 method).
3. Payments. Borrower shall make payments in accordance with
the following:
(a) On the Commencement Date, Borrower shall make a payment of
interest on the outstanding principal balance of this note for the period
commencing on the Closing Date and ending on the day before the Commencement
Date. If the Closing Date occurs
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on the first day of a month, this paragraph shall not apply and no payment is
due on the Commencement Date.
(b) On the first day of the first month after the Commencement
Date and on the first day of each month thereafter to and including the
Amortization Date, Borrower shall pay accrued interest only on the outstanding
principal balance at the Initial Rate for the period commencing on the
Commencement Date and ending on the day before the Amortization Date.
(c) Commencing on the first day of the first month after the
Amortization Date and on the first day of each month thereafter until the
Maturity Date, Borrower shall make monthly payments of principal and interest in
an amount sufficient to fully amortize the outstanding principal balance of this
note during the period commencing on the Amortization Date at the applicable
interest rate then in effect based upon a 4-year amortization period.
(d) On the Maturity Date or upon prepayment of this note,
Borrower shall pay the outstanding principal balance of this note, all accrued
and unpaid interest, and all charges, expenses and other amounts payable by
Borrower to Lender.
4. Method and Place of Payment. Borrower shall make all
payments on this note at One SeaGate, Suite 1500, P.O. Box 1475, Toledo, Ohio
43603, or at such other place as the holder hereof may designate in writing.
Borrower shall make all payments in lawful money of the United States of America
in immediately available funds.
5. Prepayment. Borrower may prepay all or any portion of the
outstanding principal balance of this note, all accrued and unpaid interest, and
all charges, expenses and other amounts payable by Borrower to Lender at any
time without payment of any prepayment fee.
6. Application of Payments. Unless Lender elects otherwise, in
its sole discretion, all payments and other amounts received by Lender shall be
credited as follows: [i] first, to any charges, costs, expenses and fees payable
by Borrower under this note, or incurred by Lender for the protection of any
collateral securing the payment of this note, if not paid by Borrower by the due
date; [ii] second, to interest on the foregoing amounts at the Default Rate from
the due date or date of payment by ▇▇▇▇▇▇, as the case may be; [iii] third, to
accrued but unpaid interest on this note; [iv] fourth, to the principal amount
outstanding; and [v] the balance, if any, to Borrower.
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7. Default. Any one or more of the following events shall
constitute an "Event of Default" hereunder without advance notice to ▇▇▇▇▇▇▇▇,
such notice being expressly waived by ▇▇▇▇▇▇▇▇.
(a) Borrower fails to pay any payment due under this note or
any other monetary obligation payable by Borrower under this note within 10 days
after such payment is due.
(b) The occurrence of an Event of Default under any of the
Leases shall be an Event of Default hereunder.
8. Acceleration. Upon the occurrence of any Event of Default,
in addition to all other remedies available to Lender, any security for or
guarantee of this note, and at law or in equity, at the option of Lender [i] the
outstanding principal balance of this note, all accrued and unpaid interest
thereon, and all other amounts payable by Borrower to Lender shall be
immediately due and payable, and [ii] all such amounts shall bear interest at
the Default Rate from the date of the Event of Default until paid. Lender may
exercise either or both options without notice or demand of any kind.
9. Governing Law. This note shall be governed by and construed
in accordance with the internal laws of the State, without giving effect to the
conflict of laws rules thereof.
10. Time is of the Essence. Time is of the essence in the
payment of this note. All grace periods in the Lease and any Collateral Document
that apply to a default shall run concurrently.
11. Holidays. If any installment of this note becomes due on a
day which is not a Business Day, Borrower may pay the installment on the next
succeeding day on which banking institutions are open.
12. Waivers. None of the following shall be a course of
dealing, estoppel, waiver or the like on which any party to this note or any
Collateral Document may rely: [i] Lender's acceptance of one or more late or
partial payments; [ii] Lender's forbearance from exercising any right or remedy
under this note or any Collateral Document; or [iii] Lender's forbearance from
exercising any right or remedy under this note or any Collateral Document on any
one or more occasions. ▇▇▇▇▇▇'s exercise of any rights or remedies or a part of
a right or remedy on one or more occasions shall not preclude Lender from
exercising the right or remedy at any other time. ▇▇▇▇▇▇'s rights and remedies
under this
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note, the Collateral Documents, and the law and equity are cumulative to,
but independent of, each other.
13. Representations. Each party to this note and each
Collateral Document: [i] acknowledges that Lender would not have extended the
credit evidenced by this note and will not continue to extend the credit but for
the obligations of each; [ii] warrants that each has executed this note or
Collateral Documents to induce Lender to extend and to continue to extend the
credit; [iii] warrants that each has received good and valuable consideration
for executing this note or any Collateral Document; and [iv] warrants that none
have executed this note or any Collateral Document in reliance upon the
existence of the security for or guaranty or promise of the payment of this
note.
14. Indulgences. Without notice, Lender may do or refrain from
doing anything affecting this note or any Collateral Document, as many times as
Lender desires, including the following [i] granting or not granting any
indulgences to anyone liable for payment of this note or to anyone liable under
any Collateral Document; [ii] releasing any security or anyone or any property
from liability on this note or any Collateral Document; [iii] amending this note
or any Collateral Document, including extending the time for payment of this
note, in accordance the terms of such Collateral Documents.
15. No Release of Liability. No obligations of any party to
this note shall be affected by [i] any default in this note or any Collateral
Document when accepted by Lender or arising any time thereafter; [ii] the
unenforceability of or defect in this note or in any Collateral Document or any
interest conveyed by any Collateral Document; [iii] any decline in the value of
any interest in any property conveyed by any Collateral Document; or, [iv] the
death, incompetence, insolvency, dissolution, liquidation or winding up of
affairs of any party to this note or any Collateral Document or the start of
insolvency proceedings by or against any such party. EACH PARTY TO ANY
COLLATERAL DOCUMENT WAIVES ALL SURETYSHIP DEFENSES. No party to this note or any
Collateral Document may enforce any right of subrogation or contribution unless
and until this note is paid in full and waives all rights of subrogation against
any party that is subject to insolvency proceedings unless and until this note
is paid in full.
16. Notices. All notices, demands, requests and consents
(hereinafter "notices") given pursuant to this note shall be in writing, and
shall be served by [i] personal delivery, [ii] United States Mail, postage
prepaid; or [iii] nationally recognized overnight courier to the following
addresses:
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To Borrower: Balanced Care Corporation
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
To Lender: Health Care REIT, Inc.
One SeaGate, Suite 1500
P.O. Box 1475
Toledo, Ohio 43603
All notices shall be deemed to be given upon the earlier of actual receipt or
three days after deposit in the United States mail or one business day after
deposit with the overnight courier. ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇ may change their notice
address at any time by giving the other party written notice of such change.
17. Representation and Warranty Regarding Business Purpose.
Borrower represents and warrants that the loan evidenced by this note is for
business purposes only and not for personal, family, household, or agricultural
purposes.
18. Security. This note is secured by the Mortgages.
19. Protest. Each party to this note jointly and severally
waives protest, notice of protest, demand, dishonor or default, presentment for
payment, notice of intent to declare this note immediately due and payable,
notice of declaration that this note is immediately due and payable in full, all
other notices, and all demands.
20. Savings Clause. The intention of ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇ is to
comply with the laws of the State concerning the rate of interest on this note.
Notwithstanding any other provision in this note or in any other document given
in connection with this note, Borrower shall not be required to pay interest in
excess of the maximum lawful rate. To the extent the amount of interest provided
in this note ever exceeds the maximum lawful rate (the "Excess Interest"), [i]
the provisions of this paragraph shall govern and control; [ii] Borrower shall
not be obligated to pay any Excess Interest; [iii] any Excess Interest that
Lender may have received shall be credited against the then outstanding balance
due under this note and, if the Excess Interest exceeds the outstanding balance,
the excess amount shall be refunded to Borrower; [iv] the rate of interest under
this note shall be automatically reduced to the maximum lawful rate and this
note and any other documents given in connection therewith shall be deemed
reformed and modified to reflect such reduction; and [v] subject to the
foregoing provisions of this paragraph, Borrower shall have no action or remedy
against Lender for any
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damages whatsoever or any defense to enforcement of the note or any other
documents given in connection therewith arising out of the payment or collection
of any Excess Interest. In determining whether interest paid or payable on this
note exceeds the maximum lawful rate, ▇▇▇▇▇▇▇▇ agrees to exclude voluntary
prepayment fees from the calculation of interest and to spread the total amount
of interest throughout the entire contemplated term of this note.
21. Attorney's Fees and Expenses. Borrower shall pay to Lender
all reasonable costs and expenses incurred by ▇▇▇▇▇▇ in enforcing or preserving
Lender's rights under this note, any Collateral Document, and in all matters of
collection, provided an Event of Default has actually occurred or has been
declared and thereafter cured, including but not limited to, [i] attorney's and
paralegal's fees and disbursements; [ii] the fees and expenses of any
litigation, administrative, bankruptcy, insolvency, receivership and any other
similar proceeding; [iii] court costs; [iv] the expenses of Lender, its
employees, agents, attorneys and witnesses in preparing for litigation,
administrative, bankruptcy, insolvency and other proceedings and for lodging,
travel, and attendance at meetings, hearings, depositions, and trials; and [v]
consulting and witness fees incurred by ▇▇▇▇▇▇ in connection with any litigation
or other proceeding, but excluding ▇▇▇▇▇▇'s internal bookkeeping and routine
loan servicing costs.
22. Severability. If any clause, provision, section or article
of this note is ruled invalid by any court of competent jurisdiction, the
invalidity of such clause, provision, section, or article shall not affect any
of the remaining provisions hereof.
23. Assignment. Borrower shall not assign its rights nor
delegate its obligations under this note.
24. Amendment. This note may not be amended except in writing
signed by ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇. All references to this note, whether in this note
or in any other document or instrument, shall be deemed to incorporate all
amendments, modifications, and renewals of this note and all substitutions made
therefor after the date hereof.
25. Use of Proceeds. Borrower shall use the proceeds to
finance the purchase by wholly-owned subsidiaries of Borrower of the equity
interests of Financial Care Investors, LLC in the Tenants.
26. CONSENT TO JURISDICTION. BORROWER HEREBY IRREVOCABLY
SUBMITS AND CONSENTS TO THE NON-EXCLUSIVE JURISDICTION
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AND VENUE OF ANY STATE OR FEDERAL COURT HAVING JURISDICTION OVER ▇▇▇▇▇ COUNTY,
OHIO OR CUMBERLAND COUNTY, PENNSYLVANIA FOR ANY ACTION OR PROCEEDING TO ENFORCE
OR DEFEND ANY MATTER ARISING FROM OR RELATED TO [I] THE TERM SHEET FOR THE LOAN
EVIDENCED BY THIS NOTE; [II] THIS NOTE; OR [III] ANY LOAN DOCUMENT EXECUTED IN
CONNECTION WITH THIS NOTE. BORROWER HEREBY IRREVOCABLY WAIVES, TO THE FULLEST
EXTENT BORROWER MAY EFFECTIVELY DO SO, THE DEFENSE OF AN INCONVENIENT FORUM TO
THE MAINTENANCE OF ANY SUCH ACTION OR PROCEEDING. ▇▇▇▇▇▇▇▇ AGREES THAT A FINAL
JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE
ENFORCED IN ANY OTHER JURISDICTION BY SUIT ON THE JUDGMENT OR IN ANY OTHER
MANNER PROVIDED BY LAW.
▇▇▇▇▇▇▇▇ AND ANY GUARANTOR AGREE NOT TO INSTITUTE ANY LEGAL
ACTION OR PROCEEDING AGAINST LENDER OR ANY DIRECTOR, OFFICER, EMPLOYEE, AGENT OR
PROPERTY OF ▇▇▇▇▇▇, CONCERNING ANY MATTER ARISING OUT OF OR RELATING TO THE TERM
SHEET, THIS NOTE OR ANY LOAN DOCUMENT IN ANY COURT OTHER THAN A STATE OR FEDERAL
COURT HAVING JURISDICTION OVER ▇▇▇▇▇ COUNTY, OHIO.
BORROWER HEREBY CONSENTS TO SERVICE OF PROCESS BY LENDER IN
ANY MANNER AND IN ANY JURISDICTION PERMITTED BY LAW. NOTHING HEREIN SHALL AFFECT
OR IMPAIR ▇▇▇▇▇▇'S RIGHT TO SERVE LEGAL PROCESS IN ANY MANNER PERMITTED BY LAW,
OR ▇▇▇▇▇▇'S RIGHT TO BRING ANY ACTION OR PROCEEDING AGAINST BORROWER OR THE
PROPERTY OF BORROWER OR ANY GUARANTOR IN THE COURTS OF ANY OTHER JURISDICTION.
27. WAIVER OF JURY TRIAL. TO THE FULLEST EXTENT PERMITTED BY LAW, ▇▇▇▇▇▇▇▇ AND
ANY GUARANTOR HEREBY KNOWINGLY AND VOLUNTARILY WAIVE THE RIGHT TO A JURY TRIAL
IN ANY ACTION, PROCEEDING OR COUNTERCLAIMS ARISING OUT OF OR RELATING TO THIS
NOTE.
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IN WITNESS WHEREOF, the undersigned has executed this note
effective as of the date first set forth above.
BALANCED CARE CORPORATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Senior Vice President -
Legal Counsel
and Assistant Secretary
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