Exhibit 10.8
AMENDMENT NO. 1 TO LOAN
AGREEMENT
THIS AMENDMENT NO. 1 TO LOAN
AGREEMENT (this “ Amendment ”) is entered into
as of April 14, 2009, by and between BROTMAN MEDICAL
CENTER, INC. , a California corporation (“
Borrower ”) and JHA WEST 16, LLC , a Delaware
limited liability company (“ Lender
”).
RECITALS
WHEREAS, Borrower and Lender
(collectively, the “ Parties ”) are parties to
that certain Loan Agreement, dated as of July 9, 2008 (the
“ Loan Agreement ”);
WHEREAS, the Parties have determined
that it is in their respective best interests to amend the Loan
Agreement as specified herein; and
WHEREAS, capitalized terms used, but
not otherwise defined herein, shall have the meanings given to such
terms in the Loan Agreement.
NOW, THEREFORE, in consideration of
the mutual promises herein made, and in consideration of the
representations, warranties, and covenants herein contained, the
Parties hereby agree as follows:
AGREEMENT
1.
The definition of
“Accounts” in the Loan Agreement is hereby deleted in
its entirety.
2.
The following
definition is hereby added to the Loan Agreement:
“ ACMs :
Shall have the meaning given such term in
Section 5.27.”
3.
The definition of
“Adjacent Real Property Access Lease” in the Loan
Agreement is hereby amended and restated as follows:
“ Adjacent Property
Access Lease : Means that certain Adjacent Property
Access Lease and easement agreement to be entered into between
Borrower and Lender as a condition to Lender’s exercise of
the Option, and which shall contain the items described in
Section 1.5(c) hereof.”
4.
The definition of
“Bankruptcy Court Order” in the Loan Agreement is
hereby amended and restated as follows:
“ Bankruptcy Court
Order : Means that certain “Order Authorizing
Debtor To: (1) Incur New Debtor In Possession Financing;
and (2) Pay Off Its Secured Debt” entered by the
Bankruptcy Court.”
5.
The definition of
“Brokers” in the Loan Agreement is hereby amended and
restated as follows:
“ Broker :
Shall have the meaning given such term in
Section 4.1(m).”
6.
The definition of
“Collateral” in the Loan Agreement is hereby amended
and restated as follows:
“ Collateral
: All Equipment; all of Borrower’s Documents,
Negotiable Instruments, contract rights (including any rights under
any development agreement) and General Intangibles directly
relating to any future construction, use, operation or occupancy of
the Property (or any portion thereof); all insurance proceeds from
any policies of insurance covering any of the aforesaid; the JHA
Collateral Accounts; and such other collateral as may be described
in the Deed of Trust. Notwithstanding anything to the
contrary contained in any Loan Document, Collateral shall not
include, without limitation (i) any personal property or trade
fixtures notwithstanding the manner of annexation, including,
without limitation, any oxygen tanks, surgical lights, and
generators, and (ii) (a) any Accounts; (b) any cash
or currency (other than cash and currency deposited in the JHA
Collateral Accounts and other than any interest earned on any of
the JHA Collateral Accounts); (c) any Documents and General
Intangibles, in each case directly related to Borrowers’
Accounts or Deposit Accounts (other than Documents and General
Intangibles directly related to the JHA Collateral Accounts);
(d) any Deposit Accounts other than the JHA Collateral
Accounts; and (e) any Proceeds of any and all of the
foregoing. All capitalized terms used in this definition, but
not otherwise defined in this Agreement, shall have the meanings
given to such terms in the Uniform Commercial
Code.”
7.
The definition of
“Escrow Holder” in the Loan Agreement is hereby amended
and restated as follows:
“ Escrow Holder
: Means Old Republic Title Company.”
8.
The following
definition is hereby added to the Loan Agreement:
“ Event of
Default : Shall have the meaning given such term in
Section 6.1.”
9.
The following
definition is hereby added to the Loan Agreement:
“ JHA Collateral
Accounts : Means the Emergency Room Account, the
Reserve Account, and the Tax and Insurance Deposit
Account.”
10.
The following
definition is hereby added to the Loan Agreement:
“ O&M Program
: Shall have the meaning given such term in
Section 5.27.”
11.
The definition of
“Option Period” in the Loan Agreement is hereby amended
and restated as follows:
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“ Option Period
: Means the period commencing on (a) in the event
Borrower is able to obtain the Emergency Room Permits prior to
the Maturity Date, the date that Lender receives written notice
from Borrower that Borrower has obtained the Emergency
Room Permits, or (b) in the event Borrower is unable to
obtain the Emergency Room Permits prior to the Maturity Date,
the Maturity Date, and ending on (A) in the event Borrower is
able to obtain the Emergency Room Permits prior to the
Maturity Date, the date which is the later to occur of
(i) twelve (12) months after Lender’s receipt of such
written notice from Borrower, and (ii) twenty-four (24) months
after the Closing Date, or (B) in the event Borrower is unable
to obtain the Emergency Room Permits prior to the Maturity
Date, the date which is twelve (12) months after the Maturity
Date. If Lender desires to exercise the Option, then Lender
must exercise the Option prior to the expiration of the Option
Period, provided, however, if an appeal (an “ Appeal
”) is pending challenging the Bankruptcy Court Order at the
expiration of the Option Period, then the Option Period shall be
extended to the date which is ninety (90) days following dismissal
of the Appeal; provided, further, if Borrower wrongfully interferes
with a foreclosure of the Deed of Trust following an Event of
Default (as defined in the Deed of Trust), then the Option Period
shall be extended by the period of delay resulting from such
wrongful interference.”
12.
The definition of
“Title Company” in the Loan Agreement is hereby amended
and restated as follows:
“ Title Company
: Means Old Republic Title Company.”
13.
Section 2.1(k) of
the Loan Agreement is hereby amended and restated as
follows:
“ Representations and
Warranties . The representations and warranties of
Borrower under Article IV shall be true and correct in all
material respects as of the Closing Date.”
14.
Section 2.1(l) of
the Loan Agreement is hereby amended and restated as
follows:
“The Bankruptcy Court Order
shall not have been modified or be subject to a
stay.”
15.
Section 2.2(b) of
the Loan Agreement is hereby amended and restated as
follows:
“ Representations and
Warranties . The representations and warranties of
Lender under Article IV shall be true and correct in all
material respects as of the Closing Date.”
16.
The introductory
language of Section 4.1 of the Loan Agreement is hereby
amended and restated as follows:
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“ Representations and
Warranties of Borrower . As an inducement to Lender
to execute this Agreement and to disburse the proceeds of the Loan,
Borrower represents and warrants to Lender as of the Closing Date
that:”
17.
Section 4.1(m) of
the Loan Agreement is hereby amended and restated as
follows:
“ Brokers .
Borrower is represented by HealthWest Realty
Advisors, Inc. (“Broker”) in connection with the
making and arrangement of the Loan and the transaction contemplated
hereby. Other than any brokerage commissions or fees which
may be due by Borrower to the Broker for such services, there are
no other brokerage commissions or finders’ fees due or
claimed by any party to be due from Borrower in connection with or
with respect to the transaction contemplated hereby. Borrower
shall be fully responsible for any commissions or fees due and
owing, if any, to Broker (which shall be paid at Closing from the
Loan proceeds).”
18.
The introductory
phrase of Section 4.2 of the Loan Agreement is hereby amended
and restated as follows:
“ Representations and
Warranties of Lender . Lender represents and
warrants to Borrower as of the Closing Date that:”
19.
The introductory
phrase of Article V of the Loan Agreement is hereby amended
and restated as follows:
“As an inducement to Lender to
execute this Agreement and to make the Loan, and from and after the
Closing Date and until Lender has been paid in full the principal
of and interest on the Loan made by Lender hereunder and under the
other Loan Documents, Borrower hereby covenants as set forth in
this Article V:”
20.
Section 5.17
of the Loan Agreement is hereby amended and restated as
follows:
“(a)
Borrower shall at all times maintain
and make deposits into the Tax and Insurance Deposit Account as
follows: commencing on the first day of the month in which Borrower
is required to make its first interest payment under the Note (the
“First Payment Date”), (i) Borrower shall deposit
into the Tax and Insurance Deposit Account an amount equal to the
product of one-twelfth (1/12th) of the yearly real estate taxes and
assessments which may be levied on the Property (less any such
amounts as are payable by tenants under leases of the Property),
multiplied by the number of months which have elapsed since the end
of the prior fiscal tax year and the First Payment Date (Borrower
shall receive a credit for the Initial Deposit), and
(ii) thereafter, on the first day of the month thereafter
until the Maturity Date, Borrower shall deposit or cause to be
deposited into the Tax and Insurance Deposit Account an amount
equal to one-twelfth (1/12th) of the yearly real estate taxes
and assessments which may be levied on the Property and the yearly
premiums for all casualty insurance, commercial general liability
insurance and automobile liability insurance required
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to be maintained by Borrower
pursuant to the terms of the Loan Documents. In connection
with the foregoing, Borrower shall be responsible for ensuring
Lender’s receipt, at least thirty (30) days prior to the
respective due date for payment, of all bills, invoices and
statements for all such real estate taxes and assessments and
insurance premiums to be paid. In its sole discretion, Lender
may retain a third party tax lien service to obtain tax
certificates and other evidence or estimates of tax due or to
become due and Borrower shall promptly reimburse Lender for the
cost of such service. Any unpaid reimbursements for any tax
lien service will be added to the Note.
(b)
Lender shall withdraw, and Borrower
hereby authorizes Lender to withdraw, funds from the Tax and
Insurance Deposit Account from time to time in order to cover the
payments of such real estate taxes and assessments and insurance
premiums as the same become due and payable.
(c)
Lender hereby covenants and agrees
that, upon receipt of the bills, invoices and statements for real
estate taxes and assessments and insurance premiums to be paid from
the Tax and Insurance Deposit Account, Lender will promptly
withdraw funds from the Tax and Insurance Deposit Account and
timely pay same to the appropriate tax authority and/or insurance
company. Lender shall have no liability for any late charges
or other
