Exhibit 10.10
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 EAST 7, 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 5.24.”
3.
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.”
4.
The definition of “Collateral” in the Loan Agreement is
hereby amended and restated as follows:
“ Collateral :
All Equipment, furniture, furnishings, machinery,
inventory, construction materials (if any), and any other item of
personal property in which Borrower now or hereafter owns or
acquires any interest or right, including any of the foregoing that
are leased, which are used or useful in the construction,
operation, use or occupancy of the Property (or any portion
thereof); all of Borrower’s Documents, Negotiable
Instruments, contract rights (including any rights under any
development agreement) and General Intangibles, in each
case
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; 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, (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 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 UCC.”
5.
The following definition is hereby added to the Loan
Agreement:
“ ERISA :
Means the Employee Retirement Income Security Act of 1974, and the
regulations issued thereunder, all as amended or restated from time
to time.”
6.
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).”
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 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 5.24.”
11.
The definition of “Title Company” in the Loan Agreement
is hereby amended and restated as follows:
“ Title Company
: Means Old Republic Title Company.”
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12.
The heading of Article I of the Loan Agreement is hereby
amended and restated as follows:
“ LOAN
”
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:
“ 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.”
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:
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“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 5.8 of the Loan Agreement is hereby amended and
restated as follows:
“ Ownership of
Collateral . Borrower will be the sole owner of all
Collateral acquired after the date hereof, free from any adverse
lien, security interest or adverse claim of any kind whatsoever,
except for security interests and liens in favor of Lender, Liens
disclosed in the Title Policy, and other liens approved by Lender,
in Lender’s sole discretion. Borrower will not convey
or transfer any portion of the Collateral without the prior written
consent of Lender, other than in the ordinary course of business;
provided, however, Borrower may convey or transfer some or all of
the Collateral so long as Borrower obtains a replacement of
comparable or greater utility and value.”
21.
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 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
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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 damages which might be
suffered by Borrower should such payments not be timely made due to
the failure of Borrower to timely submit such bills, invoices and
statements to Lender as required under Section 5.17(a)
above or the failure of the financial institution in which
the Tax and Insurance Deposit Account is being maintained to
deliver to Lender the amount of the requested withdrawal not later
than five (5) Business Days from receipt
