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EXHIBIT 10.44
August 31, 1998
UNSECURED PROMISSORY NOTE
For value received as of August 31, 1998, the undersigned, CHFA,
Inc. ("Maker"), promises to pay to the order of UNITED AMERICAN HEALTHCARE
CORPORATION ("Payee") the principal sum of Two Million, Five Hundred Thousand
Dollars ($2,500,000.00), together with the interest thereon at the rate
hereinafter specified and any and all other sums which may be due and owing to
the holder of this Note in accordance with the following terms:
1. Repayment. (a) Maker shall pay to the holder hereof annually
on each of August 1, 1999 and August 1, 2000 (each a "Payment Date") principal
payments in the amount of ten percent (10%) of the unpaid principal amount
hereof as of each such Payment Date, together with all accrued and unpaid
interest on the unpaid principal amount hereof as of each such Payment Date.
(b) This Note shall mature, and Maker shall pay to the holder
hereof the entire unpaid principal amount hereof, together with all accrued and
unpaid interest thereon, on the earlier of (i) August 31, 2001, (ii) the
consummation by Maker of an "Initial Public Offering" (as that term is defined
in Section 17(a) below), or (iii) the consummation of a "Change of Control" (as
that term is defined in Section 17(b) below) with respect to Maker (the earlier
of the dates in clauses (i), (ii) and (iii), the "Maturity Date").
(c) Payment shall be made to Payee at 1155 Brewery Park
Boulevard, Suite 200, Detroit, Michigan 48207 or such other place as the holder
hereof may from time to time direct in writing received by Maker.
2. Interest Rate. Interest shall accrue from the date of this
Note on the principal amount outstanding from time to time thereafter at a rate
of interest equal to six percent (6%) per annum, compounded quarterly on the
first day of August, November, February and May until this Note is paid in full.
3. Calculation of Interest. Interest on this Note shall be
calculated on the basis of a 360 day per year factor applied to the actual days
on which there exists an unpaid principal balance due under this Note.
4. Application of Payments. All payments made hereunder shall be
applied first to late penalties, costs of collection or other sums owing the
holder, then to accrued interest and last to repayment of the principal amount
of this Note. If the due date for the payment of principal and interest falls on
a day which is either a Saturday, Sunday or federal banking holiday, such
payment shall be due on the next succeeding business day.
5. Prepayment. The Maker may prepay this Note in whole or in part
at any time or from time to time without penalty or additional interest,
provided that payments are applied as provided in Section 4 above.
6. Events of Default. The occurrence of any one or more of the
following events (the "Events of Default") shall constitute an Event of Default
hereunder:
(a) any failure by the Maker to pay any principal, interest or
other amount due under this Note at or prior to the time when it is due and
payable, if such failure remains uncured for a period of ten (10) business days
after the payment date;
(b) a petition for relief in a bankruptcy court is filed by the
Maker or Corporate Healthcare Financing, Inc., a Michigan corporation (the
"Company"), or the Maker or the Company applies for, consents to or acquiesces
in the appointment of a trustee, custodian or receiver for the Maker or the
Company or any of their respective assets or property or makes a general
assignment for the benefit of their respective creditors or, in the absence of
such application, consent or acquiescence, a trustee, custodian or receiver is
appointed for the Maker or the Company or for a substantial part of their
respective assets or property and is not discharged within thirty (30) days
hereafter; or any bankruptcy, reorganization, debt arrangement or other
proceeding or case under any bankruptcy or insolvency law or any dissolution or
liquidation proceeding is instituted against the Maker or the Company and if
instituted against the Maker or the Company is consented to or acquiesced in by
the
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Maker or the Company or remains undismissed for thirty (30) days thereafter;
or the Maker or the Company takes any action to authorize any of the actions
described in this subsection;
(c) any material breach by Maker of any material representation
or other material obligation of Maker in or under the Purchase Agreement, (as
that term is defined in Section 12 hereof) or this Note (other than an Event of
Default described in Section 6(a) of this Note), which material breach is not
cured by Maker within twenty (20) days after the receipt by Maker of written
notice from the holder of this Note pursuant to the provisions of Section 14 of
the Purchase Agreement which sets forth the nature of such breach;
(d) Maker's gross revenues (or, for any partial or short fiscal
year, Maker's annualized gross revenues) as reported on its audited or reviewed
financial statements for any fiscal year during which this Note remains unpaid
shall not equal or exceed Five Million Dollars ($5,000,000.00).
(e) (i) any of this Note and the Purchase Agreement ceases to be
in full force and effect; or (ii) the Maker contests the validity or
enforceability of any of this Note or the Purchase Agreement or renounces or
denies that it has any further liability under any of this Note or the Purchase
Agreement, provided, however, that this Section 6(e)(ii) shall not be construed
to deny to Maker the right in good faith to assert its rights under this Note or
the Purchase Agreement;
(f) any Event of Default under Section 6(a) of the Secured
Promissory Note of Maker of even date herewith in favor of Payee for so long as
the Secured Promissory Note remains in effect.
(g) Maker or a wholly owned subsidiary of Maker ceases to be the
owner of all of the stock of the Company or a sale or conveyance of all or
substantially all of the assets of the Company to or with an unaffiliated third
party is consummated.
(h) the entry of a final, nonappealable judgment or judgments,
which has or have not been satisfied, against the Maker in an aggregate amount
which exceeds Two Hundred Thousand Dollars ($200,000.00).
(i) any default by the Maker in or with respect to any obligation
of the Maker in excess of Two Hundred Thousand Dollars ($200,000) which remain
uncured by Maker for more than thirty (30) days after receipt by Maker of
written notice specifying the nature of such Default.
(j) either (i) Louis J. Nicholas or (ii) both Keith Sullivan and
Pamela Lee shall cease to be employed on a full-time basis by Maker or its
wholly-owned subsidiaries for any reason other than death or disability.
7. Default Interest Rate. Upon the occurrence of an Event of
Default under this Note, if payment of the amount outstanding under this Note is
accelerated, or if the full amount outstanding is then due, from and after the
earlier of the date of acceleration or the date that such amount becomes due and
payable in full, the interest rate applicable to the then outstanding balance
shall be increased to eighteen percent (18%).
8. Rights and Remedies. If any one or more Events of Default
shall occur, then in each and every such case, the Payee at its option may at
any time thereafter exercise and/or enforce any or all of the following rights
and remedies:
(a) declare without notice to the Maker all of the amounts
payable hereunder to be immediately due and payable, whereupon same shall become
due and payable, together with accrued and unpaid interest thereon and all other
sums due hereunder, immediately without presentment, demand, protest or notice,
all of which the Maker hereby waives, provided that upon the occurrence of an
Event of Default described in Section 6(b), all amounts shall automatically be
and become due and payable immediately without any declaration, notice or any
other act; and
(b) bring suit for payment and exercise any other rights and
remedies available to the Payee pursuant to this Note, any related document
(including the Purchase Agreement) or any other applicable law.
Each right, power and remedy of the Payee specified herein or in
the related loan documents or available at law or in equity or by statute shall
be cumulative and concurrent and shall be in addition to every other right,
power or remedy provided for in this Note or in the related loan
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documents (including the Purchase Agreement) or available at law or in equity
and the exercise or beginning of the exercise by the Payee of any one or more of
such rights, powers or remedies shall not preclude the simultaneous or later
exercise by the Payee of any one or more of such other rights, powers or
remedies.
9. Costs of Collection. If at any time the indebtedness evidenced
by this Note is collected through legal proceedings or this Note is placed in
the hands of an attorney or attorneys for collection, the Maker and each
endorser and guarantor of this Note hereby severally agree to pay all costs and
expenses (including attorneys' fees) incurred by the holder of this Note in
enforcing its rights and collecting or attempting to collect all amounts due
hereunder and under any related documents.
10. Extensions or Modifications. All parties to this Note agree
that the maturity of this Note or any payment due hereunder may be extended at
any time or from time to time, this Note or any other agreement or document
evidencing or securing payment of the debt described herein may be modified, any
collateral or other security or guarantee of payment may be released or waived
and any defaults hereunder may be waived without releasing, discharging or
affecting the liability of the Maker or any other party not specifically
released.
11. Choice of Law and Consent to Jurisdiction. This Note shall be
deemed to be made in Maryland and shall be governed, construed and enforced in
strict accordance with the laws of the State of Maryland, without reference to
principles of conflict of laws.
12. Stock Purchase Agreement; Set Off Right. This Note has been
issued pursuant to that certain Stock Purchase Agreement, of even date, between
Maker and Payee, among others (the "Purchase Agreement"). With notice to Payee,
Maker shall be entitled to offset any amounts due under this Note in
satisfaction of an equal amount due to Maker pursuant to Section 10 of the
Purchase Agreement that has been awarded in an arbitral proceeding or other
adjudication or agreed upon by Maker and Payee and that results from any untrue
representation, breach of warranty or nonfulfillment of any covenant or
agreement by Payee under the terms of any of Sections 6(c), 6(d), 6(i), 6(j),
6(k), 8(a), 8(c) or 9 of the Purchase Agreement. One-half (1/2) of the amount of
any such set-off shall be applied to the next scheduled payment of principal
under this Note (or, if adjudicated or agreed to may, in Maker's discretion, be
applied as a prepayment pursuant to Section 5 hereof against the amount next
due) and the remaining one-half (1/2) of the amount of such offset shall be
applied against the final payment of principal due under this Note on August 31,
2001. Without limiting Maker's rights under the Purchase Agreement, Maker shall
not be entitled to offset any other amounts due under this Note in satisfaction
of any amounts due pursuant to the Purchase Agreement.
13. Waiver of Defenses. In the event the holder of this Note
transfers this Note for value, the Maker agrees that none of such subsequent
holders of this Note shall be subject to any claims or defenses which the Maker
may have against the prior holder, all of which are waived as to the subsequent
holders and all subsequent holders shall have the rights of a holder in due
course with respect to the Maker even though the subsequent holder might not
qualify under applicable law absent this paragraph as a holder in due course.
14. Waiver of Protest. The Maker, and all parties to this Note,
whether maker, endorser or guarantor, hereby waive presentment, protest and
demand and notice of protest, demand, dishonor and nonpayment of this Note.
15. No Waiver. The delay or failure of any holder to exercise its
rights hereunder shall not be deemed a waiver thereof. No waiver of any rights
of holder shall be effective unless in writing and signed by the holder and any
waiver of any right shall not apply to any other right or to such right in any
subsequent event or circumstance not specifically included in such waiver.
16. Maker's Covenants.
(a) Maker shall deliver to Payee (i) within forty-five
(45) days after the end of each quarterly fiscal period of each fiscal year of
the Maker, statements of income and cash flow for the Maker and its consolidated
subsidiaries for such period and for the period from the beginning of the fiscal
year to the end of such period, and the related balance sheets as at the end of
such period, setting forth in each case in comparative form the corresponding
figures for the corresponding period in the preceding fiscal year; and (ii)
within seventy-five (75) days after the end of each fiscal year of the Maker,
statements of income and cash flow for the Maker and its consolidated
subsidiaries for
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such year and the related balance sheets at the end of such year, setting forth
in each case in comparative form the corresponding figures for the preceding
fiscal year.
(b) Promptly upon (i) any default under or with respect to
any material obligation of the Maker under this Note or the Purchase Agreement,
or (ii) any notice from any Federal, state or local governmental or regulatory
body or authority of any matter that, if determined adversely to the Maker,
would have a material adverse effect upon the business of the Maker, the Maker
shall provide written notice thereof to Payee setting forth details respecting
such event and the action, if any, that the Maker proposes to take with respect
thereof.
(c) Maker shall provide to Payee from time to time such other
information regarding the financial condition, operations, business or prospects
of the Maker or any of its subsidiaries as Payee may reasonably request; shall
permit Payee's representatives to visit and inspect any of the properties of
Maker to examine, audit, check and make copies of the financial and accounting
records, books, journals, orders, receipts and any correspondence or other data
relating to the business of Maker and to discuss the affairs, finances and
accounts of Maker with its officers and independent certified public
accountants, all upon reasonable notice and at such reasonable times, during
normal business hours, as may be reasonably requested; provided, however, that
except (i) as may be required by law; (ii) except for information which has
become available to the public; and (iii) except to the extent necessary to
enforce this Note or the Purchase Agreement, Payee shall keep all information
learned pursuant to this Section 16(c) confidential and shall not disclose such
information to any person or entity.
17. Definitions. For purposes of this Note:
(a) "Initial Public Offering" shall mean an effective initial
underwritten public offering of the shares of stock of Maker or any other
securities of Maker that are convertible into or exchangeable for common stock
pursuant to a registration statement filed with the United States Securities
Exchange Commission other than a registration statement on Form S-8 or any
successor or similar form thereto.
(b) "Change of Control" shall mean the consummation of the sale
of shares of stock of Maker (in one or more transactions), or one or more of a
merger, consolidation, or other combination of Maker, or a sale or conveyance of
all or substantially all of the assets of Maker to or with an unaffiliated third
party if, as a result of such transactions, the owners of Maker's stock (and
their spouses, siblings, parents or children) on the date of this Note as a
group do not continue to own beneficially at least twenty-five percent (25%) of
the combined voting power of the shares of stock of Maker which such persons
owned as of the date of this Note.
IN WITNESS WHEREOF, the Maker has caused this Note to be executed
on its behalf by its duly authorized officer and its corporate seal to be
affixed and attested by its Secretary as of the day and year first above
written.
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