THIS SECURED PROMISSORY NOTE (THIS "NOTE') WAS ACQUIRED FOR INVESTMENT ONLY AND
NOT FOR RESALE. THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED, OR ANY STATE SECURITIES LAW (COLLECTIVELY, THE "SECURITIES
THIS NOTE IS NON-NEGOTIABLE AND MAY NOT BE SOLD, ASSIGNED, TRANSFERRED, PLEDGED
OR HYPOTHECATED (A) WITHOUT MAKER'S (AS HEREINAFTER DEFINED) PRIOR WRITTEN
CONSENT, AND (B) UNLESS (1) LENDER (AS HEREINAFTER DEFINED) FIRST REGISTERS THIS
NOTE UNDER THE SECURITIES LAWS, OR (2) MAKER SHALL HAVE RECEIVED AN OPINION OF
COUNSEL SATISFACTORY TO MAKER THAT REGISTRATION UNDER THE SECURITIES LAWS IS NOT
SECURED PROMISSORY NOTE
$500,000.00 September 28, 2006
FOR VALUE RECEIVED, Standard Management
Corporation, an Indiana
corporation ("Maker"), hereby promises to pay to Michael G. Browning
on or before the Maturity Date, the principal sum of Five Hundred Thousand and
00/100 Dollars ($500,000.00), together with interest on the portion thereof from
time to time outstanding at the rate of twelve percent (12%) per annum from the
date hereof until maturity (whether by acceleration or otherwise) and at the
rate of 20% per annum from and after maturity (whether by acceleration or
otherwise) and until paid in full. As additional consideration to Lender for the
loan evidenced hereby, Maker shall pay to Lender a loan fee in the amount of
$600,000.00 on the earliest to occur of (i) the Maturity Date, (ii) the date the
principal and all accrued interest on this Note are paid in full, or (iii) the
date to which the maturity of this Note is accelerated pursuant to the terms
hereof; provided that, if the principal and all accrued interest on this Note,
together with all amounts owed by Maker to Lender under the Second Amended and
Restated Promissory Note dated as of August 11, 2006, are paid in full on or
before October 31, 2006, and the loan fee is paid at the same time, the loan fee
shall be reduced to $100,000.00. Maker shall pay these amounts without relief
from valuation and appraisement laws.
TERMS OF PAYMENT
SECTION 1.01 Prepayment During Term.
Maker may prepay this Note in whole or in part at any time and from
time to time without premium, penalty, or other charge or cost. All payments and
prepayments shall be applied (a) first, to all accrued costs and expenses
(including loan fees) that are due an payable by Maker; (b) second, to accrued
and unpaid interest; and (c) third, to the reduction of principal.
SECTION 1.02 Payments and Computations.
(a) Maker shall make payment under this Note in lawful money of
the United States to Lender at Lender's address stated in Section 3.06 or to
such other address as Lender may from time to time designate to Maker in
(b) Interest on the principal sum of the Note shall accrue on the
basis of the actual number of days elapsed over a year consisting of 365 or 366
days, as appropriate.
(c) Whenever any payment to be made hereunder is stated to be due
on a day other than a Business Day (as hereinafter defined), such payment shall
be made on the next succeeding Business Day, and such extension of time shall be
included in the computation of interest. "Business Day" means a day other than a
Saturday or Sunday or a government or bank holiday on which banks generally are
closed in the State of Indiana
This Note and Maker's obligations hereunder are secured by (i) an
Amended and Restated Guaranty dated August 11, 2006, executed by Rainier Home
Health Care Pharmacy, Inc., a Washington
corporation ("Rainier"), Precision
Healthcare, Inc., a Tennessee
corporation ("Precision"), Long Term Rx, Inc., an
corporation ("Long Term Rx"), Home Med Channel, Inc., an Indiana
corporation ("Home Med"), Holland Compounding Pharmacy, Inc., a Washington
corporation ("Holland CP"), and Holland Drug Store, Inc., a Washington
corporation ("Holland," and together with Rainier, Precision, Long Term Rx, Home
Med, and Holland CP, the "Guarantors"), (ii) an Amended and Restated Security
Agreement dated August 11, 2006, encumbering certain personal property of the
Guarantors as described therein (the "Security Agreement"), and (ii) Amended and
Restated Pledge Agreements dated August 11, 2006, pledging the securities of the
Guarantors (the "Pledge Agreements" and together with this Note, the Guaranty,
and the Security Agreement, the "Loan Documents"), as amended by the Loan
Document Modification Agreement dated September 28, 2006, executed by each of
the parties to the Loan Documents.
SECTION 3.01 Maturity Date.
The indebtedness evidenced by this Note shall mature and shall be due
and payable in full on November 7, 2006 (the "Maturity Date").
SECTION 3.02 Event of Default.
The occurrence of any of the following events shall constitute an
"Event of Default" hereunder:
(a) Maker, any Guarantor, or U.S. Health Services Corp. files a
petition in bankruptcy (or has an involuntary bankruptcy petition filed against
it), make an assignment for the benefit of creditors, is adjudged a bankrupt, or
seeks, agrees or has appointed a receiver or other custodian under applicable
(b) The occurrence of any "Event of Default" as such term is
defined in the Guaranty, the Security Agreement, or the Pledge Agreements.
(c) Any Guarantor pays, or Maker or U.S. Health Services Corp.
accepts, any dividend or distribution on the capital stock of any Guarantor, or
any Guarantor shall redeem, repurchase, or otherwise acquire or retire any of
its capital stock without the prior written consent of Lender.
SECTION 3.03 Acceleration on Default.
During the continuance of an Event of Default, the entire outstanding
principal balance hereof, all accrued but unpaid interest hereunder and all
other amounts owing hereunder but unpaid shall, at the option of Lender, become
immediately due and payable. Failure by Lender to exercise such option shall not
be a waiver of the right to do so at any future time for the certain default
giving rise to Lender's right to accelerate or for any other default.
SECTION 3.04 Waiver of Notice, Etc.
Maker and all other persons, partnerships, corporations or other legal
entities liable now or at any time for the payment of the indebtedness evidenced
hereby expressly waive all notice, demand for payment, presentment for payment,
protest and notice of protest, notice of intent to accelerate, notice of
acceleration and diligence in collection, and agree that the time of said
payment or any part thereof may be extended by Lender, and further agree that
the real or collateral security or any part thereof may be released by Lender
without in any way modifying, altering, releasing, affecting or limiting any
liens or security interests arising under the Security Agreement or Pledge
Agreements. The failure of Lender to exercise any of his rights under this Note
in any particular instance shall not constitute a waiver of such rights in that
or in any subsequent instances.
SECTION 3.05 Compliance with Usury Laws.
The provisions of this Note are hereby limited so that in no
contingency or event shall the amount paid or agreed to be paid by Maker for the
use, forbearance or detention of the sums evidenced by this Note exceed the
maximum amount permissible under applicable law. If the performance or
fulfillment of any provision of this Note, or of any other agreement between
Maker and Lender, should involve or purport to require any payment in excess of
the limit prescribed by law, then the obligation to be performed or fulfilled is
hereby reduced to the limit of such validity, and if Lender should ever receive
as interest an amount that would exceed the highest lawful rate, then the amount
that would be excessive interest shall be applied to the reduction of principal
and shall not be counted as interest.
SECTION 3.06 Notices.
All notices and other communications hereunder shall be in writing,
addressed to the intended recipient as set forth below:
If to Lender: Mr. Michael G. Browning
c/o Browning Investments, Inc.
6100 West 96th Street
polis, IN 46278
and copy to: Baker & Daniels LLP
300 North Meridian Street, Suite 2700
polis, IN 46204
Facsimile No.: 317-237-1000
Attention: James M. Carr
If to Maker: Standard Management
10689 N. Pennsylvania
polis, IN 46280
Attention: Ronald D. Hunter
Facsimile No.: 317-574-6227
and copy to: Sommer Barnard
Square, Suite 3500
polis, IN 46204
Attention: Robert J. Hicks
Facsimile No.: 317-713-3699
Notices will be deemed given when delivered by registered or certified United
States mail, postage prepaid, to the appropriate party at its address shown
above, or when delivered in person, by commercial courier, overnight delivery
service, or confirmed facsimile transmission, or when delivery by any method is
properly tendered but refused. Either party may change such party's address for
notices by giving notice to the other party in accordance with this section, but
no such change of address will be effective as against any person without actual
knowledge of the change.
SECTION 3.07 Governing Law.
The validity and effect of this Note shall be governed by the laws of
the State of Indiana
, without regard to its conflicts of law principles.
SECTION 3.08 Costs of Enforcement.
On demand, Maker shall pay or reimburse Lenders for the payment of any
reasonable costs or expenses (including reasonable outside attorneys' fees and
disbursements) actually expended by Lenders in connection with or incidental to
(a) any Event of Default hereunder, or (b) the collection of the indebtedness
evidenced by this Note, and exercise or enforcement by or on behalf of Lender of
any of his rights or remedies, or of Maker's or Guarantor's obligations, under
this Note or any of the other Loan Documents.
SECTION 3.09 Time of Essence.
Time shall be of the essence in the payment and performance by Maker
of all of its obligations under this Note.
SECTION 3.10 No Oral Modification.
This Note may not be amended, cancelled, discharged, extended or
modified except in a writing executed by the party against whom enforcement of
any waiver, change, modification or discharge is sought.
IN WITNESS WHEREOF, Maker has executed this Secured Promissory Note as
of the date first above written.
By: /s/ Ronald D. Hunter
Name: Ronald D. Hunter
Title: Chairman, President and Chief