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EXHIBIT 10.18
REVOLVING CREDIT NOTE
$10,000,000.00 December 15, 1997
For value received, the undersigned, RETIREMENT CARE ASSOCIATES, INC.,
a Colorado corporation, CAPITOL CARE MANAGEMENT COMPANY, INC., a Georgia
corporation and RETIREMENT MANAGEMENT CORPORATION, a Georgia corporation
(collectively, "Borrower"), jointly and severally, promise to pay, in lawful
money of the United States, to the order of HCFP FUNDING, INC., a Delaware
corporation ("Lender"), the principal sum of Ten Million and No/100 Dollars
($10,000,000.00), or so much thereof as shall be advanced or readvanced and
shall remain unpaid under the Loan established pursuant to that certain Loan and
Security Agreement of even date with this Note by and among the undersigned and
Lender (the "Loan Agreement"), plus interest on the unpaid balance thereof,
computed on a 360-day basis, at the rate per annum that is set forth in the Loan
Agreement. All capitalized terms used, and not otherwise specifically defined,
in this Note shall have the meanings ascribed to them in the Loan Agreement.
This Note shall evidence the undersigned's obligation to repay all sums
advanced by Xxxxxx from time to time under and as part of the Loan. The actual
amount due and owing from time to time under this Note shall be evidenced by
Xxxxxx's records of receipts and disbursements with respect to the Loan, which
shall be conclusive evidence of that amount, absent manifest error.
Interest hereon shall be payable monthly, in arrears, on the first
Business Day of each month hereafter (for the previous month). For purposes of
this Note, a "Business Day" shall mean any day on which banks are open for
business in Maryland, excluding Saturdays and Sundays.
This Note shall become due and payable upon the earlier to occur of (i)
the expiration of the Term, or (ii) any Event of Default under the Loan
Agreement, or any other event under any other Loan Documents which would result
in this Note becoming due and payable. At such time, the entire principal
balance of this Note and all other fees, costs and expenses, if any, shall be
due and payable in full. Xxxxxx shall then have the option at any time and from
time to time to exercise all of the rights and remedies set forth in this Note
and in the other Loan Documents, as well as all rights and remedies otherwise
available to Lender at law or in equity, to collect the unpaid indebtedness
under this Note and the other Loan Documents. This Note is secured by the
Collateral, as defined in and described in the Loan Agreement.
Whenever any principal and/or interest and/or fee under this Note shall
not be paid when due, whether at the stated maturity or by acceleration,
interest on such unpaid amounts shall thereafter be payable at a rate per annum
equal to three percentage points above the stated rate of interest on this Note
until such amounts shall be paid.
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The undersigned and Lender intend to conform strictly to the applicable
usury laws in effect from time to time during the term of the Loan. Accordingly,
if any transaction contemplated hereby would be usurious under such laws, then
notwithstanding any other provision hereof: (a) the aggregate of all interest
that is contracted for, charged, or received under this Note or under any other
Loan Document shall not exceed the maximum amount of interest allowed by
applicable law, and any excess shall be promptly credited to the undersigned by
Lender (or, to the extent that such consideration shall have been paid, such
excess shall be promptly refunded to the undersigned by Xxxxxx); (b) neither the
undersigned nor any other Person (as defined in the Loan Agreement) now or
hereafter liable hereunder shall be obligated to pay the amount of such interest
to the extent that it is in excess of the maximum interest permitted by
applicable law; and (c) the effective rate of interest shall be reduced to the
Highest Lawful Rate (as defined in the Loan Agreement). All sums paid, or agreed
to be paid, to Lender for the use, forbearance, and detention of the debt of
Borrower to Lender shall, to the extent permitted by applicable law, be
allocated throughout the full term of this Note until payment is made in full so
that the actual rate of interest does not exceed the Highest Lawful Rate in
effect at any particular time during the full term thereof. If at any time the
rate of interest under the Note exceeds the Highest Lawful Rate, the rate of
interest to accrue pursuant to this Note shall be limited, notwithstanding
anything to the contrary herein, to the Highest Lawful Rate, but any subsequent
reductions in the Base Rate shall not reduce the interest to accrue pursuant to
this Note below the Highest Lawful Rate until the total amount of interest
accrued equals the amount of interest that would have accrued if a varying rate
per annum equal to the interest rate under the Note had at all times been in
effect. If the total amount of interest paid or accrued pursuant to this Note
under the foregoing provisions is less than the total amount of interest that
would have accrued if a varying rate per annum equal to the interest rate under
this Note had been in effect, then the undersigned agrees to pay to Lender an
amount equal to the difference between (a) the lesser of (i) the amount of
interest that would have accrued if the Highest Lawful Rate had at all times
been in effect, or (ii) the amount of interest that would have accrued if a
varying rate per annum equal to the interest rate under the Note had at all
times been in effect, and (b) the amount of interest accrued in accordance with
the other provisions of this Note and the Loan Agreement.
This Note is the "Note" referred to in the Loan Agreement, and is
issued pursuant thereto. Reference is made to the Loan Agreement for a statement
of the additional rights and obligations of the undersigned and Lender. In the
event of any conflict between the terms hereof and the terms of the Loan
Agreement, the terms of the Loan Agreement shall prevail. All of the terms,
covenants, provisions, conditions, stipulations, promises and agreements
contained in the Loan Documents to be kept, observed and/or performed by the
undersigned are made a part of this Note and are incorporated herein by this
reference to the same extent and with the same force and effect as if they were
fully set forth herein, and the undersigned promises and agrees to keep, observe
and perform them or cause them to be kept, observed and performed, strictly in
accordance with the terms and provisions thereof.
Each party liable hereon in any capacity, whether as maker, endorser,
surety, guarantor or otherwise, (i) waives presentment for payment, demand,
protest and notice of presentment,
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notice of protest, notice of non-payment and notice of dishonor of this debt and
each and every other notice of any kind respecting this Note and all lack of
diligence or delays in collection or enforcement hereof, (ii) agrees that Lender
and any subsequent holder of this Note, at any time or times, without notice to
the undersigned or its consent, may grant extensions of time, without limit as
to the number of the aggregate period of such extensions, for the payment of any
principal, interest or other sums due hereunder, (iii) to the extent permitted
by law, waives all exemptions under the laws of the State of Maryland and/or any
state or territory of the United States, (iv) to the extent permitted by law,
waives the benefit of any law or rule of law intended for its advantage or
protection as an obligor hereunder or providing for its release or discharge
from liability hereon, in whole or in part, on account of any facts or
circumstances other than full and complete payment of all amounts due hereunder,
and (v) agrees to pay, in addition to all other sums of money due, all cost of
collection and attorney's fees, whether suit be brought or not, if this Note is
not paid in full when due, whether at the stated maturity or by acceleration.
No waiver by Lender or any subsequent holder of this Note of any one or
more defaults by the undersigned in the performance of any of its obligations
hereunder shall operate or be construed as a waiver of any future default or
defaults, whether of a like or different nature. No failure or delay on the part
of Lender in exercising any right, power or remedy under this Note (including,
without limitation, the right to declare this Note due and payable) shall
operate as a waiver thereof, nor shall any single or partial exercise of any
such right, power or remedy preclude any other or further exercise thereof or
the exercise of any other right, power or remedy.
If any term, covenant or condition of this Note, or the application of
such term, covenant or condition to any party or circumstance shall be found by
a court of competent jurisdiction to be, to any extent, invalid or
unenforceable, the remainder of this Note and the application of such term,
covenant, or condition to parties or circumstances other than those as to which
it is held invalid or unenforceable, shall not be affected thereby, and each
term, covenant or condition shall be valid and enforced to the fullest extent
permitted by law. Upon determination that any such term is invalid, illegal or
unenforceable, the undersigned shall cooperate with Lender to amend this Note so
as to effect the original intent of the parties as closely as possible in an
acceptable manner.
No amendment, supplement or modification of this Note nor any waiver of
any provision hereof shall be made except in writing executed by the party
against whom enforcement is sought.
This Note shall be binding upon the undersigned and its successors and
assigns. Notwithstanding the foregoing, the undersigned may not assign any of
its rights or delegate any of its obligations hereunder without the prior
written consent of Lender, which may be withheld in its sole discretion.
THIS NOTE IS TO BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF MARYLAND WITHOUT RESPECT TO ANY
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OTHERWISE APPLICABLE CONFLICTS-OF-LAWS PRINCIPLES, BOTH AS TO INTERPRETATION AND
PERFORMANCE, AND THE PARTIES EXPRESSLY CONSENT AND AGREE TO THE NON-EXCLUSIVE
JURISDICTION OF THE COURTS OF THE STATE OF MARYLAND AND THE UNITED STATES
DISTRICT COURT FOR THE DISTRICT OF MARYLAND AND TO THE LAYING OF VENUE IN THE
STATE OF MARYLAND, WAIVING ALL CLAIMS OR DEFENSES BASED ON LACK OF PERSONAL
JURISDICTION, IMPROPER VENUE, INCONVENIENT FORUM OR THE LIKE. BORROWER HEREBY
CONSENTS TO SERVICE OF PROCESS BY MAILING A COPY OF THE SUMMONS TO BORROWER, BY
CERTIFIED OR REGISTERED MAIL, POSTAGE PREPAID, TO XXXXXXXX'S ADDRESS SET FORTH
IN SECTION 9.4 OF THE LOAN AGREEMENT. BORROWER FURTHER WAIVES ANY CLAIM FOR
CONSEQUENTIAL DAMAGES IN RESPECT OF ANY ACTION TAKEN OR OMITTED TO BE TAKEN BY
LENDER IN GOOD FAITH.
THE UNDERSIGNED HEREBY (A) COVENANTS AND AGREES NOT TO ELECT A TRIAL BY
JURY OF ANY ISSUE TRIABLE OF RIGHT BY A JURY, AND (B) WAIVES ANY RIGHT TO TRIAL
BY JURY FULLY TO THE EXTENT THAT ANY SUCH RIGHT SHALL NOW OR HEREAFTER EXIST.
THIS WAIVER OF RIGHT TO TRIAL BY JURY IS GIVEN KNOWINGLY AND VOLUNTARILY BY THE
UNDERSIGNED, AND THIS WAIVER IS INTENDED TO ENCOMPASS INDIVIDUALLY EACH INSTANCE
AND EACH ISSUE AS TO WHICH THE RIGHT TO A JURY TRIAL WOULD OTHERWISE ACCRUE.
XXXXXX IS HEREBY AUTHORIZED AND REQUESTED TO SUBMIT THIS NOTE TO ANY COURT
HAVING JURISDICTION OVER THE SUBJECT MATTER AND THE PARTIES HERETO, SO AS TO
SERVE AS CONCLUSIVE EVIDENCE OF THE UNDERSIGNED'S WAIVER OF THE RIGHT TO JURY
TRIAL. FURTHER, THE UNDERSIGNED HEREBY CERTIFIES THAT NO REPRESENTATIVE OR AGENT
OF LENDER (INCLUDING XXXXXX'S COUNSEL) HAS REPRESENTED, EXPRESSLY OR OTHERWISE,
TO ANY BORROWER THAT LENDER WILL NOT SEEK TO ENFORCE THIS WAIVER OF RIGHT TO
JURY TRIAL PROVISION.
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IN WITNESS WHEREOF, the undersigned have caused their authorized
officers to execute this Note as of the date first above written.
BORROWER:
ATTEST: RETIREMENT CARE ASSOCIATES, INC.,
a Colorado corporation
By: By: [SEAL]
----------------------------- --------------------------
Name: Name:
Title: Title:
ATTEST: CAPITOL CARE MANAGEMENT
COMPANY, INC.
a Georgia corporation
By: By: [SEAL]
----------------------------- ----------------------------
Name: Name:
Title: Title:
ATTEST: RETIREMENT MANAGEMENT
CORPORATION
a Georgia corporation
By: By: [SEAL]
----------------------------- ----------------------------
Name: Name:
Title: Title:
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