PROMISSORY NOTE II
Exhibit 10.3
| $8,125,000.00 | Nashville, Tennessee August 7, 2006 |
FOR VALUE RECEIVED, the undersigned DIVERSICARE XXXXX XXXX, LLC, a Delaware limited liability
company (the “Xxxxx Xxxx Borrower”), DIVERSICARE ASSISTED LIVING SERVICES NC I, LLC, a Delaware
limited liability company (the “NC I Borrower”), DIVERSICARE ASSISTED LIVING SERVICES NC II, LLC, a
Delaware limited liability company (the “NC II Borrower”), DIVERSICARE BRIARCLIFF, LLC, a Delaware
limited liability company (the “Briarcliff Borrower”), DIVERSICARE XXXXXXX, LLC, a Delaware limited
liability company (the “Xxxxxxx Borrower”), DIVERSICARE HARTFORD, LLC, a Delaware limited liability
company (the “Hartford Borrower”), DIVERSICARE HILLCREST, LLC, a Delaware limited liability company
(the “Hillcrest Borrower”), DIVERSICARE LAMPASAS, LLC, a Delaware limited liability company (the
“Lampasas Borrower”), DIVERSICARE PINEDALE, LLC, a Delaware limited liability company (the “Newport
Borrower”), DIVERSICARE WINDSOR HOUSE, LLC, a Delaware limited liability company (the “Windsor
Borrower”), and DIVERSICARE YORKTOWN, LLC, a Delaware limited liability company (the “Yorktown
Borrower”), having an address at c/o Advocat Inc., 0000 Xxxxxxxx Xxxx, Xxxxxxxxx, XX 00000 (the
Xxxxx Xxxx Borrower, the NC I Borrower, the NC II Borrower, the Briarcliff Borrower, the Xxxxxxx
Borrower, the Hartford Borrower, the Hillcrest Borrower, the Lampasas Borrower, the Newport
Borrower, the Windsor Borrower and the Yorktown Borrower, collectively, the “Borrowers” and
individually, a “Borrower”), hereby promises to pay to the order of CAPMARK FINANCE INC., a
California corporation, formerly known as GMAC Commercial Mortgage Corporation, having an address
at 000 Xxxxxx Xxxx, Xxxxxxx, Xxxxxxxxxxxx 00000-0000, together with its successors and assigns or,
if this Note has then been endorsed “to bearer,” to the bearer of this Note (collectively the
“Lender”), at Xxxxxx’s said address or at such other place or to such other person as may be
designated in writing to Borrower by Lender, the principal sum of Eight Million One Hundred
Twenty-Five Thousand and No/100 Dollars ($8,125,000.00) (the “Loan”), together with interest on the
unpaid balance thereof at the rate hereinafter set forth.
ON THE TERMS AND SUBJECT TO THE CONDITIONS which are hereinafter set forth:
Section 1. Interest Rate.
1.1 Initial Note Rate. Interest shall accrue on the outstanding principal balance of
the Loan from and after the date hereof (“Closing Date”) at the rate of eleven and sixty-six /one
hundredths percent (11.66%) per annum (“Initial Note Rate”). If the Loan is funded on a date other
than the fifteenth (15th) day of a calendar month, Borrowers shall pay to Lender at the
time of funding of the Loan an interest payment calculated by multiplying (i) (x) if the Closing
Date is prior to the fifteenth (15th) day of a calendar month, the number of days from
and including the Closing Date to (but excluding) the fifteenth (15th) day of the
current month or (y) if the Closing Date is after the fifteenth (15th) day of the month,
the number of days from and including the Closing Date
to (but excluding) the fifteenth (15th) day of the next calendar monthly by (ii)
the Initial Note Rate calculated based on a 360 day year and paid for the actual number of days
elapsed for any whole or partial month in which interest is being calculated.
1.2 Calculation Basis; Interest Accrual Period. Interest on the outstanding principal
balance of the Loan shall be calculated utilizing a 360 day year and paid for the actual number of
days elapsed for any whole or partial month in which interest is being calculated. Except as
otherwise set forth in the Section 1.1 above, interest shall accrue, with respect to any Payment
Date, from the period beginning on the fifteenth (15th) day of the month prior to such
Payment Date, through and including the fourteenth (14th) day of the month of such
Payment Date (each an “Interest Accrual Period”). By way of example, for a Payment Date of
February 9, the Interest Accrual Period would run from January 15 through and including February
14.
1.3 Default Interest Rate. If Borrowers fail to make any payment of principal,
interest or fees on the date on which such payment becomes due and payable whether at maturity or
by acceleration, or if an Event of Default exists, the Note Rate then payable on the Loan shall
immediately increase to the lesser of (a) the then applicable Note Rate plus five hundred (500)
basis points or (b) the maximum rate permitted by applicable law (the “Default Rate”) and shall
continue to accrue at the Default Rate until full payment is received or such Event of Default is
waived in writing by Xxxxxx. Interest at the Default Rate shall also accrue on any judgment
obtained by Xxxxxx in connection with collection of the Loan or enforcement of any obligations due
under the Loan Documents until such judgment is paid in full.
1.4 Note Rate and Note Rate Adjustment Dates. The “Note Rate” shall mean an interest
rate which is the average of London Interbank Offered Rates (“LIBOR”), in U.S. dollar deposits, for
a term of one month determined solely by Lender on each Note Rate Adjustment Date (defined below)
plus six and one-quarter of one percent (6.25%) (“Margin”). On each Note Rate Adjustment
Date, Lender will obtain the close-of-business LIBOR from “Page 3750” on the Telerate Service (or
such other page as may replace Page 3750 on that service) on the Note Rate Adjustment Date. If
Telerate Service ceases publication or ceases to publish LIBOR, Lender shall select a comparable
publication to determine the LIBOR and provide notice thereof to Borrowers. LIBOR may or may not
be the lowest rate based upon the market for U.S. dollar deposits in the London Interbank
Eurodollar Market at which Lender prices loans on the date on which LIBOR is determined by Lender
as set forth above. Adjustments to the Note Rate in connection with changes in LIBOR shall be made
two (2) Business Days prior to the beginning of any Interest Accrual Period (each “Note Rate
Adjustment Date”) except than the Initial Note Rate shall be determined two (2) Business Days prior
to the Closing Date.
1.5 Adjustments due to Calculation Errors. This Note shall bear interest at the
Initial Note Rate and Note Rate as determined in accordance with the provisions hereof; provided,
however, that, if Lender at any time determines, in the sole but reasonable exercise of its
discretion that it has miscalculated the amount of the monthly payment of principal and/or interest
(whether because of a miscalculation of the Initial Note Rate, the Note Rate or otherwise), Lender
shall give notice to Borrowers of the corrected amount of such monthly payment (and the corrected
amount of the Note Rate, if applicable) and (a) if the corrected amount of such monthly payment
represents an increase thereof, Borrowers shall, within ten (10) calendar days after the date of
such notice, pay to Lender any sums that Borrowers would have otherwise been obligated under this
Note to pay to
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Lender had the amount of such monthly payment not been miscalculated or (b) if the corrected
amount of such monthly payment represents a decrease thereof, and Borrowers are not otherwise in
breach or default under any of the terms and provisions of the Note, the Loan Agreement of even
date herewith by and between Borrowers and Lender (the “Loan Agreement”) or any of the other Loan
Documents, Borrowers shall, within ten (10) calendar days thereafter be paid the sums that
Borrowers would not have otherwise been obligated to pay to Lender had the amount of such monthly
payment not been miscalculated.
1.6 LIBOR Unascertainable. Lender’s obligation to maintain interest based on LIBOR
shall be suspended and the Note Rate shall be based on the Interest Rate Index (plus Margin) upon
Lender’s determination, in good faith, that adequate and reasonable means do not exist for
ascertaining LIBOR or that a contingency has occurred which materially and adversely affects the
London Interbank Eurodollar Market at which Lender prices loans (which determination by Lender
shall be conclusive and binding on Borrowers in the absence of manifest error). Computation of the
Note Rate based on the Interest Rate Index shall continue until Lender determines that the
circumstances giving rise to Xxxxxx’s substitution of the Interest Rate Index for LIBOR no longer
exists and Lender shall promptly notify Borrowers of such determination. For purposes hereof
“Interest Rate Index” shall mean the weekly average yield on United States Treasury Securities
adjusted to a constant maturity of one year, as made available by the Federal Reserve Board
forty-five (45) days prior to each Note Rate Adjustment Date.
1.7 Adjustment for Impositions on Loan Payments. All payments made by Borrowers under
this Note and the other Loan Documents (described in Section 8.1.1 below) shall be made free and
clear of, and without deduction or withholding for or on account of, any present or future income,
stamp or other taxes, levies, imposts, duties, charges, fees, deductions or withholdings, and all
liabilities with respect thereto, now or hereafter imposed, levied, collected, withheld or assessed
against Borrowers and/or the Loan by any governmental authority (all such non-excluded taxes,
levies, imposts, duties, charges, fees, deductions, withholdings and liabilities, collectively,
“Applicable Taxes”). If Borrowers shall be required by law to deduct any Applicable Taxes from or
in respect of any sum payable hereunder to Lender, the following shall apply: (i) Borrowers shall
make all such required deductions and shall pay the full amount deducted to the relevant taxing
authority or other authority in accordance with applicable law and (ii) the sum payable to Lender
shall be increased in an amount determined by Lender in its sole discretion, as may be necessary so
that after making all required deductions (including deductions applicable to additional sums
payable under this Section 1.7), Lender receives an amount equal to the sum Lender would have
received had no such deductions been made. Payments made pursuant to this Section 1.7 shall be
made within ten (10) Business Days after Xxxxxx makes written demand therefore.
1.8 Increased Costs of Maintaining Interest. Borrowers shall pay to Lender all
Funding Losses incurred from time to time by Lender upon demand. Lender shall deliver to Borrower
a statement for any such sums to which Xxxxxx is entitled to receive pursuant to this Section 1.8,
which statement shall be binding and conclusive absent manifest error. Payment of Funding Losses
hereunder shall be in addition to any obligation to pay any other fee in circumstances where such
fee(s) would be due and owing under the Loan Documents. For purposes hereof, “Funding Losses”
shall mean the reduction of any amounts received or receivable from Borrowers, in either case, due
to the introduction of, or any change in, law or applicable regulation or treaty (including the
administration or interpretation thereof), whether or not having the force of law, or due to the
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compliance by Lender with any directive, whether or not having the force of law, or request
from any central bank or domestic or foreign governmental authority.
1.9 Acceleration. Notwithstanding anything to the contrary contained herein, if
Borrowers are prohibited by law from paying any amount due to Lender under Section 1.7 or Section
1.8 hereof, Lender may elect to declare the unpaid principal balance of the Loan, together with all
unpaid interest accrued thereon and any other amounts due hereunder, due and payable within one
hundred twenty (120) days of Xxxxxx’s written notice to Xxxxxxxxx and no Loan Fee (defined in
Section 5 below) shall be due in such event. Xxxxxx’s delay or failure in accelerating the Loan
upon the discovery or occurrence of an event under Section 1.7 or Section 1.8 shall not be deemed a
waiver or estoppel against the exercise of such right.
Section 2. Note Payments and Prepayment Rights.
2.1 Payment Dates.
(a) Monthly Payments: Commencing on the ninth (9th) of September, 2006 and
continuing on the ninth (9th) day of each successive month thereafter, provided that, if
the ninth (9th) day of any month is not a Business Day, such payment shall be due and
payable on the immediately preceding Business Day (each being a “Payment Date”), through and
including the Payment Date immediately prior to the Maturity Date, Borrowers shall pay (x)
consecutive monthly payments of (i) principal in an amount necessary to fully amortize the original
Loan principal balance of the Loan over a twenty-five (25) year amortization period where each
month is deemed to consist of thirty (30) days and (ii) interest at the Note Rate (determined as of
the immediately preceding Note Rate Adjustment Date) based on principal outstanding during the
Interest Accrual Period in which the applicable Payment Date occurs and (y) any amounts due under
the Loan Documents.
(b) Semi-Annual Payments: Twice annually, beginning March 9, 2007 and on each September
9th and March 9th thereafter, the Borrowers shall make payments to Lender in
the amount of $1,015,625 each, which payments shall include the monthly principal payments
described in Section 2.1(a) above (the “Semi-Annual Payment Requirements”) such that the Loan will
amortize in full in four (4) years. Additionally, Borrowers shall make the following payments to
Lender:
(i) All payments received by Guarantor (hereinafter defined) related to the DCMS Note
Receivable (as defined in the Loan Agreement) and the Workers’ Comp Retro Premiums (as defined in
the Loan Agreement), shall be paid over to Lender and applied to the Loan. Any amounts received by
Lender pursuant to the DCMS Note Receivable or the Workers’ Comp Retro Premiums shall be credited
against future Semi-Annual Payment Requirements; and
(ii) Net proceeds received by NC I Borrower from the sale of a 61-bed licensed assisted living
facility located in New Hanover County, North Carolina, owned by the NC I Borrower (the “Carolina
Beach Facility”), any equipment related to the Carolina Beach Facility or the sale of the license
for the Carolina Beach Facility shall be paid over to Lender and applied to the Loan. Any amounts
received by Lender pursuant to the sale of the Carolina Beach Facility, any equipment related to
the Carolina Beach Facility or the sale of the license for the Carolina Beach Facility shall be
credited against future Semi-Annual Payment Requirements.
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2.2 Prepayments. In addition to the Semi-Annual Payment Requirements made pursuant to
Section 2.1(b)(i) and (ii) above, Borrowers have the right to prepay all or any part of the Loan
prior to the Maturity Date, subject to payment of the Loan Fee, more particularly described in
Section 5 below, provided each of the following conditions are satisfied:
| (A) | Borrowers provide written notice to Lender of their intent to prepay not more than sixty (60) days and not less than thirty (30) days prior to the intended prepayment date. | ||
| (B) | Borrowers pay with such prepayment all accrued interest through the end of the current Interest Accrual Period and all other outstanding amounts then due and unpaid under the Loan Agreement and the other Loan Documents. | ||
| (C) | Borrowers pay with such prepayment the Loan Fee. | ||
| (D) | Borrowers pay with such prepayment all costs and expenses incurred by Lender in connection with such prepayment and any other costs and expenses due and payable by Borrowers under the Loan Documents. | ||
| (E) | No Event of Default exists as of the date Borrowers delivers notice of intent to prepay and as of the date such prepayment is made. |
Section 3. Application of Payments. Payments made by Borrowers on account hereof
shall be applied, first, toward any Late Fees (defined in Section 8.3 below) or other fees and
charges due hereunder, second, toward payment of any interest due at the Default Rate, third,
toward payment of any interest due at the then applicable Note Rate set forth in Section 1.4 above,
and fourth, toward payment of principal. Notwithstanding the foregoing, if any advances made by
Xxxxxx under the terms of any instruments securing this Note have not been repaid, any payments
made may, at the option of Lender, be applied, first, to repay such advances and interest thereon,
with the balance, if any, applied as set forth in the preceding sentence.
Section 4. Maturity Date. Anything in this Note to the contrary notwithstanding, the
entire unpaid balance of the principal amount hereof and all interest accrued thereon through the
end of the current Interest Accrual Period and including interest accruing at the Default Rate, to
and including the Maturity Date (as defined below) together with all fees, costs and amounts due
and payable under the Loan Documents shall, unless sooner paid, and except to the extent that
payment thereof is sooner accelerated, be and become due and payable on August 9, 2010 (the
“Maturity Date”); provided that if the ninth (9th) day of that month is not a Business
Day, such payment shall be due and payable on the immediately preceding Business Day.
Section 5. Loan Fee. As consideration of Xxxxxx’s making of the Loan to Borrowers,
Borrowers agree to pay a loan fee (“Loan Fee”) to Lender in an amount equal to two percent (2%) of
the original principal amount of the Loan. One-half the Loan Fee is earned in full and due on the
date hereof. The remaining one percent (1%) shall be deferred until the earlier of (a) the date
when full repayment of the Loan occurs, (b) the Maturity Date, or (c) the date on which the Loan
has been
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accelerated following an Event of Default. Notwithstanding the foregoing, should the sale of
the Carolina Beach Facility close on or before September 30, 2006, with net proceeds in excess of
$3,500,000.00, the portion of the Loan Fee that would be due upon the earlier of (a) the date when
full repayment of the Loan occurs, (b) the Maturity Date, or (c) the date on which the Loan has
been accelerated following an Event of Default will be reduced by a factor of 100 basis points
applied to the net proceeds of the Carolina Beach Facility sale and corresponding principal
reduction of the Loan. The 100 basis point Loan Fee due at closing will remain fully earned.
Notwithstanding the sale or transfer of the Loan by Capmark Finance Inc., in whole or in part, to a
successor lender, unless Capmark Finance Inc. has transferred its interest in the Loan Fee to its
successors or assigns as Lender, the Loan Fee shall be payable to Capmark Finance Inc.
Section 6. Delivery of Payments. All payments due to Lender under the Loan Documents
are to be paid in immediately available funds to Lender at Lender’s office located at 000 Xxxxxx
Xxxx, X.X. Box 809, Horsham, Pennsylvania 19044, Attn: Servicing — Accounting Manager, or at such
other place as Lender may designate to Borrowers in writing from time to time. All amounts due
under the Loan Documents shall be paid without setoff, counterclaim or any other deduction
whatsoever. No payment due under this Note or any of the other Loan Documents shall be deemed paid
to Lender until received by Lender at its designated office on a Business Day prior to 2:00 p.m.
Eastern Standard Time. Any payment received after the time established by the preceding sentence
shall be deemed to have been paid on the immediately following Business Day. Each payment that is
paid to Lender within ten (10) days prior to the date on which such payment is due, and prior to
its scheduled Payment Date, shall not be deemed a prepayment. If any payment received by Lender is
deemed by a court of competent jurisdiction to be a voidable preference or fraudulent conveyance
under any bankruptcy, insolvency or other debtor relief law, and is required to be returned by
Xxxxxx, then the obligation to make such payment shall be reinstated, notwithstanding that the Note
may have been marked satisfied and returned to Borrowers or otherwise canceled, and such payment
shall be immediately due and payable upon demand.
Section 7. Security.
The debt evidenced by this Note is to be secured by, among other things:
(a) an assignment of the DCMS Note Receivable and the Workers’ Comp Retro Premiums;
(b) a first lien deed of trust with respect to the Carolina Beach Borrower’s right, title,
interest in and to the Carolina Beach Facility;
(c) a first lien deed of trust with respect to the Lampasas Xxxxxxxx’s right, title, and
interest in and to that certain 68-bed skilled nursing facility known as “Lampasas Nursing and
Rehab Center”, located in Lampasas, Lampasas County, Texas (the “Lampasas Facility”);
(d) a first lien deed of trust with respect to the Yorktown Xxxxxxxx’s right, title, and
interest in and to that certain 92-bed skilled nursing facility known as “Yorktown Nursing and
Rehab Center”, located in Yorktown, Xxxxxx County, Texas (the “Yorktown Facility”);
(e) a second priority lien security interest in accounts receivable issuing from the Carolina
Beach Facility, the Lampasas Facility and the Yorktown Facility;
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(f) a second lien deed of trust or mortgage with respect to the Borrowers’ right, title, and
interest in and to the Facilities (excluding the Carolina Beach Facility, the Lampasas Facility,
and the Yorktown Facility), including the Land, as such terms are defined in the Loan Agreement;
and
(g) a Guaranty Agreement of even date herewith (the “Guaranty Agreement”), given by Advocat
Inc. (the “Guarantor”), for the benefit of Lender.
Section 8. Default.
8.1 Events of Default. Anything in this Note to the contrary notwithstanding, on the
occurrence of any of the following events (each of which is referred to herein, together with each
of the Events of Default defined and described in the Loan Agreement and the Mortgage as an “Event
of Default”), Lender may, in the exercise of its sole and absolute discretion, accelerate the debt
evidenced by this Note, in which event the entire outstanding principal balance and all interest
and fees accrued thereon shall immediately be and become due and payable without further notice:
8.1.1 Failure to Pay or Perform. If (a) any payment of principal and interest is not
paid in full on or before the Payment Date on which such payment is due or if the Loan Fee is not
paid in full when required, (b) if unpaid principal, accrued but unpaid interest and all other
amounts outstanding under the Loan Documents (defined below) are not paid in full on or before the
Maturity Date or (c) there exists an uncured default under any other document or instrument
evidencing or securing the Loan (collectively, the “Loan Documents”) which has been executed by
Xxxxxxxxx and/or Guarantor or Manager, and such default is not cured within the grace or cure
period, if any, provided in any of such Loan Documents.
8.1.2 Bankruptcy.
(a) If any Borrower, Guarantor or Manager (i) applies for or consents to the appointment of a
receiver, trustee or liquidator of any Borrower, Guarantor or Manager, as the case may be, or of
all or a substantial part of its assets, (ii) files a voluntary petition in bankruptcy, or admits
in writing its inability to pay its debts as they come due, (iii) makes an assignment for the
benefit of creditors, (iv) files a petition or an answer seeking a reorganization or an arrangement
with creditors or seeking to take advantage of any insolvency law, (v) performs any other act of
bankruptcy, or (vi) files an answer admitting the material allegations of a petition filed against
any Borrower, Guarantor or Manager in any bankruptcy, reorganization or insolvency proceeding; or
(b) if (i) an order, judgment or decree is entered by any court of competent jurisdiction
adjudicating any Borrower, Guarantor or Manager a bankrupt or an insolvent, or approving a
receiver, trustee or liquidator of any Borrower, Guarantor or Manager or of all or a substantial
part of its assets, or (ii) there otherwise commences with respect to any Borrower, Guarantor or
Manager or any of its assets any proceeding under any bankruptcy, reorganization, arrangement,
insolvency, readjustment, receivership or like law or statute, and if such order, judgment, decree
or proceeding continues unstayed for any period of sixty (60) consecutive days after the expiration
of any stay thereof.
8.1.3 Judgments. If any judgment for the payment of money in excess of $25,000.00
hereafter awarded against any Borrower or a judgment in excess of $100,000 hereafter awarded
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against Guarantor or Manager, by any court of competent jurisdiction remains unsatisfied or
otherwise in force and effect for a period of thirty (30) days after the date of such award, unless
such judgment is either (i) fully covered by collectible insurance and such insurer has within such
period acknowledged such coverage in writing, or (ii) although not fully covered by insurance,
enforcement of such judgment has been effectively stayed, such judgment is being contested or
appealed by appropriate proceedings and Borrower, Guarantor or Manager, as the case may be, has
established reserves adequate for payment in the event such Person is ultimately unsuccessful in
such contest or appeal and evidence thereof is provided to Lender.
8.1.4 Cross Collateralization and Cross Default. If an Event of Default occurs under
that certain Note I Loan (as defined in the Loan Agreement) in the principal sum of $22,500,000
executed by the Borrowers and payable to the Lender of even date herewith, which is not cured
within the grace or cure period, if any, therein provided.
8.2 No Impairment of Rights. Nothing in this Section shall be deemed in any way to
alter or impair any right which Lender has under this Note or the Mortgage, or any other Loan
Documents, or at law or in equity, to accelerate such debt on the occurrence of any other Event of
Default provided herein or therein, whether or not relating to this Note.
8.3 Late Fees. Without limiting the generality of the foregoing provisions of this
Section, if any payment due on a Payment Date is not received in full on or before the Payment
Date, Borrowers shall pay to Lender, immediately and without demand, a late payment charge, for
each month during which such payment delinquency exists, equal to the lesser of (a) five percent
(5%) of such amount or (b) the maximum amount permitted by applicable law (“Late Fees”) to defray
the expenses incurred by Lender in handling and processing such delinquent payment and to
compensate Lender for the loss of use of such delinquent payment.
8.4 Intentionally deleted.
Section 9. Costs of Enforcement. Borrowers shall pay to Lender on demand the amount
of any and all expenses incurred by Xxxxxx (a) in enforcing its rights hereunder or under the
Mortgage and/or the Loan Documents, (b) as the result of the occurrence of an Event of Default by
Borrowers in performing their obligations under this Note, including but not limited to the expense
of collecting any amount owed hereunder, and of any and all attorneys’ fees incurred by Lender in
connection with such default, whether suit be brought or not, and (c) in protecting the security
for the Loan and Borrowers’ obligations under the Loan Documents. Such expenses shall be added to
the principal amount hereof, shall be secured by the Mortgage and shall accrue interest at the
Default Rate.
Section 10. Borrowers’ Waiver of Certain Rights. Borrowers and any endorser,
guarantor or surety hereby waives the exercise of any and all exemption rights which they hold at
law or in equity with respect to the debt evidenced by this Note, and of any and all rights which
it holds at law or in equity to require any valuation, appraisal or marshalling, or to have or
receive any presentment, protest, demand and notice of dishonor, protest, demand and nonpayment as
a condition to Lender’s exercise of any of its rights under this Note or the Loan Documents.
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Section 11. Extensions. The Maturity Date and/or any other date by which any payment
is required to be made hereunder may be extended by Xxxxxx, in writing, from time to time in the
exercise of its sole discretion, without in any way altering or impairing Borrowers’ or Guarantor’s
liability hereunder.
Section 12. General.
12.1 Applicable Law. This Note shall be given effect and construed by application of
the laws of the State of Alabama (without regard to the principles thereof governing conflicts of
laws), and any action or proceeding arising hereunder, and each of Xxxxxx and Borrowers submit (and
waives all rights to object) to non-exclusive personal jurisdiction in the State of Alabama, for
the enforcement of any and all obligations under the Loan Documents except that if any such action
or proceeding arises under the Constitution, laws or treaties of the United States of America, or
if there is a diversity of citizenship between the parties thereto, so that it is to be brought in
a United States District Court, it shall be brought in the United States District Court for the
Northern District of Alabama or any successor federal court having original jurisdiction.
12.2 Headings. The headings of the Sections, subsections, paragraphs and
subparagraphs hereof are provided herein for and only for convenience of reference, and shall not
be considered in construing their contents.
12.3 Construction. As used herein, (a) the term “person” means a natural person, a
trustee, a corporation, a limited liability company, a partnership and any other form of legal
entity, and (b) all references made (i) in the neuter, masculine or feminine gender shall be deemed
to have been made in all such genders, (ii) in the singular or plural number shall be deemed to
have been made, respectively, in the plural or singular number as well, and (iii) to any Section,
subsection, paragraph or subparagraph shall, unless therein expressly indicated to the contrary, be
deemed to have been made to such Section, subsection, paragraph or subparagraph of this Note.
12.4 Severability. No determination by any court, governmental body or otherwise that
any provision of this Note or any amendment hereof is invalid or unenforceable in any instance
shall affect the validity or enforceability of (a) any other such provision or (b) such provision
in any circumstance not controlled by such determination. Each such provision shall be valid and
enforceable to the fullest extent allowed by, and shall be construed wherever possible as being
consistent with, applicable law.
12.5 No Waiver. Xxxxxx shall not be deemed to have waived the exercise of any right
which it holds hereunder unless such waiver is made expressly and in writing. No delay or omission
by Xxxxxx in exercising any such right (and no allowance by Xxxxxx to Borrower of an opportunity to
cure a default in performing its obligations hereunder) shall be deemed a waiver of its future
exercise. No such waiver made as to any instance involving the exercise of any such right shall be
deemed a waiver as to any other such instance, or any other such right. Further, acceptance by
Xxxxxx of all or any portion of any sum payable under, or partial performance of any covenant of,
this Note, the Mortgage or any of the other Loan Documents, whether before, on, or after the due
date of such payment or performance, shall not be a waiver of Lender’s right either to require
prompt and full payment and performance when due of all other sums payable or obligations due
thereunder or hereunder or to exercise any of Xxxxxx’s rights and remedies hereunder or thereunder.
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12.6 Waiver of Jury Trial; Service of Process; Court Costs. BORROWERS HEREBY WAIVE
TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO WHICH BORROWERS AND XXXXXX MAY BE PARTIES ARISING OUT
OF, IN CONNECTION WITH, OR IN ANY WAY PERTAINING TO, THIS NOTE AND/OR ANY OF THE OTHER LOAN
DOCUMENTS. IT IS AGREED AND UNDERSTOOD THAT THIS WAIVER CONSTITUTES A WAIVER OF TRIAL BY JURY OF
ALL CLAIMS AGAINST ALL PARTIES TO SUCH ACTIONS OR PROCEEDINGS, INCLUDING CLAIMS AGAINST PARTIES WHO
ARE NOT PARTIES TO THIS NOTE. THIS WAIVER IS KNOWINGLY, WILLINGLY AND VOLUNTARILY MADE BY
BORROWERS, UPON CONSULTATION WITH COUNSEL OF BORROWERS’ CHOICE, AND BORROWERS HEREBY REPRESENT THAT
NO REPRESENTATIONS OF FACT OR OPINION HAVE BEEN MADE BY ANY INDIVIDUAL TO INDUCE THIS WAIVER OF
TRIAL BY JURY OR TO IN ANY WAY MODIFY OR NULLIFY ITS EFFECT. XXXXXXXXX FURTHER REPRESENT AND
WARRANT THAT THEY HAVE BEEN REPRESENTED IN THE SIGNING OF THIS NOTE AND IN THE MAKING OF THIS
WAIVER BY INDEPENDENT LEGAL COUNSEL, OR HAVE HAD THE OPPORTUNITY TO BE REPRESENTED BY INDEPENDENT
LEGAL COUNSEL SELECTED OF THEIR OWN FREE WILL, AND THAT THEY HAS HAD THE OPPORTUNITY TO DISCUSS
THIS WAIVER WITH COUNSEL. XXXXXXXXX HEREBY IRREVOCABLY DESIGNATES NATIONAL REGISTERED AGENTS,
INC., AND HIS/HER SUCCESSORS IN OFFICE, AS THE TRUE AND LAWFUL ATTORNEY OF BORROWERS FOR THE
PURPOSE OF RECEIVING SERVICE OF ALL LEGAL NOTICES AND PROCESS ISSUED BY ANY COURT IN THE STATE OF
ALABAMA AS WELL AS SERVICE OF ALL PLEADINGS AND OTHER DOCUMENTS RELATED TO ANY LEGAL PROCEEDING OR
ACTION ARISING OUT OF THIS NOTE. XXXXXXXXX AGREE THAT SERVICE UPON SAID NATIONAL REGISTERED AGENTS,
INC. SHALL BE VALID REGARDLESS OF BORROWERS’ WHEREABOUTS AT THE TIME OF SUCH SERVICE AND REGARDLESS
OF WHETHER BORROWERS RECEIVE A COPY OF SUCH SERVICE, PROVIDED THAT LENDER SHALL HAVE MAILED A COPY
TO BORROWERS IN ACCORDANCE WITH THE NOTICE PROVISIONS HEREIN. XXXXXXXXX AGREE TO PAY ALL COURT
COSTS AND REASONABLE ATTORNEY’S FEES INCURRED BY XXXXXX IN CONNECTION WITH ENFORCING ANY PROVISION
OF THIS NOTE. NOTWITHSTANDING THE FOREGOING, XXXXXX AGREES TO USE REASONABLE EFFORTS TO PROVIDE
BORROWERS WITH NOTICE OF THE FILING OF ANY LAWSUIT BY XXXXXX AGAINST BORROWERS.
12.7 Offset. Upon the occurrence of an Event of Default, Lender may set-off against
any principal and interest owing hereunder, any and all credits, money, stocks, bonds or other
security or property of any nature whatsoever on deposit with, or held by, or in the possession of,
Lender, to the credit of or for the account of Borrowers, without notice to or consent of Borrowers
or Guarantor.
12.8 Non-Exclusivity of Rights and Remedies. None of the rights and remedies herein
conferred upon or reserved to Lender is intended to be exclusive of any other right or remedy
contained herein or in any of the other Loan Documents and each and every such right and remedy
shall be cumulative and concurrent, and may be enforced separately, successively or together, and
may be exercised from time to time as often as may be deemed necessary or desirable by Lender.
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12.9 Incorporation by Reference. All of the agreements, conditions, covenants and
provisions contained in each of the Loan Documents are hereby made a part of this Note to the same
extent and with the same force and effect as if they were fully set forth herein. Borrowers
covenants and agrees to keep and perform, or cause to be kept and performed, all such agreements,
conditions, covenants and provisions strictly in accordance with their terms.
12.10 Joint and Several Liability. If Borrowers consist of more than one person
and/or entity, each such person and/or entity agrees that its liability hereunder is joint and
several.
12.11 Business Purpose. Borrowers represent and warrant that the Loan evidenced by
this Note is being obtained solely for the purpose of acquiring or carrying on a business,
professional or commercial activity and is not for personal, agricultural, family or household
purposes.
12.12 Interest Limitation. Notwithstanding anything to the contrary contained herein
or in the Mortgage or in any other of the Loan Documents, the effective rate of interest on the
obligation evidenced by this Note shall not exceed the lawful maximum rate of interest permitted to
be paid. Without limiting the generality of the foregoing, in the event that the interest charged
hereunder results in an effective rate of interest higher than that lawfully permitted to be paid,
then such charges shall be reduced by the sum sufficient to result in an effective rate of interest
permitted and any amount which would exceed the highest lawful rate already received and held by
Lender shall be applied to a reduction of principal and not to the payment of interest. Borrowers
agree that for the purpose of determining highest rate permitted by law, any non-principal payment
(including, without limitation, Late Fees and other fees) shall be deemed, to the extent permitted
by law, to be an expense, fee or premium rather than interest.
12.13 Modification. This Note may be modified, amended, discharged or waived only by
an agreement in writing signed by the party against whom enforcement of such modification,
amendment, discharge or waiver is sought.
12.14 Time of the Essence. Time is strictly of the essence of this Note.
12.15 Negotiable Instrument. Borrowers agree that this Note shall be deemed a
negotiable instrument, even though this Note may not otherwise qualify, under applicable law,
absent this paragraph, as a negotiable instrument.
12.16 Interest Rate After Judgment. If judgment is entered against Borrowers on this
Note, the amount of the judgment entered (which may include principal, interest, fees, Late Fees
and costs) shall bear interest at the Default Rate, to be determined on the date of the entry of
the judgment.
12.17 Relationship. Xxxxxxxxx and Xxxxxx intend that the relationship between them
shall be solely that of creditor and debtor. Nothing contained in this Note or in any of the other
Loan Documents shall be deemed or construed to create a partnership, tenancy-in-common, joint
tenancy, joint venture or co-ownership by or between Borrowers and Lender.
12.18 Waiver of Automatic Stay. BORROWERS HEREBY AGREE THAT, IN CONSIDERATION OF
XXXXXX’S AGREEMENT TO MAKE THE LOAN AND IN RECOGNITION THAT THE FOLLOWING COVENANT IS A MATERIAL
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INDUCEMENT FOR LENDER TO MAKE THE LOAN, IN THE EVENT THAT BORROWERS SHALL (A) FILE WITH ANY
BANKRUPTCY COURT OF COMPETENT JURISDICTION OR BE THE SUBJECT OF ANY PETITION UNDER ANY SECTION OR
CHAPTER OF TITLE 11 OF THE UNITED STATES CODE, AS AMENDED (THE “BANKRUPTCY CODE”), OR
SIMILAR LAW OR STATUTE; (B) BE THE SUBJECT OF ANY ORDER FOR RELIEF ISSUED UNDER THE BANKRUPTCY CODE
OR SIMILAR LAW OR STATUTE; (C) FILE OR BE THE SUBJECT OF ANY PETITION SEEKING ANY REORGANIZATION,
ARRANGEMENT, COMPOSITION, READJUSTMENT, LIQUIDATION, DISSOLUTION, OR SIMILAR RELIEF UNDER ANY
PRESENT OR FUTURE FEDERAL OR STATE ACT OR LAW RELATING TO BANKRUPTCY, INSOLVENCY, OR OTHER RELIEF
FOR DEBTORS; (D) HAVE SOUGHT OR CONSENTED TO OR ACQUIESCED IN THE APPOINTMENT OF ANY TRUSTEE,
RECEIVER, CONSERVATOR, OR LIQUIDATOR; OR (E) BE THE SUBJECT OF AN ORDER, JUDGMENT OR DECREE ENTERED
BY ANY COURT OF COMPETENT JURISDICTION APPROVING A PETITION FILED AGAINST ANY BORROWER FOR ANY
REORGANIZATION, ARRANGEMENT, COMPOSITION, READJUSTMENT, LIQUIDATION, DISSOLUTION, OR SIMILAR RELIEF
UNDER ANY PRESENT OR FUTURE FEDERAL OR STATE ACT OR LAW RELATING TO BANKRUPTCY, INSOLVENCY OR
RELIEF FOR DEBTORS, THEN, TO THE EXTENT PERMITTED BY APPLICABLE LAW AND SUBJECT TO COURT APPROVAL,
LENDER SHALL THEREUPON BE ENTITLED, AND BORROWERS HEREBY IRREVOCABLY CONSENT TO, AND WILL NOT
CONTEST, AND AGREES TO STIPULATE TO, RELIEF FROM ANY AUTOMATIC STAY OR OTHER INJUNCTION IMPOSED BY
SECTION 362 OF THE BANKRUPTCY CODE OR SIMILAR LAW OR STATUTE (INCLUDING, WITHOUT LIMITATION, RELIEF
FROM ANY EXCLUSIVE PERIOD SET FORTH IN SECTION 1121 OF THE BANKRUPTCY CODE) OR OTHERWISE, ON OR
AGAINST THE EXERCISE OF THE RIGHTS AND REMEDIES OTHERWISE AVAILABLE TO LENDER AS PROVIDED IN THE
LOAN DOCUMENTS, AND AS OTHERWISE PROVIDED BY LAW, AND BORROWERS HEREBY IRREVOCABLY WAIVE THEIR
RIGHTS TO OBJECT TO SUCH RELIEF.
12.19 Intentionally Deleted.
12.20 “Business Day”. Any reference to the term Business Day in this Note shall mean
any day other than a Saturday, a Sunday, or days when Federal Banks located in the State of New
York or Commonwealth of Pennsylvania are closed for a legal holiday or by government directive.
When used with respect to the Note Rate Adjustment Date, “Business Day” shall mean a day upon which
United States dollar deposits may be dealt in on the London and New York City interbank markets and
commercial banks and foreign exchange markets are open in London and New York City.
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IN WITNESS WHEREOF, Xxxxxxxxx have executed and sealed this Note or caused it to be
executed and sealed on its behalf by its duly authorized representatives, the day and year first
above written, and the obligations under this Note shall be binding upon Xxxxxxxx’s successors and
assigns.
| BORROWERS: | ||||
| DIVERSICARE XXXXX XXXX, LLC, | ||||
| a Delaware limited liability company | ||||
| By: | Diversicare Leasing Corp., a Tennessee | |||
| corporation, its sole member | ||||
| By: | /s/ Xxxxx Xxxxxx | |||
| X. Xxxxx Xxxxxx, | ||||
| its Chief Financial Officer | ||||
| DIVERSICARE ASSISTED LIVING SERVICES | ||||
| NC I, LLC, a Delaware limited liability company | ||||
| By: Diversicare Assisted Living Services NC, LLC | ||||
| Its: Sole Member | ||||
| By: | /s/ Xxxxx Xxxxxx | |||
| X. Xxxxx Xxxxxx, | ||||
| its Chief Financial Officer | ||||
| DIVERSICARE ASSISTED LIVING SERVICES | ||||
| NC II, LLC, a Delaware limited liability company | ||||
| By: Diversicare Assisted Living Services NC, LLC | ||||
| Its: Sole Member | ||||
| By: | /s/ Xxxxx Xxxxxx | |||
| X. Xxxxx Xxxxxx, | ||||
| its Chief Financial Officer | ||||
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| DIVERSICARE BRIARCLIFF, LLC, a | ||||
| Delaware limited liability company | ||||
| By: | Diversicare Leasing Corp., a Tennessee | |||
| corporation, its sole member | ||||
| By: | /s/ Xxxxx Xxxxxx | |||
| X. Xxxxx Xxxxxx, | ||||
| its Chief Financial Officer | ||||
| DIVERSICARE XXXXXXX, LLC, a | ||||
| Delaware limited liability company | ||||
| By: | Diversicare Leasing Corp., a Tennessee | |||
| corporation, its sole member | ||||
| By: | /s/ Xxxxx Xxxxxx | |||
| X. Xxxxx Xxxxxx, | ||||
| its Chief Financial Officer | ||||
| DIVERSICARE HARTFORD, LLC, a | ||||
| Delaware limited liability company | ||||
| By: | Diversicare Leasing Corp., a Tennessee | |||
| corporation, its sole member | ||||
| By: | /s/ Xxxxx Xxxxxx | |||
| X. Xxxxx Xxxxxx, | ||||
| its Chief Financial Officer | ||||
| DIVERSICARE HILLCREST, LLC, a | ||||
| Delaware limited liability company | ||||
| By: | Diversicare Leasing Corp., a Tennessee | |||
| corporation, its sole member | ||||
| By: | /s/ Xxxxx Xxxxxx | |||
| X. Xxxxx Xxxxxx, | ||||
| its Chief Financial Officer | ||||
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| DIVERSICARE LAMPASAS, LLC, a | ||||
| Delaware limited liability company | ||||
| By: | Diversicare Leasing Corp., a Tennessee | |||
| corporation, its sole member | ||||
| By: | /s/ Xxxxx Xxxxxx | |||
| X. Xxxxx Xxxxxx, | ||||
| its Chief Financial Officer | ||||
| DIVERSICARE PINEDALE, LLC, a | ||||
| Delaware limited liability company | ||||
| By: | Diversicare Leasing Corp., a Tennessee | |||
| corporation, its sole member | ||||
| By: | /s/ Xxxxx Xxxxxx | |||
| X. Xxxxx Xxxxxx, | ||||
| its Chief Financial Officer | ||||
| DIVERSICARE WINDSOR HOUSE, LLC, a | ||||
| Delaware limited liability company | ||||
| By: | Diversicare Leasing Corp., a Tennessee | |||
| corporation, its sole member | ||||
| By: | /s/ Xxxxx Xxxxxx | |||
| X. Xxxxx Xxxxxx, | ||||
| its Chief Financial Officer | ||||
| DIVERSICARE YORKTOWN, LLC, a | ||||
| Delaware limited liability company | ||||
| By: | Diversicare Leasing Corp., a Tennessee | |||
| corporation, its sole member | ||||
| By: | /s/ Xxxxx Xxxxxx | |||
| X. Xxxxx Xxxxxx, | ||||
| its Chief Financial Officer | ||||
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ACKNOWLEDGED BY GUARANTOR THIS
7th DAY OF AUGUST, 2006:
7th DAY OF AUGUST, 2006:
ADVOCAT INC., a Delaware corporation
By:
|
/s/ Xxxxx Xxxxxx | (SEAL) | ||
| Name: Xxxxx Xxxxxx | ||||
| Title: Chief Financial Officer | ||||
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