EXHIBIT 10.36
PROMISSORY NOTE
$75,000.00 February 4, 2003
FOR VALUE RECEIVED, the undersigned, DCA of Cincinnati, LLC, an Ohio
limited liability company (the "Borrower"), hereby promises to pay to the
order of Dialysis Corporation of America, a Florida corporation (the "Lender")
(and a member of the Borrower under an Operating Agreement dated November 8,
2001 by and between Lender and two other 20% members of the Borrower,
Pupizion, Inc., an Ohio limited liability company ("Pupizion"), from whom
the Borrower is leasing the premises located at 0000 Xxxxxxxx Xxxxx, Xx.
Xxxxxxx, Xxxx (the "Facility"), and Bepo, Inc., an Ohio limited liability
company (the "Operating Agreement"), all capitalized terms except as
provided in this recourse promissory note (the "Note") shall have the
meanings as defined in the Operating Agreement), or the Lender's successors
and assigns (hereinafter, with any subsequent holder, the "Holder"), at its
principal offices located at 0000 Xxxxxx Xxxx, Xxxxx 000, Xxxxxxx, Xxxxxxxx
00000, or at such other place or to such other party as the Holder of this
Note may from time to time designate in writing, the principal sum of
Seventy-Five Thousand Dollars ($75,000.00) together with interest on the
principal balance outstanding from time to time at the fixed rate of two
(2%) percent over the prime rate as set by the Lender's primary financing
institution until this Note is paid in full. The interest rate on the date
hereof is 6.25% per annum. All payments hereunder shall be made in lawful
currency of the United States and in immediately available funds. Interest
shall be calculated on the basis of the actual number of days elapsed over a
360-day year.
1. Financing. This Note has been issued by the Lender in connection
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with the construction of the Facility by the Lender, and the Lender having
extended, in addition to the other construction costs, the principal sum
under this Note for tenant improvements by the Borrower to the Facility,
which is deemed Financing under the Operating Agreement, and other than the
terms set forth in this Note, the terms and provisions as provided for the
repayment of Financing under the Operating Agreement shall govern, in
particular but not limited to Section 7.2, indicating no distributions or
allocations shall be made to any Member until Member Financings have been
first fully paid, which has also been reflected in other provisions of the
Operating Agreement, including but not limited to Articles 9, 10 and 12.
2. Priority and Time of Payment. Subject to the terms and provisions
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of the Operating Agreement relating to Financing and its repayment, this
Note shall be paid in whole or in part prior to any other payments by the
Borrower to any other person at the earlier of (i) five years from the date
of this Note, or (ii) at such time the Borrower, pursuant to the decision
of the Borrower's Majority Members, which includes the Holder of this Note,
has Cash Flow or other Special Proceeds available for distribution under
Article 9 of the Operating Agreement, subject to any tax payment
distributions under Sections 9.1(ii) and 12.2(i) of the Operating Agreement
(the "Maturity Date").
Notwithstanding anything herein or in the Operating Agreement to the
contrary, in the event the Borrower sells any Company Interests other than
the Initial Company Interests, then the proceeds of such sale shall be first
used to reduce or otherwise fully repay the principal sum and accrued
interest under this Note, the balance of any proceeds of such Company
Interest sale shall be used in accordance with the requirements of the
Borrower and in accordance with the Operating Agreement.
3. Application of Payments. All payments on account of the indebtedness
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evidenced by this Note prior to demand or acceleration shall be applied first,
to any and all costs, expenses, or charges then owed the Holder by the
Borrower; second, to accrued and unpaid interest; third, to the payment of
late charges provided herein; and the balance to the unpaid principal until
the full amount of principal
and interest has been paid in full. All payments so received after demand or
acceleration shall be applied in such manner as the Holder may determine in
its sole and absolute discretion.
4. Costs of Collections. If all sums due under this Note are not paid
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in full when due, the Borrower agrees to pay, in addition to the sums due
hereunder, all costs of collection (including reasonable attorneys' fees
and expenses), whether suit be brought or not.
5. Prepayment/Acceleration. Amounts borrowed hereunder together with
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all accrued interest thereon may be prepaid at any time prior to the Maturity
Date without penalty.
6. Default
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6.1 The occurrence of any one or more of the following events shall
constitute an "Event of Default":
a. Borrower fails or neglects to observe, perform or comply with
the terms, conditions, covenants or warranties contained in this Note, the
Operating Agreement or any other agreement now existing or hereafter executed
evidencing, securing or relating to any way to the obligations, which are
required to be observed, performed or complied with by the Borrower;
b. The occurrence of any material uninsured damage to or loss,
theft or destruction of any of the Borrower's property;
c. Borrower is enjoined, restrained or in any way prevented by
the order of any court or any administrative or regulatory agency from
conducting all or any material part of its business;
d. Any strike, lockout, labor dispute, embargo, condemnation,
act of G-d or public enemy, or other casualty which causes the cessation or
substantial curtailment of the Borrower's revenue producing activities for 30
days or more;
e. The loss, suspension or revocation of, or failure to renew,
any material license or permit now held or hereafter acquired by the Borrower;
f. The entry of judgment or the issuance of a warrant of
attachment, execution or similar process against the Borrower or its property
in excess of $50,000, which shall not be dismissed, discharged or bonded
within thirty (30) days;
g. Lender ceases to hold a majority interest in the Borrower;
h. The occurrence of any material adverse change in the financial
condition of the Borrower; or
i. Borrower shall (A) make a general assignment for the benefit of
creditors; (B) commence any case, proceeding or other action seeking to have
an order for relief entered on its behalf as a debtor or to adjudicate it a
bankrupt or insolvent, or seeking reorganization, arrangement, adjustment,
liquidation, dissolution or composition of it or its debts or seeking
appointment of a receiver, trustee, custodian or other similar official for
it or for all or any substantial part of its property (collectively a
"proceeding for relief"); (C) become the subject to any proceeding for relief
which is not dismissed within 60 days of its filing or entry; or (D) be
dissolved or otherwise fail to maintain its legal existence.
6.2 Acceleration of Obligations Upon Default. Upon and after an Event
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of Default, all of the Borrower's obligations herein may, at the option of the
Lender, without any legal process, be declared, and immediately shall become
due and payable.
7. Default Interest Rate. Upon the occurrence, and during the
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continuance of, an Event of Default, the rate of interest accruing on the
unpaid principal balance hereof and accrued interest thereon shall be
increased to a fixed rate of fifteen percent (15%) per annum.
8. Maximum Rate of Interest. This Note is subject to the express
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condition that at no time shall the Borrower be obligated or required to pay
interest hereunder at a rate that could subject the Borrower to either civil
or criminal liability as a result of being in excess of the maximum rate
which the Borrower is permitted by law to contract or agree to pay. If, by
the terms of this Note, the Borrower is at any time required or obligated to
pay interest at a rate in excess of such maximum rate, the rate of interest
under this Note shall be deemed to be immediately reduced to such maximum
rate as permitted by law, and interest payable hereunder shall be computed
at such maximum rate and the portion of all prior interest payments in
excess of such maximum rate shall be applied and shall be deemed to have
been payments in reduction of the principal balance of this Note.
9. Waivers. The Borrower waives all exemption rights, whether under any
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state constitution, homestead exemption or otherwise, and also waives demand,
presentment for payment, notice of dishonor, protest valuation and appraisal,
notice of protest, notice of dishonor, and any other notice required to be
given by law in connection with the delivery, acceptance, performance, default
or enforcement of this Note, and consents to all forbearance or waiver of any
term hereof or release or discharge by the Holder hereof of the Borrower,
substitution or exchange of any security for the payment hereof or the
failure to act on the part of the Holder or any other indulgence shown by
the Holder from time to time, in one or more instances (without notice to or
further assent from the Borrower) and the Borrower agrees that no such
action, failure to act or failure to exercise any right or remedy on the
part of the Holder shall in any way affect or impair the obligations of the
Borrower hereunder or be construed as a waiver by the Holder of or otherwise
affect any of the Holder's rights under this Note, under any endorsement or
guaranty of this Note, or under any document or instrument evidencing any
security for payment of this Note, and the Borrower expressly agrees that
the Maturity Date hereof may be extended from time to time by the written
consent of the Holder without in any way affecting the liability of the
Borrower.
10. Governing Law. This Note shall be governed by, and construed in
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accordance with, the laws of the State of Ohio.
11. Severability. In the event any one or more of the provisions
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contained in this Note shall, for any reason, be held to be invalid,
illegal, or unenforceable in any respect, such invalidity, illegality, or
unenforceability shall not affect any other provision of this Note and
this Note shall be construed as if such invalid, illegal, or unenforceable
provision had never been contained herein.
12. No Oral Modifications or Waivers. This Note may not be changed
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orally, but only by an agreement in writing signed by the parties against
whom enforcement of any waiver, change, modification or discharge is sought.
13. Due Authority and Enforceability. The representative of the Borrower
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subscribing below represents that he or she has full power, authority and
legal right to execute and deliver this Note and that the debt hereunder
constitutes a valid and binding obligation of Borrower.
14. WAIVER OF JURY TRIAL. THE BORROWER HEREBY KNOWINGLY, VOLUNTARILY
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AND INTENTIONALLY WAIVES THE RIGHTS IT MAY HAVE TO A TRIAL BY JURY IN ANY
LITIGATION BASED HEREON, OR ARISING OUT OF, OR IN CONNECTION WITH THIS NOTE,
THE OPERATING AGREEMENT AND RELATED DOCUMENTS. THIS PROVISION WAS
SPECIFICALLY BARGAINED FOR AND IS A MATERIAL INDUCEMENT FOR THE HOLDER TO
EXTEND CREDIT AND MAKE THE LOAN TO THE BORROWER.
15. Assignment. This Note and the obligations hereunder may not be
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assigned by the Borrower without the prior written consent of the Holder.
16. Binding Effect. This Note shall be binding upon the Borrower and
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its successors and assigns and shall inure to the benefit of the Holder and
its successors and assigns.
17. Headings. The headings in this Note are for convenience of reference
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only and shall not define or limit any terms or provisions hereof.
18. Non-Membership Status of the Lender. Pursuant to Article 7 of the
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Operating Agreement, with respect to the granting of this Note, Lender, or
any future Holder, will be treated as a non-Member of the Borrower.
19. Use of Certain Terms. The words "herein," "hereof," "hereunder" and
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other words of similar import refer to this Note as a whole and not to any
particular section of this Note unless specifically stated otherwise in this
Note.
{signatures on following pages}
IN WITNESS WHEREOF, the Borrower has duly executed this Note as of the
day and year first above written.
BORROWER:
DCA OF CINCINNATI, LLC,
an Ohio limited liability company
By Members:
DIALYSIS CORPORATION OF AMERICA
/s/ Xxxxxxx X. Xxxxxxx
By:------------------------------------
Name: XXXXXXX X. XXXXXXX
Title: President
STATE OF MARYLAND )
) SS:
COUNTY OF XXXX ARUNDEL )
The foregoing instrument was acknowledged before me this 4th day of
February, 2003 by Xxxxxxx X. Xxxxxxx, the President of Dialysis Corporation
of America, a Florida corporation, on behalf of the corporation.
/s/ Xxxx X. Xxxxx
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Notary Public
PUPIZION, INC.
/s/ Xxxxxx X. Xxxxx
By:------------------------------------
Name: XXXXXX X. XXXXX, M.D.
Title: President
STATE OF OHIO )
) SS:
COUNTY OF XXXXXX )
The foregoing instrument was acknowledged before me this 6TH day of
February, 2003 by Xxxxxx X. Xxxxx, M.D., the President of Pupizion, Inc., an
Ohio limited liability company, on behalf of the company.
/S/ Xxxxx X. Xxxxxxx
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Notary Public
BEPO, INC.
/S/ Xxxxxxx Xxxxxx
By:------------------------------------
Name: XXXXXXX XXXXXX, M.D.
Title: President
STATE OF OHIO )
) SS:
COUNTY OF XXXXXX )
The foregoing instrument was acknowledged before me this 6TH day of
February, 2003 by Xxxxxxx Xxxxxx, M.D., the President of Bepo, Inc., an
Ohio limited liability company, on behalf of the company.
/s/ Xxxxx X. Xxxxxxx
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Notary Public
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