EXHIBIT 10.35
Borrower: UCI PROPERTIES, LLC
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Account Number: 9520026484 BB&T Note Number: 00001
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Address: 0000 XXXXXX XX. XXXXXXXX Xxxxx Xxxxxxxx
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XXXXXXXX, XX 00000-0000 PROMISSORY NOTE Date: Effective as of February 13, 2008
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BORROWER(S) REPRESENTS HEREWITH THAT THE LOAN EVIDENCED HEREBY IS BEING OBTAINED
FOR BUSINESS/COMMERCIAL PURPOSES. For value received, the undersigned, jointly
and severally, if more than one, promises to pay to BRANCH BANKING AND TRUST
COMPANY, a North Carolina banking corporation (the "Bank"), or order, at said
bank at any of its offices in the above referenced city (or such other place or
places that may be hereafter designated by Bank), the sum of THREE MILLION FIVE
HUNDRED THOUSAND DOLLARS & 00/100 Dollars ($3,500,000.00), in immediately
available coin or currency of the United States of America.
Borrower shall pay a prepayment fee as set forth in the Prepayment Fee Addendum
attached hereto.
Interest shall accrue from the date hereof on the unpaid balance
outstanding from time to time at the:
Fixed rate of % per annum.
-----
Variable rate of the Bank's Prime Rate plus ______ % per annum to be
adjusted as the Bank's Prime Rate changes. If checked here, the interest rate
will not exceed a(n) fixed average maximum rate of % or a floating maximum rate
of the greater of ______ % or the Bank's Prime Rate; and the interest rate will
not decrease below a fixed minimum rate of %. If an average maximum rate is
specified, a determination of any required reimbursement of interest by Bank
will be made: when Note is repaid in full by Borrower annually beginning on .
Fixed rate of % per annum through which automatically converts on to a variable
rate equal to the Bank's Prime Rate plus % per annum which shall be
adjusted as such Prime Rate changes.
|X| The Adjusted LIBOR Rate, as Defined in the Attached Addendum to
Promissory Note.
Principal and interest are payable as follows:
Principal (plus any accrued interest not otherwise scheduled herein) is due
in full at maturity on . ------------------------------------ Principal plus
accrued interest Payable in consecutive Monthly installments of Principal
------- commencing on 10/05/2009 ---------- |X|Principal and Interest and
continued on the same day of each calendar period thereafter, in 65 equal
payments of $27,561.57, with one final payment of all remaining principal and
accrued interest due on 3/05/2015. ChoiceLine Payment Option: 2% of outstanding
balance is payable monthly commencing on
-------------------------------------------- . and continuing on the same day of
each calendar period thereafter, with one final payment of all remaining
principal and accrued interest due on .
----------------------------------------- |X| Accrued interest is payable
Monthly commencing on April 5, 2008 and continuing on the same day of each
------- ------------- calendar period thereafter, with one final payment of all
remaining interest due on September 5, 2009
------------------------------------------------------------------------------ .
Bank reserves the right in its sole discretion to adjust the fixed payment due
hereunder on and continuing on the same day of each calendar period thereafter,
in order to maintain an amortization period of no more than months from the date
of the initial principal payment due hereunder. Borrower understands the payment
may increase if interest rates increase. Prior to an event of default, Borrower
may borrow, repay, and reborrow hereunder pursuant to the terms of the Loan
Agreement, hereinafter defined. . Borrower hereby authorizes Bank to
automatically draft from its demand, deposit, or savings account(s) with Bank or
other bank, any payment(s) due under this Note on the date(s) due. Borrower
shall provide appropriate account number(s) for account(s) at Bank or other
bank.
The undersigned shall pay to Bank a late fee in the amount of five
percent (5%) of any installment past due for fifteen (15) or more days. When any
installment payment is past due for fifteen (15) or more days, subsequent
payments shall first be applied to the past due balance. In addition, the
undersigned shall pay to Bank a returned payment fee if the undersigned or any
other obligor hereon makes any payment at any time by check or other instrument,
or by any electronic means, which is returned to Bank because of nonpayment due
to nonsufficient funds.
All interest shall be computed and charged for the actual number of days
elapsed on the basis of a year consisting of three hundred sixty (360) days. In
the event periodic accruals of interest shall exceed any periodic fixed payment
amount described above, the fixed payment amount shall be immediately increased,
or additional supplemental interest payments required on the same periodic basis
as specified above (increased fixed payments or supplemental payments to be
determined in the Bank's sole discretion), in such amounts and at such times as
shall be necessary to pay all accruals of interest for the period and all
accruals of unpaid interest from previous periods. Such adjustments to the fixed
payment amount or supplemental payments shall remain in effect for so long as
any interest accruals shall exceed the original fixed payment amount and shall
be further adjusted upward or downward to reflect changes in any variable
interest rate; provided that unless elected otherwise above, the fixed payment
amount shall not be reduced below the original fixed payment amount. However,
Bank shall have the right, in its sole discretion, to lower the fixed payment
amount below the original payment amount.
This Note is given by the undersigned in connection with the following
agreements (if any) between the undersigned and the Bank:
Mortgage(s)/Deeds of Trust granted in favor of Bank as
mortgagee/beneficiary: |X| dated 02/13/2008 in the maximum principal amount of
$3,500,000.00. ---------- ------------------ granted by UCI PROPERTIES, LLC.
----------------------------------------- - dated in the maximum principal
amount of $ . -----------------
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granted by
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..
Security Agreement(s) conveying a security interest to Bank:
|X| dated 02/13/2008 given by UCI PROPERTIES, LLC . ----------
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dated given by . -----------
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Securities Account Pledge and Security Agreement dated , executed by
---------------- --------------------------------------------------- . Control
Agreement(s) dated , covering Deposit Account(s) Investment Property ---------
Letter of Credit Rights Electronic Chattel Paper Assignment of Certificate of
Deposit, Security Agreement, and Power of Attorney (for Certificated
Certificates of Deposit) dated , ---------- executed by
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.. Pledge and Security Agreement for Publicly Traded Certificated Securities
dated, executed by ------------------------------ . Assignment of Life Insurance
Policy as Collateral dated , executed by . |X| Loan Agreement dated 02/13/2008,
executed by Borrower and |X| Guarantor(s). Assignment of Leases and Rents dated
02/13/2008 executed by UCI PROPERTIES, LLC .
All of the terms, conditions and covenants of the above described
agreements (the "Agreements") are expressly made a part of this promissory note
("Note") by reference in the same manner and with the same effect as if set
forth herein at length, and any holder of this Note is entitled to the benefits
of and remedies provided in the Agreements and any other agreements by and
between the undersigned and the Bank.
No delay or omission on the part of the holder in exercising any right
hereunder shall operate as a waiver of such right or of any other right of such
holder, nor shall any delay, omission or waiver on any one occasion be deemed a
bar to or waiver of the same or of any other right on any future occasion. Every
one of the undersigned and every endorser or guarantor of this Note regardless
of the time, order or place of signing waives presentment, demand, protest and
notices of every kind and assents to any one or more extensions or postponements
of the time of payment or any other indulgences, to any substitutions, exchanges
or releases of collateral if at any time there be available to the holder
collateral for this Note, and to the additions or releases of any other parties
or persons primarily or secondarily liable.
The failure to pay any part of the principal or interest when due on this
Note or to fully perform any covenant, obligation or warranty on this or on any
other liability to the Bank by any affiliate (as defined in 11 USC Section
(101)(2)), or by any guarantor or surety of this Note (said affiliate,
guarantor, and surety are herein called "Obligor"); or if any financial
statement or other representation made to the Bank by any of the undersigned or
any Obligor shall be found to be materially incorrect or incomplete; or if any
of the undersigned shall fail to furnish information and documentation to the
Bank sufficient to verify the identity of the undersigned as required under the
USA Patriot Act; or in the event of a default under pursuant to any of the
Agreements or any other obligation of any of the undersigned or any Obligor, in
favor of the Bank; or in the event the Bank demands that the undersigned secure
or provide additional security for its obligations under this Note and security
deemed adequate and sufficient by the Bank is not given when demanded; or in the
event one or more of the undersigned or any Obligor shall die, terminate its
existence, allow the appointment of a receiver for any part of its property,
make an assignment for the benefit of creditors, or where a proceeding under
bankruptcy or insolvency laws be initiated by or against any of the undersigned
or any Obligor; or in the event
the Bank otherwise deem itself, its security interests, or any collateral
unsafe or insecure; or should the Bank in good faith believe that the prospect
of payment or other performance is impaired; or if there is an attachment,
execution, or other judicial seizure of all or any portion of the Borrower's or
any Obligor's assets, including an action or proceeding to seize any funds on
deposit with the Bank, and such seizure is not discharged within 20 days; or if
final judgment for the payment of money shall be rendered against the Borrower
or any Obligor which is not covered by insurance or debt cancellation and shall
remain undischarged for a period of 30 days unless such judgment or execution
thereon is effectively stayed; or the termination of any guaranty agreement
given in connection with this Note, then any one of the same shall be a material
default hereunder and this Note and other debts due the Bank by any one or more
of undersigned shall immediately become due and payable without notice at the
option of the Bank. From and after any event of default hereunder, interest
shall accrue on the sum of the principal balance and accrued interest then
outstanding at the variable rate equal to the Bank's Prime Rate plus 5% per
annum ("Default Rate"), provided that such rate shall not exceed at any time the
highest rate of interest permitted by the laws of the State of South Carolina;
and further provided that such rate shall apply after judgment. In the event of
any default, the then remaining unpaid principal amount and accrued but unpaid
interest then outstanding shall bear interest at the Default Rate called for
hereunder until such principal and interest have been paid in full. In addition,
upon default, the Bank may pursue its full legal remedies at law or equity, and
the balance due hereunder may be charged against any obligation of the Bank to
any party including any Obligor. Bank shall not be obligated to accept any
check, money order, or other payment instrument marked "payment in full" on any
disputed amount due hereunder, and Bank expressly reserves the right to reject
all such payment instruments. Borrower agrees that tender of its check or other
payment instrument so marked will not satisfy or discharge its obligation under
this Note, disputed or otherwise, even if such check or payment instrument is
inadvertently processed by Bank unless in fact such payment is in fact
sufficient to pay the amount due hereunder.
WAIVER OF TRIAL BY JURY. UNLESS EXPRESSLY PROHIBITED BY APPLICABLE LAW,
THE UNDERSIGNED HEREBY WAIVE THE RIGHT TO TRIAL BY JURY OF ANY MATTERS OR CLAIMS
ARISING OUT OF THIS NOTE OR ANY LOAN DOCUMENT EXECUTED IN CONNECTION HEREWITH OR
OUT OF THE CONDUCT OF THE RELATIONSHIP BETWEEN THE UNDERSIGNED AND BANK. THIS
PROVISION IS A MATERIAL INDUCEMENT FOR BANK TO MAKE THE LOAN EVIDENCED BY THIS
NOTE. FURTHER, THE UNDERSIGNED HEREBY CERTIFY THAT NO REPRESENTATIVE OR AGENT OF
BANK, NOR BANK'S COUNSEL, HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT BANK
WOULD NOT SEEK TO ENFORCE THIS WAIVER OR RIGHT TO JURY TRIAL PROVISION IN THE
EVENT OF LITIGATION. NO REPRESENTATIVE OR AGENT OF BANK, NOR BANK'S COUNSEL, HAS
THE AUTHORITY TO WAIVE, CONDITION OR MODIFY THIS PROVISION.
Unless otherwise required under a Loan Agreement, if applicable, and as
long as any indebtedness evidenced by this Note remains outstanding or as long
as Bank remains obligated to make advances, the undersigned shall furnish
annually an updated financial statement in a form satisfactory to Bank, which,
when delivered shall be the property of the Bank.
The term "Prime Rate," if used herein, means the rate of interest per
annum announced by the Bank from time to time and adopted as its Prime Rate. The
Prime Rate is one of several rate indexes employed by the Bank when extending
credit. Any change in the interest rate resulting from a change in the Bank's
Prime Rate shall become effective as of the opening of business on the effective
date of the change. If this Note is placed with an attorney for collection, the
undersigned agrees to pay, in addition to principal and interest, all costs of
collection, including reasonable attorneys' fees which the undersigned agrees
shall be equal to 15% of the principal and interest outstanding at the time of
acceleration or other action by Lender to collect the sums due hereunder, unless
the actual attorneys' fees incurred, based upon Bank's counsel's normal hourly
fees chargeable to Bank, shall be greater than 15% of principal and interest, in
which case such billed amount based on such hourly rate shall be the attorneys'
fee payable hereunder. All obligations of the undersigned and of any Obligor
shall bind his heirs, executors, administrators, successors, and/or assigns. Use
of the masculine pronoun herein shall include the feminine and the neuter, and
also the plural. If more than one party shall execute this Note, the term
"undersigned" as used herein shall mean all the parties signing this Note and
each of them, and all such parties shall be jointly and severally obligated
hereunder. Wherever possible, each provision of this Note shall be interpreted
in such a manner to be effective and valid under applicable law, but if any
provision of this Note shall be prohibited by or invalid under such law, such
provision shall be ineffective but only to the extent of such prohibition or
invalidity, without invalidating the remainder of such provision or the
remaining provisions of this Note. All of the undersigned hereby waive all
exemptions and homestead laws. The proceeds of the loan evidenced by this Note
may be paid to any one or more of the undersigned. No waivers and modifications
shall be valid unless in writing and signed by the Bank. In case of conflict
between the terms of this Note and the Loan Agreement or Commitment Letter
issued in connection herewith, the priority of controlling terms shall be first
this Note, then the Loan Agreement, and then the Commitment Letter. This Note
shall be governed by and construed in accordance with the laws of South
Carolina.
(SIGNATURES ON FOLLOWING PAGE)
PROMISSORY NOTE SIGNATURE PAGE
Borrower: UCI PROPERTIES, LLC
----------------------------------------------------------------- Account
Number: 9520026484 Note Number: 00001
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----------------------------------------------- Note Amount: $3,500,000.00 Date:
02/13/2008 ---------------------------------------------------
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Notice of Right to Copy of Appraisal: If a 1-4 family residential dwelling is
pledged as collateral for this Note, you, the undersigned, have a right to a
copy of the real estate appraisal report used in connection with your
application for credit. If you wish to receive a copy, please notify in writing
the branch office where you applied for credit. You must forward your request to
the Bank no later than 90 days after the date of this Note. In your request
letter, please provide your name, mailing address, appraised property address,
the date of this Note, and the Account and Note Numbers shown on the front of
this Note.
Waiver of Appraisal Rights. The laws of South Carolina provide that in any real
estate foreclosure proceeding a defendant against whom a personal judgment is
taken or asked may within thirty days after the sale of the mortgaged property
apply to the court for an order of appraisal. The statutory appraisal value as
approved, by the court would be substituted for the high bid and may decrease
the amount of any deficiency owing in connection with the transaction. TO THE
FULLEST EXTENT PERMITTED BY LAW AND AS A MATERIAL INDUCEMENT FOR LENDER TO MAKE
THE LOAN, MORTGAGOR HEREBY WAIVES AND RELINQUISHES THE STATUTORY APPRAISAL
RIGHTS WHICH MEANS THE HIGH BID AT THE JUDICIAL FORECLOSURE SALE WILL BE APPLIED
TO THE DEBT REGARDLESS OF ANY APPRAISED VALUE OF THE MORTGAGED PROPERTY.
IN WITNESS WHEREOF, the undersigned, on the day and year first written above,
has caused this Note to be executed under seal.
If Borrower is a Corporation:
-----------------------------------------------------------
----------------------------------------------------------- WITNESS: Name of
Corporation By: ----- -------------------------------------------------
-------------------------------------------------- ----- Title:
-------------------------------------------------- By: -----
-------------------------------------------------
-------------------------------------------------- -----
------------------------------------------------- Title:
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If Borrower is a Partnership, Limited Liability Company, Limited Liability
Partnership or Limited Liability Limited Partnership
UCI PROPERTIES, LLC (SEAL)
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WITNESS:
/s/ Xxxxx X. Xxxxxx By: /s/ D. Xxxxxxx Xxxxx, M.D. (SEAL)
-------------------------------------------------------- --------------------------------------------------
D.Xxxxxxx Xxxxx, M.D.
Title: Mgr.
/s/ Xxxxxx X. Xxxxx By: (SEAL)
-------------------------------------------------------- --------------------------------------------------
Title:
By: (SEAL)
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If Borrower is an Individual: WITNESS: (SEAL)
--------------------------------------------------
-------------------------------------------------------- Additional Co-makers:
WITNESS: (SEAL) --------------------------------------------------------
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2
5
BB&T
ADDENDUM TO PROMISSORY NOTE
THIS ADDENDUM TO PROMISSORY NOTE ("Addendum") is hereby made a part of
the Promissory Note dated Effective as of February 13, 2008, from UCI PROPERTIES
LLC ("Borrower") payable to the order of Branch Banking and Trust Company
("Bank") in the principal amount of $3,500.000.00 (including all renewals,
extensions, modifications and substitutions thereof, the "Note").
I. DEFINITIONS.
1.1 Adjusted LIBOR Rate means a rate of interest per annum equal to the sum
obtained (rounded upwards, if necessary, to the next higher 1/100th of 1.0%) by
adding (i) the One Month LIBOR plus (ii) two point five zero zero percent
(2.500%) per annum, which shall be adjusted monthly on the first day of each
month for each LIBOR Interest Period. If the first day of any month falls on a
date when the Bank is closed, the Adjusted LIBOR Rate shall be determined as of
the last preceding business day. The Adjusted LIBOR Rate shall be adjusted for
any change in the LIBOR Reserve Percentage so that Bank shall receive the same
yield. If checked here |X| the interest rate will not exceed a(n) |X| fixed
average maximum rate of 99.000% and will not decrease below a minimum rate of
0.000%. If an average maximum rate is specified, a determination of the average
interest rate assessed and a reimbursement by Bank of interest paid in excess of
the maximum rate, if any, will be made on . If the loan has been repaid prior to
this date, no reimbursement will be made.
1.2 One Month LIBOR means the average rate (rounded upward, if necessary, to the
next higher 1/100th of 1.0%) quoted on Bloomberg Screen BBAMI or Page 3750 (or
such replacement page) of the Telerate Service on the determination date for
deposits in U. S. Dollars offered in the London interbank market for one month,
or if the above method for determining the One Month LIBOR shall not be
available, the rate quoted in The Wall Street Journal, a rate determined by a
substitute method of determination agreed on by Borrower and Bank; provided, if
such agreement is not reached within a reasonable period of time (in Bank's sole
judgment), a rate reasonably determined by Bank in its sole discretion as a rate
being paid, as of the determination date, by first class banking organizations
(as determined by Bank) in the London interbank market for U. S. Dollar
deposits.
1.3 LIBOR Advance means the term loan advances made by Bank to Borrower
evidenced by this Note upon which the Adjusted LIBOR Rate of interest shall
apply.
1.4 LIBOR Interest Period means a period of one calendar month as may be elected
by the Borrower applicable to any LIBOR Advance which shall begin on first day
of any month notwithstanding the maturity date of this Note; provided, however,
that a LIBOR Interest Period may be less than one calendar month in and only in
the calendar month in which the Note originates or matures.
1.5 LIBOR Reserve Percentage means the maximum aggregate rate at which reserves
(including, without limitation, any marginal supplemental or emergency reserves)
are required to be maintained under Regulation D by member banks of the Federal
Reserve System with respect to dollar funding in the London interbank market.
Without limiting the effect of the foregoing, the LIBOR Reserve Percentage shall
reflect any other reserves required to be maintained by such member banks by
reason of any applicable regulatory change against (i) any category of liability
which includes deposits by reference to which the Adjusted LIBOR Rate is to be
determined or (ii) any category of extensions of credit or other assets related
to LIBOR.
1.6 Standard Rate means, for any day, a rate per annum (rounded upwards, if
necessary, to the next higher 1/100th of 1.0%) equal to the Bank's announced
Prime Rate minus % per annum, and each change in the Standard Rate shall be
effective on the date any change in the Prime Rate is publicly announced as
being effective.
II. LOAN BEARING ADJUSTED LIBOR RATE
2.1 Application of Adjusted LIBOR Rate. The Adjusted LIBOR Rate shall apply to
the entire principal balance outstanding of a LIBOR Advance for any LIBOR
Interest Period.
2.2 Adjusted LIBOR Based Rate Protections.
(a) Inability to Determine Rate. In the event that Bank shall have
determined, which determination shall be final, conclusive and binding, that by
reason of circumstances occurring after the date of this Note affecting the
London interbank market, adequate and fair means do not exist for ascertaining
the One Month LIBOR on the basis provided for in this Note, Bank shall give
notice (by telephone confirmed in writing or by telecopy) to Borrower of such
determination, whereupon (i) no LIBOR Advance shall be made until Bank notifies
Borrower that the circumstances giving rise to such notice no longer exist, and
(ii) any request by Borrower for a LIBOR Advance shall be deemed to be a request
for an advance at the Standard Rate.
(b) Illegality; Impracticability. In the event that Bank shall
determine, which determination shall be final, conclusive and binding, that the
making, maintaining or continuance of any portion of a LIBOR Advance (i) has
become unlawful as a result of compliance by Bank with any law, treaty,
governmental rule, regulation, guideline or order (or would conflict with any of
the same not having the force of law even though the failure to comply therewith
would not be unlawful) or (ii) has become impracticable, or would cause Bank
material hardship, as a result of contingencies occurring after the date of this
Note materially and adversely affect the London interbank market or Bank's
ability to make LIBOR Advances generally, then, and in any such event, Bank
shall give notice (by telephone confirmed in writing or by telecopy) to Borrower
of such determination. Thereafter, (x) the obligation of Bank to make any LIBOR
Advances or to convert any portion of the loan to a LIBOR Advance shall be
suspended until such notice shall be withdrawn by Bank, and (y) any request by
Borrower for a LIBOR Advance shall be deemed to be a request for an advance at
the Standard Rate.
If Borrower is a Corporation:
-----------------------------------------------------
----------------------------------------------------- WITNESS: Name of
Corporation By: (SEAL) ---------------------------------------------------------
-----------------------------------------------------
---------------------------------------------------------
----------------------------------------------------- Name:
-----------------------------------------------------
----------------------------------------------------- Title:
-----------------------------------------------------
----------------------------------------------------- By: (SEAL)
---------------------------------------------------------
---------------------------------------------------------
----------------------------------------------------- Name:
----------------------------------------------------- Title:
-----------------------------------------------------
If Borrower is a Partnership, Limited Liability Company, Limited Liability
Partnership or Limited Liability Limited Partnership:
UCI PROPERTIES, LLC
-----------------------------------------------------
-----------------------------------------------------
WITNESS: Name of Partnership, LLC, LLP or LLLP
/s/ Xxxxx x. Xxxxxx By: /s/ D. Xxxxxxx Xxxxx (SEAL)
--------------------------------------------------------- -----------------------------------------------------
--------------------------------------------------------- -----------------------------------------------------
D. Xxxxxxx Xxxxx, M.D.
/s/ Xxxxxx X. Xxxxx Title: Mgr
--------------------------------------------------------- -----------------------------------------------------
--------------------------------------------------------- -----------------------------------------------------
By: (SEAL)
--------------------------------------------------------- -----------------------------------------------------
--------------------------------------------------------- -----------------------------------------------------
Title:
If Borrower is an Individual: WITNESS: (SEAL)
---------------------------------------------------------
-----------------------------------------------------
---------------------------------------------------------
----------------------------------------------------- Name: Additional
Co-makers: (SEAL) ---------------------------------------------------------
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---------------------------------------------------------
----------------------------------------------------- (SEAL)
---------------------------------------------------------
-----------------------------------------------------
---------------------------------------------------------
----------------------------------------------------- (SEAL)
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8
RIDER TO LOAN AGREEMENT, PROMISSORY NOTE, MORTGAGE OF REAL ESTATE, SECURITY
AGREEMENT, ENVIRONMENTAL CERTIFICATION AND INDEMNITY AGREEMENT, CERTIFICATION
AND INDEMNIFICATION AGREEMENT WITH RESPECT TO FACILITIES FOR HANDICAPPED AND
DISABLED PERSONS, ASSIGNMENT OF CONTRACTS, ASSIGNMENT OF LEASES AND RENTS, AND
GUARANTY AGREEMENTS DATED EFFECTIVE AS OF FEBRUARY 13, 2008, BY AND BETWEEN
BRANCH BANKING AND TRUST COMPANY ("LENDER"), UCI PROPERTIES, LLC ("BORROWER"),
AND UCI MEDICAL AFFILIATES OF SOUTH CAROLINA, INC. AND UCI MEDICAL AFFILIATES,
INC. (COLLECTIVELY "GUARANTOR")
Lender, Borrower, and Guarantor acknowledge and agree that they have
negotiated various terms and conditions related to the $3,500,000.00 loan from
Lender to Borrower (the "Loan") and have elected to evidence their agreements
concerning the same in this Rider rather than making revisions in the body of
the various loan documents evidencing the Loan. The parties agree that the terms
and conditions contained in this Rider shall supersede any inconsistent term or
condition contained in any of the loan documents relating to indebtedness
secured by the Loan Documents. All capitalized terms not otherwise defined
herein shall have their respective meaning set forth in the Loan Agreement (the
"Loan Agreement"), Promissory Note (the "Note"), Mortgage of Real Estate (the
"Mortgage"), Security Agreement (the "Security Agreement"), Environmental
Certification and Indemnity Agreement (the "Environmental Indemnity"),
Certification and Indemnification Agreement with Respect to Facilities for
Handicapped and Disabled Persons (the "Facilities Certification"), Assignment of
Contracts (the "Assignment of Contracts"), Assignment of Leases and Rents (the
"Assignment of Leases and Rents"), and/or Guaranty Agreements (the Loan
Agreement, the Note, the Mortgage, the Security Agreement, the Environmental
Indemnity, the Facilities Certification, the Assignment of Contracts, the
Assignment of Leases and Rents, the Guaranty Agreements, and all other documents
evidencing and securing the Loan or executed therewith are collectively referred
to herein as the "Loan Documents").
Notwithstanding anything to the contrary contained in any of the Loan
Documents relating to the Loan, the following shall apply to the Loan Documents:
1. Nothing in the Loan Documents shall prohibit Borrower from acquiring
assets or acquiring the assets of another entity.
2. In no event shall any indemnification obligation contained in any of
the Loan Documents relating to the Loan be construed to indemnify a party
against its own negligence or misconduct and no loss or expense shall include
the indemnified party's internal overhead or internal administrative costs.
3. No representation, warranty or covenant contained in any of the Loan
Documents relating to the Loan relating to compliance with all applicable laws,
statutes, ordinances, codes and judicial decisions of all judicial decisions or
any other governmental requirements, restrictions or obligations (collectively,
the "Requirements") shall be deemed to have been violated so long as any party
has complied with the Requirements in all material respects and such party
promptly, diligently and continuously proceeds to cure any violation of any
Requirements upon receipt of written notice from the appropriate governmental
entity having jurisdiction over such violation and such violation is cured prior
to the taking of any action by such governmental entity which would adversely
impact the Lender, the Borrower, the Guarantor, or the collateral or Property.
4. Borrower shall not be deemed to have breached any representation,
warranty of covenant concerning hazardous materials or substances on the
Property if such presence or use (i) is in such inconsequential or insignificant
amounts so as to pose no material hazard or potential liability for Lender or
any owner of the Property; (ii) is consistent with the presence or use of
hazardous materials or substances in commercial operation and conduct of
business on the Property; and (iii) is in compliance with all applicable
Requirements.
5. No Event of Default shall be deemed to have occurred under any of
the Loan Documents relating to the Loan and no remedies upon any Event of
Default may be exercised until (a) in the event of a monetary default, Borrower
has failed to pay an amount due within ten (10) days after receipt of written
notice from Lender that such payment is due; provided, however, that Lender
shall not be required to give written notice to Borrower more than two times in
any one calendar year; and (b) in the event of a nonmonetary default, Borrower
or any Guarantor (as applicable) has failed to perform such covenant, agreement,
obligation, condition or provision of the Loan Documents relating to the Loan
within thirty (30) days after receipt of written notice from Lender; provided,
however, that in the event the curative action reasonably requires more than
thirty (30) days to complete, Borrower shall be granted such additional time
required to cure so long as the Borrower commences curative action within said
thirty day period and diligently pursues said curative actions to completion.
6. Unless required by governmental authorities, Lender shall not
require any reappraisal or environmental assessment of the Mortgaged Property
without 60 days prior written notice to Borrower unless an Event of Default has
occurred and continues beyond any applicable grace period.
7. All jury trial waivers contained in the Loan Documents shall be
effective only to the extent such waivers are permitted by South Carolina law.
Anything to the contrary otherwise contained in the Loan Documents
notwithstanding, all provisions of the Loan Documents granting to any party
remedies or the benefits of any waiver, self-help or other similar provisions
shall be read to provide that the same are available only to the extent
permitted by applicable law.
8. Section 4.05 of the Loan Agreement is deleted.
9. Section 6.05 of the Loan Agreement is hereby amended to allow for a
lease agreement from Borrower to a Guarantor.
10. Section 6.06 of the Loan Agreement is hereby revised to not
prohibit any such matters or actions addressed in Section 6.06 of the Loan
Agreement provided no Event of Default has occurred and continues beyond any
applicable grace period.
11. The representation and warranty contained in the second sentence of
Section 7.01 of the Loan Agreement is hereby revised and amended to provided for
any environmental matters and issues except as may be disclosed in any
environmental audit report and inspection reports obtained and provided to
Lender.
12. The first sentence of Section CC.08 (a) of Schedule "CC" to the
Loan Agreement is amended to add that any and all assignments shall be to the
extent such matters, contracts, documents, and permits are assignable.
13. Section 1.1 of the Assignment of Contracts is revised and amended
to add that any and all assignments shall be to the extent such matters,
contracts, documents, and permits are assignable.
14. The representations and warranties contained in Section 8 of the
Mortgage is hereby revised and amended to provided for any environmental matters
and issues except as may be disclosed in any environmental audit report and
inspection reports obtained and provided to Lender.
15. The representations and warranties contained in Section 2 of the
Environmental Indemnity is hereby revised and amended to provided for any
environmental matters and issues except as may be disclosed in any environmental
audit report and inspection reports obtained and provided to Lender.
16. Lender, Borrower, and Guarantor hereby expressly agree that the
provisions of this Rider are made a part of all of the Loan Documents as if
fully set forth therein.
17. This Rider may be executed in one or more counterparts and that
each such counterpart shall constitute an original and all of such counterparts
together shall constitute one instrument.
[SIGNATURE PAGES ATTACHED]
SIGNATURE PAGE TO RIDER
BORROWER
UCI PROPERTIES, LLC, a South Carolina limited
liability company
/s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxxx Xxxxx (SEAL)
-------------------------------------------- ---------------------
Witnesses Number 1 Name: Xxxxxxx Xxxxx, M.D.
-------------------------------------
Title: Manager
/s/ Xxxxxx X. Xxxxx
Witnesses Number 2
STATE OF SOUTH CAROLINA )
)
COUNTY OF RICHLAND )
I, Xxxxxx X. Xxxxx, a Notary Public for South Carolina, do hereby certify
that UCI Properties, LLC, a --------------- South Carolina limited liability
company, by D. Xxxxxxx Xxxxx, M.D., its Manager, personally appeared before me
---------------------- this day and acknowledged the due execution of the
foregoing instrument.
Witness my hand and seal this 12 day of February, 2008.
/s/ Xxxxxx X. Xxxxx (SEAL)
--------------------------------------------
My commission expires: 5/17/2011
---------------------
SIGNATURE PAGE TO RIDER
LENDER
BRANCH BANKING AND TRUST COMPANY, a North Carolina
banking corporation
/s/ Xxxxx Xxxxx By: /s/X.X. Xxxxxxxxx (SEAL)
------------------------------------ ------------------------------
Witnesses Number 1 Name: X.X. Xxxxxxxxx
-----------------------------------------------
Title: Sr. VP
---------------------------------------------
/s/ Xxxxxxxx X. Mole
Witnesses Number 2
STATE OF SOUTH CAROLINA )
---------------------------
)
COUNTY OF RICHLAND )
--------------------------
I, Xxxxxxxx X. Mole , a Notary Public for South Carolina, do hereby certify
that Branch Banking ------------------------ --------------- and Trust Company,
a North Carolina banking corporation, by X.X. Xxxxxxxxx , its Sr. Vice Pres.,
personally --------------------- --------------- appeared before me this day and
acknowledged the due execution of the foregoing instrument.
Witness my hand and seal this 13 day of February, 2008.
/s/ Xxxxxxxx X. Mole (SEAL)
------------------------------------
My commission expires: July 19, 2016
SIGNATURE PAGE TO RIDER
GUARANTOR
UCI MEDICAL AFFILIATES OF SOUTH CAROLINA, INC., a
South Carolina corporation
/s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxxx Xxxxx (SEAL)
------------------------------------ ---------------------
Witnesses Number 1 Name: Xxxxxxx Xxxxx, M.D.
-------------------------------------
Title: Pres/CEO
------------------------------------
/s/ Xxxxxx X. Xxxxx
Witnesses Number 2
STATE OF SOUTH CAROLINA )
)
COUNTY OF RICHLAND )
I, Xxxxxx X. Xxxxx, a Notary Public for South Carolina, do hereby certify
that UCI Medical Affiliates of --------------- South Carolina, Inc., a South
Carolina corporation, by D. Xxxxxxx Xxxxx, M.D., its President and CEO,
personally ---------------------- ----------------- appeared before me this day
and acknowledged the due execution of the foregoing instrument.
Witness my hand and seal this 12 day of February, 2008.
/s/ Xxxxxx X. Xxxxx (SEAL)
--------------------------------------------
My commission expires: 5/17/2011
SIGNATURE PAGE TO RIDER
GUARANTOR
UCI MEDICAL AFFILIATES, INC., a Delaware corporation
/s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxxx Xxxxx (SEAL)
------------------------------------ ---------------------
Witnesses Number 1 Name: Xxxxxxx Xxxxx, M.D.
-------------------------------------
Title: Pres/CEO
------------------------------------
/s/ Xxxxxx X. Xxxxx
Witnesses Number 2
STATE OF SOUTH CAROLINA )
)
COUNTY OF RICHLAND )
I, Xxxxxx X. Xxxxx, a Notary Public for South Carolina, do hereby certify
that UCI Medical Affiliates, --------------- Inc., a Delaware corporation, by D.
Xxxxxxx Xxxxx, M.D., its President and CEO, personally appeared before me
----------------------- ----------------- this day and acknowledged the due
execution of the foregoing instrument.
Witness my hand and seal this12 day of February, 2008.
/s/ Xxxxxx X. Xxxxx (SEAL)
--------------------------------------------
My commission expires: 5/17/2011
