Exhibit 10.4
FIFTH AMENDMENT TO PROMISSORY NOTE
THIS FIFTH AMENDMENT TO PROMISSORY NOTE (this "Fifth Amendment") is
entered into as of the 18 day of June, 2003, by and between DIVERSICARE
ASSISTED LIVING SERVICES NC I, LLC, a Delaware limited liability company (the
"Borrower"), and GMAC COMMERCIAL MORTGAGE CORPORATION, a California corporation
(the "Lender").
RECITALS
A. The Borrower executed to the order of the Lender that certain
Promissory Note dated June 4, 1999, in the principal amount of $12,770,000 as
amended by that certain First Amendment to Promissory Note dated July 1, 2002,
as amended by that Second Amendment to Promissory Note dated as of October 1,
2002, as amended by that Third Amendment to Promissory Note dated as of
December 1, 2002, and as further amended by that certain Fourth Amendment to
Promissory Note dated January 1, 2003 (the "Note"). Unless otherwise defined
herein, capitalized terms shall have the meaning assigned to them in the Note.
B. The Borrower has requested that the Lender extend the Maturity
Date of the Note, and the Lender has agreed, upon certain conditions, one of
which is the execution of this Fifth Amendment.
AGREEMENT
NOW, THEREFORE, in consideration of the above Recitals and other good and
valuable consideration, the Borrower and the Lender hereby amend the Note as
follows:
1. Section 4 of the Note, Maturity Date, is hereby amended to extend
the Maturity Date from April 1, 2003, until July 1, 2003. All references in the
Note to the "Maturity Date" are hereby amended to mean July 1, 2003.
Except as expressly amended herein, the Note shall remain in full force
and effect in accordance with its terms and conditions.
Notwithstanding the execution of this Fifth Amendment, the indebtedness
evidenced by the Note shall remain in full force and effect, and nothing
contained herein shall be interpreted or construed as resulting in a novation
of such indebtedness. The Borrower acknowledges and agrees that there are no
offsets or defenses to payment of the obligations evidenced by the Note, as
hereby amended, and hereby waives any defense, claim or counterclaim of the
Borrower regarding the obligations of the Borrower under the Note, as hereby
amended. The Borrower represents that there are no conditions of default or
facts or consequences which will or could lead to a default under the
obligations due from the Borrower under the Note, as amended herein, except as
disclosed by Borrower and Diversicare Management Services Co. in that certain
Quarterly Compliance Statement & Census Data report and that certain Compliance
Certificate, each for the period ending March 31, 2003, dated May 13, 2003, and
signed by Borrower's Chief Financial Officer.
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IN WITNESS WHEREOF, the Borrower and Lender have caused this Fifth
Amendment to be executed by their respective duly authorized representatives, as
of the date first set forth above.
BORROWER:
DIVERSICARE ASSISTED LIVING
SERVICES NC I, LLC, a Delaware limited
liability company
By: Diversicare Assisted Living Services NC, LLC
Its: Sole Member
By: /s/ Xxxxxxx X. Council, III
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Name: Xxxxxxx X. Council, III
Title: Chief Executive Officer
LENDER:
GMAC COMMERCIAL MORTGAGE CORPORATION, a
California corporation
BY: /s/ Xxxxx X. XxXxxxxx
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Its: Senior Vice President
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