AMENDED AND RESTATED REVOLVING CREDIT NOTE
Exhibit 10.2
AMENDED AND RESTATED REVOLVING CREDIT NOTE
THIS SECURITY IS NOT BEING REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES
ACT”). THE HOLDER HEREOF, BY PURCHASING THIS SECURITY, AGREES FOR THE BENEFIT OF THE ISSUER THAT
THIS SECURITY MAY BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (1) TO THE BORROWERS, (2) TO A
PERSON WHO THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF
RULE 144A UNDER THE SECURITIES ACT PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED
INSTITUTIONAL BUYER THAT IS AWARE THAT THE RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A OR (3) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT.
| February 21, 2008 | $50,000,000.00 |
FOR VALUE RECEIVED, the undersigned (each a “Borrower” and collectively, the “Borrowers”)
HEREBY JOINTLY AND SEVERALLY PROMISE TO PAY to the order of GENERAL ELECTRIC CAPITAL CORPORATION
(“Lender”), a Delaware corporation, at its address at 0 Xxxxxxxx Xxxxx Xxxxxx, Xxxxx 000, Xxxxxxxx,
Xxxxxxxx 00000, or at such other place as Lender may designate from time to time in writing, in
lawful money of the United States of America and in immediately available funds, the amount of
FIFTY MILLION DOLLARS AND NO CENTS ($50,000,000.00) or, if less, the aggregate unpaid amount of all
Revolving Credit Loans made to the undersigned under the Loan Agreement (as hereinafter defined).
Each Borrower further jointly and severally promises to pay interest on the outstanding unpaid
principal amount hereof from the date hereof until payment in full at the rate or rates from time
to time applicable to the Revolving Credit Loans as determined in accordance with the Loan
Agreement. All capitalized terms used but not otherwise defined herein have the meanings given to
them in the Loan Agreement.
This Amended and Restated Revolving Credit Note (“Note”) is one of the Notes issued pursuant
to that certain Second Amended and Restated Loan and Security Agreement dated as of February 21,
2008, by and among Borrowers, the Ensign Group, Inc., the other Persons signatory thereto and
Lender (including all annexes, exhibits and schedules thereto, as from time to time amended,
restated, supplemented or otherwise modified, the “Loan Agreement”), and is entitled to the benefit
and security of the Loan Agreement and all of the other Loan Documents referred to therein.
Reference is hereby made to the Loan Agreement for a statement of all of the terms and conditions
under which the Loan evidenced hereby is made and is to be repaid.
The principal amount of the indebtedness evidenced hereby shall be payable in the amounts and
on the dates specified in the Loan Agreement, the terms of which are hereby
incorporated herein by reference. Interest thereon shall be paid until such principal amount
is paid in full at such interest rates and at such times, and pursuant to such calculations, as are
specified in the Loan Agreement. If any payment on this Note becomes due and payable on a day
other than a Business Day, the maturity thereof shall be extended to the next succeeding Business
Day and, with respect to payments of principal, interest thereon shall be payable at the then
applicable rate during such extension.
Upon and after the occurrence of any Event of Default, the entire principal amount of this
Note, together with all accrued interest thereon, may, as provided in the Loan Agreement, and
without demand, notice or legal process of any kind, be declared, and immediately shall become, due
and payable.
Time is of the essence of this Note. Demand, presentment, protest and notice of nonpayment
and protest are hereby waived by Xxxxxxxxx. Each Borrower further agrees, subject only to any
limitation imposed by applicable law, to pay all expenses, including attorneys’ fees and legal
expenses, incurred by Lender in endeavoring to collect any amounts payable hereunder which are not
paid when due, whether by acceleration or otherwise.
THIS NOTE AMENDS, RESTATES, COMBINES AND CONSOLIDATES CERTAIN INDEBTEDNESS UNDER THAT CERTAIN
AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT, DATED AS OF MARCH 25, 2004, BY AND AMONG CERTAIN
XXXXXXXXX, THE OTHER PARTIES SIGNATORY THERETO AND XXXXXX, AS OF THE DATE HEREOF. AS SUCH, THIS
NOTE CONTINUES TO EVIDENCE SUCH INDEBTEDNESS AND SHALL NOT CONSTITUTE OR EVIDENCE PAYMENT FOR OR A
NOVATION OF SUCH INDEBTEDNESS.
THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE
OF NEW YORK. Whenever possible each provision of this Note shall be interpreted in such manner as
to be effective and valid under applicable law, but if any provisions of this Note shall be
prohibited by or invalid under applicable law, such provisions shall be ineffective to the extent
of such prohibition or invalidity, without invalidating the remainder of such provision or the
remaining provisions of this Note. Whenever in this Note reference is made to Lender or Borrowers,
such reference shall be deemed to include, as applicable, a reference to their respective permitted
successors and assigns, and in the case of Lender, any financial institution to which it has sold
or assigned all or any part of its interest in the Loan or in its commitment to make Revolving
Credit Loans as permitted by the Loan Agreement. The provisions of this Note shall be binding upon
and inure to the benefit of such successors and assigns, except that no Borrower may assign its
rights or obligations. Each Borrower’s successors and assigns shall include, without limitation, a
receiver, trustee or debtor in possession of or for such Borrower.
[Remainder of Page Intentionally Left Blank; Signature Page Follows]
2
IN WITNESS WHEREOF, the undersigned have executed this Amended and Restated Revolving Credit
Note as of the date first above written.
| ENSIGN WHITTIER WEST LLC | ||
| ENSIGN WHITTIER EAST LLC | ||
| ENSIGN PANORAMA LLC | ||
| LEMON GROVE HEALTH ASSOCIATES LLC | ||
| BELL VILLA CARE ASSOCIATES LLC | ||
| XXXXXX COMMUNITY CARE LLC | ||
| XXXXX XXXXXXXX HEALTHCARE LLC | ||
| WEST ESCONDIDO HEALTHCARE LLC | ||
| HB HEALTHCARE ASSOCIATES LLC | ||
| VISTA XXXXX HEALTH ASSOCIATES LLC | ||
| CITY HEIGHTS HEALTH ASSOCIATES LLC | ||
| C STREET HEALTH ASSOCIATES LLC | ||
| XXXXXXXX XXXXXXX HEALTH CARE LLC | ||
| GATE THREE HEALTHCARE LLC | ||
| SOUTHLAND MANAGEMENT LLC | ||
| MANOR PARK HEALTHCARE LLC | ||
| each, a Nevada limited liability company | ||
ATTEST/WITNESS:
|
By: The Flagstone Group, Inc. | |
| Its Sole Member |
By:
|
/s/ Soon Xxxxxx
|
By: | /s/ Xxxxxxx Xxxxxxxxx
|
|||||
| Soon Xxxxxx | Name: | Xxxxxxx Xxxxxxxxx | ||||||
| Treasurer | Title: | Secretary |
| ENSIGN SANTA XXXX LLC | ||
| ENSIGN XXXXXXXXXX LLC | ||
| ENSIGN CLOVERDALE LLC | ||
| ENSIGN SONOMA LLC | ||
| ENSIGN XXXXXXX LLC | ||
| ENSIGN PLEASANTON LLC | ||
| each, a Nevada limited liability company | ||
ATTEST/WITNESS:
|
By: Northern Pioneer Healthcare, Inc. | |
| Its Sole Member |
By:
|
/s/ Soon Xxxxxx
|
By: Name: |
/s/ Xxxx X. Xxxxxxx
|
|||||
| Treasurer | Title: | President |
[SIGNATURES CONTINUE ON FOLLOWING PAGES]
| THE ENSIGN GROUP, INC. AMENDED & RESTATED REVOLVING CREDIT NOTE SIGNATURE PAGE |
| ENSIGN SAN DIMAS LLC | ||
| ENSIGN PALM I LLC | ||
| REDBROOK HEALTHCARE ASSOCIATES LLC | ||
| CLAREMONT FOOTHILLS HEALTH ASSOCIATES LLC | ||
| each, a Nevada limited liability company | ||
ATTEST/WITNESS:
|
By: Touchstone Care, Inc. | |
| Its Sole Member |
By:
|
/s/ Soon Xxxxxx
|
By: Name: |
/s/ Xxxx Xxxxxxxxxxx
|
|||||
| Treasurer | Title: | President |
| XXXXXX XXXXXX LLC | ||
| 24TH STREET HEALTHCARE ASSOCIATES LLC | ||
| GLENDALE HEALTHCARE ASSOCIATES LLC | ||
| PRESIDIO HEALTH ASSOCIATES LLC | ||
| NORTH MOUNTAIN HEALTHCARE LLC | ||
| PARK WAVERLY HEALTHCARE LLC | ||
| SUNLAND HEALTH ASSOCIATES LLC | ||
| RADIANT HILLS HEALTH ASSOCIATES LLC | ||
| HIGHLAND HEALTHCARE LLC | ||
| each, a Nevada limited liability company | ||
ATTEST/WITNESS:
|
By: Bandera Healthcare, Inc. | |
| Its Sole Member |
By:
|
/s/ Soon Xxxxxx
|
By: Name: |
/s/ Xxxxxxx X. Xxxxxx
|
|||||
| Treasurer | Title: | President |
[SIGNATURES CONTINUE ON FOLLOWING PAGE]
| THE ENSIGN GROUP, INC. AMENDED & RESTATED REVOLVING CREDIT NOTE SIGNATURE PAGE |
| ATLANTIC MEMORIAL HEALTHCARE ASSOCIATES, INC. | ||
| AVENUES HEALTHCARE, INC. | ||
| XXXXXXXX HEIGHTS HEALTHCARE, INC. | ||
| CAMARILLO COMMUNITY CARE, INC. | ||
| CARROLLTON HEIGHTS HEALTHCARE, INC. | ||
| GRAND VILLA PHX, INC. | ||
| HOQUIAM HEALTHCARE, INC. | ||
| XXXXXXXXXX CARE ASSOCIATES, INC. | ||
| LYNNWOOD HEALTH SERVICES, INC. | ||
| MCALLEN COMMUNITY HEALTHCARE, INC. | ||
| NORTHERN OAKS HEALTHCARE, INC. | ||
| OLYMPUS HEALTH, INC. | ||
| POCATELLO HEALTH SERVICES, INC. | ||
| XXXXX HEALTHCARE ASSOC, INC. | ||
| RENEWCARE OF SCOTTSDALE, INC. | ||
| RICHMOND SENIOR SERVICES, INC. | ||
| XXXX XXXX HEALTHCARE ASSOCIATES, INC. | ||
| SALADO CREEK SENIOR CARE, INC. | ||
| SOUTH VALLEY HEALTHCARE, INC. | ||
| TOWN EAST HEALTHCARE, INC. | ||
| UPLAND COMMUNITY CARE, INC. | ||
| WASHINGTON HEIGHTS HEALTHCARE, INC. | ||
| WELLINGTON HEALTHCARE, INC. | ||
ATTEST/WITNESS:
|
each, a Nevada corporation |
By:
|
/s/ Soon Xxxxxx
|
By: Name: |
/s/ Xxxxxxx Xxxxxxxxx
|
|||||
| Title: | Secretary |
| THE ENSIGN GROUP, INC. AMENDED & RESTATED REVOLVING CREDIT NOTE SIGNATURE PAGE |
