FORM OF TERM LOAN SECURED NOTE
SECURED NOTE
$[------------] ------------------------
, 1998
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FOR VALUE RECEIVED, ________________, a __________, with offices at
___________________________________________________ ("Maker"), hereby promises
to pay to the order of ELDERTRUST OPERATING LIMITED PARTNERSHIP, a Delaware
limited partnership, with offices at 000 XxXxxxxx Xxxx, Xxxxx 000, Xxxxxxx
Xxxxxx, XX 00000 (herein with all subsequent holders of this Note referred to,
collectively, as "Holder"), at the offices of Holder or at such other place as
Holder shall designate in writing, the principal amount of _____________ DOLLARS
($[_____________]), or so much thereof as may be disbursed pursuant to the Loan
Agreement (as defined below) (the "Loan"), in lawful money of the United States
of America, and in immediately available funds, with interest thereon from the
date hereof at the Interest Rate stated below ("Interest"), all such principal
and Interest to be paid as set forth below, without offset.
1. Interest Rate. The interest rate hereon (the "Interest Rate")
(computed on the basis of actual days elapsed and a year of 360 days) shall be
______ percent (____%) per annum; provided, however, that in the event that the
Maturity Date (as defined below) is extended pursuant to Section 8.16 of the
Loan Agreement (as defined below), the Interest Rate for such extension period
shall be revised to equal the Three Year Treasury Rate on the date immediately
preceding the applicable extension period, plus _____ percent (___%). As used
herein, the term "Three Year Treasury Rate" shall mean the yield on the United
States Treasury note or bond, as identified by Xxxxxx, having the closest
maturity (month and year) to the date which is three (3) years from the first
day of the applicable extension period.
2. Security. This Note evidences a loan advanced in connection with
that certain Term Loan Agreement (the "Loan Agreement"), dated as of the date
hereof between Maker and Holder, and is secured by (a) a Mortgage and Security
Agreement, dated as of the date hereof, to be executed by Maker in favor of
Holder (the "Mortgage"), which Mortgage was or shall be recorded following its
execution, and is intended to and does encumber, among other things, that
certain parcel of land, together with the buildings, structures and other
improvements now or hereafter erected thereon and owned by Maker located in
_______________, _________, as more fully described in the Mortgage (and
referred to in the Mortgage and herein as the "Mortgaged Premises"); (b) an
Assignment of Rents and Leases by Maker in favor of Holder (the "Assignment of
Leases"); (c) an Assignment of Agreements affecting Real Estate by Maker in
favor of Xxxxxx (the "Assignment of Agreements"); (d) a Guaranty by
________________, an affiliate of Maker, in favor of Holder (the "Guaranty");
and (e) other documents given or to be given as security for the Loan. This
Note, together with the Mortgage, Assignment of Leases, Assignment of
Agreements, Guaranty and all other documents executed in connection therewith,
as the same may be modified, amended, supplemented or assigned from time to
time, are sometimes referred to herein collectively as the "Loan Documents" or
individually as a "Loan Document."
3.Repayment; Maturity.
3.1. Interest on the outstanding principal balance hereof shall accrue
from the date hereof and shall be due and payable in arrears on the first
business day of each month, commencing on the first such day of the month next
commencing after the date hereof.
3.2. The entire unpaid principal amount hereof, together with all
accrued but unpaid Interest thereon and all other amounts payable hereunder or
under any of the Loan Documents shall be due and payable on the earlier to occur
of the following: (a) the date on which the Mortgaged Premises is sold or
transferred by Maker to any third party and (b) ________________, _____ (the
"Maturity Date"), or such earlier date resulting from acceleration by Holder of
the indebtedness evidenced by this Note in connection with any Event of Default
(as defined below) or otherwise.
3.3 Any payment on this Note coming due on a Saturday, Sunday or a day
which is a legal holiday in the place at which a payment is to be made hereunder
shall be made on the next succeeding day which is a business day in such place,
and any such extension of the time of payment shall be included in the
computation of interest hereunder.
4.Additional Payments, Default Rate.
4.1. In addition to the payments provided for in Paragraph 3 above,
Maker promises to pay on demand any future advances or additional monies
required to be paid or advanced by Maker, or paid or advanced on behalf of Maker
by Xxxxxx, pursuant to the terms of the Loan Agreement, the Mortgage and the
other Loan Documents. Maker promises to pay all costs and expenses (including
without limitation reasonable attorneys' fees, recording costs and
disbursements) incurred by Holder in connection with the collection hereof or in
the protection or realization of any collateral now or hereafter given as
security for the repayment hereof. This Note shall evidence, and the Mortgage
and other Loan Documents shall secure the payment of, all such sums so advanced
or paid, and such advances or payments shall bear interest at the same rate as
the principal indebtedness hereunder.
4.2. From and after the Maturity Date and from and after the occurrence
of any Event of Default irrespective of any acceleration or otherwise, all
amounts remaining unpaid or thereafter accruing hereunder, as well as any
amounts owing pursuant to the foregoing Paragraph 4.1, shall bear interest at a
default rate (the "Default Rate") of two (2) percent (2%) per annum above the
Interest Rate.
5.Application of Interest. In the event the interest provisions hereof
or any exactions provided for herein or in any of the Loan Documents shall
result in an effective rate of interest which, for any period of time, exceeds
the limit of any usury or other law applicable to the loan evidenced hereby, all
sums in excess of those lawfully collectible as interest for the period in
question shall, without further agreement or notice between or by any party
hereto, be applied toward repayment of outstanding principal immediately upon
receipt of such moneys by Holder with the same force and effect as if Maker had
specifically designated such extra sums to be so applied to principal and Holder
had agreed to accept such extra payment(s) in repayment of the principal balance
hereof. Notwithstanding the foregoing, however, Holder may at any time and from
time to time elect, by notice in writing to Maker, to reduce or limit the
collection of any interest to such sums which shall not result in any payment of
interest in excess of that lawfully collectable. Maker agrees that in
determining whether or not any interest payable under this Note exceeds the
highest rate permitted by law, any non-principal payment shall be deemed to the
extent permitted by law to be an expense, fee, premium or penalty, rather than
interest.
0.Xxxxxx of Default. The occurrence of any one or more of the following
shall constitute an "Event of Default" hereunder:
(a) Failure to pay, when due, the principal, any interest or any other
sum payable hereunder (whether upon the Maturity Date or upon acceleration or
otherwise);
(b) The occurrence of any Event of Default, as defined in the Loan
Agreement; or
(c) The occurrence of any Event of Default, as defined in the Mortgage.
7.Remedies. If an Event of Default exists, Holder may exercise any
right, power or remedy permitted by law or as set forth herein or in the
Mortgage, the Loan Agreement or in any other Loan Document and, without limiting
the generality of the foregoing, Holder shall thereupon have the right to
declare the entire unpaid principal amount hereof and all interest accrued
hereon, and all other sums secured by the Mortgage, the Loan Agreement or by any
other Loan Document to be, and such principal, interest and other sums shall
thereupon become, forthwith due and payable. Holder shall have the right of
set-off against all property of the undersigned now or at any time in Xxxxxx's
possession.
8.Rights Cumulative. The rights and remedies of Holder as
provided herein and in any other Loan Document, and all warrants of attorney
contained herein and therein shall be cumulative and concurrent, and may be
pursued singly, successively or together against Maker or the Mortgaged Premises
or any other collateral security for payment of amounts due hereunder, at the
sole discretion of Holder; and the failure to exercise any such right or remedy
shall in no event be construed as a waiver or release of the same. No single or
partial exercise by the Holder of any right hereunder or under any Loan Document
shall preclude any other or further exercise of any other rights. Holder shall
not by any act of omission or commission be deemed to waive any of its rights or
remedies under this Note unless such waiver is in writing and signed by Xxxxxx,
and then only to the extent specifically set forth therein; and a waiver of one
event shall not be construed as continuing or as a bar to or waiver of such
right or remedy on a subsequent event.
9.Waivers.
9.1. Maker expressly waives presentment for payment, demand, notice of
dishonor, protest, notice of protest, diligence of collection, and (except as
otherwise expressly provided herein or in any other Loan Document to the
contrary) any other notice of any kind, and hereby consents to any number of
renewals and extensions of time of payment hereof, which renewals and extensions
shall not affect the liability of Maker.
9.2. Maker hereby waives and releases all errors, defects and
imperfections in any proceedings instituted by Holder under the terms of this
Note, or under any other Loan Document, as well as all benefit that might accrue
to Maker by virtue of any present or future laws exempting the Mortgaged
Premises, or any other property, real, personal or mixed, or any part of the
proceeds arising from any sale of such property, from attachment, levy or sale
under execution, or providing for any stay of execution, exemption from civil
process, or extension of time for payment. Xxxxx agrees that any real estate
that may be levied upon pursuant to a judgment obtained by virtue hereof, or
upon any writ of execution issued thereon, may be sold upon any such writ in
whole or in part in any order desired by Xxxxxx.
10. Construction of Terms. The word "Maker" whenever used herein is
intended to and shall be construed to mean the entity who has executed this
Note, and its successors and assigns, and the liability of each such person or
entity shall be joint and several. All covenants, promises, agreements,
authorizations, waivers, releases, options, undertakings, rights and benefits
made or given herein by Maker shall bind and affect all persons who are
hereinabove defined as "Maker" as fully as though all such persons were
specifically named herein whenever the term "Maker" is used. Whenever used, the
singular number shall include the plural, the plural the singular, and the use
of any gender shall be applicable to all genders.
11. JURISDICTION; TRIAL BY JURY. MAKER HEREBY CONSENTS TO THE EXCLUSIVE
JURISDICTION OF THE COURTS OF THE STATE OF [_______________] AND/OR THE COURTS
OF THE UNITED STATES LOCATED IN THE STATE OF [_______________] IN ANY AND ALL
ACTIONS OR PROCEEDINGS ARISING HEREUNDER OR PURSUANT HERETO, AND IRREVOCABLY
AGREES TO SERVICE OF PROCESS BY CERTIFIED MAIL, RETURN RECEIPT REQUESTED, TO ITS
ADDRESS SET FORTH HEREIN OR SUCH OTHER ADDRESS AS MAKER MAY DIRECT BY NOTICE TO
HOLDER. MAKER IRREVOCABLY AS AN INDEPENDENT COVENANT WAIVES A JURY TRIAL AND THE
RIGHT THERETO IN ANY ACTION OR PROCEEDING BETWEEN MAKER AND HOLDER, WHETHER
HEREUNDER OR OTHERWISE.
12. Modifications. This Note may not be changed orally, but only by an
agreement in writing signed by Maker and Xxxxxx.
13. Governing Law. This Note shall be governed by and construed
according to the law of the State of __________ (but not including the choice of
law provisions thereof).
14. Headings. The headings preceding the text of the paragraphs hereof
are inserted solely for convenience of reference and shall not constitute a part
of this Note nor shall they affect its meaning, construction or effect.
15. Severability. If any provision of this Note or the application
thereof is held by a court of competent jurisdiction to be invalid or
unenforceable, the remaining provisions hereof shall not be affected thereby,
and each provision of this Note shall be valid and enforceable to the fullest
extent permitted by law.
16. Communications. All communications required or permitted by this
Note shall be in accordance with Section 8.7 of the Loan Agreement.
17. Assignment. This Note and the obligations of Maker hereunder shall
not be assigned in any respect without the prior written consent of Xxxxxx,
which consent may be granted or withheld in Xxxxxx's sole discretion. Holder
shall have the absolute right, without Maker's consent or approval, to assign in
whole or in part this Note and/or the other Loan Documents to any third
party(ies).
IN WITNESS WHEREOF, Maker has caused this Note to be duly executed as
of the day and year first above written.
MAKER:
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By:
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Name:
Title:
