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Exhibit 4.3
TIME NOTE
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$2,000,000.00 March 10, 1997
------------- Sylvania, Ohio
FOR VALUE RECEIVED, the undersigned, ARBOR HEALTH CARE COMPANY
(the "Maker"), unconditionally promises to pay to the order of Capital Bank,
N.A., a national banking association (the "Bank"), at 0000 Xxxxxx Xxxxxx,
Xxxxxxxx, Xxxx 00000, the principal sum of TWO MILLION AND 00/100 DOLLARS
($2,000,000.00) plus interest on the unpaid principal balance thereof at the
fixed rate of six and one-half percent (6-1/2%) per annum.
The outstanding principal balance due hereunder and all accrued
and unpaid interest shall be fully due and payable on or before April 9, 1997.
All payments shall be credited first to interest accrued but
unpaid and then to the payment and reduction of principal. Late payments will be
charged a fee of 10% of the payment amount.
Time is of the essence in the payment of this Note.
Interest shall be calculated by means of the 365/360 day method.
Maker shall make all payments on this Note at the principal
offices of Bank or at such other place as the holder hereof may designate.
Maker may prepay all or part of this Note at any time without
penalty, provided, that the amount so prepaid shall be applied to the payment of
principal provided for herein of the most remote maturity, and provided further
that if any such prepayment is made from the proceeds of, or in contemplation
of, a borrowing, or borrowings, from any lender other than Bank, Maker shall pay
a premium equal to two percent (2%) of the principal amount so prepaid.
In the event the Maker fails to make any payment when due, Bank at
its election may declare the entire amount of principal and interest remaining
unpaid hereunder together with any and all other obligations or liabilities of
Maker to Bank immediately due and payable without presentment, demand, protest
or notice upon default and may proceed against any and all security and may
enforce any and all of its remedies at law or equity. In such event, the entire
principal balance and accrued interest then owing shall bear interest at a rate
which is the greater of sixteen percent (16%) or four percent (4%) above the
prime interest rate in effect from time to time at Bank until fully paid,
provided, however, that in no event shall the amount of interest paid hereunder
exceed the maximum rate of interest permitted by law. Maker agrees to pay all
costs of collection hereof, including reasonable attorney's fees.
This Note shall be construed under the laws of the State of Ohio.
Any event of default under the terms of any other note, loan
agreement or security agreement executed by Maker in favor of Bank shall be an
event of default under this Note.
Bank's acceptance of one or more late or partial payments shall
not be a course of dealing upon which the Maker may rely on future occasions or
a waiver of Bank's right to prompt full payment when due under this Note. Bank's
forbearance from exercising any right or remedy under this Note shall not be a
waiver of such rights and remedies. Bank's forbearance from exercising any right
or remedy under this Note on any one or more occasions shall not be a course of
dealing or waiver on which the Maker may rely on any future occasions. Bank's
exercise of any rights or remedies or a part of a right or remedy on one or more
occasions shall not preclude Bank from exercising the right or remedy at any
other time. Bank's rights and remedies under this Note and the law and equity
are cumulative to, but independent of, each other.
Maker represents and warrants that the loan evidenced by this Note
is for business purposes and not primarily for personal, family, household or
agricultural purposes.
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MAKER ACKNOWLEDGES THAT, AS TO ANY AND ALL DISPUTES THAT MAY ARISE
BETWEEN THE MAKER AND THE BANK, THE COMMERCIAL NATURE OF THE TRANSACTION OUT OF
WHICH THIS NOTE ARISES WOULD MAKE ANY SUCH DISPUTE UNSUITABLE FOR TRIAL BY JURY.
ACCORDINGLY, MAKER HEREBY IRREVOCABLY WAIVES ANY RIGHT TO TRIAL BY JURY AS TO
ANY AND ALL DISPUTES THAT MAY ARISE RELATING TO THIS NOTE OR TO ANY OF THE OTHER
INSTRUMENTS OR COLLATERAL DOCUMENTS EXECUTED IN CONNECTION HEREWITH.
Maker acknowledges the right to have the terms and conditions of
this Note reviewed by an attorney for the Maker, and said terms and conditions
were explained to the appropriate officers/representatives of the Maker who
hereby acknowledge that they fully understand the terms hereof.
With full knowledge of all constitutional rights under the
Constitutions of the State of Ohio and the United States of America, the Maker
hereby irrevocably authorizes any attorney at law, including without limitation,
any attorney representing the Bank, to appear on the Maker's behalf in any court
of record in the State of Ohio, or in any other state or territory of the United
States, or in any court of the United States, after this Note becomes due and
payable; to waive the issuing and service of process and all other
constitutional rights to due process of law; to confess judgment against the
Maker in favor of the Bank for the amount then appearing due together with the
costs of suit; to release all errors; and to waive all rights of appeal and
stays of execution. The Maker hereby consents to the confessing attorney
receiving a legal fee from the Bank or any other holder of this Note. The Maker
voluntarily and knowingly irrevocably waives (i) any conflict of interest with
respect to the attorney confessing judgment against the Maker, and (ii) all
rights to notice and hearing prior to judgment being so confessed against the
Maker.
WARNING - BY SIGNING THIS PAPER YOU GIVE UP YOUR RIGHT TO NOTICE
AND COURT TRIAL. IF YOU DO NOT PAY ON TIME A COURT JUDGMENT MAY BE TAKEN AGAINST
YOU WITHOUT YOUR PRIOR KNOWLEDGE AND THE POWERS OF A COURT CAN BE USED TO
COLLECT FROM YOU REGARDLESS OF ANY CLAIMS YOU MAY HAVE AGAINST THE CREDITOR,
WHETHER FOR RETURNED GOODS, FAULTY GOODS, FAILURE ON ITS PART TO COMPLY WITH
THIS AGREEMENT, OR ANY OTHER CAUSE.
MAKER: ARBOR HEALTH CARE COMPANY
BY: /s/ X. X. Xxxxxxxxxxx
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Xxxxxxx X. Xxxxxxxxxxx, Vice President
and Treasurer
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