Exhibit 10.115
PROMISSORY NOTE
$ 24,000,000.00 Costa Mesa, California
July____, 2002
FOR VALUE RECEIVED, the undersigned, ARV Hillcreek, LLC, a California
limited liability company having an address at 000 Xxxxxxx Xxxxxx, X-0, Xxxxx
Xxxx, Xxxxxxxxxx 00000 (the "Borrower"), hereby promises to pay to the order of
GMAC COMMERCIAL MORTGAGE CORPORATION, a California corporation, having an
address at 000 Xxxxxx Xxxx, X.X. Box 1015, Horsham, Pennsylvania 19044-8015 (the
"Lender"), its successors and assigns as holder of this Note or, if this Note
has then been endorsed "to bearer," to the bearer of this Note (Lender, its said
successors and assigns, and any such bearer, being hereinafter sometimes
referred to collectively as the "Holder"), at Xxxxxx's said address or at such
other place or to such other person as may be designated in writing to Borrower
by Xxxxxx, the principal sum of Twenty-Four Million and 00/100 Dollars
($24,000,000.00) (the "Loan"), together with interest on the unpaid balance
thereof at the rate hereinafter set forth.
ON THE TERMS AND SUBJECT TO THE CONDITIONS which are hereinafter set forth:
86. Interest Rate and Payment Dates.
86.1 Initial Rate and Initial Payment. Interest shall accrue on the
outstanding principal balance hereunder from time to time from and after the
date hereof at the rate of seven percent (7%) per annum until the first Rate
Adjustment Date (as defined below). On each successive Rate Adjustment Date, the
rate of interest at which interest accrues shall be adjusted to the then
applicable Note Rate (as defined in Section 1.4). Interest for the period
beginning on the date of this Note and ending on and including the last day of
the month in which this Note is dated shall be payable on the date hereof.
Interest shall be paid in arrears and shall be computed on the basis of a
360-day year and actual number of days elapsed for any whole or partial month in
which interest on this Note is being calculated and shall be charged on the
principal balance outstanding from time to time.
86.2 Rate Adjustment Date and Payment Adjustment Dates. The rate of
interest on the outstanding principal balance hereof from time to time shall be
adjusted on the following dates (each being a "Rate Adjustment Date"): the first
Rate Adjustment Date shall be August 1, 2002, and subsequent Rate Adjustment
Dates shall fall on the first day of each calendar month thereafter. The first
payment adjustment date shall be August 1, 2002, and subsequent payment
adjustment dates shall fall on the first day of each calendar month thereafter
during the term of the Loan.
86.3 Default Interest Rate. If Borrower fails to make any payment of
principal, interest or fees on the date on which such payment becomes due and
payable (including applicable grace periods) whether at maturity or by
acceleration or on any other
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date, such payment shall accrue interest from the date on which such payment was
due (and not the date of the payment default) until paid at the fluctuating rate
("Default Rate") which is the lesser of (a) five percent (5%) per annum above
the then applicable Note Rate and (b) the maximum rate permitted by applicable
law.
86.4 Note Rate. The "Note Rate" shall mean three and one-half percent
(3.5%) per annum plus the greater of (a) three and one-half percent (3.5%) per
annum or (b) the average of London Interbank Offered Rates ("LIBOR") for a term
of one month determined solely by Holder as of each Rate Adjustment Date in the
following manner: on each Rate Adjustment Date, Holder will obtain the one month
LIBOR (in U.S. Dollar deposits) from the appropriate Bloomberg display page
available as of the close of business announced on the last business day of the
month immediately preceding the Rate Adjustment Date; in the event Bloomberg
ceases publication or ceases to publish the one month LIBOR, Holder shall select
a comparable publication to determine the one month LIBOR and provide notice
thereof to Borrower; LIBOR may or may not be the lowest rate based upon the
market for U.S. Dollar deposits in the London Interbank Eurodollar Market at
which Holder prices loans on the date on which the Note Rate is determined by
Holder as set forth above.
86.5 Note Rate Adjustments. This Note shall bear interest at the rate
set forth above or at the applicable Note Rate until a new Note Rate is
determined on each Rate Adjustment Date in accordance with the provisions
hereof; provided, however, that, if Holder at any time determines, in the sole
but reasonable exercise of its discretion that it has miscalculated the amount
of the monthly payment of principal and/or interest (whether because of a
miscalculation of the Note Rate or otherwise), Holder shall give notice to
Borrower of the corrected amount of such monthly payment (and the corrected
amount of the Note Rate, if applicable) and (a) if the corrected amount of such
monthly payment represents an increase thereof, Borrower shall, within ten (10)
calendar days after the date of such notice, pay to Holder any sums that
Borrower would have otherwise been obligated under this Note to pay to Holder
had the amount of such monthly payment not been miscalculated or (b) if the
corrected amount of such monthly payment represents a decrease thereof, and
Borrower is not otherwise in breach or default under any of the terms and
provisions of the Note or the Loan Agreement of even date herewith by and
between Borrower and Lender (the "Loan Agreement"), Borrower shall, within ten
(10) calendar days thereafter be paid the sums that Borrower would not have
otherwise been obligated to pay to Holder had the amount of such monthly payment
not been miscalculated.
86.6 LIBOR Unascertainable. If (a) on any date on which the Note Rate
would otherwise be set, Holder shall have determined in good faith (which
determination shall be conclusive) that (i) adequate and reasonable means do not
exist for ascertaining the one month LIBOR or (ii) a contingency has occurred
which materially and adversely affects the London Interbank Eurodollar Market at
which Holder prices loans on the date on which the Note Rate is determined by
Holder as set forth above, or (b) at any time Holder shall have determined in
good faith (which determination shall be conclusive) that the making,
maintenance or funding of any part of the Loan has been made impracticable
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or unlawful by compliance by Holder in good faith with any law or guideline or
interpretation or administration thereof by any governmental authority charged
with the interpretation or administration thereof or with any request or
directive of any such governmental authority (whether or not having the force of
law) then, and in any such event, Holder may notify Borrower of such
determination. Upon such date as shall be specified in such notice (which shall
not be earlier than the date such notice is given), the obligation of Holder to
charge interest to Borrower at the Note Rate shall be suspended until Holder
shall have later notified Borrower of Xxxxxx's determination in good faith
(which determination shall be conclusive) that the circumstances giving rise to
such previous determination no longer exist.
86.7 U.S. Treasury Securities. If Holder notifies Borrower of a
determination under subsection 1.6 hereof for purposes of calculating the Note
Rate, the one month LIBOR shall automatically be converted to the "Index" of the
weekly average yield on United States Treasury Securities adjusted to a constant
maturity of one year, as made available by the Federal Reserve Board forty-five
(45) days prior to the Rate Adjustment Date.
86.8 Reimbursement for Increased Costs. If any law or guideline or
interpretation or application thereof by any governmental authority charged with
the interpretation or administration thereof or compliance with any request or
directive of any governmental authority (whether or not having the force of law)
now existing or hereafter adopted (a) subjects Holder to any tax or changes the
basis of taxation with respect to this Note, the Loan or payments by Borrower of
principal, interest or other amounts due from Borrower hereunder or thereunder
(except for taxes on the overall net income or overall gross receipts of Holder
imposed as a result of a present or former connection between the jurisdiction
of the governmental authority imposing such tax on Holder, provided that this
exclusion shall not apply to a connection arising solely from Holder having
executed, delivered, performed its obligations under, or received a payment
under, or enforced, any of the Loan Documents (as defined in Section 8.1.1
below)), or (b) imposes upon Holder any other condition or expense with respect
to this Note, the Loan or its making, maintenance or funding of any part of the
Loan or any security therefor, and the result of any of the foregoing is to
increase the cost to, reduce the income receivable by, or impose any expense
(including, without limitation, loss of margin) upon, Holder with respect to the
Note, or the making, maintenance or funding of any part of the Loan, by an
amount which Holder deems to be material, Holder may from time to time notify
Borrower of the amount determined in good faith (using any averaging and
attribution methods) by Holder (which determination shall be conclusive) to be
necessary to compensate Holder for such increase, reduction or imposition and,
if Borrower is by law prohibited from paying any such amount, Holder may elect
to declare the unpaid principal balance hereof and all interest accrued thereon
immediately due and payable. Such amount shall be due and payable by Borrower to
Holder seven (7) days after such notice is given.
87. Payments. Commencing on September 1, 2002, and continuing on the first
day of each calendar month thereafter through and including the first day of
October, 2003 (the "Conversion Date"), payments of interest only shall be made
taking into account the then
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effective Note Rate. Commencing on November 1, 2003, and continuing on the first
day of each calendar month thereafter through and including the Maturity Date
(defined below), monthly payments of principal and interest shall adjust monthly
and shall be made on the first day of each calendar month in such amount, taking
into account the then effective Note Rate, as is sufficient to fully amortize
the unpaid principal balance of the Note on the date that is twenty-five (25)
years after the Conversion Date.
88. Application of Payments. Payments made by Borrower on account hereof
shall be applied, first, toward any Late Fees (hereinafter defined) or other
fees and charges due hereunder, second, toward payment of any interest due at
the Default Rate, third, toward payment of any interest due at the then
applicable Note Rate set forth in Section 1.4 above, and fourth, toward payment
of principal. Notwithstanding the foregoing, if any advances made by Xxxxxx
under the terms of any instruments securing this Note have not been repaid, any
payments made may, at the option of Holder, be applied, first, to repay such
advances and interest thereon, with the balance, if any, applied as set forth in
the preceding sentence.
89. Maturity Date. Anything in this Note to the contrary notwithstanding,
the entire unpaid balance of the principal amount hereof and all interest
accrued thereon, to and including the Maturity Date (as defined below)
(including interest accruing at the Default Rate), and all Late Fees (as defined
below) shall, unless sooner paid, and except to the extent that payment thereof
is sooner accelerated, be and become due and payable on August 1, 2004 (the
"Maturity Date"). Notwithstanding any other provision contained herein, if
repayment of the Loan, whether at maturity or upon acceleration or otherwise, is
funded from the proceeds of any refinancing of the Loan, then Borrower shall pay
to Lender a prepayment premium equal to one half of one percent (1/2%) of the
original principal balance of this Note on the date of such prepayment unless
Xxxxxx has received a contractually agreed upon sum for the arrangement thereof
or has elected not to provide such refinancing or has arranged for such
refinancing with HUD, FNMA or FHLMC.
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Initial
90. Prepayment.
Prepayment of the Loan in full shall be permitted at any time during the
term of the Loan without penalty, upon not less than thirty (30) and not greater
than forty (40) days prior written notice to Lender specifying the date on which
prepayment is to be made. Except as provided in Section 35 of the Mortgage,
partial prepayments of the Loan shall not be permitted. Any such prepayment
shall be credited, first, toward any Late Fees due hereunder, second, toward
payment of any accrued and unpaid interest due hereunder at the Default Rate,
third, toward payment of any accrued and unpaid interest due hereunder at the
Note Rate, and, fourth, toward payment of principal; provided, however, that if
any advances made by Xxxxxx under the terms of any instruments securing this
Note have not been repaid, any payments made may, at the option of Xxxxxx, be
applied, first, to repay such advances, and interest thereon, with the balance,
if any, applied as set forth in the preceding sentence. Notwithstanding any
other provision contained herein, if prepayment of the Loan is funded from
either a payment made pursuant to Section 35
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of the Mortgage (as defined below) or the proceeds of any refinancing of the
Loan pursuant to which Xxxxxx does not receive a contractually agreed upon sum
for the arrangement thereof, then prepayment of the Loan in full shall be
subject to payment by Borrower to Lender of a prepayment premium equal to one
half of one percent (1/2%) of the original principal balance of this Note.
unless Xxxxxx has elected not to refinance the Loan or such refinancing is
provided by HUD, FNMA or FHLMC.
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Initial
91. Method of Payment.
Each payment of the Loan Obligations (as defined in the Loan Agreement)
shall be paid directly to Holder in lawful tender of the United States of
America. Each such payment shall be paid by 1:00 p.m. Horsham, Pennsylvania,
time on the date such payment is due, except if such date is not a Business Day
(as defined in the Loan Agreement) such payment shall then be due on the first
Business Day after such date. Any payment received after 1:00 p.m. Horsham,
Pennsylvania, time shall be deemed to have been received on the immediately
following Business Day.
92. Security.
The debt evidenced by this Note is to be secured by, among other things,
(a) a Deed of Trust, Fixture Filing and Security Agreement (the "Mortgage") of
even date herewith by Borrower for the benefit of Lender, and intended to be
recorded in the offices of the Orange County and Ventura County, California,
covering certain real property which is described in Exhibits "A-1" and "A-2" to
the Mortgage, and (b) a Payment and Performance Guaranty of even date herewith
(the "Guaranty Agreement"), executed by ARV Assisted Living, Inc., a Delaware
corporation (the "Guarantor"), for the benefit of Lender.
93. Default.
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93.1 Events of Default. Anything in this Note to the contrary
notwithstanding, on the occurrence of any of the following events (each of which
is referred to herein, together with each of the Events of Default defined and
described in the Loan Agreement and the Mortgage as an "Event of Default"),
Holder may, in the exercise of its sole and absolute discretion, accelerate the
debt evidenced by this Note, in which event the entire outstanding principal
balance and all interest and fees accrued thereon shall immediately be and
become due and payable without further notice:
a. Failure to Pay or Perform. If (a) Borrower fails in making
any payment to Holder of any or all sums due hereunder within ten (10) days
after such payment becomes due or on the Maturity Date or (b) there exists an
uncured default under any other document or instrument evidencing or securing
the Loan (collectively, the "Loan Documents") which has been executed by
Borrower, Guarantor and/or Lessee (as defined in the Loan Agreement), and such
default is not cured within the grace or cure period, if any, provided in any of
such Loan Documents.
b. Bankruptcy.
i. If Borrower, Guarantor or Lessee (i) applies for or
consents to the appointment of a receiver, trustee or liquidator
of Borrower or Guarantor or Lessee, as the case may be, or of
all or a substantial part of its assets, (ii) files a voluntary
petition in bankruptcy, or admits in writing its inability to
pay its debts as they come due, (iii) makes an assignment for
the benefit of creditors, (iv) files a petition or an answer
seeking a reorganization or an arrangement with creditors or
seeking to take advantage of any insolvency law, (v) performs
any other act of bankruptcy, or (vi) files an answer admitting
the material allegations of a petition filed against Borrower or
Guarantor or Lessee in any bankruptcy, reorganization or
insolvency proceeding; or
ii. if (i) an order, judgment or decree is entered by any
court of competent jurisdiction adjudicating Borrower or
Guarantor or Lessee bankrupt or an insolvent, or approving a
receiver, trustee or liquidator of Borrower or Guarantor or
Lessee or of all or a substantial part of its assets, or (ii)
there otherwise commences with respect to Borrower or Guarantor
or Lessee or any of its assets any proceeding under any
bankruptcy, reorganization, arrangement, insolvency,
readjustment, receivership or like law or statute, and if such
order, judgment, decree or proceeding continues unstayed for any
period of sixty (60) consecutive days after the expiration of
any stay thereof.
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c. Judgments. If any judgment for the payment of money in excess
of $25,000.00 hereafter awarded against Borrower or Guarantor or Lessee by any
court of competent jurisdiction remains unsatisfied or otherwise in force and
effect for a period of thirty (30) days after the date of such award.
93.2 No Impairment of Rights. Nothing in this Section shall be deemed
in any way to alter or impair any right which Holder has under this Note or the
Mortgage, or any other document or instrument evidencing or securing the Loan
(collectively, the "Loan Documents") or at law or in equity, to accelerate such
debt on the occurrence of any other Event of Default provided herein or therein,
whether or not relating to this Note.
93.3 Late Fees. Without limiting the generality of the foregoing
provisions of this Section, if any payment of interest or principal payable
under this Note is not made within five (5) calendar days after the date on
which such payment becomes due and payable (including applicable grace periods),
Borrower shall thereupon automatically become obligated immediately to pay to
Holder a late payment charge, for each month during which a payment delinquency
exists, equal to the lesser of five percent (5%) of the amount of such payment
or the maximum amount permitted by applicable law ("Late Fees") to defray the
expenses incurred by Holder in handling and processing such delinquent payment
and to compensate Holder for the loss of use of such delinquent payment.
Section 8.4 [INTENTIONALLY DELETED]
94. Costs of Enforcement.
Borrower shall pay to Holder on demand the amount of any and all
expenses incurred by Holder (a) in enforcing its rights hereunder or under
the Mortgage and/or the Loan Documents, (b) as the result of the occurrence
of an Event of Default by Borrower in performing its obligations under this
Note, including but not limited to the expense of collecting any amount
owed hereunder, and of any and all attorneys' fees incurred by Holder in
connection with such default, whether suit be brought or not, and (c) in
protecting the security for the Loan and Xxxxxxxx's obligations under the
Loan Documents. Such expenses shall be added to the principal amount
hereof, shall be secured by the Mortgage and shall accrue interest at the
Default Rate.
95. Xxxxxxxx's Waiver of Certain Rights.
Borrower and any endorser, guarantor or surety hereby waives the exercise
of any and all exemption rights which it holds at law or in equity with respect
to the debt evidenced by this Note, and of any and all rights which it holds at
law or in equity to require any valuation, appraisal or marshalling, or to have
or receive any presentment, protest, demand and notice of dishonor, protest,
demand and nonpayment as a condition to Xxxxxx's exercise of any of its rights
under this Note or the Loan Documents.
96. Extensions.
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The Maturity Date and/or any other date by which any payment is required to
be made hereunder may be extended by Xxxxxx from time to time in the exercise of
its sole discretion, without in any way altering or impairing Xxxxxxxx's or
Guarantor's liability hereunder.
97. General.
97.1 Applicable Law. This Note shall be given effect and construed by
application of the laws of the State of California (without regard to the
principles thereof governing conflicts of laws), and any action or proceeding
arising hereunder, and each of Xxxxxx and Borrower submits (and waives all
rights to object) to non-exclusive personal jurisdiction in the State of
California, for the enforcement of any and all obligations under the Loan
Documents except that if any such action or proceeding arises under the
Constitution, laws or treaties of the United States of America, or if there is a
diversity of citizenship between the parties thereto, so that it is to be
brought in a United States District Court, it shall be brought in the United
States District Court for the Southern District of California or any successor
federal court having original jurisdiction.
97.2 Headings. The headings of the Sections, subsections, paragraphs
and subparagraphs hereof are provided herein for and only for convenience of
reference, and shall not be considered in construing their contents.
97.3 Construction. As used herein, (a) the term "person" means a
natural person, a trustee, a corporation, a limited liability company, a
partnership and any other form of legal entity, and (b) all references made (i)
in the neuter, masculine or feminine gender shall be deemed to have been made in
all such genders, (ii) in the singular or plural number shall be deemed to have
been made, respectively, in the plural or singular number as well, and (iii) to
any Section, subsection, paragraph or subparagraph shall, unless therein
expressly indicated to the contrary, be deemed to have been made to such
Section, subsection, paragraph or subparagraph of this Note.
97.4 Severability. No determination by any court, governmental body
or otherwise that any provision of this Note or any amendment hereof is invalid
or unenforceable in any instance shall affect the validity or enforceability of
(a) any other such provision or (b) such provision in any circumstance not
controlled by such determination. Each such provision shall be valid and
enforceable to the fullest extent allowed by, and shall be construed wherever
possible as being consistent with, applicable law.
97.5 No Waiver. Holder shall not be deemed to have waived the
exercise of any right which it holds hereunder unless such waiver is made
expressly and in writing. No delay or omission by Holder in exercising any such
right (and no allowance by Holder to Borrower of an opportunity to cure a
default in performing its obligations hereunder) shall be deemed a waiver of its
future exercise. No such waiver made as to any instance involving the exercise
of any such right shall be deemed a waiver as to any other such instance, or any
other such right. Further, acceptance by Holder of all or any portion of any sum
payable under, or partial performance of any covenant of, this Note, the
Mortgage or any of the other Loan Documents, whether before, on, or after the
due date of such
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payment or performance, shall not be a waiver of Xxxxxx's right either to
require prompt and full payment and performance when due of all other sums
payable or obligations due thereunder or hereunder or to exercise any of
Xxxxxx's rights and remedies hereunder or thereunder.
97.6 Waiver of Jury Trial; Service of Process; Court Costs. BORROWER
HEREBY WAIVES TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO WHICH XXXXXXXX AND
HOLDER MAY BE PARTIES ARISING OUT OF, IN CONNECTION WITH, OR IN ANY WAY
PERTAINING TO, THIS NOTE AND/OR ANY OF THE OTHER LOAN DOCUMENTS. IT IS AGREED
AND UNDERSTOOD THAT THIS WAIVER CONSTITUTES A WAIVER OF TRIAL BY JURY OF ALL
CLAIMS AGAINST ALL PARTIES TO SUCH ACTIONS OR PROCEEDINGS, INCLUDING CLAIMS
AGAINST PARTIES WHO ARE NOT PARTIES TO THIS NOTE. THIS WAIVER IS KNOWINGLY,
WILLINGLY AND VOLUNTARILY MADE BY BORROWER, UPON CONSULTATION WITH COUNSEL OF
XXXXXXXX'S CHOICE, AND BORROWER HEREBY REPRESENTS THAT NO REPRESENTATIONS OF
FACT OR OPINION HAVE BEEN MADE BY ANY INDIVIDUAL TO INDUCE THIS WAIVER OF TRIAL
BY JURY OR TO IN ANY WAY MODIFY OR NULLIFY ITS EFFECT. XXXXXXXX FURTHER
REPRESENTS AND WARRANTS THAT IT HAS BEEN REPRESENTED IN THE SIGNING OF THIS NOTE
AND IN THE MAKING OF THIS WAIVER BY INDEPENDENT LEGAL COUNSEL, OR HAS HAD THE
OPPORTUNITY TO BE REPRESENTED BY INDEPENDENT LEGAL COUNSEL SELECTED OF ITS OWN
FREE WILL, AND THAT IT HAS HAD THE OPPORTUNITY TO DISCUSS THIS WAIVER WITH
COUNSEL.
97.7 Offset. Upon the occurrence of an Event of Default, Holder may
set-off against any principal and interest owing hereunder, any and all credits,
money, stocks, bonds or other security or property of any nature whatsoever on
deposit with, or held by, or in the possession of, Holder, to the credit of or
for the account of Borrower, without notice to or consent of Borrower or
Guarantor.
97.8 Non-Exclusivity of Rights and Remedies. None of the rights and
remedies herein conferred upon or reserved to Holder is intended to be exclusive
of any other right or remedy contained herein or in any of the other Loan
Documents and each and every such right and remedy shall be cumulative and
concurrent, and may be enforced separately, successively or together, and may be
exercised from time to time as often as may be deemed necessary or desirable by
Holder.
97.9 Incorporation by Reference. All of the agreements, conditions,
covenants and provisions contained in each of the Loan Documents are hereby made
a part of this Note to the same extent and with the same force and effect as if
they were fully set forth herein. Borrower covenants and agrees to keep and
perform, or cause to be kept and performed, all such agreements, conditions,
covenants and provisions strictly in accordance with their terms.
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97.10 Joint and Several Liability. If Borrower consists of more than
one person and/or entity, each such person and/or entity agrees that its
liability hereunder is joint and several.
97.11 Business Purpose. Borrower represents and warrants that the Loan
evidenced by this Note is being obtained solely for the purpose of acquiring or
carrying on a business, professional or commercial activity and is not for
personal, agricultural, family or household purposes.
97.12 Interest Limitation. Notwithstanding anything to the contrary
contained herein or in the Mortgage or in any other of the Loan Documents, the
effective rate of interest on the obligation evidenced by this Note shall not
exceed the lawful maximum rate of interest permitted to be paid. Without
limiting the generality of the foregoing, in the event that the interest charged
hereunder results in an effective rate of interest higher than that lawfully
permitted to be paid, then such charges shall be reduced by the sum sufficient
to result in an effective rate of interest permitted and any amount which would
exceed the highest lawful rate already received and held by Holder shall be
applied to a reduction of principal and not to the payment of interest. Xxxxxxxx
agrees that for the purpose of determining highest rate permitted by law, any
non-principal payment (including, without limitation, Late Fees and other fees)
shall be deemed, to the extent permitted by law, to be an expense, fee or
premium rather than interest.
97.13 Modification. This Note may be modified, amended, discharged or
waived only by an agreement in writing signed by the party against whom
enforcement of such modification, amendment, discharge or waiver is sought.
97.14 Time of the Essence. Time is strictly of the essence of this
Note.
97.15 Negotiable Instrument. Xxxxxxxx agrees that this Note shall be
deemed a negotiable instrument, even though this Note may not otherwise qualify,
under applicable law, absent this paragraph, as a negotiable instrument.
97.16 Interest Rate After Judgment. If judgment is entered against
Borrower on this Note, the amount of the judgment entered (which may include
principal, interest, fees, Late Fees and costs) shall bear interest at the
Default Rate, to be determined on the date of the entry of the judgment.
97.17 Relationship. Xxxxxxxx and Xxxxxx intend that the relationship
between them shall be solely that of creditor and debtor. Nothing contained in
this Note or in any of the other Loan Documents shall be deemed or construed to
create a partnership, tenancy-in-common, joint tenancy, joint venture or
co-ownership by or between Borrower and Holder.
97.18 Waiver of Automatic Stay. XXXXXXXX HEREBY AGREES THAT, IN
CONSIDERATION OF XXXXXX'S AGREEMENT TO MAKE THE LOAN AND IN RECOGNITION THAT THE
FOLLOWING COVENANT IS A MATERIAL INDUCEMENT FOR LENDER TO MAKE THE LOAN, IN THE
EVENT THAT BORROWER SHALL (A)
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FILE WITH ANY BANKRUPTCY COURT OF COMPETENT JURISDICTION OR BE THE SUBJECT OF
ANY PETITION UNDER ANY SECTION OR CHAPTER OF TITLE 11 OF THE UNITED STATES CODE,
AS AMENDED (THE "BANKRUPTCY CODE"), OR SIMILAR LAW OR STATUTE; (B) BE THE
SUBJECT OF ANY ORDER FOR RELIEF ISSUED UNDER THE BANKRUPTCY CODE OR SIMILAR LAW
OR STATUTE; (C) FILE OR BE THE SUBJECT OF ANY PETITION SEEKING ANY
REORGANIZATION, ARRANGEMENT, COMPOSITION, READJUSTMENT, LIQUIDATION,
DISSOLUTION, OR SIMILAR RELIEF UNDER ANY PRESENT OR FUTURE FEDERAL OR STATE ACT
OR LAW RELATING TO BANKRUPTCY, INSOLVENCY, OR OTHER RELIEF FOR DEBTORS; (D) HAVE
SOUGHT OR CONSENTED TO OR ACQUIESCED IN THE APPOINTMENT OF ANY TRUSTEE,
RECEIVER, CONSERVATOR, OR LIQUIDATOR; OR (E) BE THE SUBJECT OF AN ORDER,
JUDGMENT OR DECREE ENTERED BY ANY COURT OF COMPETENT JURISDICTION APPROVING A
PETITION FILED AGAINST ANY BORROWER FOR ANY REORGANIZATION, ARRANGEMENT,
COMPOSITION, READJUSTMENT, LIQUIDATION, DISSOLUTION, OR SIMILAR RELIEF UNDER ANY
PRESENT OR FUTURE FEDERAL OR STATE ACT OR LAW RELATING TO BANKRUPTCY, INSOLVENCY
OR RELIEF FOR DEBTORS, THEN, TO THE EXTENT PERMITTED BY APPLICABLE LAW AND
SUBJECT TO COURT APPROVAL, HOLDER SHALL THEREUPON BE ENTITLED, AND BORROWER
HEREBY IRREVOCABLY CONSENTS TO, AND WILL NOT CONTEST, AND AGREES TO STIPULATE
TO, RELIEF FROM ANY AUTOMATIC STAY OR OTHER INJUNCTION IMPOSED BY SECTION 362 OF
THE BANKRUPTCY CODE OR SIMILAR LAW OR STATUTE (INCLUDING, WITHOUT LIMITATION,
RELIEF FROM ANY EXCLUSIVE PERIOD SET FORTH IN SECTION 1121 OF THE BANKRUPTCY
CODE) OR OTHERWISE, ON OR AGAINST THE EXERCISE OF THE RIGHTS AND REMEDIES
OTHERWISE AVAILABLE TO HOLDER AS PROVIDED IN THE LOAN DOCUMENTS, AND AS
OTHERWISE PROVIDED BY LAW, AND BORROWER HEREBY IRREVOCABLY WAIVES ITS RIGHTS TO
OBJECT TO SUCH RELIEF.
[REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, Xxxxxxxx has executed and sealed this Note or caused it
to be executed and sealed on its behalf by its duly authorized representatives,
the day and year first above written, and the obligations under this Note shall
be binding upon Xxxxxxxx's successors and assigns.
WITNESS: BORROWER:
XXX XXXXXXXXX, LLC, a California
limited liability company
By: (Seal)
----------------------------- ------------------------------
Xxxx Xxxxxx
Manager
-----------------------------
[Print name]
ACKNOWLEDGED BY GUARANTOR THIS
__________ DAY OF JULY, 2002:
ARV ASSISTED LIVING, INC., a Delaware corporation
By: (SEAL)
-----------------------------------
Xxxx Xxxxxx
President
ACKNOWLEDGMENT
State of California )
) ss:
County of Orange )
On _____, ____, before me, ______________________________________________
(name, title of officer,
e.g., "Xxxx Xxx, Notary Public")
personally appeared ____________________________________________________________
(name(s) of signer(s))
( ) personally known to me -OR-
( ) proved to me on the basis of satisfactory evidence
to be the person(s) whose name(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity/ies, and that by his/her/their signature(s) on the
instrument the person(s), or the entity upon behalf of which person(s) acted,
executed the instrument.
Witness my hand and official seal.
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(Signature of Notary)
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