Exhibit 10.47
REVOLVING NOTE
U.S. $1,500,000.00 Dated: October 19, 2004
FOR VALUE RECEIVED, the undersigned, PHC, INC., a Massachusetts
corporation, PHC OF MICHIGAN, INC., a Massachusetts corporation, PHC OF NEVADA,
INC., a Massachusetts corporation, PHC OF UTAH, INC., a Massachusetts
corporation, PHC OF VIRGINIA, INC., a Massachusetts corporation, NORTH POINT -
PIONEER, INC., a Massachusetts corporation, WELLPLACE, INC., a Massachusetts
corporation and DETROIT BEHAVIORAL INSTITUTE, INC., a Massachusetts corporation
(individually, collectively and jointly and severally, the "Borrower"), hereby
promise to pay to CAPITALSOURCE FINANCE LLC (the "Lender") the unpaid principal
amount of all Advances made by Lender to Borrower under the Revolving Facility
in lawful money of the United States of America in immediately available funds,
with interest thereon, and all other Obligations under the Revolving Credit,
Term Loan and Security Agreement, dated as of the date hereof, among Borrower,
each Guarantor a party thereto and Lender (as it may be amended, supplemented or
otherwise modified from time to time, the "Loan Agreement"), all at the times
and in the manner set forth in the Loan Agreement. Capitalized terms used but
not defined herein shall have the meanings given them in the Loan Agreement.
1. Interest and Payments.
(a) Borrower promises to pay interest on the outstanding principal
amount of the Revolving Facility from the date of any Advance
under the Revolving Facility until such principal amount is
irrevocably paid in full in cash pursuant to and as required by
the terms of the Loan Agreement.
(b) Payments of interest and other Obligations shall be made, when
due, by the application of funds advanced under the Revolving
Facility in accordance with the provisions of the Loan Agreement.
Any payments of principal or interest or other amounts on or
payments under this Revolving Note not paid automatically as
provided in the Loan Agreement shall be paid to Lender only by
wire transfer on the date when due, without any deduction
whatsoever, including any deduction for any setoff or
counterclaim, in U.S. Dollars in immediately available funds as
required in the Loan Agreement. Notwithstanding and without
limiting or being limited by any other provision of this
Revolving Note, any payments or prepayments received under this
Revolving Note shall be credited and applied in accordance with
the provisions of the Loan Agreement.
2. Maturity.
Unless earlier due and payable or accelerated under the Loan
Agreement, this Revolving Note shall mature, and the outstanding
principal balance hereunder and other Obligations, together with
all other outstanding amounts due hereunder and under the Loan
Agreement, shall become due and payable in full on the last day
of the Term.
3. Default Rate.
Notwithstanding any other provision of this Revolving Note the
Default Rate set forth in the Loan Agreement shall apply to this
Revolving Note as and when provided therein.
4. Loan Agreement and Security Documents.
(a) This Revolving Note is referred to in, made pursuant to, and
entitled to the benefits of, the Loan Agreement. The Loan
Agreement, among other things, (i) provides for the making
of Advances under the Revolving Facility by Lender to
Borrower in the aggregate maximum Dollar amount first
mentioned above, (ii) contains provisions for acceleration
of the maturity hereof upon the happening of certain stated
events upon the terms and conditions therein specified, and
(iii) contains provisions defining an Event of Default and
the rights and remedies of Lender upon the occurrence of an
Event of Default.
(b) This Revolving Note is a secured note, entitled to the
benefits of and security interests granted in, among other
things, the Loan Agreement and the other Security Documents.
5. Prepayments. This Revolving Note may be prepaid in whole or in part
upon notice to Lender and shall be prepaid in whole, in each case as
provided or required in the Loan Agreement and upon payment of all
fees and other Obligations set forth therein. No payment or prepayment
of any amount shall entitle any Person to be subrogated to the rights
of Lender hereunder or under the Loan Agreement unless and until the
Obligations have been performed in full and paid irrevocably in full
in cash and the Loan Agreement has been terminated.
6. Payments Due on a Day other than a Business Day. If any payment to be
made on or under this Revolving Note is stated to be due or becomes
due and payable on a day other than a Business Day, the due date
thereof shall be extended to, and such payment shall be made on, the
next succeeding Business Day, and such extension of time in such case
shall be included in the computation of payment of any interest (at
the interest rate then in effect during such extension) and/or fees,
as the case may be.
7. Waivers. Borrower hereby waives demand, presentment, protest, notice
of dishonor or non-payment, as well as all defenses with respect to
this Revolving Note, the Loan Agreement and/or any Obligation, notice
of acceptance hereof, notice of loans or Advances made, credit
extended, collateral received or delivered, or any other action taken
in reliance hereon, and all other demands and notices of any
description, except such as are expressly provided for herein or in
the Loan Agreement. The pleading of any statute of limitations as a
defense to any demand against Borrower hereunder is expressly waived
by Borrower. No course of action or dealing, renewal, release or
extension of this Revolving Note or any Loan Document or any rights
hereunder or thereunder, release of Borrower or any Guarantor, or
delay, failure or omission on Lender's part in enforcing this
Revolving Note or any other Loan Document or in exercising or
enforcing any right, remedy, option or power hereunder or under any
other Loan Document shall affect the liability of Borrower or any
Guarantor or operate as a waiver of such or any other right, remedy,
power or option or of any default, nor shall any single or partial
exercise of any right, remedy, option or power hereunder or under any
other Loan Document affect the liability of Borrower or any Guarantor
or preclude any other or further exercise of such or any other right,
remedy, power or option. No waiver of any one or more defaults in the
performance of any of the provisions of this Revolving Note shall
operate or be construed as a waiver of any future default or defaults,
whether of a like or different nature.
8. Exercise of Rights.
(a) Lender shall have the right in its sole discretion to determine
which rights, powers, Liens, security interests or remedies
Lender may at any time pursue, relinquish, subordinate or modify
or to take any other action with respect thereto, and such
determination will not in any way modify or affect any of
Lender's rights, powers, Liens, security interests or remedies
hereunder or under any of the Loan Documents, under applicable
law or at equity.
(b) The enumeration of the foregoing rights and remedies is not
intended to be exhaustive. The rights and remedies of Lender
described herein are cumulative and are not alternative to or
exclusive of any other rights or remedies which Lender otherwise
may have by contract or at law or in equity, and the partial or
complete exercise of any right or remedy shall not preclude any
other further exercise of such or any other right or remedy.
9. Lawful Limits. This Revolving Note is expressly limited so that in no
contingency or event whatsoever, whether by reason of acceleration or
otherwise, shall the interest and other charges paid or agreed to be
paid to Lender for the use, forbearance or detention of money
hereunder exceed the maximum rate permissible under applicable law
which a court of competent jurisdiction shall, in a final
determination, deem applicable hereto. If, due to any circumstance
whatsoever, fulfillment of any provision hereof, at the time
performance of such provision shall be due, shall exceed any such
limit, then, the obligation to be so fulfilled shall be reduced to
such lawful limit, and, if Lender shall have received interest or any
other charges of any kind which might be deemed to be interest under
applicable law in excess of the maximum lawful rate, then such excess
shall be applied first to any unpaid fees and charges hereunder, then
to unpaid principal balance owed by Borrower hereunder, and if the
then remaining excess interest is greater than the previously unpaid
principal balance hereunder, Lender shall promptly refund such excess
amount to Borrower and the provisions hereof shall be deemed amended
to provide for such permissible rate.
10. Governing Law. This Revolving Note shall be governed by and construed
in accordance with the internal laws of the State of Maryland without
giving effect to its choice of laws provisions.
11. Acknowledgement of Joint and Several Liability. Each Borrower
acknowledges that it is jointly and severally liable for all of the
Obligations under the Loan Documents. Each Borrower expressly
understands, agrees and acknowledges that (i) Borrowers are all
Affiliated entities by common ownership, (ii) each Borrower desires to
have the availability of one common credit facility instead of
separate credit facilities, (iii) each Borrower has requested that
Lender extend such a common credit facility on the terms herein
provided, (iv) Lender will be lending against, and relying on a lien
upon, all of Borrowers' assets that are pledged as Collateral
hereunder, even though the proceeds of any particular loan made
hereunder may not be advanced directly to a particular Borrower, (v)
each Borrower will nonetheless benefit by the making of all such loans
by Lender and the availability of a single credit facility of a size
greater than each could independently warrant, and (vi) all of the
representations, warranties, covenants, obligations, conditions,
agreements and other terms contained in the Loan Documents shall be
applicable to and shall be binding upon each Borrower.
12. Conflicts. In the event of a conflict between the terms of this Note
and the Loan Agreement, the terms of the Loan Agreement shall govern.
13. Replacement Notes. This Revolving Note, together with that certain
other Revolving Note dated as of the date hereof in the principal
amount of $2,000,000, are given in replacement, but not in
extinguishment, novation or cancellation, of that certain Revolving
Note dated as of the date hereof in the original principal amount of
$3,500,000.
IN WITNESS WHEREOF, Borrower has executed and delivered this Revolving Note
on this the 2th day of March 2005 to be effective as of the date first set forth
above.
PHC, INC.
By: /s/ Paula C. Wurts
____________________________________
Name: Paula C. Wurts
Its: Chief Financial Officer
PHC OF MICHIGAN, INC.
By: /s/ Paula C. Wurts
____________________________________
Name: Paula C. Wurts
Its: Chief Financial Officer
PHC OF NEVADA, INC.
By: /s/ Paula C. Wurts
____________________________________
Name: Paula C. Wurts
Its: Chief Financial Officer
PHC OF UTAH, INC.
By: /s/ Paula C. Wurts
____________________________________
Name: Paula C. Wurts
Its: Chief Financial Officer
PHC OF VIRGINIA, INC.
By: /s/ Paula C. Wurts
____________________________________
Name: Paula C. Wurts
Its: Chief Financial Officer
NORTH POINT - PIONEER, INC.
By: /s/ Paula C. Wurts
____________________________________
Name: Paula C. Wurts
Its: Chief Financial Officer
WELLPLACE, INC.
By: /s/ Paula C. Wurts
____________________________________
Name: Paula C. Wurts
Its: Chief Financial Officer
DETROIT BEHAVIORAL INSTITUTE, INC.
By: /s/ Paula C. Wurts
____________________________________
Name: Paula C. Wurts
Its: Chief Financial Officer