Exhibit 10.48
REVOLVING NOTE
U.S. $2,000,000 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 $1,500,000, 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 25th 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