Exhibit 10.28
FIRST UNION
OVERLINE LINE OF CREDIT NOTE
__________________
$500,000.00 No._____________ April 24, 1996
LENDER: FIRST UNION NATIONAL BANK OF FLORIDA, a national banking
association, 800 North Magnolia Avenue, 8th Floor, P.O. Box
1000, Orlando, Florida, 32802 Attention: Portfolio Management,
Ms. Lisa Symington (hereinafter termed "Lender"),
BORROWER: FPM BEHAVIORAL HEALTH, INC., a Delaware corporation, 1276
Minnesota Avenue, Winter Park, Florida 32789 (hereinafter
termed the "Borrower").
BORROWER REPRESENTS THAT THE LOAN EVIDENCED HEREBY IS BEING OBTAINED FOR THE
FOLLOWING PRIMARY PURPOSE:
[X]BUSINESS; [ ]PERSONAL; [ ]FAMILY OR HOUSEHOLD; [ ]AGRICULTURAL
FOR VALUE RECEIVED: to wit, money loaned the undersigned Borrower, jointly
and severally, promises to pay to the order of Lender at its office in the above
city, or wherever else Lender may specify, the sum of FIVE HUNDRED THOUSAND AND
NO/100 DOLLARS ($500,000.00), with interest until paid.
CONTRACT RATE
OF INTEREST: Interest shall accrue from the date of each advance on the
principal balance of this Note at a rate per annum (the
"Interest Rate") which is either (a) the Lender's Prime Rate,
as hereinafter defined, plus three quarters of one percent
(.75%) per annum, as that rate may change from time to time
with changes to be effective as of the date the Lender's Prime
Rate changes (the "Prime Rate Alternative"); or (b) the LIBOR
Adjusted Base Rate, as hereinafter defined, plus 300 Basis
Points per annum, as that rate may change from time to time
with changes to be effective as of the day following the last
day of each successive "LIBOR Period", as defined below (the
"LIBOR Rate Alternative"). The term "Lender's Prime Rate" as
used herein shall mean and be defined as the interest rate per
annum announced by Lender from time to time as its prime rate.
The term "LIBOR Adjusted Rate" shall mean the rate
per annum [rounded upwards, if necessary, to the next higher one
one-hundredths of one percent (.01%)] for deposits in United
States Dollars for a maturity of ninety (90) days which appears
on the Telerate Page 3750 at approximately 11:00 a.m. London time
two (2) London business days prior to the effective date of this
Note initially, and thereafter two (2) London business days prior
to the end of each LIBOR Period, as defined below, as such rate
is adjusted in accordance with Lender's standard practices for
reserves and other requirements. A "LIBOR Period" for purposes of
this Note shall mean each ninety (90) day period during the term
of this Note that the LIBOR Adjusted Rate is in effect, beginning
with the date of this Note. The Lender's Prime Rate and the LIBOR
Adjusted Rate are each one of several interest rate bases used by
Lender, and neither is necessarily the lowest or most favorable
rate of interest offered by Lender. Unless Borrower requests in
writing that the Interest Rate be changed to the Prime Rate
Alternative, the Interest Rate shall be the LIBOR Rate
Alternative. During the term of this Note, Borrower shall have
the option of changing the Interest Rate from the Prime Rate
Alternative to the LIBOR Rate Alternative and conversely,
provided that a written request for such a change to the Interest
Rate is first delivered to Lender. No change to the Interest Rate
shall be effective unless and until an Allonge, prepared by
Lender and setting forth the applicable Interest Rate, is
executed and delivered by Borrower to Lender. Each such change to
the Interest Rate shall be effective as of the date to be set
forth in the Allonge, which date shall be the next occurring
interest payment date provided that such date is not less than
thirty (30) days from the date Lender receives Borrower's written
request for a change of the Interest Rate.
TERMS OF
PAYMENT: Beginning on May 30, 1996, interest on the outstanding principal
balance of this Note shall be payable in arrears in consecutive
monthly installments due and payable on the thirtieth day of each
month until this Note shall be fully paid.
MATURITY: The outstanding principal balance of this Note, together with all
interest thereon, shall be payable on demand. If not sooner paid
on demand, the principal balance of this Note, together with all
interest accrued thereon, shall be paid in full on the earlier of
(i) July 30, 1996 or (ii) upon closing of the sale, assignment or
transfer of all or substantially all of the assets, or more than
49% of the stock, of Apex Healthcare, Inc., a Delaware
corporation.
The Loan may be prepaid in whole or in part at any time without any
prepayment premium, penalty, or fee whatsoever, provided, however, that any such
prepayment must be made on an installment payment date and the Lender must be
given at least thirty (30) days prior written notice of Borrower's intention to
prepay.
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Interest is computed on the basis of a 360 day year for the actual number
of days in the interest period (Actual/360 Computation). Lender's Actual/360
computation determines the annual effective interest yield by taking the stated
(nominal) interest rate for a year's period and then dividing said rate by 360
to determine the daily periodic rate to be applied for each day in the interest
period. Application of such computation produces an annualized effective
interest rate exceeding that of the nominal rate.
In no event shall the amount of interest due or payment in the nature of
interest payable hereunder exceed the maximum rate of interest allowed by
applicable law, as amended from time to time, and in the event any such payment
is paid by the Borrower or received by the Lender, then such excess sum,
together with all interest accrued thereon, which shall accrue at the maximum
legal rate from the date of such excess payment, shall be credited as a payment
of principal unless the Borrower shall notify the Lender in writing that
Borrower elects to have such excess sum returned forthwith.
All capitalized terms not otherwise defined herein shall have the same
meaning as set forth in the Loan and Security Agreement made by Lender and
Borrower dated April 6, 1995, as amended of even date herewith, (the "Loan
Agreement").
The Borrower agrees to pay a late charge equal to 5% of each payment of
principal and/or interest which is not paid within 10 days of the date on which
it is due. At Lender's option, the Interest Rate shall become the Default Rate
commencing with and continuing for so long as the loan or any portion thereof is
in Default as defined in this Note. Further, upon Borrower's Default and where
Lender deems it necessary or proper to employ an attorney to enforce collection
of any unpaid balance or to otherwise protect its interests hereunder, then
Borrower agrees to pay Lender's reasonable attorneys' fees (including appellate
costs, if any) and collection costs. Liability for reasonable attorneys fees
and costs shall exist whether or not any suit or proceeding is commenced.
All payments received during normal banking hours after 2:00 P.M., Orlando,
Florida time, shall be deemed received at the opening of the next banking day.
Borrower warrants that Borrower does not have a "record" with respect to
any violation of Laws of the United States or of any State relating to liquor
(as referred to in 18 U.S.C.A. 3617, et seq.) or narcotics and/or any commercial
crimes.
The undersigned Borrower, and all sureties, endorsers, guarantors and
others who may become liable for all or any part of the Indebtedness evidenced
hereby (the "Obligors"), do hereby, jointly and severally waive presentment,
demand, protest, notice of protest and/or of dishonor, and also notice of
acceleration of maturity on Default or otherwise. Further, they agree that
Lender may, from time to time, extend, modify, amend or renew this Note for any
period (whether or not longer than the original period of the Note) and grant
any releases, compromises or indulgences with respect to the Note or any
extensions, modifications, amendments or renewals thereof or any security
therefor, or to any party liable thereunder or hereunder, all without notice to
or consent of any of the Obligors and without affecting the liability of the
Obligors.
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If more than one person has signed this instrument, such parties are
jointly and severally obligated hereunder. Further, use of the masculine
pronoun herein shall include the feminine and neuter and also the plural. If
any provision of this instrument shall be prohibited or invalid under applicable
law, such provision shall be ineffective but only to the extent of such
prohibition of invalidity, without invalidating the remainder of such provision
or the remaining provisions of this Note.
TIME IS OF THE ESSENCE HEREOF.
Any notices to Borrower shall be sufficiently given, if mailed or delivered
in accordance with the provisions of the Loan Agreement.
EVENTS OF DEFAULT
BORROWER shall be in default (herein referred to as a "Default") under this
Note upon the happening of any of the events, circumstances or conditions
described as an "Event of Default" under the terms of Section 6.1 of the Loan
Agreement.
REMEDIES ON DEMAND OR DEFAULT
Upon the occurrence of any of the events, circumstances or conditions of
Default, the entire principal balance of this Note, all interest accrued thereon
and all other Indebtedness evidenced herein and secured hereby shall at the
option of the Lender, immediately be due and payable without notice. Without
limitation thereto, Lender shall have all the specific rights and remedies of a
Secured Party under the Uniform Commercial Code, as adopted by the State of
Florida, and under the Loan Agreement.
Upon the occurrence of any Default, subject to any applicable cure or grace
periods set forth herein or in the Loan Agreement, Lender is herewith expressly
authorized to exercise its right of set-off or bank lien as to any monies
deposited in demand, checking, time, savings or other accounts of any nature
maintained in and with it by any of the undersigned, without advance notice.
Said right of set-off may also be exercised and applicable where Lender is
indebted to any signer hereof by reason of any Certificate of Deposit, Note or
otherwise.
BORROWER hereby further warrants, covenants, and agrees, as follows:
Upon any transfer of this Note, the Lender may deliver the property held as
security, or any part thereof, to the transferee, as well as any subsequent
holder hereof who shall thereupon become vested with all the power and rights
herein given to the Lender in respect to the property so transferred and
delivered; and the Lender shall thereafter be forever relieved and fully
discharged from any liability or responsibility with respect to such property so
transferred but with respect to any property not so transferred, the Lender
shall retain all rights and powers hereby given.
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With prior written consent of Lender, other Collateral may be substituted
for the original Collateral herein, in which event all rights, duties,
obligations, remedies and security interests provided for, created or granted
shall apply fully to such substitute Collateral. Borrower will cause the
security interests of Lender to be properly protected and perfected.
Borrower has, or forthwith will acquire, valid title to Collateral, and
will at all times, keep same free of any liens, security interests, attachments
and/or claims whatsoever except Permitted Liens as defined in the Loan
Agreement. Borrower has good and valid title thereto and will warrant and
defend same against all claims. Borrower is not to and will not attempt to
transfer, sell or encumber the Collateral or use it in violation of any statute
or ordinance. Borrower, further, agrees to pay promptly all taxes and
assessments upon the Collateral except as otherwise permitted under the Loan
Agreement.
No waivers, amendments or modifications of this Note shall be valid unless
in writing and signed by the party to be charged. Further, this Note shall be
governed by and construed under the laws of the State of Florida. Unless
otherwise defined herein or in the Loan Agreement, all terms and expressions
contained herein which are defined in Articles 1, 3 or 9 of the Uniform
Commercial Code of the State of Florida shall have the same meaning herein as in
said Articles of said Code. No waiver by Lender of any default(s) shall operate
as a waiver of any other default or the same default on a future occasion. All
rights of Lender hereunder shall inure to the benefit of its successors and
assigns; and all obligations of Borrower shall bind its successors and assigns.
Borrower shall promptly pay all documentary and/or intangible taxes in
connection with the closing of this transaction whether assessed at closing or
arising from time to time.
Borrower will discharge all of Borrower's duties and obligations as stated
in any Security Agreement to Lender for any debt of Borrower to Lender and in
any other Loan Document.
WAIVER OF JURY TRIAL. BY THE EXECUTION HEREOF, BORROWER HEREBY KNOWINGLY,
--------------------
VOLUNTARILY AND INTENTIONALLY AGREES, THAT:
(A) NEITHER THE BORROWER NOR ANY SUCCESSOR OR ASSIGN SHALL SEEK A JURY
TRIAL IN ANY LAWSUIT, PROCEEDING, COUNTERCLAIM, OR ANY OTHER LITIGATION
PROCEDURE ARISING FROM OR BASED UPON THIS PROMISSORY NOTE, THE LOAN AGREEMENT OR
ANY LOAN DOCUMENT EVIDENCING, SECURING OR RELATING TO THE OBLIGATIONS OR TO THE
DEALINGS OR RELATIONSHIP BETWEEN OR AMONG THE PARTIES THERETO;
(B) NEITHER THE BORROWER NOR THE LENDER WILL SEEK TO CONSOLIDATE ANY SUCH
ACTION, IN WHICH A JURY TRIAL HAS BEEN WAIVED, WITH ANY OTHER ACTION IN WHICH A
JURY TRIAL HAS NOT BEEN OR CANNOT BE WAIVED;
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(C) THE PROVISIONS OF THIS PARAGRAPH HAVE BEEN FULLY NEGOTIATED BY THE
PARTIES HERETO, AND THESE PROVISIONS SHALL BE SUBJECT TO NO EXCEPTIONS;
(D) NEITHER THE BORROWER NOR THE LENDER HAS IN ANY WAY AGREED WITH OR
REPRESENTED TO ANY OTHER PARTY THAT THE PROVISIONS OF THIS PARAGRAPH WILL NOT BE
FULLY ENFORCED IN ALL INSTANCES; AND
(E) THIS PROVISION IS A MATERIAL INDUCEMENT FOR LENDER TO ENTER INTO THIS
TRANSACTION.
IN WITNESS WHEREOF, the Borrower, on the day and year first written above,
has caused this Note to be executed under seal by its duly authorized
officer(s).
FPM BEHAVIORAL HEALTH, INC.,
a Delaware corporation
By:_____________________________________
Warwick D. Syphers,
Executive Vice President
U.S. Tax I.D. Number: 59-3269144
[AFFIX CORPORATE SEAL]
STATE OF _________________
COUNTY OF _______________
The foregoing instrument was acknowledged before me this _____ day of
April, 1996 by Warwick D. Syphers, as Executive Vice President of FPM BEHAVIORAL
HEALTH, INC., a Delaware corporation, on behalf of the corporation. He is
personally known to me or produced __________________________ as identification
and did not take an oath.
___________________________________________
Name of Notary_____________________________
NOTARY PUBLIC, STATE OF____________________
Commission Number:_________________________
My Commission Expires:_____________________
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