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EXHIBIT 10.12
RENEWAL PROMISSORY NOTE
(OVERLINE FACILITY)
$3,500,000.00 October 1, 2000
Nashville, Tennessee
FOR VALUE RECEIVED, the undersigned, DIVERSICARE MANAGEMENT SERVICES
CO., a Tennessee corporation (the "Borrower") promises to pay to the order of
AMSOUTH BANK (the "Bank"), in lawful currency of the United States of America,
at AmSouth Center, 315 Deaderick Street, Nashville, Tennessee 37237, or at such
other place as the holder from time to time may designate in writing the
principal sum of THREE MILLION FIVE HUNDRED THOUSAND AND N0/100 ($3,500,000.00)
DOLLARS, together with interest computed thereon from and after October 1, 2000
at the rate of nine and one half percent (9.5%) per annum with principal and
interest payable as follows: monthly payments of principal and interest in the
amount of $32,624.59 beginning on November 1, 2000 and continuing on the like
day of each month thereafter with a final balloon payment of principal and
interest due and payable on the 15th day of January, 2004 (the "Maturity Date").
This Renewal Promissory Note is executed in accordance with the Master
Amendment to Loan Documents and Agreement dated effective October 1, 2000
executed by Borrower and other subsidiaries or affiliates of Borrower, all of
which including Borrower are defined as "Debtors" therein (the "Master
Amendment"), and is executed to renew and replace that "Original Overline Note",
as defined in the Master Amendment, and all subsequent amendments, renewals,
extensions, and replacements of the Original Overline Note. This Renewal
Promissory Note (Overline Facility) is (1) secured by the collateral described
or referred to in the Loan Documents, as defined in the Master Amendment, and
(2) the breach or occurrence of a default or an event of default under any of
the Loan Documents, at the option of Bank, will constitute a default hereunder.
Both principal and interest due on this Note are payable in Nashville,
Tennessee, in lawful money of the United States of America. Interest shall
continue to accrue when payments are submitted by instruments representing funds
not immediately available and until such funds are, in fact, collected.
Prepayment may be made at any time without premium.
Time is of the essence of this Renewal Revolving Promissory Note. Upon
the occurrence of any default herewith under the Loan Documents, at the option
of holder and without further notice to obligor, all accrued and unpaid
interest, if any, shall be added to the outstanding principal balance hereof,
and the entire outstanding principal balance, as so adjusted, shall bear
interest thereafter until paid at an annual rate equal to the maximum rate then
allowed by applicable law, regardless of whether or not there has been an
acceleration of the payment of principal as set forth herein. All such interest
shall be paid at the time of and as a condition precedent to the curing of any
such default. Failure of the holder to exercise this right of accelerating the
maturity of the debt, or indulgence granted from time to time, shall in no event
be considered as a waiver of said right of acceleration or stop the holder from
exercising said
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right. Interest shall be computed for the actual number of days elapsed on the
basis of a year consisting of three hundred and sixty (360) days.
If default is made in the payment of any payment due hereunder when the
same shall become due or mature, or if default is made in the payment of the
indebtedness hereunder at maturity, or in the event of default in or breach of
any of the terms, provisions or conditions of the Loan Documents or any
instrument(s) given to evidence or secure this Renewal Promissory Note, then at
the election of the legal holder hereof, at any time thereafter made and without
demand or notice, the owner and holder of this Renewal Promissory Note shall
have the right to declare all sums unpaid hereon at once due and payable. In the
event of such default, and the same is placed in the hands of an attorney for
collection, or a suit is filed hereon, or if the proceedings are held in
bankruptcy, receivership, or the reorganization of Borrower, or any person or
entity constituting Borrower if Borrower is, or is composed of, more than one
person or entity, or any guarantor or surety of the Renewal Promissory Note, or
other legal or judicial proceedings for the collection hereof, the undersigned
shall pay in addition to the owner and holder of this Renewal Promissory Note,
all court costs and costs of collection, enforcement or protection of the rights
or collateral of Bank hereunder, including reasonable attorney's fees.
Borrower and all endorsers and signers hereof, and each of them
expressly waive demand, presentment for payment, notice of dishonor, protest,
notice of protest, and diligence in collection and all other notices or demands
whatsoever with respect to this Renewal Promissory Note or the enforcement
hereof and consent that the time of said payments or any part thereof may be
extended by the holder hereof and as sent to any substitution, exchange, or
release of collateral permitted by the holder hereof, all without and anywise
modifying, altering, releasing, effecting or limiting their respective
liability. This Renewal Promissory Note may not be changed orally, but only by
an agreement in writing signed by the party against whom enforcement of any
waiver, change, modification or discharge is sought.
The term obligor, as used in this Renewal Promissory Note, shall mean
all parties, and each of them, directly or indirectly obligated for the
indebtedness that this Renewal Promissory Note evidences, whether as principal,
maker, endorser, surety, guarantor or otherwise.
In no event (including but not limited to prepayment, default, demand
for payment, or acceleration of maturity) shall the interest taken, reserved,
contracted for, charged or received in connection with the credit facility under
the Loan Documents or otherwise, exceed the maximum amount permitted by
applicable law (the "Maximum Amount"). If, from any possible construction of any
document, interest would otherwise be payable in excess of the Maximum Amount,
then ipso facto, such document shall be reformed and the interest payable
reduced to the Maximum Amount, without necessity of execution of any amendment
or new document. If Bank ever receives interest in an amount which apart from
this provision would exceed the maximum amount, the excess shall, without
penalty, be applied to the unpaid principal balance of the loan obligations in
inverse order of maturity of installments and not to the payment of interest, or
be refunded to the Borrower, at the election of the Bank in its full discretion
or as required by applicable law.
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This instrument shall be governed by the laws of the State of
Tennessee, except as such may be preempted by applicable laws of the United
States of America governing the charging or receiving of interest.
The provisions hereof shall be binding upon the parties, their
successors and assigns. The provisions hereof are severable such that the
invalidity or unenforceability of any provision hereof shall not affect the
validity or enforceability of the remaining provisions.
IN WITNESS WHEREOF, this Note has been duly executed by the undersigned
the day and year first above written.
DIVERSIFIED MANAGEMENT SERVICES CO.,
a Tennessee corporation
By: /s/ James F. Mills, Jr.
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Name: James F. Mills, Jr.
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Title: Sr. Vice President
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