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EXHIBIT 10.13
RENEWAL PROMISSORY NOTE
$9,412,383.87 October 1, 2000
Nashville, Tennessee
FOR VALUE RECEIVED, the undersigned, DIVERSICARE ASSISTED LIVING
SERVICES, NC, LLC, a Tennessee limited liability company, (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 NINE MILLION FOUR HUNDRED
TWELVE THOUSAND THREE HUNDRED EIGHTY THREE AND 87/100 ($9,412,383.87) DOLLARS,
together with interest at the rate of nine and one half percent (9.5%) per annum
with principal and interest payable as follows: equal monthly payments of
principal and interest in the amount of Eighty Seven Thousand Seven Hundred
Thirty Five and 76/100 ($87,735.76) Dollars, which payments are based on an
amortization of twenty five (25) years, beginning on November 1, 2000,
continuing on the like day of each month thereafter, with a final balloon
payment of all remaining principal and interest due and payable on the thirtieth
(30th) day of September, 2004 (the "Maturity Date").
This Renewal Promissory Note is executed by the parties in accordance
with the Master Amendment to Loan Document and Agreement dated effective October
1, 2000 executed between Bank, Borrower, and other subsidiaries, affiliates of
Borrower, all of which, including Borrower, are defined as "Debtors" therein
("the Master Amendment"), as a renewal of the indebtedness as defined as the NC
Bridge Loan in the Master Amendment. This Renewal Promissory Note (and any and
all extensions, modifications, renewals or amendments thereof) 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 event of
default under any of the Loan Documents, at the option of the Bank, will
constitute a default hereunder.
Both principal and interest due on this Renewal Note are payable in
Nashville, Tennessee, at par 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 Promissory Note. Upon the
occurrence of any default, 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 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.
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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 any 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 this 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, affecting 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, guaranty, 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 herewith 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 sole discretion or as required
by applicable law.
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.
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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 instrument has been executed on the day and
year first above written.
BORROWER:
DIVERSICARE ASSISTED LIVING
SERVICES, NC, LLC,
a Tennessee limited liability company
By: /s/ James F. Mills, Jr.
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Name: James F. Mills, Jr.
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Title: Sr. Vice Pres.
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