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EXHIBIT 10.12
AMENDED AND RESTATED PROMISSORY NOTE
$2,000,000 Nashville, Tennessee October 31, 1995
FOR VALUE RECEIVED, American Retirement Communities, L.P.
("Maker"), a Tennessee limited partnership, promises to pay to the order of
First Union National Bank of Tennessee ("Payee"), a national banking
association, the sum of Two Million Dollars ($2,000,000), together with
interest thereon as provided in that certain Loan Agreement of even date
herewith between Maker and Payee (the "Loan Agreement"). Payments of interest
in arrears on the outstanding principal balance hereunder shall be made as
provided in the Loan Agreement. Additionally, payments of principal in the
amount of $100,000 each shall be due and payable on the 10th day of each
January, April, July and October during the term hereof. All remaining
principal and interest shall be due and payable on October 31, 1997.
Interest hereunder shall be calculated based upon a 360-day
year and actual days elapsed. The interest rate required hereby shall not
exceed the maximum rate permissible under applicable law, and any amounts paid
in excess of such rate shall be applied to reduce the principal amount hereof
or shall be refunded to Maker, at the option of the holder of this Note.
All amounts due under this Note are payable at par in lawful
money of the United States of America, at the principal place of business of
Payee in Nashville, Tennessee, or at such other address as the Payee or other
holder hereof (herein "Holder") may direct.
To the maximum extent permitted under applicable law, any
payment not made within fifteen (15) days of its due date will be subject to
assessment of a late charge equal to five percent (5%) of such payment.
Holder's right to impose a late charge does not evidence a grace period for the
making of payments hereunder.
The occurrence of any Event of Default under the Loan
Agreement shall constitute an Event of Default hereunder. Upon the occurrence
of an Event of Default, as so defined, Holder may, at its option and without
notice, declare all principal and interest provided for under this Note, and
any other obligations of Maker to Holder, to be presently due and payable, and
Holder may enforce any remedies available to Holder under any documents
securing or evidencing debts of Maker to Holder. Holder may waive any Event of
Default before or after it occurs and may restore this Note in full effect
without impairing the right to declare it due for a subsequent Event of
Default, this right being a continuing one. Following the occurrence of an
Event of Default, the remaining unpaid principal balance of the indebtedness
evidenced hereby and all expenses due Holder shall bear interest at the highest
rate permissible under applicable law.
All amounts received for payment of this Note shall be first
applied to any expenses due Holder under this Note or under any other documents
evidencing or securing obligations of Maker to Holder, then to accrued
interest, and finally to the reduction of principal. Prepayment of principal or
accrued interest may be made, in whole or in part, only as provided in the Loan
Agreement. Any prepayment(s) shall reduce the final payment(s) and shall not
reduce or defer installments next due.
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This Note may be freely transferred by Holder.
Maker and all sureties, guarantors, endorsers and other
parties to this instrument hereby consent to any and all renewals, waivers,
modifications, or extensions of time (of any duration) that may be granted by
Holder with respect to this Note and severally waive demand, presentment,
protest, notice of dishonor, and all other notices that might otherwise be
required by law. All parties hereto waive the defense of impairment of
collateral and all other defenses of suretyship.
Maker and all sureties, guarantors, endorsers and other
parties hereto agree to pay reasonable attorneys' fees and all court and other
costs that Holder may incur in the course of efforts to collect the debt
evidenced hereby or to protect Holder's interest in any collateral securing the
same.
The validity and construction of this Note shall be
determined according to the laws of Tennessee applicable to contracts executed
and performed within that state. If any provision of this Note should for any
reason be invalid or unenforceable, the remaining provisions hereof shall
remain in full effect.
The provisions of this Note may be amended or waived only by
instrument in writing signed by the Holder and Maker and attached to this Note.
Words used herein indicating gender or number shall be read
as context may require.
This Amended and Restated Promissory Note is given in renewal
and restatement, and not in extinguishment, of the obligations of Maker
reflected by that certain Promissory Note in the original principal amount of
$2,000,000 executed by Maker in favor of Payee on June 23, 1995 (the "Original
Note"). All liens, guaranties, assignments and security interests securing the
Original Note are hereby ratified, confirmed, renewed, extended and brought
forward as security for this Note, in addition to and cumulative of all other
security.
AMERICAN RETIREMENT COMMUNITIES, L.P.
By: American Retirement Communities LLC,
General Partner
By: /s/
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Title:
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FIRST AMENDMENT TO
AMENDED AND RESTATED PROMISSORY NOTE
This First Amendment to Amended and Restated Promissory Note
is dated as of June 11, 1996 by and between AMERICAN RETIREMENT COMMUNITIES,
L.P. ("Borrower"), a Tennessee limited partnership, and FIRST UNION NATIONAL
BANK OF TENNESSEE ("Lender"), a national banking association.
W I T N E S S E T H:
WHEREAS, Borrower and Lender entered into that certain
$2,000,000 Amended and Restated Promissory Note dated October 31, 1995 (the
"Note"); and
WHEREAS, Borrower and Lender wish to amend the Note and
certain particulars;
NOW, THEREFORE, for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the undersigned
hereby agrees as follows:
1. The Note is hereby further amended by deleting the
reference in the upper left hand corner to $2,000,000 on page one (1) and
inserting therefore reference to $2,950,000.
2. The Note is hereby further amended by deleting the
reference to $2,000,000 in the third line of paragraph 1 thereof and
substituting therefore the phrase "Two Million Nine Hundred Fifty Thousand
Dollars ($2,950,000)." It being the intent of the Borrower and Lender to
increase the amount of the indebtedness evidenced by the Note from the present
principal balance of $1,800,000 by the sum of $1,150,000 to $2,950,000.
3. The Promissory Note is hereby amended by deleting the
final two sentences of the first paragraph on page 1 thereof and substituting
therefore the following:
Additionally, payments of principal in the amount of
$160,000.00 each shall be due and payable on the
10th day of each January, April, July and October
during the term hereof. All remaining principal and
interest shall be due and payable on October 31,
1997.
EXECUTED the date first written above.
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FIRST UNION NATIONAL BANK OF TENNESSEE
By: /s/
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Title:
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AMERICAN RETIREMENT COMMUNITIES, L.P.
BY: AMERICAN RETIREMENT COMMUNITIES, L.L.C., G.P.
By: /s/
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Title:
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SECOND AMENDMENT TO
AMENDED AND RESTATED PROMISSORY NOTE
This Second Amendment to Amended and Restated Promissory Note
is dated as of February 18, 1997 by and between AMERICAN RETIREMENT
COMMUNITIES, L.P. ("Borrower"), a Tennessee limited partnership, and FIRST
UNION NATIONAL BANK OF TENNESSEE ("Lender"), a national banking association.
W I T N E S S E T H:
WHEREAS, Borrower and Lender entered into that certain
$2,000,000 Amended and Restated Promissory Note dated October 31, 1995, as
amended by that First Amendment to Promissory Note dated as of June 11, 1996
(as amended, the "Note"); and
WHEREAS, Borrower and Lender wish to further amend the Note
in certain particulars;
NOW, THEREFORE, for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the undersigned
hereby agree as follows:
1. The Note is hereby amended by deleting the final sentence
of the first paragraph on page 1 thereof and substituting therefore the
following:
All remaining principal and interest shall be due and
payable on April 30, 1998.
2. As amended hereby, the Note remains in full effect, and
all agreements among the parties with respect to the subject hereof are
represented fully in this Amendment and the other written documents among the
parties. The validity, construction and enforcement hereof shall be determined
according to the substantive laws of the State of Tennessee.
EXECUTED as of the date first written above.
FIRST UNION NATIONAL BANK OF TENNESSEE
By: /s/
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Title:
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AMERICAN RETIREMENT COMMUNITIES, L.P.
BY: AMERICAN RETIREMENT COMMUNITIES, L.L.C., G.P.
By: /s/
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Title:
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