Attached files
| file | filename |
|---|---|
| 10-K - Sentio Healthcare Properties Inc | v177515_10k.htm |
| EX-3.1 - Sentio Healthcare Properties Inc | v177515_ex3-1.htm |
| EX-3.2 - Sentio Healthcare Properties Inc | v177515_ex3-2.htm |
| EX-10.5 - Sentio Healthcare Properties Inc | v177515_ex10-5.htm |
| EX-10.6 - Sentio Healthcare Properties Inc | v177515_ex10-6.htm |
| EX-21.1 - Sentio Healthcare Properties Inc | v177515_ex21-1.htm |
| EX-10.9 - Sentio Healthcare Properties Inc | v177515_ex10-9.htm |
| EX-31.2 - Sentio Healthcare Properties Inc | v177515_ex31-2.htm |
| EX-31.1 - Sentio Healthcare Properties Inc | v177515_ex31-1.htm |
| EX-10.11 - Sentio Healthcare Properties Inc | v177515_ex10-11.htm |
| EX-10.12 - Sentio Healthcare Properties Inc | v177515_ex10-12.htm |
| EX-32.1 - Sentio Healthcare Properties Inc | v177515_ex32-1.htm |
Exhibit
10.10
PROMISSORY
NOTE
March 23,
2007
Promise to
Pay: For value
received, the undersigned Borrower (whether one or more) promises to pay to the
order of Lender the Principal Amount, to the extent advanced by Lender, together
with interest on the unpaid balance of such amount, in lawful money of the
United States of America, in accordance with all the terms conditions and
covenants set forth below.
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Borrower:
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HHC
San Antonio Northwest NC, LP
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Borrower's
Address for Notice:
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8701
North Mopac, Suite 300
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Austin,
Texas 78759
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Lender:
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PlainsCapital
Bank
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Lender's
Address for Payment:
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919
Congress Avenue, Suite 600
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Austin,
Texas 78701
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Principal
Amount:
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$8,900,000.00
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Prime
Rate Established By:
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The Wall Street
Journal
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Margin
Percentage:
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One-half
percent (0.50%)
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Default
Interest Rate:
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Eighteen
percent (18%)
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Payment
Terms:
This Note
is due and payable as follows:
Interest
only is payable monthly as it accrues on or before the 21st day of every month,
beginning April 21, 2007 and continuing on the same day of each succeeding month
until maturity. The entire unpaid principal balance, together with
accrued and earned but unpaid interest, shall be fully due and payable on or
before March 21, 2008.
If there
is no material uncured default at the maturity date stated above, (whether
defined or referenced as a “Default”, “Event of Default” or otherwise, which are
subject to the notice and opportunity to cure provisions herein) under this Note
or any of the other Loan Documents (defined below), the interest only payment
terms of this Note shall automatically be extended for one additional year, with
the entire unpaid principal balance, together with accrued and earned but unpaid
interest, being fully due and payable on or before March 21, 2009.
Borrower
may prepay this Note in whole or in part without penalty, and interest shall
cease on any amount so prepaid.
Interest
Provisions:
(a) Rate: The
Principal Amount of this Note advanced but from time to time remaining unpaid
prior to maturity shall bear interest at a varying or fluctuating rate per annum
(the “Applicable Rate”) that is equal to the “Prime Rate” plus the “Margin
Percentage” as those terms are defined and stated in this Note, but never
greater than the “Maximum Lawful Rate”, as defined below. The term
“Prime Rate” as used in this Note means a per annum interest rate equal to the
“Prime Rate” as published each day by The Wall Street Journal in
its “Money Rates” section, and if more than one such rate is published, then the
highest such rate. On any day when The Wall Street Journal is
not published or a Prime Rate is not published under the Money Rates section
thereof, then the Prime Rate published for the preceding publication date of
The Wall Street Journal
shall apply. Should the method of establishing the Prime Rate,
or the publication of such Prime Rate, cease or be abolished, then the Prime
Rate used for the balance of the term of this Note shall be that interest rate
established, adopted or used by holder as its prime or base interest
rate. The term “Margin Percentage” is that percentage, if any, stated
above, which shall be added to the Prime Rate to establish the Applicable Rate
per annum to be paid by Borrower on this Note. The Applicable Rate
will automatically fluctuate upward or downward with changes to the Prime Rate,
without notice to Borrower or any other person. Interest shall be
calculated on the amount of each advance of the Principal Amount of this Note
from the date of each advance.
(b) Maximum Lawful
Rate: The term “Maximum Lawful Rate” means the maximum lawful
contractual rate of interest, and the term “Maximum Lawful Amount” means the
maximum lawful contractual amount of interest, that are permissible and
nonusurious under the weekly ceiling from time to time in effect provided by
Texas Finance Code Sections 303.002 and 303.003, subject to Texas Finance Code
Section 303.009.
(c) Usury
Disclaimer: All agreements between Lender and Borrower,
whether now existing or hereafter arising and whether written or oral, are
hereby limited so that in no contingency, whether by reason of demand for
payment or acceleration of the maturity hereof or any other circumstance
whatsoever, shall the interest contracted for, charged or received by Lender
exceed the Maximum Lawful Amount. If, from any circumstance
whatsoever, interest would otherwise be payable to Lender in excess of the
Maximum Lawful Amount, the interest payable to Lender shall be reduced to the
Maximum Lawful Amount; and if from any circumstance Lender shall ever receive
any interest in excess of the Maximum Lawful Amount, an amount equal to any
excessive interest shall be applied to the reduction of the Principal Amount and
not to the payment of interest, or if such excessive interest exceeds the unpaid
Principal Amount such excess shall be refunded to Borrower. All interest paid or
agreed to be paid to Lender shall, to the extent permitted by applicable law, be
amortized, prorated, allocated, and spread throughout the full period until
payment in full of the Principal Amount (including the period of any renewal or
extension hereof) so that the interest hereon for such full period shall not
exceed the Maximum Lawful Amount. For purposes of this paragraph, the
term interest shall include all considerations and amounts that constitute
interest under applicable usury law. This paragraph shall control all
agreements between Borrower and Lender.
(d) Interest After
Default: All past due installments of principal and interest
on this Note, and the unpaid principal balance during the existence of any
default and after maturity, shall bear interest at a per annum rate equal to the
lesser of (i) the Default Interest Rate stated above or (ii) the Maximum Lawful
Rate. Where no Maximum Lawful Rate is applicable and a Default
Interest Rate is not specified, the interest rate on such amounts shall be the
Applicable Rate stated above.
Covenants:
The
financial statements called for below must be prepared on the basis of generally
accepted accounting principles applied on a basis consistent with those used the
preparation of financial statements previously submitted to Lender.
Borrower
shall submit or cause to be submitted to Lender the following statements and
other documents:
(a) Beginning
with the quarter ending on March 31, 2007, for the first 3 quarters of its
fiscal year, provide quarterly financial statements for Harden Healthcare Texas,
LP within 45 days of the last day of the immediately preceding
quarter.
(b) Beginning
with the fiscal year ending on December 31, 2007, annual internally prepared
financial statements for Harden Healthcare Texas, LP within 60 days of fiscal
year end.
(c) Beginning
with the fiscal year ending on December 31, 2007, annual audited financial
statements for Harden Healthcare Texas, LP within 150 days of fiscal year
end.
(d) Beginning
with the quarter ending on March 31, 2007, for the first 3 quarters of its
fiscal year, quarterly financial statements for HHC Babcock NC, LP within 45
days of the last day of the immediately preceding quarter.
(e) Beginning
with the fiscal year ending on December 31, 2007, annual internally prepared
financial statements for HHC Babcock NC, LP within 60 days of fiscal year
end.
(f) Beginning
with the quarter ending on March 31, 2007, for the first 3 quarters of its
fiscal year, quarterly financial statements for PM Management—Babcock, NC, LLC
within 45 days of the last day of the immediately preceding
quarter.
(g) Beginning
with the quarter ending on March 31, 2008, for the first 3 quarters of its
fiscal year, quarterly financial statements for Borrower within 45 days of the
last day of the immediately preceding quarter.
(h) Beginning
with the fiscal year ending on December 31, 2007, annual internally prepared
financial statements for Borrower within 60 days of fiscal year
end.
(i)
Beginning with the quarter ending on June 30, 2008, quarterly financial
statements for the management entity (anticipated to be PM Management—San
Antonio Northwest NC, LLC) within 45 days of the last day of the immediately
preceding quarter. Subsequently the management entity will provide
this quarterly financial information on September 30, 2008 and March 21,
2008.
(j) Internally
prepared balance sheet and income statement for Borrower, HHC Babcock NC, LP and
Harden Healthcare Texas, LP at such other times and for other periods as Lender
may reasonably request from time to time.
(k) Financial
statements for R. Steven Hicks, Walter A. DeRoeck and Lew Little, Jr. not later
than 30 days of the anniversary date of any previous financial statement for
each respective individual provided to Lender. These financial
statements shall include a balance sheet and cash flow statement, and shall
disclose all contingent liabilities.
(l) Personal
federal income returns for R. Steven Hicks, Walter A. DeRoeck and Lew Little,
Jr. within 10 days of filing with the Internal Revenue Service.
Neither
HHC Babcock NC, LP nor PM Management—Babcock NC, LLC shall be required to
provide financial information and the maintenance of the debt service coverage
ratio for the quarters and fiscal years ending on June 30, 2008, and
thereafter.
The Debt
Service Coverage Ratios below are defined as the sum of applicable party’s net
income plus depreciation and interest expense, divided by the total of all
principal and interest payments on all that party’s indebtedness. The
following ratios must be satisfied:
(a) Borrower
shall achieve an annual Debt Service Coverage Ratio of not less than 1.10 to 1
no later than six months after the completion of the Improvements under the Loan
Agreement.
(b) For
each quarter and fiscal year end Harden Healthcare Texas, LP will maintain a
minimum Debt Service Coverage Ratio of 1.1:1.0. The measurement of
this covenant shall begin with the quarter ending on June 30, 2007, and continue
with each quarter and fiscal year end thereafter. Borrower shall compute this
ratio and cause it to be provided to Lender within 45 days of the end of the
quarter and fiscal year so measured.
(c) For
each quarter and fiscal year end HHC Babcock NC, LP will maintain a minimum Debt
Service Coverage Ratio of 1.1:1.0. The measurement of this covenant
shall begin with the quarter ending on June 30, 2007, and continue with each
quarter and fiscal year end thereafter. Borrower shall compute this ratio and
cause it to be provided to Lender within 45 days of the end of the quarter and
fiscal year so measured. Payments to be made on this Note will
not be included in the calculation of the Debt Service Coverage Ratio for HHC
Babcock NC, LP.
(d) For
each quarter and fiscal year end PM Management—Babcock NC, LLC will maintain a
minimum Debt Service Coverage Ratio of 1.1:1.0. The measurement of this covenant
shall begin with the quarter ending on June 30, 2007, and continue with each
quarter and fiscal year end thereafter. Borrower shall compute this ratio and
cause it to be provided to Lender within 45 days of the end of the quarter and
fiscal year so measured. Payments to be made on this Note will
not be included in the calculation of the Debt Service Coverage Ratio for PM
Management—Babcock NC, LLC.
(e) For
each quarter and fiscal year end for which financial statements are to be
provided, Borrower will maintain a minimum Debt Service Coverage Ratio of
1.1:1.0. The measurement of this covenant shall begin with the
quarter ending on June 30, 2008, and continue with each quarter and fiscal year
end thereafter. Borrower shall compute this ratio and cause it to be provided to
Lender within 45 days of the end of the quarter and fiscal year so
measured.
(f) For
each quarter and fiscal year end for which financial statements are to be
provided, the management entity (anticipated to be PM Management—San Antonio
Northwest NC, LLC) will maintain a minimum Debt Service Coverage Ratio of
1.1:1.0. The measurement of this covenant shall begin with the
quarter ending on June 30, 2008, and continue with each quarter and fiscal year
end thereafter. Borrower shall compute this ratio and cause it to be provided to
Lender within 45 days of the end of the quarter and fiscal year so
measured.
Default
Provisions:
(a) Events of Default and
Acceleration of Maturity: Lender may, without notice or
demand, declare the entire unpaid Principal Amount and all accrued and earned
but unpaid interest at once due and payable if:
(i) there
is default in the payment of any installment of principal, interest or any other
sum required to be paid under the terms of the Loan Documents (defined below),
and such default continues for ten (10) calendar days after notice by Lender
that such default has occurred and is continuing;
(ii) there
is default in the performance of any covenant, condition, or agreement contained
in any of the Loan Documents, including any instrument securing the payment of
this Note, and such default continues for thirty (30) calendar days after notice
by Lender that such default has occurred and is continuing; provided, however,
that this 30 day notice and opportunity to cure shall not apply to any
obligations under any of the Loan documents to insure the real property and
improvements securing this Note against loss pursuant to the terms of the Loan
Documents;
(iii) the
liquidation, termination, dissolution or (if Borrower or any guarantor is a
natural person) death or legal incapacity of Borrower or any guarantor
hereof;
(iv) the
bankruptcy or insolvency of, the assignment for the benefit of creditors by, or
the appointment of a receiver for any of the property of any party liable for
the payment of this Note, whether as maker, endorser, guarantor, surety or
otherwise; or
(v) default
in the payment of any other indebtedness due Lender or default in the
performance of any other obligation to Lender by Borrower or any other party
liable for the payment hereof, whether as maker, endorser, guarantor, surety or
otherwise.
(b) Waiver by
Borrower: Borrower and all other parties liable for this Note
waive demand, notice of presentment, presentment for payment, notice of
nonpayment, protest, notice of protest, grace, notice of dishonor, notice of
intent to accelerate, notice of acceleration, and diligence in
collection.
(c) Non-Waiver by
Lender: Any previous extension of time, forbearance, failure
to pursue some remedy, or acceptance of partial payment by Lender, before or
after maturity, does not constitute a waiver by Lender of the existence of any
event of default nor of its right to strictly enforce the collection of this
Note according to its terms.
(d) Other Remedies Not
Required: Lender shall not be required to first file suit,
exhaust all remedies, or enforce its rights against any security in order to
enforce payment of this Note.
(e) Attorney's
Fees: If Lender requires the services of an attorney to
enforce the payment of this Note or the performance of the other Loan Documents,
or if this Note is collected through any lawsuit, probate, bankruptcy, or other
judicial proceeding, Borrower agrees to pay Lender an amount equal to its
reasonable attorney's fees and other collection costs. This provision
shall be limited by any applicable statutory restrictions relating to the
collection of attorney's fees.
Miscellaneous
Provisions:
(a) Draw
Note: This Note is a "draw note." Advances may be
made, from time to time, by Lender to Borrower, up to the face amount of this
Note, subject to and as more fully provided in a loan agreement of even date
herewith between Borrower and Lender (hereinafter referred to as the "Loan
Agreement") or other agreement by and between Borrower and
Lender. Interest will accrue only from the date that funds are
advanced pursuant to such Loan Agreement or the documents securing this Note and
the Loan Agreement, and the liability of the undersigned is limited to the
unpaid principal from time to time actually disbursed pursuant to such Loan
Agreement, plus unpaid interest actually accrued on such principal, plus any
expenses or other charges as more fully provided in this Note, the Loan
Agreement and any documents securing this Note or the Loan
Agreement. To the extent, if any, that any advances may from time to
time be made under this Note to pay interest on this Note, such advances will be
deemed made (and interest will accrue thereon) only from and after the date that
the interest being paid by such advance has fully accrued and is due and
payable. The books and records of the holder of this Note relating to
this Note will be evidence of the amounts advanced, paid and owing
hereon. Without limiting the foregoing, all advances and all payments
made on account of the principal balance hereof may be endorsed by the holder
hereof on the back of or on an attachment to this draw Note, and when endorsed
thereon shall become a part hereof and evidence of the amount due
hereunder.
(b) Collateral: This
Note is secured by all deeds of trust, security agreements, collateral
assignments and other liens and security now or at any time hereafter executed
by Borrower or other parties, and by rights of subrogation accruing to Lender by
reason of any indebtedness discharged by the proceeds of this
Note. Without limiting the foregoing, this Note is secured by Deeds
of Trust of even date herewith to Frank Jackel, Trustee.
(c) Application of
Payments: All payments on the indebtedness evidenced by this
Note and by any documents securing or governing this Note, other than regularly
scheduled payments, shall be applied to such indebtedness in such order and
manner as Lender may from time to time determine in its absolute
discretion.
(d) Subsequent
Holder: All references to Lender in this Note shall also refer
to any subsequent owner or holder of this Note by transfer, assignment,
endorsement or otherwise.
(e) Transfer or
Participation: Borrower acknowledges and agrees that Lender
may, from time to time, transfer or sell this Note to one or more transferees or
participants. Borrower authorizes Lender to disseminate any
information it has pertaining to the loan evidenced by this Note, including,
without limitation, credit information on Borrower, any of its principals and
any guarantor of this Note, to any such transferee or participant or prospective
transferee or participant.
(f) Set-Off: Borrower
agrees that Lender may exercise Lender's right of set-off to pay all or any part
of the outstanding Principal Amount and accrued interest, costs, attorney's
fees, and advances owed on this Note against any obligation Lender may have, now
or hereafter, to pay money, securities or other property to
Borrower. This includes, without limitation:
(i) any
deposit account balance, securities account balance or certificate of deposit
balance (whether matured or unmatured) Borrower has with Lender, whether
general, special, time, savings, checking or NOW account;
(ii) any
money owing to Borrower on an item presented to Lender or in Lender's possession
for collection or exchange; and
(iii) any
repurchase agreement or any other non-deposit obligation or credit in Borrower's
favor.
Lender's
right of set-off may be exercised upon Borrower's default:
(i) without
prior demand or notice;
(ii) without
regard to the existence or value of any collateral securing this Note;
and
(iii) without
regard to the number or creditworthiness of any other persons who have agreed to
pay this Note.
Lender
will not be liable for dishonor of a check or other request for payment where
there are insufficient funds in the account (or other obligation) to pay such
request because of Lender's exercise of Lender's right of
set-off. Borrower agrees to indemnify and hold Lender harmless from
any person's claims and the costs and expenses, including without limitation,
attorneys' fees, incurred as a result of such claims or arising as the result of
Lender's exercise of Lender's right of set-off.
(g) Successors and
Assigns: The provisions of this Note shall be binding upon and
for the benefit of the successors, assigns, heirs, executors and administrators
of Lender and Borrower.
(h) Other Parties
Liable: All promises, waivers, agreements and conditions
applicable to Borrower shall likewise be applicable to and binding upon any
other parties primarily or secondarily liable for the payment of this Note,
including all guarantors, endorsers and sureties.
(i)
Modifications: Any
modifications agreed to by Lender relating to the release of liability of any of
the parties primarily or secondarily liable for the payment of this Note, or
relating to the release, substitution, or subordination of all or part of the
security for this Note, shall in no way constitute a release of liability with
respect to the other parties or security not covered by such
modification.
(j)
Borrower's Address for
Notice: All notices required to be sent by Lender to Borrower
shall be sent by United States Mail, postage prepaid, to Borrower's Address for
Notice stated on the first page of this Note, until Lender shall receive written
notification from Borrower of a new address for notice.
(k) Lender's Address for
Payment: All sums payable by Borrower to Lender shall be paid
at Lender's Address for Payment stated on the first page of this Note, until
Lender shall notify Borrower of a new address for payment.
(l)
Applicable
Law: This Note has been executed and delivered, and shall be
construed, in accordance with the applicable laws of the State of Texas and the
United States of America.
(m) Time of
Essence: Time is of the essence in Borrower's performance of
all duties and obligations imposed by this Note.
(n) Business
Use: Borrower represents and warrants to Lender that the
proceeds of this Note will be used solely for business, commercial, investment
or other similar purposes, and no portion thereof will be used for personal,
family or household use.
(o) Non-Homestead: Borrower
represents and warrants to Lender that the property covered by the Deed of Trust
securing this Note is not the business or residential homestead of Borrower or
any other person. Borrower has no present intent to occupy in the
future or use or claim in the future such property either as business or
residential homestead.
(p) Chapter 346 Not
Applicable: It is agreed that Chapter 346 of the Texas Finance
Code relating to certain revolving credit loan accounts and tri-party accounts
is not applicable to this Note nor any indebtedness or account at any time
evidenced by it, and any applicability thereof is hereby expressly
waived.
(q) Loan
Documents: When used herein, the term “Loan Documents” shall
mean all promissory notes, deeds of trust, mortgages, security agreements,
assignments, loan agreements or any other instruments evidencing or securing
this Note or otherwise governing, guaranteeing or pertaining to the loan
evidenced by this Note.
(r) Renewal of
Indebtedness: This Note is given in renewal, extension and
modification of, but expressly not in extinguishment of, the following
indebtedness:
Promissory
Note dated December 22, 2006 in the original principal amount of $2,000,000.00,
executed by HHC San Antonio Northwest NC, LP and payable to the order of
PlainsCapital Bank.
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Borrower's
Signature:
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HHC
San Antonio Northwest NC, LP,
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a
Texas limited partnership
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By:
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CapWest
– Texas, LLC,
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a
Texas limited liability company,
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General
Partner
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By:
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/s/ Ben Hanson
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Name: Ben
Hanson
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Title: Manager
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By:
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/s/ Brian DeRoeck
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Name: Brian
DeRoeck
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Title:
Manager
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