Exhibit 10.7
A FIFTH THIRD BANCORP
BANK
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Revolving Note
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OFFICER NO.
04164
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NOTE No. ______________
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$650,000.00
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December 18, 2008
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(Effective Date)
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Promise to Pay.
On or before December 15, 2009
(the “Maturity Date”), the undersigned, DENTAL CARE
PLUS, INC. , an Ohio corporation, located at 100 Crowne Point
Place, Cincinnati, Ohio 45241 (“Borrower”) for value
received, hereby promises to pay to the order of FIFTH THIRD
BANK , an Ohio banking corporation, located at 38 Fountain
Square Plaza, Cincinnati, Ohio 45263 (together with its successors
and assigns, the “Lender”) the sum of Six Hundred Fifty
Thousand and 00/100 Dollars ($650,000.00), (the
“Borrowing”), plus interest as provided herein, less
such amounts as shall have been repaid in accordance with this
Note. The outstanding balance of this Note shall appear on a
supplemental bank record and is not necessarily the face amount of
this Note, which record shall evidence the balance due pursuant to
this Note at any time. As used herein, “Local Time”
means the time at the office of Lender specified in this
Note.
Principal and
interest payments shall be initiated by Lender in accordance with
the terms of this Note from Borrower’s account through
BillPayer 2000 ® . Borrower hereby authorizes
Lender to initiate such payments from Borrower’s account
located at Fifth Third Bank, routing number 042000314 account
number 70140826. Borrower acknowledges and agrees that use of
BillPayer 2000 ® shall be governed by the
BillPayer 2000 ® Terms and Conditions, a copy of
which Borrower acknowledges receipt. Borrower further acknowledges
and agrees to maintain payments hereunder through BillPayer
2000 ® throughout the term of this
Note. Each payment hereunder shall be applied first to advanced
costs, charges and fees, then to accrued interest, and then to
principal, which will be repaid in inverse chronological order of
maturity.
Lender, in its reasonable
discretion, may loan hereunder to Borrower on a revolving basis
such amounts as may from time to time be requested by Borrower,
provided that: (a) the aggregate principal amount borrowed
hereunder at any time shall not exceed the Borrowing, and
(b) no Event of Default shall exist or be caused thereby. The
entire principal balance, together with all accrued and unpaid
interest and any other charges, advances and fees, if any,
outstanding hereunder, shall be due and payable in full on the
earlier of the Maturity Date or upon acceleration of this
Note.
The principal sum outstanding shall
bear interest at a floating rate per annum equal to 1.75% in excess
of the “LIBOR Rate”, being the rate of interest
(rounded upwards, if necessary, to the next 1/8 of 1% (adjusted for
reserves if Lender is required to maintain reserves with respect to
relevant advances) being asked on one month Eurodollar deposits, as
reported on page 3750 of the Dow Jones Telerate news service (or
any successor) as determined by Lender on the relevant date of
determination (the “Interest Rate”). The Interest Rate
shall be adjusted automatically on the 1st day of each month,
hereafter. Interest shall be calculated based on a 360-day year and
charged for the actual number of days elapsed, and shall be payable
on the 1st day of each month beginning on January 1, 2009, and
on the Maturity Date (provided that if the 1st day of the month is
not a business day, such payment shall be payable on the next
business day).
In addition, notwithstanding
anything herein contained to the contrary, if, prior to or during
any period with respect to the LIBOR Rate, any change in any law,
regulation or official directive, or in the interpretation thereof,
by any governmental body charged with the administration thereof,
shall make it unlawful for Lender to find or maintain its funding
in Eurodollars of any portion of the advance subject to the LIBOR
Rate or
otherwise to give effect to Lender’s
obligations as contemplated hereby: (i) Lender may, by written
notice to Borrower, declare Lender’s obligations in respect
of the LIBOR Rate to be terminated forthwith, and (ii) the
LIBOR Rate with respect to Lender shall forthwith cease to be in
effect, and interest shall from and after such date be calculated
at the Lender’s Prime Rate. Borrower hereby agrees to
reimburse and indemnify Lender from all increased costs or fees
incurred by Lender subsequent to the date hereof relating to the
offering of rates of interest based upon the LIBOR Rate.
Borrower’s right to utilize LIBOR Rate Index Pricing as set
forth in this Note shall be terminated automatically if Lender, by
telephonic notice, shall notify Borrower that one month are not
readily available in the London Inter-Bank Offered Rate Market, or
that, by reason of circumstances affecting such Market, adequate
and reasonable methods do not exist for ascertaining the rate of
interest applicable to such deposits. In such event, amounts
outstanding hereunder shall bear interest at a rate equal to
Lender’s Prime Rate or such other rate of interest as may be
agreed to between Lender and Borrower.
Notwithstanding any provision to the
contrary in this Note, in no event shall the interest rate charged
on the Borrowing exceed the maximum rate of interest permitted
under applicable state and/or federal usury law. Any payment of
interest that would be deemed unlawful under applicable law for any
reason shall be deemed received on account of, and will
automatically be applied to reduce, the principal sum outstanding
and any other sums (other than interest) due and payable to Lender
under this Note, and the provisions hereof shall be deemed amended
to provide for the highest rate of interest permitted under
applicable law.
Security
Agreement. To secure
repayment of this Note and all other Obligations (as defined below)
together with all modifications, extensions and renewals thereof,
Borrower hereby grants Lender a continuing security interest in all
right, title and interest of Borrower in and to the following
property, whether now owned or hereafter acquired (collectively,
the “Collateral”): (i) any and all property in
which Lender and/or any affiliate of Fifth Third Bancorp (including
without limitation Fifth Third Securities, Inc.) is at any time
granted a lien for any Obligation including, without limitation,
all collateral specified in any of the documents executed in
connection with this Note, (ii) all property in possession of
Lender and/or any affiliate of Fifth Third Bancorp (including
without limitation Fifth Third Securities, Inc.) including, without
limitation, money, securities, instruments, documents, letters of
credit, chattel paper, or other property delivered to Lender in
transit, for safekeeping, or for collection or exchange for other
property, (iii) all rights to payment from, and claims
against, Lender, and (iv) any and all additions,
substitutions, dividends, distributions (in the form of cash,
property, stock or other securities) and other rights related or in
addition to the foregoing, and any and all proceeds therefrom (the
“Distributions”). Borrower agrees to immediately
deliver to Lender all documents, certificates and instruments
evidencing the Distributions and any additional documentation
requested by Lender to perfect and protect Lender’s security
interest therein, and until such delivery Borrower shall hold the
same in trust for Lender. Borrower also grants Lender a security
interest in all of the Collateral as agent for all affiliates of
Fifth Third Bancorp for all Obligations of Borrower to such
affiliates. Said security interest shall not be enforced to the
extent prohibited by the Truth in Lending Act as implemented by
Federal Reserve Regulation Z.
Borrower acknowledges and agrees
that the principal, interest and other amounts payable by Borrower
are secured by that certain Open-End Mortgage and Security
Agreement of even date herewith executed and delivered by the
Borrower to Lender, covering certain real and personal property
located in Hamilton County, Ohio (as amended from time to time, the
“Mortgage”).
Use of
Proceeds. Borrower
certifies that the proceeds of this loan are to be used for
business purposes.
Fee.
Lender may charge, and Borrower
agrees to pay on the above Effective Date, a note processing fee in
the amount of $500.00.
Affirmative Covenants.
Borrower covenants with, and
represents and warrants to, Lender that, from and after the
execution date of the Loan Documents until the Obligations are paid
and satisfied in full:
(1) Financial
Statements. Borrower
shall maintain a standard and modem system for accounting and shall
furnish to Lender:
(a) Within sixty (60) days
after the end of each quarter, a copy of Borrower’s
internally prepared consolidated financial statements for that
quarter and for the year to date in a form reasonably acceptable to
Lender, prepared and certified as complete and correct, subject to
changes resulting from year-end adjustments, by the principal
financial officer of Borrower (which acceptance shall not be
unreasonably withheld) and certified as complete and correct,
subject to changes resulting from year-end adjustments, by the
principal financial officer of Borrower;
(b) Within one hundred twenty
(120) days after the end of each fiscal year, a copy of
Borrower’s financial statements audited by a firm of
independent certified public accountants acceptable to Lender
(which acceptance shall not be unreasonably withheld) and
accompanied by an audit opinion of such accountants without
qualification;
All of the statements referred to in
(a) and (b) shall be in conformance with generally
accepted accounting principles and give representatives of Lender
access thereto at all reasonable times, including permission to
examine, copy and make abstracts from any such books and records
and such other information which might be helpful to Lender in
evaluating the status of the loans as it may reasonably request
from time to time.
With the statements submitted above,
a certificate signed by the principal financial officer of
Borrower, (i) stating he is familiar with all documents
relating to Lender and that no Event of Default specified herein,
nor any event which upon notice or lapse of time, or both would
constitute such an Event of Default, has occurred, or if any such
condition or event existed or exists, specifying it and describing
what action Borrower has taken or proposes to take with respect
thereto, and (ii) setting forth, in summary form, figures
showing the financial status of Borrower in respect of the
financial restrictions contained herein.
(2) Depository/Banking
Services. Lender
shall be the principal depository in which substantially all of
Borrower’s funds are deposited, and the principal bank of
account of Borrower, as long as any Obligations are outstanding,
and Borrower shall grant Lender the first and last opportunity to
provide any corporate banking services required by Borrower and its
Affiliates. Borrower shall also maintain a Lockbox with
Lender.
Definitions.
Certain capitalized terms have the
meanings set forth on any exhibit hereto, in the Mortgage, if
applicable, or any other Loan Document. All financial terms used
herein but not defined on the exhibits, in the Mortgage, if
applicable, or any other Loan Document have the meanings given to
them by generally accepted accounting principles. All other
undefined terms have the meanings given to them in the Uniform
Commercial Code as adopted in the state whose law governs this
instrument. The following definitions are used herein:
“Accounts” means all
accounts, accounts receivable, health-care insurance receivables,
credit card receivables, contract rights, instruments, documents,
chattel paper, tax refunds from federal, state or local governments
and all obligations in any form including without limitation those
arising out of the sale or lease of goods or the rendition of
services by Borrower; all guaranties, letters of credit and other
security and support
obligations for any of the above; all
merchandise returned to or reclaimed by Borrower; and all books and
records (including computer programs, tapes and data processing
software) evidencing an interest in or relating to the above; all
winnings in a lottery or other game of chance operated by a
governmental unit or person licensed to operate such game by a
governmental unit and all rights to payment therefrom, and all
“Accounts” and “Health-Care-Insurance
Receivables” as the same are now or hereinafter defined in
the Uniform Commercial Code.
“Affiliate” means, as to
Borrower, (a) any person or entity which, directly or
indirectly, is in control of, is controlled by or is under common
control with, Borrower or (b) any person who is a director,
officer or employee (i) of Borrower or (ii) of any person
described in the preceding clause (a).
“Loan Documents” means
this Note, the Mortgage, any and all Rate Management Agreements and
each and every document or agreement executed by any party
evidencing, guarantying or securing any of the Obligations; and
“Loan Document” means any one of the Loan
Documents.
“Lockbox” means a post
office box at the U.S. Post Office, established by Borrower at the
direction of Lender or by Lender on behalf of Borrower at any time,
bearing such address as Lender shall designate. Lender shall have
access to the Lockbox at all times and Borrower shall take all
actions and execute all documents and instruments as Lender deems
necessary or desirable to ensure Lender such access. At no time
shall Borrower remove any remittance on account of an Account from
the Lockbox without Lender’s prior written
consent.
“Obligation(s)” means
all loans, advances, indebtedness and each and every other
obligation or liability of Borrower owed to each of Lender and/or
any affiliate of Fifth Third Bancorp, however created, of every
kind and description whether now existing or hereafter arising and
whether direct or indirect, primary or as guarantor or surety,
absolute or contingent, liquidated or unliquidated, matured or
unmatured, participated in whole or in part, created by trust
agreement, lease overdraft, agreement or otherwise, whether or not
secured by additional collateral, whether originated with Lender or
owed to others and acquired by Lender by purchase, assignment or
otherwise, and including, without limitation, all loans, advances,
indebtedness and each and every obligation or liability arising
under the Loan Documents, letters of credit now or hereafter issued
by Lender or any affiliate of Fifth Third Bancorp for the benefit
of or at the request of Borrower, any and all Rate Management
Obligations, all obligations to perform or forbear from performing
acts, and agreements, instruments and documents evidencing,
guarantying, securing or otherwise executed in connection with any
of the foregoing, together with any amendments, modifications and
restatements thereof, and all expenses and attorneys’ fees
incurred by Lender hereunder or any other document, instrument or
agreement related to any of the foregoing.
“Prime Rate” means the
rate of interest per annum announced from time to time by Lender at
its principal office in Cincinnati, Ohio, to be its prime rate,
whether or not such bank shall at times lend to borrowers at lower
rates of interest or if there is not such prime rate, then its base
rate or such other rate as may be substituted by Lender for the
prime rate, such rate changing automatically from time to time
effective as of the effective date of each such announced change;
provided that in no event shall the Prime Rate exceed the rate
permitted by law.
“Rate Management
Agreement” means any agreement, device or arrangement
providing for payments which are related to fluctuations of
interest rates, exchange rates, forward rates, or equity prices,
including, but not limited to, dollar-denominated or cross-currency
interest rate exchange agreements, forward currency exchange
agreements, interest rate cap or collar protection agreements,
forward rate currency or interest rate options, puts and warrants,
and any agreement pertaining to equity derivative transactions
(e.g., equity or equity index swaps, options, caps, floors, collars
and forwards), including without limitation any ISDA
Master
Agreement between Borrower and Lender or any
affiliate of Fifth Third Bancorp, and any schedules, confirmations
and documents and other confirming evidence between the parties
confirming transactions thereunder, all whether now existing or
hereafter arising, and in each case as amended, modified or
supplemented from time to time.
“Rate Management
Obligations” means any and all obligations of Borrower to
Lender or any affiliate of Fifth Third Bancorp, whether absolute,
contingent or otherwise and howsoever and whensoever (whether now
or hereafter) created, arising, evidenced or acquired (including
all renewals, extensions and modifications thereof and
substitutions therefore), under or in connection with (i) any
and all Rate Management Agreements, and (ii) any and all
cancellations, buy backs, reversals, terminations or assignments of
any Rate Management Agreement.
Events of
Default. Upon the
occurrence of any of the following events (each, an “Event of
Default”), Lender may, at its option, without any demand or
notice whatsoever, declare this Note and all Obligations to be
fully due and payable in their aggregate amount, together with
accrued interest and all fees, and charges applicable
thereto:
1. Any failure to make any payment
when due of principal or accrued interest on this Note or any other
Obligation and such nonpayment remains uncured for a period of 10
days thereafter.
2. Any representation or warranty of
Borrower set forth in this Note or in any agreement, instrument,
document, certificate or financial statement evidencing,
guarantying, securing or otherwise related to, this Note or any
other Obligation shall be materially inaccurate or
misleading.
3. Borrower shall fail to observe or
perform any other term or condition of this Note or any other term
or condition set forth in any agreement, instrument, document,
certificate or financial statement evidencing, guarantying or
otherwise related to this Note or any other Obligation, or Borrower
shall otherwise default in the observance or performance of any
covenant or agreement set forth in any of the foregoing for a
period of 30 days.
4. The death, legal incompetence or
dissolution of Borrower or of any endorser or guarantor of the
Obligations, or the merger or consolidation of any of the foregoing
with a third party, or the lease, sale or other conveyance of a
material part of the assets or business of any of the foregoing to
a third party outside the ordinary course of its business, or the
lease, purchase or other acquisition of a material part of the
assets or business of a third party by any of the
foregoing.
5. Any failure to submit to Lender
current financial information upon request.
6. The creation of any lien (except
a lien to Lender) on, the institution of any garnishment
proceedings by attachment, levy or otherwise against, the entry of
a judgment against, or the seizure of, any of the property of
Borrower or any endorser or guarantor hereof including, without
limitation, any property deposited with Lender.
7. In the judgment of Lender, any
material adverse change occurs in the existing or prospective
financial condition of Borrower that may affect the ability of
Borrower to repay the Obligations, or the Lender deems itself
insecure.
8. A commencement by the Borrower or
any endorser or guarantor of the Obligations of a voluntary case
under any applicable bankruptcy, insolvency or other similar law
now or hereafter in effect; or the entry of a decree or order for
relief in respect of the Borrower or any endorser or guarantor of
the Obligations in a case under any such law or appointing a
receiver, liquidator, assignee, custodian, trustee, sequestrator
(or other similar official) of the Borrower or any endorser or
guarantor of the Obligations, or for any substantial part of the
property of Borrower or any endorser or guarantor of the
Obligations, or ordering the wind-up or liquidation of the affairs
of Borrower or any endorser or guarantor of the Obligations; or the
filing and pendency for 30 days without dismissal of a petition
initiating an involuntary case under any such bankruptcy,
insolvency or similar law; or the making by Borrower or any
endorser or guarantor of the Obligations of any general assignment
for the benefit of creditors; or the failure of the Borrower or any
endorser or guarantor of the Obligations generally to pay its debts
as such debts become due; or the taking of action by the Borrower
or any endorser or guarantor of the Obligations in furtherance of
any of the foregoing.
9. Nonpayment by the Borrower of any
Rate Management Obligation when due or the breach by the Borrower
of any term, provision or condition contained in any Rate
Management Agreement.
10. Any sale, conveyance or transfer
of any rights in the Collateral or the Property (as defined in the
Mortgage) in violation of the terms of any Loan Document, or any
uninsured destruction, loss or damage of or to the Collateral or
the Property in any material respect.
11. An Event of Default occurs as
defined in the Mortgage, or in any other agreement or instrument
evidencing or securing any Obligation owed by Borrower to
Lender.
12. The occurrence of an event of
default under any Loan Document.
Remedies.
In addition to any other remedy
permitted by law, Lender may at any time, without notice, apply the
Collateral to this Note or such other Obligations, whether due or
not, and Lender may, at its option, proceed to enforce and protect
its rights by an action at law or in equity or by any other
appropriate proceedings; provided that this Note and the
Obligations shall be accelerated automatically and immediately if
the Event of Default is a filing under the Bankruptcy Code.
Notwithstanding any other legal or equitable rights of Lender,
Lender, in the Event of Default, is (a) hereby irrevocably
appointed and constituted attorney-in-fact, with full power of
substitution, to exercise all rights of ownership with respect to
the Collateral including, but not limited to, the right to collect
all income or other distributions arising therefrom and to exercise
all voting rights connected with the Collateral; and (b) is
hereby given full power to collect, sell, assign, transfer and
deliver all of said Collateral or any part thereof, or any
substitutes therefore, or any additions thereto, through any
private or public sale without either demand or notice to Borrower,
or any advertisement, the same being hereby expressly waived, at
which sale Lender is authorized to purchase said property or any
part thereof, free from any right of redemption on the part of
Borrower, which is hereby expressly waived and released. In case of
sale for any cause, after deducting all costs and expenses of every
kind, Lender may apply, as it shall deem proper, the residue of the
proceeds of such sale toward the payment of any one or more or all
of the Obligations of Borrower, whether due or not due, to Lender;
after such application and the return of any surplus, Borrower
agrees to be and remains liable to Lender for any and every
deficiency after application as aforesaid upon this and any other
Obligation. Borrower shall pay all costs of collection incurred by
Lender, including its attorney’s fees, if this Note is
referred to an attorney for collection, whether or not payment is
obtained before entry of judgment, which costs and fees are
Obligations secured by the Collateral.
Lender’s rights and remedies
hereunder are cumulative, and may be exercised together,
separately, and in any order. No delay on the part of Lender in the
exercise any such right or remedy shall operate as a
waiver.
No single or partial exercise by Lender of any
right or remedy shall preclude any other further exercise of it or
the exercise of any other right or remedy. No waiver or indulgence
by Lender of any Event of Default shall be effective unless in
writing and signed by Lender, nor shall a waiver on one occasion be
construed as a waiver of any other occurrence in the
future.
Late Payments; Default Rate;
Fees. If any payment
is not paid when due (whether by acceleration or otherwise) or
within 10 days thereafter, undersigned agrees to pay to Lender a
late payment fee as provided for in any loan agreement or 5% of the
payment amount, whichever is greater with a minimum fee of $20.00.
After an Event of Default, Borrower agrees to pay to Lender a fixed
charge of $25.00, or Borrower agrees that Lender may, without
notice, increase the Interest Rate by 6% (the “Default
Rate”), whichever is greater. Lender may impose a
non-sufficient funds fee for any check that is presented for
payment that is returned for any reason. In addition, Lender may
charge loan documentation fees as may be reasonably determined by
the Lender.
Prepayment.
Borrower may prepay all or part of
this Note, which prepaid amounts shall be applied to the amounts
due in reverse order of their due dates.
Entire
Agreement. Borrower
agrees that there are no conditions or understandings which are not
expressed in this Note and the documents referred to
herein.
Severability.
The declaration of invalidity of any
provision of this Note shall not affect any part of the remainder
of the provisions.
Assignment.
Borrower agrees not to assign any of
Borrower’s rights, remedies or obligations described in this
Note without the prior written consent of Lender, which consent may
be withheld in Lender’s sole discretion. Borrower agrees that
Lender may assign some or all of its rights and remedies described
in this Note without notice to, or prior consent from, the
Borrower.
Modification; Waiver of
Lender. The
modification or waiver of any of Borrower’s obligations or
Lender’s rights under this Note must be contained in a
writing signed by Lender. Lender may perform Borrower’s
obligations, or delay or fail to exercise any of its rights or
remedies, without causing a waiver of those obligations or rights.
A waiver on one occasion shall not constitute a waiver on another
occasion. Borrower’s obligations under this Note shall not be
affected if Lender amends, compromises, exchanges, fails to
exercise, impairs or releases (i) any of the obligations
belonging to any co-borrower, endorser or guarantor, (ii) any
of its rights against any co-borrowers, guarantor or endorser, or
(iii) the Collateral or any other property securing the
Obligations.
Waiver of
Borrower. Demand,
presentment, protest and notice of dishonor, notice of protest and
notice of default are hereby waived by Borrower, and any endorser
or guarantor hereof. Each of Borrower, including but not limited to
all co-makers and accommodation makers of this Note, hereby waives
all suretyship defenses including but not limited to all defenses
based upon impairment of Collateral and all suretyship defenses
described in Section 3-605 of the Uniform Commercial Code (the
“UCC”). Such waiver is entered to the full extent
permitted by Section 3-605(i) of the UCC.
Governing Law; Consent to
Jurisdiction. This
Note is delivered in, is intended to be performed in, will be
construed and enforceable in accordance with and governed by the
internal laws of, the State of Ohio, without regard to principles
of conflicts of law. Borrower agrees that the state and federal
courts in the County where the Lender is located shall have
exclusive jurisdiction over all matters arising out of this Note,
and that service of process in any such proceeding shall be
effective if mailed to Borrower at the address set forth
herein.
JURY WAIVER. BORROWER, AND ANY ENDORSER OR GUARANTOR HEREOF,
WAIVE THE RIGHT TO A TRIAL BY JURY OF ANY MATTERS ARISING OUT OF
THIS NOTE OR THE TRANSACTIONS CONTEMPLATED HEREBY.
Warrant of
Attorney. Borrower
authorizes any attorney of record to appear for it in any court of
record in the State of Ohio, after maturity of this Note, whether
by its terms or upon default, acceleration or otherwise, to waive
the issuance and service of process, and release all errors, and to
confess judgment against it in favor of Lender for the principal
sum due herein together with interest, charges, court costs and
attorneys’ fees,. Stay of execution and all exemptions are
hereby waived. If this Note or any Obligation is referred to an
attorney for collection, and the payment is obtained without the
entry of a judgment, the obligors shall pay to the holder of such
obligations its attorneys’ fees. BORROWER AGREES THAT AN
ATTORNEY WHO IS COUNSEL TO LENDER OR ANY OTHER HOLDER OF SUCH
OBLIGATION MAY ALSO ACT AS ATTORNEY OF RECORD FOR BORROWER WHEN
TAKING THE ACTIONS DESCRIBED ABOVE IN THIS PARAGRAPH. BORROWER
AGREES THAT ANY ATTORNEY TAKING SUCH ACTIONS MAY BE PAID FOR THOSE
SERVICES BY LENDER OR HOLDER OF SUCH OBLIGATION. BORROWER WAIVES
ANY CONFLICT OF INTEREST THAT MAY BE CREATED BECAUSE THE ATTORNEY
REPRESENTING SUCH ATTORNEY IS BEING PAID BY LENDER OR THE HOLDER OF
SUCH OBLIGATION.
(Balance of Page Intentionally
Omitted)
WARNING - BY SIGNING THIS PAPER YOU GIVE UP YOUR
RIGHT TO NOTICE AND COURT TRIAL. IF YOU DO NOT PAY ON TIME A COURT
JUDGMENT MAY BE TAKEN AGAINST YOU WITHOUT YOUR PRIOR KNOWLEDGE AND
THE POWERS OF A COURT CAN BE USED TO COLLECT FROM YOU REGARDLESS OF
ANY CLAIMS YOU MAY HAVE AGAINST THE CREDITOR WHETHER FOR RETURNED
GOODS, FAULTY GOODS, FAILURE ON HIS PART TO COMPLY WITH THE
AGREEMENT, OR ANY OTHER CAUSE.
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DENTAL CARE
PLUS, INC.
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By:
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/s/ Anthony A.
Cook
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Title:
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President and
Chief Executive Officer
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OPEN-END MORTGAGE AND SECURITY
AGREEMENT
(Maximum Amount Unpaid Principal
Indebtedness $650,000)
THIS OPEN-END MORTGAGE AND SECURITY
AGREEMENT (the “Mortgage”) made as of the 18th day of
December, 2008, by DENTAL CARE PLUS, INC. , an Ohio
corporation, located at 4500 Lake Forest Drive, Suite 512,
Cincinnati, Ohio 45202 (the “Mortgagor”), in favor of
FIFTH THIRD BANK , an Ohio banking corporation located at 38
Fountain Square Plaza, Cincinnati, Ohio, 45263, for itself and as
agent for any affiliate of Fifth Third Bancorp (the
“Mortgagee”).
WITNESSETH:
WHEREAS, Mortgagor is indebted to
Mortgagee in the aggregate principal amount of Six Hundred and
Fifty Thousand Dollars ($650,000) pursuant to the Revolving Note
executed by Mortgagor and made payable to the order of Mortgagee,
in the principal amount of Six Hundred and Fifty Thousand Dollars
($650,000) (the “Note”), and all agreements,
instruments and documents executed or delivered in connection with
the foregoing or otherwise related thereto (together with any
amendments, modifications, or restatements thereof, the “Loan
Documents”); and
WHEREAS, Mortgagor desires to grant
herein a first priority mortgage to Mortgagee encumbering the real
estate described below.
NOW, THEREFORE, in consideration of
the foregoing premises and other good and valuable consideration,
and to secure (i) the payment of the Indebtedness and
Impositions (as defined below) and the interest thereon,
(ii) the payment of any advances or expenses of any kind
incurred by Mortgagee pursuant to the provisions of or on account
of the Loan Documents or this Mortgage, (iii) the repayment of
future advances disbursed by Mortgagee to Mortgagor in excess of
the principal of the Indebtedness, and (iv) the performance of
the obligations of the Mortgagor under the Loan Documents the
parties hereby agree as follows:
GRANTING
PROVISIONS
The Mortgagor does hereby grant,
bargain, sell, release, convey, assign, transfer, grant a security
interest in and mortgage to Mortgagee, its successors and assigns
forever, (a) the real estate located in Hamilton County, Ohio,
more particularly described in Exhibit A attached hereto
(hereinafter the “Site”), and (b) all of the
estate, title and interest of Mortgagor, in law or equity, of, in
and to such real estate and the buildings and improvements now
existing, being constructed, or hereafter constructed or placed
thereon, all of the rights, privileges, licenses, easements and
appurtenances belonging to such real estate (including all
heretofore or hereafter vacated streets or alleys which are about
such real estate), and all fixtures of every kind whatsoever
located in or on, or attached to, and used or intended to be used
in connection with or with the operation of such real estate,
buildings, structures or other improvements thereon or in
connection with any construction now or to be conducted or which
may be conducted thereon, together with all bui