Unassociated Document


    

      Exhibit
        10.84


       

      Promissory
        Note

       

      
        
          	$26,250,000.00	
                  December
                    12, 2005

                


        

      

       

       

      FOR
        VALUE
        RECEIVED, American Retirement Corporation, a Tennessee corporation
        (“Borrower”), hereby promises to pay to the order of Bank of America,
        N.A., a national banking association (together with any and all of its
        successors and assigns and/or any other holder of this Note, “Lender”),
        without offset, in immediately available funds in lawful money of the United
        States of America, at 414 Union Street, Nashville, Tennessee, the principal
        sum
        of Twenty-Six Million Two Hundred Fifty Thousand and No/100 Dollars
        ($26,250,000.00) (or the unpaid balance of all principal advanced against
        this
        Note, if that amount is less), together with interest on the unpaid principal
        balance of this Note from day to day outstanding as hereinafter
        provided.

       

      Section
        1     Payment Schedule and Maturity Date. Prior to
        maturity, accrued and unpaid interest shall be due and payable in arrears
        on the
        first (1st) day of each month commencing on January 1, 2006. The entire
        principal balance of this Note then unpaid, together with all accrued and
        unpaid
        interest and all other amounts payable hereunder and under the other Loan
        Documents (as hereinafter defined), shall be due and payable in full on December
        12, 2010 (the “Maturity Date”), the final maturity of this Note. 

       

      Section
        2     Security; Loan Documents. The security for this
        Note includes a Collateral Assignment of Note, Deed of Trust and Other Loan
        Documents (as the same may from time to time be amended, restated, modified
        or
        supplemented, the “Assignment”) of even date herewith from Borrower to
        Lender, conveying and encumbering certain personal property more particularly
        described therein (the “Collateral”). This Note, the Assignment, the
        Construction Loan Agreement between Borrower and Lender of even date herewith
        (as the same may from time to time be amended, restated, modified or
        supplemented, the “Loan Agreement”) and all other documents now or
        hereafter securing, guaranteeing or executed in connection with the loan
        evidenced by this Note (the “Loan”), as the same may from time to time be
        amended, restated, modified or supplemented, are herein sometimes called
        individually a “Loan Document” and together the “Loan
        Documents.”

       

      Section
        3     Interest Rate. 

       

      (a)    
        BBA LIBOR Daily Floating Rate. The unpaid principal balance of this Note
        from day to day outstanding which is not past due, shall bear interest at
        a
        fluctuating rate of interest per annum equal to the BBA LIBOR Daily Floating
        Rate plus two hundred twenty-five (225) basis points per annum. The “BBA
        LIBOR Daily Floating Rate” shall mean a fluctuating rate of interest per
        annum equal to the British Bankers Association LIBOR Rate (“BBA LIBOR”), as
        published by Reuters (or other commercially available source providing
        quotations of BBA LIBOR as selected by Lender from time to time) as determined
        for each Business Day at approximately 11:00 a.m. London time two (2) London
        Banking Days prior to the date in question, for U.S. Dollar deposits (for
        delivery on the first day of such interest period) with a one month term,
        as
        adjusted from time to time in Lender’s sole discretion for reserve requirements,
        deposit insurance assessment rates and other regulatory costs. If such rate
        is
        not available at such time for any reason, then the rate will be determined
        by
        such alternate method as reasonably selected by Lender. A “London Banking Day”
is a day on which banks in London are open for business and dealing in offshore
        dollars. Interest shall be computed for the actual number of days which have
        elapsed, on the basis of a 360-day year.

       

      (b)    
        Alternative Rates. If Lender determines that no adequate basis exists for
        determining the BBA LIBOR Daily Floating Rate or that the BBA LIBOR Daily
        Floating Rate will not adequately and fairly reflect the cost to Lender of
        funding the Loan, or that any applicable Law or regulation or compliance
        therewith by Lender prohibits or restricts or makes impossible the charging
        of
        interest based on the BBA LIBOR Daily Floating Rate and Lender so notifies
        Borrower, then until Lender notifies Borrower that the circumstances giving
        rise
        to such suspension no longer exist, interest shall accrue and be payable
        on the
        unpaid principal balance of this Note from the date Lender so notifies Borrower
        until the Maturity Date of this Note (whether by acceleration, declaration,
        extension or otherwise) at a fluctuating rate of interest equal to the Prime
        Rate of Lender. The term “Prime Rate” means, on any day, the rate of
        interest per annum then most recently established by Lender as its “prime rate.”
Any such rate is a general reference rate of interest, may not be related
        to any
        other rate, and may not be the lowest or best rate  actually 

       

      
        
          
          

        

        
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      charged
        by
        Lender to any customer or a favored rate and may not correspond with future
        increases or decreases in interest rates charged by other lenders or market
        rates in general, and that Lender may make various business or other loans
        at
        rates of interest having no relationship to such rate. Each time the Prime
        Rate
        changes, the per annum rate of interest on this Note shall change immediately
        and contemporaneously with such change in the Prime Rate. If Lender (including
        any subsequent holder of this Note) ceases to exist or to establish or publish
        a
        prime rate from which the Prime Rate is then determined, the applicable variable
        rate from which the Prime Rate is determined thereafter shall be instead
        the
        prime rate reported in The Wall Street Journal (or the average prime rate
        if a high and a low prime rate are therein reported), and the Prime Rate
        shall
        change without notice with each change in such prime rate as of the date
        such
        change is reported.

       

      (c)    
        Past Due Rate. If any amount payable by Borrower under any Loan Document
        is not paid when due (without regard to any applicable grace periods), such
        amount shall thereafter bear interest at the Past Due Rate (as defined below)
        to
        the fullest extent permitted by applicable Law. Accrued and unpaid interest
        on
        past due amounts (including interest on past due interest) shall be due and
        payable on demand, at a fluctuating rate per annum (the “Past Due Rate”)
        equal to the Prime Rate plus two hundred (200) basis points. 

       

      Section
        4     Prepayment. Borrower may prepay the principal
        balance of this Note, in full at any time or in part from time to time, without
        fee, premium or penalty, provided that: (a) no prepayment may be made which
        in Lender’s judgment would contravene or prejudice funding under any applicable
        permanent loan commitment or tri-party agreement or the like; (b) Lender
        shall have actually received from Borrower prior written notice of
        (i) Borrower’s intent to prepay, (ii) the amount of principal which
        will be prepaid (the “Prepaid Principal”), and (iii) the date on
        which the prepayment will be made; (c) each prepayment shall be in the
        amount of $1,000 or a larger integral multiple of $1,000 (unless the prepayment
        retires the outstanding balance of this Note in full); and (d) each
        prepayment shall be in the amount of 100% of the Prepaid Principal, plus
        accrued
        unpaid interest thereon to the date of prepayment, plus any other sums which
        have become due to Lender under the Loan Documents on or before the date
        of
        prepayment but have not been paid. If this Note is prepaid in full, any
        commitment of Lender for further advances shall automatically
        terminate.

       

      Section
        5     Late Charges. If Borrower shall fail to make
        any payment under the terms of this Note (other than the payment due at
        maturity) within fifteen (15) days after the date such payment is due, Borrower
        shall pay to Lender on demand a late charge equal to four percent (4%) of
        the
        amount of such payment. Such fifteen (15) day period shall not be construed
        as
        in any way extending the due date of any payment. The late charge is imposed
        for
        the purpose of defraying the expenses of Lender incident to handling such
        delinquent payment. This charge shall be in addition to, and not in lieu
        of, any
        other amount that Lender may be entitled to receive or action that Lender
        may be
        authorized to take as a result of such late payment.

       

      Section
        6     Certain Provisions Regarding Payments. All
        payments made under this Note shall be applied, to the extent thereof, to
        late
        charges, to accrued but unpaid interest, to unpaid principal, and to any
        other
        sums due and unpaid to Lender under the Loan Documents, in such manner and
        order
        as Lender may elect in its sole discretion, any instructions from Borrower
        or
        anyone else to the contrary notwithstanding. Remittances shall be made without
        offset, demand, counterclaim, deduction, or recoupment (each of which is
        hereby
        waived) and shall be accepted subject to the condition that any check or
        draft
        may be handled for collection in accordance with the practice of the collecting
        bank or banks. Acceptance by Lender of any payment in an amount less than
        the
        amount then due on any indebtedness shall be deemed an acceptance on account
        only, notwithstanding any notation on or accompanying such partial payment
        to
        the contrary, and shall not in any way (a) waive or excuse the existence of
        an Event of Default (as hereinafter defined), (b) waive, impair or
        extinguish any right or remedy available to Lender hereunder or under the
        other
        Loan Documents, or (c) waive the requirement of punctual payment and
        performance or constitute a novation in any respect. Payments received after
        2:00 p.m. shall be deemed to be received on, and shall be posted as of, the
        following Business Day. Whenever any payment under this Note or any other
        Loan
        Document falls due on a day which is not a Business Day, such payment may
        be
        made on the next succeeding Business Day. Borrower has elected to authorize
        Lender to effect payment of sums due under this Note by means of debiting
        Borrower's Account Number 3253194544. This authorization shall not affect
        the
        obligation of Borrower to pay such sums when due, without notice, if there
        are
        insufficient funds in such account to make such payment in full on the due
        date
        thereof, or if Lender fails to debit the account.

       

      
        
          
          

        

        
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      Section
        7     Events of Default. The occurrence of any one or
        more of the following shall constitute an “Event of Default” under this
        Note:

       

      (a)    
        Borrower fails to pay to Lender any payment within three (3) days after the
        date
        such payment is due or upon acceleration, maturity or otherwise.

       

      (b)    
        Any covenant, agreement or condition in this Note is not fully and timely
        performed, observed or kept, subject to any applicable grace or cure
        period.

       

      (c)    
        An Event of Default (as therein defined) occurs under any of the Loan Documents
        other than this Note (subject to any applicable grace or cure
        period).

       

      Section
        8     Remedies. Upon the occurrence of an Event of
        Default, Lender may at any time thereafter exercise any one or more of the
        following rights, powers and remedies:

       

      (a)    
        Lender may accelerate the Maturity Date and declare the unpaid principal
        balance
        and accrued but unpaid interest on this Note, and all other amounts payable
        hereunder and under the other Loan Documents, at once due and payable, and
        upon
        such declaration the same shall at once be due and payable.

       

      (b)    
        Lender may set off the amount due against any and all accounts, credits,
        money,
        securities or other property now or hereafter on deposit with, held by or
        in the
        possession of Lender to the credit or for the account of Borrower, without
        notice to or the consent of Borrower.

       

      (c)    
        Lender may exercise any of its other rights, powers and remedies under the
        Loan
        Documents or at law or in equity.

       

      Section
        9      Remedies Cumulative. All of the rights
        and remedies of Lender under this Note and the other Loan Documents are
        cumulative of each other and of any and all other rights at law or in equity,
        and the exercise by Lender of any one or more of such rights and remedies
        shall
        not preclude the simultaneous or later exercise by Lender of any or all such
        other rights and remedies. No single or partial exercise of any right or
        remedy
        shall exhaust it or preclude any other or further exercise thereof, and every
        right and remedy may be exercised at any time and from time to time. No failure
        by Lender to exercise, nor delay in exercising, any right or remedy shall
        operate as a waiver of such right or remedy or as a waiver of any Event of
        Default.

       

      Section
        10     Costs and Expenses of Enforcement. Borrower
        agrees to pay to Lender on demand all costs and expenses incurred by Lender
        in
        seeking to collect this Note or to enforce any of Lender’s rights and remedies
        under the Loan Documents, including court costs and reasonable attorneys’ fees
        and expenses, whether or not suit is filed hereon, or whether in connection
        with
        bankruptcy, insolvency or appeal.

       

      Section
        11     Service of Process. Borrower hereby consents
        to process being served in any suit, action, or proceeding instituted in
        connection with this Note by the mailing of a copy thereof by certified mail,
        postage prepaid, return receipt requested, to Borrower. Borrower irrevocably
        agrees that such service shall be deemed to be service of process upon Borrower
        in any such suit, action, or proceeding. Nothing in this Note shall affect
        the
        right of Lender to serve process in any manner otherwise permitted by law
        and
        nothing in this Note will limit the right of Lender otherwise to bring
        proceedings against Borrower in the courts of any jurisdiction or jurisdictions,
        subject to any provision or agreement for arbitration or dispute resolution
        set
        forth in the Loan Agreement.

       

      
        
          
          

        

        
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      Section
        12     Heirs, Successors and Assigns. The terms of
        this Note and of the other Loan Documents shall bind and inure to the benefit
        of
        the heirs, devisees, representatives, successors and assigns of the parties.
        The
        foregoing sentence shall not be construed to permit Borrower to assign the
        Loan
        except as otherwise permitted under the Loan Documents.

       

      Section
        13     General Provisions. Time is of the essence
        with respect to Borrower’s obligations under this Note. If more than one person
        or entity executes this Note as Borrower, all of said parties shall be jointly
        and severally liable for payment of the indebtedness evidenced hereby. Borrower
        and each party executing this Note as Borrower hereby severally (a) waive
        demand, presentment for payment, notice of dishonor and of nonpayment, protest,
        notice of protest, notice of intent to accelerate, notice of acceleration
        and
        all other notices (except any notices which are specifically required by
        this
        Note or any other Loan Document), filing of suit and diligence in collecting
        this Note or enforcing any of the security herefor; (b) agree to any
        substitution, subordination, exchange or release of any such security or
        the
        release of any party primarily or secondarily liable hereon; (c) agree that
        Lender shall not be required first to institute suit or exhaust its remedies
        hereon against Borrower or others liable or to become liable hereon or to
        perfect or enforce its rights against them or any security herefor;
        (d) consent to any extensions or postponements of time of payment of this
        Note for any period or periods of time and to any partial payments, before
        or
        after maturity, and to any other indulgences with respect hereto, without
        notice
        thereof to any of them; and (e) submit (and waive all rights to object) to
        non-exclusive personal jurisdiction of any state or federal court sitting
        in the
        state and county in which any of the Property (as defined in the Loan Agreement)
        is located for the enforcement of any and all obligations under this Note
        and
        the other Loan Documents; (f) waive the benefit of all homestead and
        similar exemptions as to this Note; (g) agree that their liability under
        this Note shall not be affected or impaired by any determination that any
        title,
        security interest or lien taken by Lender to secure this Note is invalid
        or
        unperfected; and (h) hereby subordinate to the Loan and the Loan Documents
        any and all rights against Borrower and any security for the payment of this
        Note, whether by subrogation, agreement or otherwise, until this Note is
        paid in
        full. A determination that any provision of this Note is unenforceable or
        invalid shall not affect the enforceability or validity of any other provision
        and the determination that the application of any provision of this Note
        to any
        person or circumstance is illegal or unenforceable shall not affect the
        enforceability or validity of such provision as it may apply to other persons
        or
        circumstances. This Note may not be amended except in a writing specifically
        intended for such purpose and executed by the party against whom enforcement
        of
        the amendment is sought. Captions and headings in this Note are for convenience
        only and shall be disregarded in construing it. This Note and its validity,
        enforcement and interpretation shall be governed by the laws of the state
        of
        Tennessee (without regard to any principles of conflicts of laws) and applicable
        United States federal law. Whenever a time of day is referred to herein,
        unless
        otherwise specified such time shall be the local time of the place where
        payment
        of this Note is to be made. The term “Business Day” shall mean a day on which
        Lender is open for the conduct of substantially all of its banking business
        at
        its office in the city in which this Note is payable (excluding Saturdays
        and
        Sundays). Capitalized terms used herein without definition shall have the
        meanings ascribed to such terms in the Loan Agreement. The words “include” and
“including” shall be interpreted as if followed by the words “without
        limitation.”

       

      Section
        14     Notices. Any notice, request, or demand to or
        upon Borrower or Lender shall be deemed to have been properly given or made
        when
        delivered in accordance with the terms of the Loan Agreement regarding notices.
        

       

      Section
        15     No Usury. It is expressly stipulated and
        agreed to be the intent of Borrower and Lender at all times to comply with
        applicable state law or applicable United States federal law (to the extent
        that
        it permits Lender to contract for, charge, take, reserve, or receive a greater
        amount of interest than under state law) and that this Section shall control
        every other covenant and agreement in this Note and the other Loan Documents.
        If
        applicable state or Federal law should at any time be judicially interpreted
        so
        as to render usurious any amount called for under this Note or under any
        of the
        other Loan Documents, or contracted for, charged, taken, reserved, or received
        with respect to the Loan, or if Lender’s exercise of the option to accelerate
        the Maturity Date, or if any prepayment by Borrower results in Borrower having
        paid any interest in excess of that permitted by applicable law, then it
        is
        Lender’s express intent that all excess amounts theretofore collected by Lender
        shall be credited on the principal balance of this Note and all other
        indebtedness secured by the Assignment, and the provisions of this Note and
        the
        other Loan Documents shall immediately be deemed reformed and the amounts
        thereafter collectible hereunder and thereunder reduced, without the necessity
        of the execution of any new documents, so as to comply with the applicable
        law,
        but so as to permit the recovery of the fullest amount otherwise called for
        hereunder or thereunder. All sums paid or agreed to be paid to Lender for
        the
        use or forbearance of the Loan shall, to the extent permitted by applicable
        law,
        be amortized, prorated, allocated, and spread throughout the full stated
        term of
        the Loan.

       

      
        
          
          

        

        
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        IN
          WITNESS
          WHEREOF, Borrower has duly executed this Note as of the date first above
          written.

         

         

        
          
            	Borrower:
	
                     

                    American
                      Retirement Corporation,  a Tennessee corporation

                  
	 	 
	By: 	
                  
	Title: 	
                  


          

           

           

          
            
              
              

            

            
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