3.12. Waiver of Jury Trial. THE PARTIES HERETO HEREBY WAIVE ANY
RIGHT THAT ANY OF THEM MAY HAVE TO A TRIAL BY JURY WITH RESPECT TO ANY CLAIM,
COUNTERCLAIM, SETOFF, DEMAND, ACTION OR CAUSE OF ACTION (A) ARISING OUT OF OR IN
ANY WAY RELATED TO THIS AGREEMENT OR (B) IN ANY WAY CONNECTED WITH OR PERTAINING
OR RELATED TO OR INCIDENTAL TO ANY DEALINGS OF THE PARTIES HERETO WITH RESPECT
TO THIS AGREEMENT OR THE EXERCISE OF ANY PARTY'S RIGHTS AND REMEDIES UNDER THIS
AGREEMENT OR OTHERWISE OR THE CONDUCT OR THE RELATIONSHIP OF THE PARTIES HERETO,
IN ALL OF THE FOREGOING CASES WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE.
THE PARTIES HERETO AGREE THAT ANY PARTY MAY FILE A COPY OF THIS AGREEMENT WITH
ANY COURT AS WRITTEN EVIDENCE OF THE KNOWING, VOLUNTARY, AND BARGAINED AGREEMENT
OF THE PARTIES HERETO TO IRREVOCABLY WAIVE THEIR RESPECTIVE RIGHTS TO TRIAL BY
JURY AS AN INDUCEMENT TO THE PARTIES TO ENTER INTO THIS AGREEMENT, AND THAT, TO
THE EXTENT PERMITTED BY APPLICABLE LAW, ANY DISPUTE OR CONTROVERSY WHATSOEVER
(WHETHER OR NOT MODIFIED HEREIN) BETWEEN THE PARTIES HERETO SHALL INSTEAD BE
TRIED IN A COURT OF COMPETENT JURISDICTION BY A JUDGE SITTING WITHOUT A JURY.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
intending to be an instrument under seal. This Agreement may be executed and
delivered in counterparts.
[SIGNATURES ON FOLLOWING PAGES]
AMSOUTH:
AMSOUTH BANK,
an Alabama state banking corporation
By:
/s/ Tim McCarthy
Tim McCarthy, Sr. Vice President
LENDER:
CAPMARK FINANCE INC.,
a California corporation,
f/k/a GMAC Commercial Mortgage Corporation
By:
/s/ Laura Y. McDonald
Name:
Laura Y. McDonald
Title:
Senior Vice President
BORROWER:
AFTON OAKS BORROWER:
DIVERSICARE AFTON OAKS, LLC, a Delaware limited
liability company
By:
/s/ Glynn Riddle
Its:
CFO
NEWPORT BORROWER:
DIVERSICARE PINEDALE, LLC, a Delaware limited
liability company
By:
/s/ Glynn Riddle
Its:
CFO
WINDSOR BORROWER:
DIVERSICARE WINDSOR HOUSE, LLC, a Delaware
limited liability company
By:
/s/ Glynn Riddle
Its:
CFO
BRIARCLIFF BORROWER:
DIVERSICARE BRIARCLIFF, LLC, a Delaware limited
liability company
By:
/s/ Glynn Riddle
Its:
CFO
HARTFORD BORROWER:
DIVERSICARE HARTFORD, LLC, a Delaware limited
liability company
By:
/s/ Glynn Riddle
Its:
CFO
CHISOLM BORROWER:
DIVERSICARE CHISOLM, LLC, a Delaware limited
liability company
By:
/s/ Glynn Riddle
Its:
CFO
HILLCREST BORROWER:
DIVERSICARE HILLCREST, LLC, a Delaware limited
liability company
By:
/s/ Glynn Riddle
Its:
CFO
YORKTOWN BORROWER:
DIVERSICARE YORKTOWN, LLC, a Delaware limited
liability company
By:
/s/ Glynn Riddle
Its:
CFO
LAMPASAS BORROWER:
DIVERSICARE LAMPASAS, LLC, a Delaware limited liability company
By:
/s/ Glynn Riddle
Its:
CFO
CAROLINA BEACH BORROWER:
DIVERSICARE ASSISTED LIVING SERVICES NC I, LLC, a Delaware limited liability
company
By:
/s/ Glynn Riddle
Its:
CFO
DIVERSICARE ASSISTED LIVING SERVICES NC II, LLC, a Delaware limited
liability company
By:
/s/ Glynn Riddle
Its:
CFO
CORPORATE GUARANTOR:
ADVOCAT INC., a Delaware corporation
By:
/s/ Glynn Riddle
Its:
CFO