10-Q: Quarterly report pursuant to Section 13 or 15(d)
Published on November 5, 2009
SEVENTH
AMENDMENT TO CONSOLIDATED
AMENDED
AND RESTATED MASTER LEASE
This
Seventh Amendment to Consolidated Amended and Restated Master Lease (this “Amendment”) is
executed and delivered as of October 24, 2008 by and between STERLING
ACQUISITION CORP., a Kentucky corporation (“Lessor”), the address
of which is 9690 Deereco Road, Suite 100, Timonium, MD 21093, and DIVERSICARE
LEASING CORP., a Tennessee corporation, the address of which is 1621 Galleria
Boulevard, Brentwood, TN 37027.
RECITALS:
A. Lessee
has executed and delivered to Lessor a Consolidated Amended and Restated Master
Lease dated as of November 8, 2000, but effective as of October 1, 2000 (the
“Master
Lease”), as amended by a First Amendment to Consolidated Amended and
Restated Master Lease dated as of September 30, 2001 (the “First Amendment”), a
Second Amendment to Consolidated Amended and Restated Master Lease dated as of
June 15, 2005 (the “Second Amendment”), a
Third Amendment to Consolidated Amended and Restated Master Lease dated as of
October 20, 2006 (the “Third Amendment”), a
Fourth Amendment to Consolidated Amended and Restated Master Lease dated as of
April 1, 2007 (the “Fourth Amendment”), a
Fifth Amendment to Consolidated Amended and Restated Master Lease dated as of
August 10, 2007 (the “Fifth Amendment”),
and a Sixth Amendment to Consolidated Amended and Restated Master Lease dated as
of March 14, 2008 (the “Sixth Amendment”)
(collectively, the “Existing Master
Lease”) pursuant to which Lessee leases from Lessor certain healthcare
facilities.
B. Lessee
and Lessor desire to amend certain terms used and set forth in the Sixth
Amendment and to provide Lessor and Lessee with certain additional rights and
options under the Sixth Amendment with respect to the Paris Facility described
therein.
NOW
THEREFORE, the parties agree as follows:
1. Definitions.
(a) Any
capitalized term used but not defined in this Amendment will have the meaning
assigned to such term in the Master Lease. From and after the date of
this Amendment, each reference in the Existing Master Lease or the other
Transaction Documents to the “Lease” or “Master Lease” means, as applicable, the
Existing Master Lease as modified by this Amendment.
(b) The
following definitions defined in Section 1(b) of the Sixth Amendment are hereby
amended in their entirety and restated as follows:
“Maximum Funded
Amount” means Seven Million Nine Hundred Thirty-Four Thousand Five
Hundred Fifty-Five and No/100 Dollars ($7,934,555.00).
“Paris Cash
Flow”: For any period, the sum of (a) Net Income of Lessee
arising solely from the operation of the Paris Facility for the applicable
period, and (b) the amounts deducted in computing Lessee’s Net Income for the
period for (i) the provision for self-insured, professional and general
liability, (ii) depreciation, (iii) amortization, (iv) Paris Base Rent, (v)
interest (including payments in the nature of interest under Capitalized Leases
and interest on any Purchase Money Financing for personal property used in
connection with the Paris Facility), (vi) income taxes (or, if greater, income
tax actually paid during the period attributable to the Paris Facility), and
(vii) management fees payable in connection with the Paris Facility, and less
(c) an imputed management fee equal to five percent (5%) of Gross Revenues for
the Paris Facility, and less (d) the Cash Cost of Self-Insured Professional and
General Liability attributable to the Paris Facility. The Cash Cost
of Self-Insured Professional and General Liability shall mean: For
any period, the average total per bed cash expenditure associated with
professional and general liability related settlements, judgments, legal fees or
administration for skilled nursing facilities in the State of Texas as from time
to time estimated and published by Aon Risk Consultants, or its successors, for
the American Health Care Association, multiplied by the average number of
occupied beds in the Paris Facility.
(c) The
following new definitions are hereby added to Section 1(b) of the Sixth
Amendment:
“Initial Rent Coverage
Determination Date” shall mean the date that is the first day of the
first calendar month immediately following the expiration of the first eighteen
(18) months after the In Service Date.
“Rent Coverage Determination
Date” shall mean and include the Initial Rent Coverage Determination Date
and the first day of each successive calendar month thereafter.
2. Amendments to Certain
Schedules Attached to the Sixth Amendment. Schedule 1,
Construction Budget, attached to the Sixth Amendment is amended in its entirety
and replaced with Schedule 1, Construction Budget, attached to this
Amendment.
3. Amendments to Certain
provisions of Existing Master Lease. Section 2 of the Sixth
Amendment is hereby amended in its entirety and restated as
follows:
“2. Paris Base Rent; Rent Reset;
Termination Options; a “Texas Facility”; Delay.
(a) Paris Base Rent Commencement
Date. Commencing as of the Paris Base Rent Commencement Date,
Lessee shall pay the Paris Base Rent pursuant to the terms and conditions of
Article III of the Master Lease. Notwithstanding the commencement of
payment of the Paris Base Rent by Lessee, in the event that the construction of
the Paris Facility has not been completed and the Maximum Funded amount has not
been advanced by the Paris Rent Commencement Date, Lessor shall continue to make
further advances of the Funded Amount, up to but not exceeding the Maximum
Funded Amount, on or after the Paris Base Rent Commencement Date in accordance
with the terms of this Amendment.
(b) Paris Base Rent
Reset. If Lessee has not elected to terminate the Master Lease
as to the Paris Facility pursuant to sub-section (c) below, and subject to
sub-section (e), below, as soon as reasonably possible after the fifth
anniversary of the Paris Base Rent Commencement Date, Lessor and Lessee shall
calculate the Paris Formula Rent. If the Paris Formula Rent is
greater than the Paris Scheduled Rent, then the Paris Base Rent shall be reset
to the Paris Formula Rent effective as of the Paris Rent Reset
Date.
(c) Lessee’s Paris Termination
Option. Subject to sub-section (e), below, pursuant to written
notice (“Lessee’s
Paris Termination Notice”) delivered by Lessee to Lessor not more than
thirty (30) days prior to, nor later than, the fifth anniversary of the Paris
Base Rent Commencement Date (“Lessee’s Paris Termination
Period”), Lessee may elect to terminate the Master Lease as to the Paris
Facility only. After delivery of the Paris Termination Notice, this
Lease shall be terminated as to the Paris Facility only, effective on the
earlier of (i) a date set by written notice given by Lessor at least thirty (30)
days prior to the effective date, and (ii) the first day of the sixth month
after fifth anniversary of the Paris Base Rent Commencement Date (the “Lessee Paris Termination
Date”). If Lessee’s Paris Termination Notice is delivered,
then Lessee shall have no further obligation to pay Paris Base Rent for periods
from and after the Lessee Paris Termination Date.
(d) Lessor’s Paris Termination
Option. As soon as reasonably possible after the Initial Rent
Coverage Determination Date and, subject to sub-section (e), below, each
subsequent Rent Coverage Determination Date thereafter occurring up to but not
later than the date that is thirty (30) days prior to the commencement of
Lessee’s Paris Termination Period, Lessor and Lessee shall calculate the Paris
Cash Flow for the six (6) month period ending immediately prior to such Rent
Coverage Determination Date. In the event that the average annual
Paris Cash Flow as determined, on a rolling basis, for the six (6) month period
ending immediately prior to any such Rent Coverage Determination Date is less
than the Paris Base Rent multiplied by 1.2 (the “Minimum Rent
Coverage”), then Lessor may elect to terminate the Master Lease as to the
Paris Facility only. Such election shall be made by delivery of
written notice (“Lessor’s Paris Termination
Notice”) to Lessee not more than thirty (30) days after the determination
by Lessor and Lessee of the Paris Cash Flow for the Rent Coverage Determination
Date in question (but, as to the final such Rent Coverage Determination Date,
prior to the commencement of Lessee’s Paris Termination Period). Upon
delivery of Lessor’s Paris Termination Notice, the Master Lease shall be
terminated as to the Paris Facility only, effective on the earlier of (i) a date
set by written notice given by Lessor at least thirty (30) days prior to the
effective date and (ii) the first day of the sixth calendar month after the date
of Lessor’s Paris Termination Notice (“Lessor’s Paris Termination
Date”). If Lessor’s Paris Termination Notice is delivered,
then Lessee shall have no further obligation to pay Paris Base Rent for periods
from and after Lessor’s Paris Termination Date.
(e) Elimination of Termination
by Lessee or Lessor and Rent Reset. If for any Rent Coverage
Determination Date occurring up to but not later than thirty (30) days prior to
the commencement of Lessee’s Paris Termination Period, the average annual Paris
Cash Flow as determined, on a rolling basis, for the six (6) month period ending
immediately prior to such Rent Coverage Determination Date is more than the
Paris Base Rent multiplied by 1.3 (the “Maximum Rent
Coverage”) then: (i) the right of the Lessee to terminate the Master
Lease as to the Paris Facility provided for in sub-section (c), above, shall
automatically terminate and be of no further force and effect, (ii) the right of
the Lessor to terminate the Master Lease provided for in sub-section (d), above,
shall automatically terminate and be of no further force and effect, and (iii)
the Paris Base Rent reset provisions set forth in sub-section (b), above, shall
automatically terminate and be of no further force and effect. In
such event, Lessee shall not have the right to elect to terminate the Master
Lease on the fifth anniversary of the Paris Base Rent Commencement Date as
provided in sub-section (e), above, Lessor shall no longer have the right to
elect to terminate the Master Lease due to the failure of Lessee to achieve the
Minimum Rent Coverage as provided in sub-section (d), above, and there shall be
no resetting of the Paris Base Rent to the Paris Formula Rent after the fifth
anniversary of the Paris Base Rent Commencement Date as provided in sub-section
(b), above. Thereafter, the defined terms “Paris Formula Rent” and
“Paris Rent Reset Date” and the provisions of sub-section (a)(4) of the defined
term “Paris Base Rent” regarding adjustment of the Paris Base Rent to the Paris
Formula Rent shall have no further force and effect and shall be deleted from
Section 1 of the Sixth Amendment.
(f) Texas
Facility. For all purposes under this Lease other than the
calculation of Base Rent, the Paris Facility shall constitute a Texas
Facility.
(g) Delay. In
the event that Lessee is unable to obtain completion of the Paris Facility as
described in Section 6(a) below by the Target Completion Date due to an Event of
Force Majeure or Lessor Delay, then the Target Completion Date and the Paris
Base Rent Commencement Date shall each be extended by one (1) day for each one
(1) day of delay in the completion of the Paris Facility caused by such Event of
Force Majeure or Lessor Delay. For purposes of this Amendment, the
term “Lessor Delay” shall mean any delay in achieving completion of the Paris
Facility as described in Section 6(a) below arising solely and directly as a
result of:
(i) Lessor’s
failure to furnish any information or documents in accordance with this
Amendment and the continuation of such failure after the receipt of written
notice from Lessee to Lessor, to the extent such failure causes a delay in
completion;
(ii) Lessor’s
failure or delay in giving approval or consent (or comments or corrections)
where Lessor’s approval or consent (or comments or corrections), as applicable,
is required herein and has been requested in writing by Lessee, to the extent
such failure or delay causes a delay in completion; and
(iii) Lessor’s
failure to perform or comply with its obligations under this Amendment and the
continuation of such failure after the receipt of written notice from Lessee to
Lessor, to the extent such failure causes a delay.”
4. Representations and
Warranties of Lessee. Lessee hereby represents and warrants to
Lessor that (i) it has the right and power and is duly authorized to enter into
this Amendment; and (ii) the execution of this Amendment does not and will not
constitute a breach of any provision contained in any agreement or instrument to
which Lessee is or may become a party or by which Lessee is or may be bound or
affected.
5. Execution and
Counterparts. This Amendment may be executed in any number of
counterparts, each of which, when so executed and delivered, shall be deemed to
be an original, but when taken together shall constitute one and the same
Amendment.
6. Headings. Section
headings used in this Amendment are for reference only and shall not affect the
construction of the Amendment.
7. Enforceability. Except
as expressly and specifically set forth herein, the Existing Master Lease
remains unmodified and in full force and effect. In the event of any
discrepancy between the Existing Master Lease and this Amendment, the terms and
conditions of this Amendment will control and the Existing Master Lease is
deemed amended to conform hereto.
[SIGNATURE
PAGES AND ACKNOWLEDGEMENTS FOLLOW]
Signature
Page to
SEVENTH
AMENDMENT TO CONSOLIDATED
AMENDED
AND RESTATED MASTER LEASE
LESSOR:
STERLING
ACQUISITION CORP.,
a
Kentucky corporation
By:/s/ Taylor
Picket
Name:
Taylor Pickett
Title: Chief
Executive Officer
STATE OF
MARYLAND )
COUNTY OF
BALTIMORE )
This
instrument was acknowledged before me on the 23rd day of October,
2008, by Taylor Pickett, the CEO of STERLING ACQUISITION CORP., a Kentucky
corporation, on behalf of said company.
Judith A.
Jacobs
Notary Public, Baltimore County,
MD
My commission
expires: May 12,
2012
Signature
Page of 2
Signature
Page to
SEVENTH
AMENDMENT TO CONSOLIDATED
AMENDED
AND RESTATED MASTER LEASE
LESSEE:
DIVERSICARE
LEASING CORP.,
a
Tennessee corporation
By:/s/ Glynn
Riddle
Name: Glynn
Riddle
Title: EVP
and CFO
STATE OF
TENNESSEE )
COUNTY OF
WILLIAMSON )
This
instrument was acknowledged before me on the 31st day of October,
2008, by Glynn Riddle, the EVP & CFO of DIVERSICARE LEASING CORP., a
Tennessee corporation, on behalf of said company
Jacqueline S.
Reed
Notary Public, Tenn. County,
Williamson
My commission expires: 1/24/2010
Signature
Page of 2
Acknowledgment
to
SEVENTH
AMENDMENT TO CONSOLIDATED
AMENDED
AND RESTATED MASTER LEASE
The
undersigned hereby consent to the transactions contemplated by this Seventh
Amendment to Consolidated Amended and Restated Master Lease (the “Seventh Amendment”),
ratify and affirm their respective Guaranties, Pledge Agreements, Security
Agreements, Subordination Agreements and other Transaction Documents, and
acknowledge and agree that the performance of the Master Lease and
obligations described therein are secured by their Guaranties, Pledge
Agreements, Security Agreement, Subordination Agreement and other Transaction
Documents on the same terms and conditions in effect prior to this Seventh
Amendment.
ADVOCAT,
INC. a Delaware corporation
By: /s/ Glynn
Riddle
Name: Glynn
Riddle
Title: EVP
& CFO
STATE OF
TENNESSEE )
COUNTY OF
WILLIAMSON )
The
foregoing instrument was acknowledged before me this 31st day of October,
2008, by Glynn Riddle, who is EVP & CFO of ADVOCAT, INC. a Delaware
corporation, on behalf of the corporation, who acknowledged the same to be his
or her free act and deed and the free act and deed of the
corporation.
Jacqueline S.
Reed
Notary
Public, Tenn. County, Williamson
My
Commission Expires:
1/24/2010
Acknowledgment
Page of 5
Acknowledgment
to
SEVENTH
AMENDMENT TO CONSOLIDATED
AMENDED
AND RESTATED MASTER LEASE
DIVERSICARE
MANAGEMENT SERVICES CO.,
a
Tennessee corporation
By: /s/ Glynn
Riddle
Name: Glynn
Riddle
Title: EVP
& CFO
STATE OF
TENNESSEE )
COUNTY OF
WILLIAMSON )
The
foregoing instrument was acknowledged before me this 31st day of October,
2008, by Glynn Riddle, who is EVP & CFO of DIVERSICARE MANAGEMENT SERVICES
CO., a Tennessee corporation, on behalf of the corporation, who
acknowledged the same to be his or her free act and deed and the free act and
deed of the corporation.
Jacqueline S.
Reed
Notary
Public, Tenn. County, Williamson
My
Commission Expires: 1/24/2010
Acknowledgment Page of 5
Acknowledgment
to
SEVENTH
AMENDMENT TO CONSOLIDATED
AMENDED
AND RESTATED MASTER LEASE
ADVOCAT
FINANCE INC.,
a
Delaware corporation
By: /s/ Glynn
Riddle
Name: Glynn
Riddle
Title: EVP
& CFO
STATE OF
TENNESSEE )
COUNTY OF
WILLIAMSON )
The
foregoing instrument was acknowledged before me this 31st day of October,
2008, by Glynn Riddle, who is EVP & CFO of ADVOCAT FINANCE INC., a Delaware
corporation, on behalf of the corporation, who acknowledged the same to be his
or her free act and deed and the free act and deed of the
corporation.
Jacqueline S.
Reed
Notary
Public, Tenn. County, Williamson
My
Commission Expires: 1/24/2010
Acknowledgment Page of 5
Acknowledgment
to
SEVENTH
AMENDMENT TO CONSOLIDATED
AMENDED
AND RESTATED MASTER LEASE
STERLING
HEALTH CARE
MANAGEMENT,
INC., a Kentucky corporation
By: /s/ Glynn
Riddle
Name: Glynn
Riddle
Title: EVP
& CFO
STATE OF
TENNESSEE )
COUNTY OF
WILLIAMSON )
The
foregoing instrument was acknowledged before me this 31st day of October,
2008, by Glynn Riddle, who is EVP & CFO of STERLING HEALTH CARE MANAGEMENT,
INC., a Kentucky corporation, on behalf of the corporation, who acknowledged the
same to be his or her free act and deed and the free act and deed of the
corporation.
Jacqueline S.
Reed
Notary
Public, Tenn. County, Williamson
My
Commission Expires: 1/24/2010
Acknowledgment Page of 5
Acknowledgment
to
SEVENTH
AMENDMENT TO CONSOLIDATED
AMENDED
AND RESTATED MASTER LEASE
DIVERSICARE
TEXAS I, LLC
By: /s/ Glynn
Riddle
Name: Glynn
Riddle
Title: EVP
& CFO
DIVERSICARE
BALLINGER, LLC
DIVERSICARE
DOCTORS, LLC
DIVERSICARE
ESTATES, LLC
DIVERSICARE
HUMBLE, LLC
DIVERSICARE
KATY, LLC
DIVERSICARE
NORMANDY TERRACE, LLC
DIVERSICARE
TREEMONT, LLC
BY: DIVERSICARE
TEXAS I, LLC,
its sole
member
By: /s/ Glynn
Riddle
Name: Glynn
Riddle
Title: EVP
& CFO
STATE OF
TENNESSEE )
COUNTY OF
WILLIAMSON )
The
foregoing instrument was acknowledged before me this 31st day of October,
2008, by Glynn Riddle, who is EVP & CFO of DIVERSICARE TEXAS I, LLC, on
behalf of itself and as the sole member of each of DIVERSICARE BALLINGER, LLC,
DIVERSICARE DOCTORS, LLC, DIVERSICARE ESTATES, LLC, DIVERSICARE HUMBLE, LLC,
DIVERSICARE KATY, LLC, DIVERSICARE NORMANDY TERRACE, LLC, and DIVERSICARE
TREEMONT, LLC, each a Delaware limited liability company, on behalf of the
limited liability companies, who acknowledged the same to be his or her free act
and deed and the free act and deed of the limited liability
companies.
Jacqueline S.
Reed
Notary
Public, Tenn. County, Williamson
My
Commission Expires: 1/24/2010
Acknowledgment Page of 5
Exhibit
and Schedules to
SEVENTH
AMENDMENT TO CONSOLIDATED
AMENDED
AND RESTATED MASTER LEASE
SCHEDULE
1
Revised
Construction Budget
[Attached]
Schedule 1 – Page of 1
NINTH
AMENDMENT TO CONSOLIDATED
AMENDED
AND RESTATED MASTER LEASE
This
Ninth Amendment to Consolidated Amended and Restated Master Lease (this “Amendment”) is
executed and delivered as of May 5, 2009 by and between STERLING ACQUISITION
CORP., a Kentucky corporation (“Lessor”), the address
of which is 9690 Deereco Road, Suite 100, Timonium, MD 21093, and DIVERSICARE
LEASING CORP., a Tennessee corporation, the address of which is 1621 Galleria
Boulevard, Brentwood, TN 37027.
RECITALS:
A. Lessee
has executed and delivered to Lessor a Consolidated Amended and Restated Master
Lease dated as of November 8, 2000, but effective as of October 1, 2000 (the
“Master
Lease”), as amended by a First Amendment to Consolidated Amended and
Restated Master Lease dated as of September 30, 2001 (the “First Amendment”), a
Second Amendment to Consolidated Amended and Restated Master Lease dated as of
June 15, 2005 (the “Second Amendment”), a
Third Amendment to Consolidated Amended and Restated Master Lease dated as of
October 20, 2006 (the “Third Amendment”), a
Fourth Amendment to Consolidated Amended and Restated Master Lease dated as of
April 1, 2007 (the “Fourth Amendment”), a
Fifth Amendment to Consolidated Amended and Restated Master Lease dated as of
August 10, 2007 (the “Fifth Amendment”), a
Sixth Amendment to Consolidated Amended and Restated Master Lease dated as of
March 14, 2008 (the “Sixth Amendment”), a
Seventh Amendment to Consolidated Amended and Restated Master Lease dated as of
October 24, 2008, and an Eighth Amendment to Consolidated Amended and Restated
Master Lease dated as of March 31, 2009 (collectively, the “Existing Master
Lease”) pursuant to which Lessee leases from Lessor certain healthcare
facilities.
B. Lessee
has requested that Lessor to make available to Lessee additional capital
improvements funds in the amount of Five Million Dollars ($5,000,000), and
Lessor desires to do so on the terms and conditions of this
Amendment.
NOW
THEREFORE, the parties agree as follows:
1. Definitions. Any
capitalized term used but not defined in this Amendment will have the meaning
assigned to such term in the Master Lease. From and after the date of
this Amendment, each reference in the Existing Master Lease or the other
Transaction Documents to the “Lease” or “Master Lease” means, as applicable, the
Existing Master Lease as modified by this Amendment.
2. Tenant Improvement
Allowance. Pursuant to the Second Amendment, Lessor made
available to Lessee an Improvement Allowance of Five Million Dollars
($5,000,000). Pursuant to the Third Amendment, Lessor made an
additional Improvement Allowance of Five Million Dollars ($5,000,000) available
to Lessee. Lessor hereby makes available to Lessee an additional
improvement allowance equal to Five Million Dollars ($5,000,000) to be used for
certain capital improvements to the Facilities. Such additional
improvement allowance shall be used only for completion of capital improvements
to the Facilities which shall be approved and constructed in accordance with the
terms and provisions of Paragraph 2 of the Second Amendment. The term
“Capital Improvements” as and where used in Paragraph 2 of the Second Amendment
shall be deemed to include such capital improvements. The additional
improvement allowance shall be requested and disbursed in accordance with the
provisions of Paragraph 3 of the Second Amendment. The term
“Improvement Allowance”, as and where used in Paragraph 3 of the Second
Amendment, shall be deemed to include and refer to the additional improvement
allowance provided for in this paragraph, except that such additional
improvement allowance shall be available for Capital Improvements completed on
or before December 31, 2010 and the final request for disbursement shall be no
later than March 31, 2011. The annual Base Rent payable under the
Existing Master Lease shall be increased by the Improvement Allowance Adjustment
Amount for each disbursement of such additional improvement allowance as
provided in Paragraph 4 of the Second Amendment. In the event Lessor
fails to pay Lessee any installment request for the additional improvement
allowance as provided in Paragraph 3 of the Second Amendment, Lessee shall have
the rights and remedies provided in Paragraph 4 of the Second Amendment and the
provisions of Paragraph 4 of the Second Amendment shall apply to Lessee’s
exercise of such rights and remedies.
3. Representations and
Warranties of Lessee. Lessee hereby represents and warrants to
Lessor that (i) it has the right and power and is duly authorized to enter into
this Amendment; and (ii) the execution of this Amendment does not and will not
constitute a breach of any provision contained in any agreement or instrument to
which Lessee is or may become a party or by which Lessee is or may be bound or
affected.
4. Expenses of Lender.
Lessee shall pay all reasonable expenses of Lessor incurred in connection with
this Amendment, including reasonable attorneys fees and expenses.
5. Execution and
Counterparts. This Amendment may be executed in any number of
counterparts, each of which, when so executed and delivered, shall be deemed to
be an original, but when taken together shall constitute one and the same
Amendment.
6. Headings. Section
headings used in this Amendment are for reference only and shall not affect the
construction of the Amendment.
7. Enforceability. Except
as expressly and specifically set forth herein, the Existing Master Lease
remains unmodified and in full force and effect. In the event of any
discrepancy between the Existing Master Lease and this Amendment, the terms and
conditions of this Amendment will control and the Existing Master Lease is
deemed amended to conform hereto.
[SIGNATURE
PAGES AND ACKNOWLEDGEMENTS FOLLOW]
Signature
Page to
NINTH
AMENDMENT TO CONSOLIDATED
AMENDED
AND RESTATED MASTER LEASE
LESSOR:
STERLING
ACQUISITION CORP.,
a
Kentucky corporation
By:/s/ Daniel J.
Booth
Name:
Daniel J. Booth
Title: Chief
Operating Officer
STATE OF
MARYLAND )
COUNTY OF
BALTIMORE )
This
instrument was acknowledged before me on the 5th day of May,
2009, by Daniel J. Booth, the COO of STERLING ACQUISITION CORP., a Kentucky
corporation, on behalf of said company.
Judith A.
Jacobs
Notary Public, Baltimore County,
MD
My commission
expires: May 12,
2012
Signature
Page of 2
Signature
Page to
NINTH
AMENDMENT TO CONSOLIDATED
AMENDED
AND RESTATED MASTER LEASE
LESSEE:
DIVERSICARE
LEASING CORP.,
a
Tennessee corporation
By:/s/ Glynn
Riddle
Name: Glynn
Riddle
Title: EVP
and CFO
STATE OF
TENNESSEE )
COUNTY OF
WILLIAMSON )
This
instrument was acknowledged before me on the 5th day of May,
2009, by Glynn Riddle, the EVP & CFO of DIVERSICARE LEASING CORP., a
Tennessee corporation, on behalf of said company
Brenda
Wimsatt
Notary Public, Tenn. County,
Williamson
My commission expires: 07/25/09
Signature Page of 2
Acknowledgment
to
NINTH
AMENDMENT TO CONSOLIDATED
AMENDED
AND RESTATED MASTER LEASE
The
undersigned hereby consent to the transactions contemplated by this Ninth
Amendment to Consolidated Amended and Restated Master Lease (this “Amendment”), ratify
and affirm their respective Guaranties, Pledge Agreements, Security Agreements,
Subordination Agreements and other Transaction Documents, and acknowledge and
agree that the performance of the Master Lease and obligations
described therein are secured by their Guaranties, Pledge Agreements, Security
Agreement, Subordination Agreement and other Transaction Documents on the same
terms and conditions in effect prior to this Amendment.
ADVOCAT,
INC. a Delaware corporation
By: /s/ Glynn
Riddle
Name: Glynn
Riddle
Title: EVP
& CFO
STATE OF
TENNESSEE )
COUNTY OF
WILLIAMSON )
The
foregoing instrument was acknowledged before me this 5th day of May, 2009,
by Glynn Riddle, who is EVP & CFO of ADVOCAT, INC. a Delaware corporation,
on behalf of the corporation, who acknowledged the same to be his or her free
act and deed and the free act and deed of the corporation.
Brenda
Wimsatt
Notary
Public, Tenn. County, Williamson
My
Commission Expires: 07/25/09
Acknowledgement Page of 5
Acknowledgment
to
NINTH
AMENDMENT TO CONSOLIDATED
AMENDED
AND RESTATED MASTER LEASE
DIVERSICARE
MANAGEMENT SERVICES CO.,
a
Tennessee corporation
By: /s/ Glynn
Riddle
Name: Glynn
Riddle
Title: EVP
& CFO
STATE OF
TENNESSEE )
COUNTY OF
WILLIAMSON )
The
foregoing instrument was acknowledged before me this 5th day of May, 2009,
by Glynn Riddle, who is EVP & CFO of DIVERSICARE MANAGEMENT SERVICES
CO., a Tennessee corporation, on behalf of the corporation, who
acknowledged the same to be his or her free act and deed and the free act and
deed of the corporation.
Brenda
Wimsatt
Notary
Public, Tenn. County, Williamson
My
Commission Expires: 07/25/09
Acknowledgement
Page of 5
Acknowledgment
to
NINTH
AMENDMENT TO CONSOLIDATED
AMENDED
AND RESTATED MASTER LEASE
ADVOCAT
FINANCE INC.,
a
Delaware corporation
By: /s/ Glynn
Riddle
Name: Glynn
Riddle
Title: EVP
& CFO
STATE OF
TENNESSEE )
COUNTY OF
WILLIAMSON )
The
foregoing instrument was acknowledged before me this 5th day of May, 2009,
by Glynn Riddle, who is EVP & CFO of ADVOCAT FINANCE INC., a Delaware
corporation, on behalf of the corporation, who acknowledged the same to be his
or her free act and deed and the free act and deed of the
corporation.
Brenda
Wimsatt
Notary
Public, Tenn. County, Williamson
My
Commission Expires: 07/25/09
Acknowledgement Page of 5
Acknowledgment
to
NINTH
AMENDMENT TO CONSOLIDATED
AMENDED
AND RESTATED MASTER LEASE
STERLING
HEALTH CARE
MANAGEMENT,
INC., a Kentucky corporation
By: /s/ Glynn
Riddle
Name: Glynn
Riddle
Title: EVP
& CFO
STATE OF
TENNESSEE )
COUNTY OF
WILLIAMSON )
The
foregoing instrument was acknowledged before me this 5th day of May, 2009,
by Glynn Riddle, who is EVP & CFO of STERLING HEALTH CARE MANAGEMENT, INC.,
a Kentucky corporation, on behalf of the corporation, who acknowledged the same
to be his or her free act and deed and the free act and deed of the
corporation.
Brenda
Wimsatt
Notary
Public, Tenn. County, Williamson
My
Commission Expires: 07/25/09
Acknowledgement Page of 5
Acknowledgment
to
NINTH
AMENDMENT TO CONSOLIDATED
AMENDED
AND RESTATED MASTER LEASE
DIVERSICARE
TEXAS I, LLC
By: /s/ Glynn
Riddle
Name: Glynn
Riddle
Title: EVP
& CFO
DIVERSICARE
BALLINGER, LLC
DIVERSICARE
DOCTORS, LLC
DIVERSICARE
ESTATES, LLC
DIVERSICARE
HUMBLE, LLC
DIVERSICARE
KATY, LLC
DIVERSICARE
NORMANDY TERRACE, LLC
DIVERSICARE
TREEMONT, LLC
BY: DIVERSICARE
TEXAS I, LLC,
its sole
member
By: /s/ Glynn
Riddle
Name: Glynn
Riddle
Title: EVP
& CFO
STATE OF
TENNESSEE )
COUNTY OF
WILLIAMSON )
The
foregoing instrument was acknowledged before me this 5th day of May,
2009, by Glynn Riddle, who is EVP & CFO of DIVERSICARE TEXAS I, LLC, on
behalf of itself and as the sole member of each of DIVERSICARE BALLINGER, LLC,
DIVERSICARE DOCTORS, LLC, DIVERSICARE ESTATES, LLC, DIVERSICARE HUMBLE, LLC,
DIVERSICARE KATY, LLC, DIVERSICARE NORMANDY TERRACE, LLC, and DIVERSICARE
TREEMONT, LLC, each a Delaware limited liability company, on behalf of the
limited liability companies, who acknowledged the same to be his or her free act
and deed and the free act and deed of the limited liability
companies.
Brenda
Wimsatt
Notary
Public, Tenn. County, Williamson
My
Commission Expires: 07/25/09
Acknowledgement Page of 5
TENTH
AMENDMENT TO
CONSOLIDATED
AMENDED AND RESTATED MASTER LEASE
This
Tenth Amendment to Amended and Restated Master Lease (this “Amendment”) is
executed and delivered as of September 8, 2009 by and between STERLING
ACQUISITION CORP., a Kentucky corporation (“Lessor”), the address
of which is 9690 Deereco Road, Suite 100, Timonium, MD 21093, and DIVERSICARE
LEASING CORP., a Tennessee corporation, the address of which is 1621 Galleria
Boulevard, Brentwood, TN 37027.
RECITALS:
A. Lessee
has executed and delivered to Lessor a Consolidated Amended and Restated Master
Lease dated as of November 8, 2000, but effective as of October 1, 2000, as
amended by a First Amendment to Consolidated Amended and Restated Master Lease
dated as of September 30, 2001, a Second Amendment to Consolidated Amended and
Restated Master Lease dated as of June 15, 2005, a Third Amendment to
Consolidated Amended and Restated Master Lease dated as of October 20, 2006, a
Fourth Amendment to Consolidated Amended and Restated Master Lease dated as of
April 1, 2007, a Fifth Amendment to Consolidated Amended and Restated Master
Lease dated as of August 10, 2007, a Sixth Amendment to Consolidated Amended and
Restated Master Lease dated as of March 14, 2008 (the “Sixth Amendment”), a
Seventh Amendment to Consolidated Amended and Restated Master Lease dated as of
October 24, 2008, an Eighth Amendment to Consolidated Amended and Restated
Master Lease dated as of March 31, 2009, and a Ninth Amendment to Consolidated
Amended and Restated Master Lease dated as of May 5, 2009 (collectively, the
“Existing Master
Lease”) pursuant to which Lessee leases from Lessor certain healthcare
facilities.
B. Pursuant
to the Sixth Amendment, Lessor and Lessee agreed to construct the Paris Facility
on the Paris Land and for Lessee to lease the Paris Facility from Lessor
pursuant to the Existing Master Lease.
C. Lessor
and Lessee desire to confirm the Paris Base Rent Commencement Date and the
Initial Paris Base Rent and to amend the Existing Master Lease to permit certain
additional advances of the Funded Amount with respect to the Paris Facility
after the Paris Base Rent Commencement date, all on the terms and conditions of
this Amendment.
NOW
THEREFORE, the parties agree as follows:
1. Definitions. Any
capitalized term used but not defined in this Amendment will have the meaning
assigned to such term in the Existing Master Lease.
2. Paris Base Rent Commencement
Date. Lessor and Lessee hereby confirm that the Paris Base
Rent Commencement Date is August 15, 2009.
3. Initial Paris Base
Rent.
(a) Effective
as of August 15, 2009, Lessor and Lessee hereby confirm that the Initial Paris
Base Rent (which is an annual amount) is Five Hundred Seventy Five Thousand Six
Hundred Thirty Three and 13/100 Dollars ($575,633.13).
(b) Effective
as of September 15, 2009, Lessor and Lessee hereby confirm that the Initial
Paris Base Rent (which is an annual amount) will be increased to Six Hundred
Seventy Two Thousand Three Hundred Twenty and 61/100 Dollars
($672,320.61).
(c) Notwithstanding
the provisions of Section 2(a) of the Sixth Amendment, but subject to all of the
other terms and provisions of the Existing Master Lease, Lessor shall make
advances of the Funded Amount after the Paris Base Rent Commencement Date with
regard to: (1) services performed at, and goods delivered to, the Paris Facility
prior to the Paris Base Rent Commencement Date, (2) delivery of the “as built”
survey of the Paris Facility, (3) delivery of endorsements to Lessor’s Owners
Title Policy, (4) Lessor’s legal fees and expenses, and (5) the State Surveyor
Items (defined below); provided, however, that Lessee may, at its option, pay
directly for items (2), (3), and (4). Any such advances of the Funded
Amount shall result in an increase in the Initial Paris Base Rent effective as
of the first day of the next month after each such advance pursuant to the
formula contained in the Sixth Amendment. The amount of the
Initial Paris Base Rent after all such advances have been made shall be used in
calculating the Paris Base Rent for the 12 month period commencing on the first
anniversary of the Paris Base Rent Commencement Date. Except as
provided in this Section 3(c) of this Amendment, Lessor and Lessee hereby
confirm that Lessor has no further obligation to make further advances of the
Funded Amount on or after the date of this Amendment.
(d) As
used in this Amendment, the “State Surveyor Items” mean (1) Sod hill at back of
Paris Facility to stop erosion, (2) Three 2'x4' benches for main showers, and
(3) two additional sidewalks, and (4) such other minor items as may be required
by the State in connection with the initial licensing of the Paris
Facility.
4. Certification by
Lessee. Pursuant to Section 7(a)(ii) of the Sixth Amendment,
Lessee hereby certifies to Lessor that, as of the date of this Certificate, no
Event of Default exists under the Master Lease or any of the Transaction
Documents, all representations and warranties set forth in the Master Lease and
all of the other Transaction Documents are accurate and complete, and there are
no actions, suits or proceedings pending, or to the knowledge of Lessee,
threatened or involving (or that could involve) Lessee, the Paris Sublessee or
all or any part of the Facilities and that could impair the Facilities or the
ability of Lessee and the Paris Sublessee to perform under this Amendment or any
of the other Transaction Documents.
5. Representations and
Warranties of Lessee. Lessee hereby represents and warrants to
Lessor that (i) it has the right and power and is duly authorized to enter into
this Amendment; (ii) the execution of this Amendment does not and will not
constitute a breach of any provision contained in any agreement or instrument to
which Lessee is or may become a party or by which Lessee is or may be bound or
affected; and (iii) the Paris Sublessee has acquired all Licenses needed to
operate the Paris Facility for its Primary Intended Use.
6. Expenses of Lessor.
Lessee shall pay all reasonable expenses of Lessor incurred in connection with
this Amendment, including reasonable attorneys fees and expenses.
7. Execution and
Counterparts. This Amendment may be executed in any number of
counterparts, each of which, when so executed and delivered, shall be deemed to
be an original, but when taken together shall constitute one and the same
Amendment.
8. Headings. Section
headings used in this Amendment are for reference only and shall not affect the
construction of the Amendment.
9. Enforceability. Except
as expressly and specifically set forth herein, the Existing Master Lease
remains unmodified and in full force and effect. In the event of any
discrepancy between the Existing Master Lease and this Amendment, the terms and
conditions of this Amendment will control and the Existing Master Lease is
deemed amended to conform hereto.
[SIGNATURE
PAGES AND ACKNOWLEDGEMENTS FOLLOW]
Signature
Page to
TENTH
AMENDMENT TO
CONSOLIDATED
AMENDED AND RESTATED MASTER LEASE
LESSOR:
STERLING
ACQUISITION CORP.,
a
Kentucky corporation
By:/s/ Daniel J.
Booth
Name:
Daniel J. Booth
Title: Chief
Operating Officer
STATE OF
MARYLAND )
COUNTY OF
BALTIMORE )
This
instrument was acknowledged before me on the 3rd day of September, 2009, by
Daniel J. Booth, the COO of STERLING ACQUISITION CORP., a Kentucky corporation,
on behalf of said company.
Judith A.
Jacobs
Notary Public, Baltimore County,
MD
My commission
expires: May 12,
2012
Signature
Page of 2
Signature
Page to
TENTH
AMENDMENT TO
CONSOLIDATED
AMENDED AND RESTATED MASTER LEASE
LESSEE:
DIVERSICARE
LEASING CORP.,
a
Tennessee corporation
By:/s/ Glynn
Riddle
Name: Glynn
Riddle
Title: EVP
and CFO
STATE OF
TENNESSEE )
COUNTY OF
WILLIAMSON )
This
instrument was acknowledged before me on the 2nd day of September, 2009, by
Glynn Riddle, the EVP & CFO of DIVERSICARE LEASING CORP., a Tennessee
corporation, on behalf of said company
Jacqueline S.
Reed
Notary Public, Tenn. County,
Williamson
My commission expires: 1/24/2010
Signature Page of 2
Acknowledgment
to
TENTH
AMENDMENT TO
CONSOLIDATED
AMENDED AND RESTATED MASTER LEASE
The
undersigned hereby consent to the transactions contemplated by this Tenth
Amendment to Consolidated Amended and Restated Master Lease (the “Tenth Amendment”),
ratify and affirm their respective Guaranties, Pledge Agreements, Security
Agreements, Subordination Agreements and other Transaction Documents, and
acknowledge and agree that the performance of the Master Lease and
obligations described therein are secured by their Guaranties, Pledge
Agreements, Security Agreement, Subordination Agreement and other Transaction
Documents on the same terms and conditions in effect prior to this Tenth
Amendment.
ADVOCAT,
INC. a Delaware corporation
By: /s/ Glynn
Riddle
Name: Glynn
Riddle
Title: EVP
& CFO
STATE OF
TENNESSEE )
COUNTY OF
WILLIAMSON )
The
foregoing instrument was acknowledged before me this 2nd day of September, 2009, by
Glynn Riddle, who is EVP & CFO of ADVOCAT, INC. a Delaware corporation, on
behalf of the corporation, who acknowledged the same to be his or her free act
and deed and the free act and deed of the corporation.
Jacqueline S.
Reed
Notary
Public, Tenn. County, Williamson
My
Commission Expires: 1/24/2010
Acknowledgement Page of 5
Acknowledgment
to
TENTH
AMENDMENT TO
CONSOLIDATED
AMENDED AND RESTATED MASTER LEASE
DIVERSICARE
MANAGEMENT SERVICES CO.,
a
Tennessee corporation
By: /s/ Glynn
Riddle
Name: Glynn
Riddle
Title: EVP
& CFO
STATE OF
TENNESSEE )
COUNTY OF
WILLIAMSON )
The
foregoing instrument was acknowledged before me this 2nd day of September, 2009, by
Glynn Riddle, who is EVP & CFO of DIVERSICARE MANAGEMENT SERVICES
CO., a Tennessee corporation, on behalf of the corporation, who
acknowledged the same to be his or her free act and deed and the free act and
deed of the corporation.
Jacqueline S.
Reed
Notary
Public, Tenn. County, Williamson
My
Commission Expires: 1/24/2010
Acknowledgement Page of 5
Acknowledgment
to
TENTH
AMENDMENT TO
CONSOLIDATED
AMENDED AND RESTATED MASTER LEASE
ADVOCAT
FINANCE INC.,
a
Delaware corporation
By: /s/ Glynn
Riddle
Name: Glynn
Riddle
Title: EVP
& CFO
STATE OF
TENNESSEE )
COUNTY OF
WILLIAMSON )
The
foregoing instrument was acknowledged before me this 2nd_ day of September, 2009, by
Glynn Riddle, who is EVP & CFO of ADVOCAT FINANCE INC., a Delaware
corporation, on behalf of the corporation, who acknowledged the same to be his
or her free act and deed and the free act and deed of the
corporation.
Jacqueline S.
Reed
Notary
Public, Tenn. County, Williamson
My
Commission Expires: 1/24/2010
Acknowledgement Page of 5
Acknowledgment
to
TENTH
AMENDMENT TO
CONSOLIDATED
AMENDED AND RESTATED MASTER LEASE
STERLING
HEALTH CARE
MANAGEMENT,
INC., a Kentucky corporation
By:/s/ Glynn
Riddle
Name: Glynn
Riddle
Title: EVP
& CFO
STATE OF
TENNESSEE )
COUNTY OF
WILLIAMSON )
The
foregoing instrument was acknowledged before me this 2nd day of September, 2009, by
Glynn Riddle, who is EVP & CFO of STERLING HEALTH CARE MANAGEMENT, INC., a
Kentucky corporation, on behalf of the corporation, who acknowledged the same to
be his or her free act and deed and the free act and deed of the
corporation.
Jacqueline S.
Reed
Notary
Public, Tenn. County, Williamson
My
Commission Expires: 1/24/2010
Acknowledgement Page of 5
Acknowledgment
to
TENTH
AMENDMENT TO
CONSOLIDATED
AMENDED AND RESTATED MASTER LEASE
DIVERSICARE
TEXAS I, LLC
By: /s/ Glynn
Riddle
Name: Glynn
Riddle
Title: EVP
& CFO
DIVERSICARE
BALLINGER, LLC
DIVERSICARE
DOCTORS, LLC
DIVERSICARE
ESTATES, LLC
DIVERSICARE
HUMBLE, LLC
DIVERSICARE
KATY, LLC
DIVERSICARE
NORMANDY TERRACE, LLC
DIVERSICARE
TREEMONT, LLC
DIVERSICARE
PARIS, LLC
BY: DIVERSICARE
TEXAS I, LLC,
its sole
member
By: /s/ Glynn
Riddle
Name: Glynn
Riddle
Title: EVP
& CFO
STATE OF
TENNESSEE )
COUNTY OF
WILLIAMSON )
The
foregoing instrument was acknowledged before me this 2nd day of September, 2009, by
Glynn Riddle, who is EVP & CFO of DIVERSICARE TEXAS I, LLC, on behalf of
itself and as the sole member of each of DIVERSICARE BALLINGER, LLC, DIVERSICARE
DOCTORS, LLC, DIVERSICARE ESTATES, LLC, DIVERSICARE HUMBLE, LLC, DIVERSICARE
KATY, LLC, DIVERSICARE NORMANDY TERRACE, LLC, DIVERSICARE TREEMONT, LLC, and
DIVERSICARE PARIS, LLC, each a Delaware limited liability company, on behalf of
the limited liability companies, who acknowledged the same to be his or her free
act and deed and the free act and deed of the limited liability
companies.
Jacqueline S.
Reed
Notary
Public, Tenn. County, Williamson
My
Commission Expires: 1/24/2010
Acknowledgement Page of 5