EXHIBIT 10.116
FIFTH AMENDMENT TO MASTER AMENDMENT
TO LOAN DOCUMENTS AND AGREEMENT
THIS FIFTH AMENDMENT TO MASTER AMENDMENT TO LOAN DOCUMENTS AND
AGREEMENT is made and entered into by and between AMSOUTH BANK, successor in
interest by merger to First American National Bank (hereinafter referred to as
"AmSouth" or as "First American"), ADVOCAT INC., a Delaware corporation (herein
referred to as "Advocat"), DIVERSICARE MANAGEMENT SERVICES CO., a Tennessee
corporation and wholly-owned subsidiary of Advocat ("DMS"), ADVOCAT FINANCE,
INC., a Delaware corporation and wholly-owned subsidiary of DMS ("AFI"),
DIVERSICARE LEASING CORP., a Tennessee corporation and wholly-owned subsidiary
of AFI ("DLC"), ADVOCAT ANCILLARY SERVICES, INC., a Tennessee corporation and
wholly-owned subsidiary of DMS ("AAS"), DIVERSICARE GENERAL PARTNER, INC., a
Texas corporation and wholly-owned subsidiary of DLC ("DGP"), FIRST AMERICAN
HEALTH CARE, INC., an Alabama corporation and wholly-owned subsidiary of DLC
("FAHC"), DIVERSICARE LEASING CORP. OF ALABAMA, an Alabama corporation and
wholly-owned subsidiary of DLC ("DLCA"), ADVOCAT DISTRIBUTION SERVICES, INC., a
Tennessee corporation and wholly-owned subsidiary of DMS ("ADS"), DIVERSICARE
ASSISTED LIVING SERVICES, INC., a Tennessee corporation and a wholly-owned
subsidiary of AFI ("DALS"), DIVERSICARE ASSISTED LIVING SERVICES, NC, LLC, a
Tennessee limited liability company formed by DMS and DALS ("DALS-NC"),
DIVERSICARE ASSISTED LIVING SERVICES, NC I, LLC, a Delaware limited liability
company ("DALS-NC I"), DIVERSICARE ASSISTED LIVING SERVICES, NC II, LLC, a
Delaware limited liability company ("DALS-NC II") both of DALS-NC I and DALS-NC
II being subsidiary entities of DALS-NC, STERLING HEALTH CARE MANAGEMENT, INC.,
a Kentucky corporation and wholly-owned subsidiary of DLC ("SHCM"), DIVERSICARE
▇▇▇▇▇ ▇▇▇▇, LLC, a Delaware limited liability company ("DAO"), DIVERSICARE GOOD
SAMARITAN, LLC, a Delaware limited liability company ("DGS"), DIVERSICARE
PINEDALE, LLC, a Delaware limited liability company ("DP"), DIVERSICARE WINDSOR
HOUSE, LLC, a Delaware limited liability company ("DWH"), each of DAO, DGS, DP
and DWH being subsidiary entities of DLC (Advocat and all of its direct and
indirect subsidiaries, as identified hereinabove, being sometimes referred to
herein collectively as the "Debtors," whether in their capacity as a Borrower,
Guarantor, Pledgor, Subsidiary or otherwise, as defined in the Loan Documents
referred to below), and GMAC COMMERCIAL MORTGAGE CORPORATION, a California
corporation being one and the same as GMAC-CM Commercial Mortgage Corporation
("GMAC").
W I T N E S S E T H:
WHEREAS, pursuant to the terms of Master Amendment to Loan Documents
and Agreement executed on November 8, 2000 and dated as of October 1, 2000 (the
Master Amendment to Loan Documents and Agreement, executed by the parties on
November 8, 2000 and dated as of October 1, 2000, as amended by that First
Amendment to Master Amendment to Loan Documents and Agreement executed by the
parties on November 28, 2000 and dated as of
1
October 1, 2000, and as amended by that Second Amendment to Master Amendment to
Loan Documents and Agreement executed by the parties to be effective as of
December 15, 2002 (the "Second Amendment"), and as amended by that Third
Amendment to Master Amendment to Loan Documents and Agreement executed by the
Debtors and AmSouth to be effective as of July 11, 2003 (the "Third Amendment"),
and as amended by that Fourth Amendment to Master Amendment to Loan Documents
and Agreement executed by the Debtors and AmSouth to be effective as of April
16, 2004 (the "Fourth Amendment"), and as further amended as herein set forth,
being herein called the "Master Amendment"), AmSouth agreed to modify the
Indebtedness and the Loan Documents ("Indebtedness" and "Loan Documents" being
defined in the Master Amendment); and
WHEREAS, pursuant to the terms of the Third Amendment, AmSouth agreed
to further modify the Indebtedness and the Loan Documents; and
WHEREAS, pursuant to the terms of the Third Amendment, DMS executed a
Third Amendment to Reduced and Modified Renewal, which Modified Revolving
Promissory Note, which was therefore modified by Fourth Amendment to Reduced and
Modified Renewal Revolving Promissory Note dated January ___, 2004, and was
thereafter modified by a Fifth Amendment to Reduced and Modified Renewal
Revolving Promissory Note dated July 16, 2004 (the Reduced and Modified
Revolving Promissory Note dated December 15, 2002, and all amendments thereto
are referred to collectively as the "Modified Revolving Note"); and
WHEREAS, subsequent to the execution of the Third Amendment to the
terms of the Third Amendment, Advocat paid off all indebtedness under the
Renewal Reimbursement Note, as defined in the Second Amendment; and
WHEREAS, pursuant to the terms of the Third Amendment, AmSouth and DMS
executed a Second Amendment to Renewal Promissory Note (Overline Facility) as
further amended by the Fourth Amendment to Renewal Promissory Note (Overline
Facility) dated as of January 4, 2004, which was subsequently amended by that
Fifth Amendment to Renewal Promissory Note (Overline Facility) dated as of April
4, 2004, and which was subsequently amended by that Sixth Amendment to Renewal
Promissory Note (Overline Facility) dated as of July 16, 2004 (the original
Renewal Promissory Note (Overline Facility) and all amendments thereto being
referred to herein as the "Overline Note"); and
WHEREAS, pursuant to the terms of the Second Amendment, DALS-NC and
AmSouth executed a Second Amendment to Renewal Promissory Note (the original
Renewal Promissory Note and all amendments thereto being referred to herein as
the "NC Bridge Loan Note"); and
WHEREAS, the Modified Revolving Note, the Overline Note and the NC
Bridge Loan Note matured on October 29, 2004, and Debtors have failed to satisfy
the indebtedness arising thereunder; and
WHEREAS, subsequent to the execution of the Third Amendment, AmSouth
consented to the sale of the stock of Diversicare Canada Management Services,
Inc. ("DCMS"), which entity was an original Debtor under the Loan Documents; and
2
WHEREAS, pursuant to the Fourth Amendment, the parties agreed that DCMS
should be removed as a Debtor under the Loan Documents; and
WHEREAS, the Indebtedness and Loan Documents are fully enforceable and
are not subject to any defense or counterclaim, or any claim of setoff or
recoupment; and
WHEREAS, the Debtors are presently in default of the Indebtedness and
their respective obligations arising under the Loan Documents and Debtors have
again represented to AmSouth that because of their financial conditions, they
are unable to pay the full amount of their liability for the Indebtedness; and
WHEREAS, AmSouth has agreed to further extend the maturity dates of the
Modified Revolving Note, the Overline Note and the NC Bridge Loan Note and
AmSouth has agreed to temporarily forbear from exercising its remedies upon
default subject to the terms and conditions herein set forth; and
WHEREAS, each of the parties acknowledges that it has been represented
by counsel in connection with the negotiation and execution of this Agreement,
that the same represents an arms-length transaction, and that each of the other
parties has acted in good faith in the making of this Agreement; and
WHEREAS, all terms capitalized herein, but not specially defined
herein, are intended to have the meanings ascribed to them in the Loan
Documents, unless the context clearly indicates otherwise; and
WHEREAS, the parties stipulate and agree that the facts recited
hereinabove are true and correct; and
WHEREAS, the parties have agreed to modify the Indebtedness and Loan
Documents, and have otherwise agreed all as more particularly set forth herein.
NOW, THEREFORE, for and in consideration of the foregoing recitals (all
of which are incorporated herein as agreements, representations, warranties or
covenants of the Debtors), the payment of an extension fee in the amount of
$10,000.00 by Debtors to AmSouth, of the mutual covenants and promises contained
herein, and of other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by the parties hereto, the parties
hereby covenant, amend and agree as follows:
1. The Modified Revolving Note, is hereby amended to extend the
Maturity Date from October 29, 2004 to January 29, 2005, and to reduce the
maximum principal amount which may be advanced thereunder, in accordance with
the terms appearing in paragraph 2 below, and in accordance with the terms of a
Replacement Reduced and Modified Renewal Revolving Promissory Note executed by
DMS and AmSouth of even date herewith. The parties acknowledge that as of the
effective date hereof, the outstanding balance of the Modified Revolving Note is
$0.00.
2. In regard to Letter of Credit numbered 1813094 in favor of
Continental Health Properties of Thomasville, LLC in the amount of $200,000.00
(the "Letter of Credit") the
3
parties acknowledge that the Letter of Credit has been drawn. Therefore, the
parties agree that the maximum amount which may be outstanding at any time under
the Replacement Reduced and Modified Renewal Revolving Promissory Note shall be
limited as follows:
(a) As of November 1, 2004, the maximum amount which may be
outstanding at any time thereunder shall be reduced to $2,466,666.67;
(b) As of December 1, 2004, the maximum amount which may be
outstanding at any time thereunder shall be reduced to $2,433,333.34;
and
(c) As of January, 1, 2005, and for any time thereafter, the
maximum amount which may be outstanding at any time thereunder shall be
reduced to $2,400,000.01.
3. In regard to the NC Bridge Loan Note, the parties will execute a
Fourth Amendment to Renewal Promissory Note which shall change the Maturity Date
defined therein from October 29, 2004 to January 29, 2005. The parties agree
that as of the effective date hereof, the principal balance of the NC Bridge
Loan Note is $5,258,679.84.
4. In regard to the current Overline Note, the parties will execute a
Seventh Amendment to Renewal Promissory Note (Overline Facility) which shall
change the Maturity Date defined therein from October 29, 2004 to January 29,
2005. The parties agree that as of the effective date hereof, the principal
balance of the Overline Note is $3,214,253.63.
5. Debtors acknowledge that they are presently in default of the
amended financial covenants appearing in Section 2 (c) of the Master Amendment.
Debtors also acknowledge that they are presently in default of Section 5.1
(c)(iii) of the Master Credit Security Agreement executed by the parties as of
December 27, 1996. Provided that there exists no other default under this
Agreement or the Loan Documents, as amended, AmSouth expressly agrees to forbear
from exercising its remedies under default of these amended financial covenants
but only until January 29, 2005.
6. Debtors shall, in good faith, make reasonable efforts to obtain the
written consent to this Agreement and the transactions contemplated hereby, of
GMAC. Debtors expressly acknowledge that failure of GMAC to consent in writing
to this Agreement will not result in a waiver of any of the Debtors' obligations
hereunder. Debtors shall also procure the written consent of Omega to this
Agreement and the transactions contemplated herein, if such consent is
reasonably required by AmSouth in the future.
7. All indebtedness and obligations now or hereafter owing to AmSouth
by Advocat, DMS, DALS-NC, or any other of the Debtors, or any combination
thereof, including but not limited to the Indebtedness, whether evidenced by the
Letters of Credit remaining outstanding, the Overline Facility, the NC Bridge
Loan, or the Modified Revolving Note shall be guaranteed by all of Debtors and
shall continue to be evidenced by the Additional Continuing Guaranty and
Suretyship Agreements which shall continue in full force and effect.
8. A default in any of the Loan Documents, this instrument, any
additional instruments and documents executed pursuant hereto, or in any
indebtedness or obligation now or hereafter owing by any, some or all of Debtors
to AmSouth, shall, at the option of AmSouth,
4
constitute a default in any or all of the Loan Documents or indebtedness now or
hereafter owing by any, some or all of the Debtors to AmSouth, provided that as
between AmSouth and GMAC the further provisions of the Intercreditor Agreement
shall be applicable.
9. Upon execution of this Amendment, Advocat shall pay a commitment fee
to AmSouth in the total amount of $10,000.00 for the commitment and obligations
of AmSouth.
10. The Debtors hereby ratify and restate all of the covenants,
warranties and representations contained in the Loan Agreement, as amended, and
the Master Amendment, as amended, as of the date hereof, and each hereby
acknowledges and confirms that the terms and conditions of the Loan Agreement,
as amended, and the Master Amendment, as amended, remain in full force and
effect. In addition, the Debtors ratify and restate the additional covenants set
forth in Section 12 of the Third Amendment.
11. Debtors further covenant and agree that, upon execution of this
Agreement, they will cause to be paid all of the fees and expenses incurred by
AmSouth, its agents, attorneys, accountants, appraisers, employees and
representatives, pursuant to all actions contemplated by the Loan Documents no
later than fifteen (15) days after presentment of invoices for such fees and
expenses to Debtors by AmSouth. Failure of Debtors to timely pay such invoices
shall constitute a default hereunder.
12. The indebtedness evidenced by the Modified Revolving Note, the
Overline Facility, and the NC Bridge Loan, may be prepaid at any time without
premium.
13. The Master Credit and Security Agreement, as amended, and any other
Loan Documents affected hereby, are amended to the extent necessary to conform
such instruments and documents to the provisions set forth herein.
14. Debtors hereby acknowledge and stipulate that none of them has any
claims or causes of action against AmSouth of any kind whatsoever. Debtors
hereby release AmSouth, and AmSouth's officers, directors, employees,
representatives, agents, attorneys, accountants and consultants. from any and
all claims, causes of action, demands and liabilities of any kind whatsoever,
whether direct or indirect, fixed or contingent, liquidated or non-liquidated,
disputed or undisputed, known or unknown, which Debtors, or any of them, has or
which arises out of any acts or omissions occurring prior to the execution of
this Agreement relating in any way to any event, circumstances, action or
failure to act from the beginning of time to the execution of this Agreement.
15. To the extent required by the Loan Documents, as amended, or the
Master Amendment, as amended, GMAC has executed this Amendment for purposes of
consenting to the terms hereof.
5
IN WITNESS WHEREOF, the parties hereto have executed this instrument to
be effective October 29, 2004.
AMSOUTH BANK, successor in interest by merger to
First American National Bank
By: /s/ ▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------------------
▇▇▇ ▇▇▇▇▇▇▇▇, Vice President
DIVERSICARE MANAGEMENT SERVICES CO.,
a Tennessee corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. Council III
------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. Council III
------------------------------
Title: President
------------------------------
ADVOCAT INC., a Delaware corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. Council III
-------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. Council III
------------------------------
Title: President
------------------------------
DIVERSICARE LEASING CORP.,
a Tennessee corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. Council III
-------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. Council III
------------------------------
Title: President
------------------------------
ADVOCAT ANCILLARY SERVICES, INC.,
a Tennessee corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. Council III
-------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. Council III
------------------------------
Title: President
------------------------------
6
DIVERSICARE GENERAL PARTNER, INC.,
a Texas corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. Council III
-------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. Council III
------------------------------
Title: President
------------------------------
FIRST AMERICAN HEALTH CARE, INC.,
an Alabama corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. Council III
-------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. Council III
------------------------------
Title: President
------------------------------
ADVOCAT FINANCE, INC.,
a Delaware corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. Council III
-------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. Council III
------------------------------
Title: President
------------------------------
DIVERSICARE LEASING CORP. OF ALABAMA, INC.,
an Alabama corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. Council III
-------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. Council III
------------------------------
Title: President
------------------------------
ADVOCAT DISTRIBUTION SERVICES, INC.,
a Tennessee corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. Council III
-------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. Council III
------------------------------
Title: President
------------------------------
DIVERSICARE ASSISTED LIVING SERVICES, INC.,
a Tennessee corporation
7
By: /s/ ▇▇▇▇▇▇▇ ▇. Council III
-------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. Council III
------------------------------
Title: President
------------------------------
DIVERSICARE ASSISTED LIVING SERVICES, NC, LLC,
a Tennessee limited liability company
By: /s/ ▇▇▇▇▇▇▇ ▇. Council III
-------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. Council III
------------------------------
Title: President
------------------------------
DIVERSICARE ASSISTED LIVING SERVICES NC I, LLC,
a Delaware limited liability company
By: /s/ ▇▇▇▇▇▇▇ ▇. Council III
-------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. Council III
------------------------------
Title: President
------------------------------
DIVERSICARE ASSISTED LIVING SERVICES NC II, LLC,
a Delaware limited liability company
By: /s/ ▇▇▇▇▇▇▇ ▇. Council III
-------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. Council III
------------------------------
Title: President
------------------------------
STERLING HEALTH CARE MANAGEMENT, INC.,
a Kentucky corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. Council III
-------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. Council III
------------------------------
Title: President
------------------------------
DIVERSICARE ▇▇▇▇▇ ▇▇▇▇, LLC,
a Delaware limited liability company
8
By: /s/ ▇▇▇▇▇▇▇ ▇. Council III
-------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. Council III
------------------------------
Title: President
------------------------------
DIVERSICARE GOOD SAMARITAN, LLC, a Delaware
limited liability company
By: /s/ ▇▇▇▇▇▇▇ ▇. Council III
-------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. Council III
------------------------------
Title: President
------------------------------
DIVERSICARE PINEDALE, LLC,
a Delaware limited liability company
By: /s/ ▇▇▇▇▇▇▇ ▇. Council III
-------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. Council III
------------------------------
Title: President
------------------------------
DIVERSICARE WINDSOR HOUSE, LLC,
a Delaware limited liability company
By: /s/ ▇▇▇▇▇▇▇ ▇. Council III
-------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. Council III
------------------------------
Title: President
------------------------------
GMAC COMMERCIAL MORTGAGE CORPORATION,
a California corporation
By:
-------------------------------------
Name:
------------------------------
Title:
------------------------------
9