FIRST AMENDMENT TO LOAN AGREEMENT
EXHIBIT 10.56
FIRST AMENDMENT TO LOAN AGREEMENT
This First Amendment to Loan Agreement (this “Amendment”), dated as of December 18,
2007, is by and among those certain entities set forth on Schedule 1 hereto, which are
signatories hereto (such entities individually and collectively, the “Borrower”), and
LASALLE BANK NATIONAL ASSOCIATION, a national banking association (together with its successors and
assigns, the “Lender”).
RECITALS
A. Borrower and Lender are parties to that certain Loan Agreement dated as of August 10,
2007 (as amended, restated, supplemented and otherwise modified, the “Loan Agreement”).
B. The parties hereto desire to amend certain terms and provisions of the Loan Agreement on
the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the premises herein contained, and for other good and
valuable consideration (the receipt, sufficiency and adequacy of which are hereby acknowledged),
the parties hereto (intending to be legally bound) hereby agree as follows:
1. Definitions. Terms capitalized herein and not otherwise defined herein shall have the
meanings ascribed to such terms in the Loan Agreement, as amended hereby.
2. Amendments to Loan Agreement. Subject to the terms and conditions contained herein,
the Borrower and the Lender hereby amend the Loan Agreement as follows:
(a) The definition of “Adjusted Leased Asset EBITDA” is hereby amended and restated in its
entirety to read as follows:
“Adjusted Leased Asset EBITDA” means Adjusted EBITDA measured solely for all
Facilities other than the Facilities listed on Schedule 1.1(g).”
(b) Section 2.10 of the Loan Agreement is hereby amended as follows:
i. The current last sentence of Section 2.10(b), which reads: “Prepayments of the Term Loan
shall be applied against installments payable under the Term Note in the reverse order of
maturity,” is hereby deleted.
ii. The following sentence is hereby added as the new last sentence of Section 2.10(b): “All
optional prepayments of the Term Loan made in accordance with this Section 2.10(b) shall,
on a cumulative basis, be applied to and credited against each of the Mandatory Prepayments
described in Section 2.15(a) and Section 2.15(b) in the order that such Mandatory
Prepayments become due and are required to be made, until such Mandatory Prepayments are paid in
full or the cumulative amount of optional prepayments of the Term Loan available to be so applied
has been exhausted, whichever first occurs.”
(c) Section 12.12 of the Loan Agreement is hereby amended to delete the contact information
for Lender and substitute in lieu thereof the following new contact information:
LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx Xxxxxx
Telephone No.: 000-000-0000
Facsimile No.: 000-000-0000
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx Xxxxxx
Telephone No.: 000-000-0000
Facsimile No.: 000-000-0000
(d) The list of Schedules to the Loan Agreement is hereby amended to add a new reference to
“Schedule 1.1(g) Facilities Excluded From Adjusted Leased Asset EBITDA.”
(e) The Schedules to the Loan Agreement are hereby amended to include Schedule 1.1(g) attached
hereto.
3. Conditions Precedent. The amendment contained in Section 2 hereof is subject
to, and contingent upon, the prior or contemporaneous satisfaction of the following conditions
precedent:
(a) The Borrower and Lender shall have executed and delivered to each other this Amendment,
and
(b) The Borrower shall have delivered to the Lender true, correct and complete copies of the
resolutions of the Borrower Agent authorizing or ratifying the execution, delivery and performance
by the Borrower of this Amendment.
4. Reference to and Effect on the Loan Agreement.
(a) Except as expressly provided herein, the Loan Agreement and all of the other Financing
Agreements shall remain unmodified and continue in full force and effect and are hereby ratified
and confirmed.
(b) Except as expressly provided herein, the execution, delivery and effectiveness of this
Amendment shall not operate as a waiver of: (i) any right, power or remedy of the Lender under the
Loan Agreement or any of the other Financing Agreements, or (ii) any Default or Event of Default
under the Loan Agreement.
5. Costs, Expenses and Taxes. Without limiting the obligation of the Borrower to
reimburse the Lender for costs, fees, disbursements and expenses incurred by the Lender as
specified in the Loan Agreement, the Borrower agrees to pay on demand all reasonable costs, fees,
disbursements and expenses of the Lender in connection with the preparation, execution and delivery
of this Amendment and the other agreements, instruments and documents contemplated hereby,
including, without limitation, reasonable attorneys’ fees and out-of-pocket expenses.
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6. Representations and Warranties of the Borrower. The Borrower hereby represents and
warrants to the Lender, which representations and warranties shall survive the execution and
delivery hereof, that on and as of the date hereof and after giving effect to this Amendment:
(a) The Borrower has the requisite power and authority to execute, deliver and perform its
obligations under this Amendment. This Amendment has been duly authorized by all necessary action
of the Borrower. This Amendment constitutes the legal, valid and binding obligation of the
Borrower, enforceable against the Borrower in accordance with its terms, subject to the effect of
any applicable bankruptcy, insolvency, reorganization or similar law affecting creditors’ rights
generally and general principles of equity;
(b) The Borrower’s representations set forth in the Loan Agreement and in the Financing
Agreements are true, correct and complete on and as of the date hereof; and
(c) No Default or Event of Default has occurred and is continuing.
7. Reference to Loan Agreement; No Waiver.
(a) Upon the effectiveness of this Amendment, each reference in the Loan Agreement to “this
Loan Agreement,” “this Agreement”, “hereunder,” “hereof,” “herein” or words of like import shall
mean and be a reference to the Loan Agreement as amended hereby. The term “Financing Agreements”
as defined in Section 1.1 of the Loan Agreement shall include (in addition to the Financing
Agreements described in the Loan Agreement) this Amendment and any other agreements, instruments or
other documents executed in connection herewith.
(b) The Lender’s failure, at any time or times hereafter, to require strict performance by the
Borrower of any provision or term of the Loan Agreement, this Amendment or the other Financing
Agreements shall not waive, affect or diminish any right of the Lender hereafter to demand strict
compliance and performance herewith or therewith. Any suspension or waiver by the Lender of a
breach of this Amendment or any Event of Default under the Loan Agreement shall not, except as
expressly set forth herein, suspend, waive or affect any other breach of this Amendment or any
Event of Default under the Loan Agreement, whether the same is prior or subsequent thereto and
whether of the same or of a different kind or character. None of the undertakings, agreements,
warranties, covenants and representations of the Borrower contained in this Amendment, shall be
deemed to have been suspended or waived by the Lender unless such suspension or waiver is: (i) in
writing and signed by the Lender, and (ii) delivered to the Borrower. In no event shall the
Lender’s execution and delivery of this Amendment establish a course of dealing among the Lender,
the Borrower or any other obligor or in any other way obligate the Lender to hereafter provide any
amendments or waivers with respect to the Loan Agreement. The terms and provisions of this
Amendment shall be limited precisely as written and shall not be deemed: (A) to be a consent to a
modification (except as expressly provided herein) or waiver of any other term or condition of the
Loan Agreement or of any other Financing Agreement, or (B) to prejudice any right or remedy that
the Lender may now have under or in connection with the Loan Agreement or any of the other
Financing Agreements.
8. Successors and Assigns. This Amendment shall be binding upon and inure to the benefit
of the Lender and each of the other parties hereto and their respective successors and
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assigns; provided, however, the Borrower may not assign this Amendment or any
of the Borrower’s rights hereunder without the Lender’s prior written consent. Any prohibited
assignment of this Amendment shall be absolutely null and void. This Amendment may only be amended
or modified by a writing signed by the Lender and the Borrower.
9. Severability. Wherever possible, each provision of this Amendment shall be
interpreted in such a manner so as to be effective and valid under applicable law, but if any
provision of this Amendment is held to be prohibited by or invalid under applicable law, such
provision or provisions shall be ineffective only to the extent of such provision and invalidity,
without invalidating the remainder of this Amendment.
10. Governing Law. This Amendment shall be deemed to be a contract made under the laws of
the State of Illinois, and the rights and obligations of the parties hereunder shall be construed
in accordance with and be enforced and governed by the internal laws of the State of Illinois,
without regard to conflict of law or choice of law principles.
11. Counterparts; Facsimile or Other Electronic Transmission. This Amendment may be
executed in one or more counterparts, each of which taken together shall constitute one and the
same instrument. Delivery of an executed counterpart of this Amendment by telefacsimile or other
electronic transmission shall be equally as effective as delivery of a manually executed
counterpart of this Amendment. Any party delivering an executed counterpart of this Amendment by
telefacsimile or other electronic transmission shall also deliver a manually executed counterpart
of this Amendment, but the failure to deliver a manually executed counterpart shall not affect the
validity, enforceability or binding effect of this Amendment.
***Signature Page Follows***
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IN WITNESS WHEREOF, the undersigned have caused this First Amendment to Loan Agreement to be
duly executed and delivered as of the date first above written.
| BORROWER: DIVERSICARE MANAGEMENT SERVICES CO., a Tennessee corporation, as Borrower Agent |
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| By: | /s/ Xxxxx Xxxxxx | |||
| Name: | Xxxxx Xxxxxx | |||
| Its: Executive Vice President & Chief Financial Officer | ||||
| ADVOCAT ANCILLARY SERVICES, INC., a Tennessee corporation |
||||
| By: | /s/ Xxxxx Xxxxxx | |||
| Name: | Xxxxx Xxxxxx | |||
| Its: Executive Vice President & Chief Financial Officer | ||||
| ADVOCAT FINANCE, INC., a Delaware corporation |
||||
| By: | /s/ Xxxxx Xxxxxx | |||
| Name: | Xxxxx Xxxxxx | |||
| Its: Executive Vice President & Chief Financial Officer | ||||
| DIVERSICARE MANAGEMENT SERVICES CO., a Tennessee corporation |
||||
| By: | /s/ Xxxxx Xxxxxx | |||
| Name: | Xxxxx Xxxxxx | |||
| Its: Executive Vice President & Chief Financial Officer | ||||
| ADVOCAT DISTRIBUTION SERVICES, INC., a Tennessee corporation |
||||
| By: | /s/ Xxxxx Xxxxxx | |||
| Name: | Xxxxx Xxxxxx | |||
| Its: Executive Vice President & Chief Financial Officer | ||||
| DIVERSICARE ASSISTED LIVING SERVICES, INC., a Tennessee corporation |
||||
| By: | /s/ Xxxxx Xxxxxx | |||
| Name: | Xxxxx Xxxxxx | |||
| Its: Executive Vice President & Chief Financial Officer | ||||
| DIVERSICARE ASSISTED LIVING SERVICES NC, LLC, a Tennessee limited liability company |
||||
| By: | /s/ Xxxxx Xxxxxx | |||
| Name: | Xxxxx Xxxxxx | |||
| Its: Executive Vice President & Chief Financial Officer | ||||
| DIVERSICARE LEASING CORP., a Tennessee corporation |
||||
| By: | /s/ Xxxxx Xxxxxx | |||
| Name: | Xxxxx Xxxxxx | |||
| Its: Executive Vice President & Chief Financial Officer | ||||
| STERLING HEALTH CARE MANAGEMENT, INC., a Kentucky corporation |
||||
| By: | /s/ Xxxxx Xxxxxx | |||
| Name: | Xxxxx Xxxxxx | |||
| Its: Executive Vice President & Chief Financial Officer | ||||
| SENIOR CARE CEDAR HILLS, LLC, a Delaware limited liability company |
||||
BY:
|
SENIOR CARE FLORIDA LEASING, LLC, its sole member |
BY:
|
DIVERSICARE LEASING CORP., its sole member |
| By: | /s/ Xxxxx Xxxxxx | |||
| Name: | Xxxxx Xxxxxx | |||
| Its: Executive Vice President & Chief Financial Officer | ||||
| SENIOR CARE GOLFCREST, LLC, a Delaware limited liability company |
||||
BY:
|
SENIOR CARE FLORIDA LEASING, LLC, its sole member |
BY:
|
DIVERSICARE LEASING CORP., its sole member |
| By: | /s/ Xxxxx Xxxxxx | |||
| Name: | Xxxxx Xxxxxx | |||
| Its: Executive Vice President & Chief Financial Officer | ||||
| SENIOR CARE GOLFVIEW, LLC, a Delaware limited liability company |
||||
BY:
|
SENIOR CARE FLORIDA LEASING, LLC, its sole member |
BY:
|
DIVERSICARE LEASING CORP., its sole member |
| By: | /s/ Xxxxx Xxxxxx | |||
| Name: | Xxxxx Xxxxxx | |||
| Its: Executive Vice President & Chief Financial Officer | ||||
| SENIOR CARE FLORIDA LEASING, LLC, a Delaware limited liability company |
||||
BY:
|
DIVERSICARE LEASING CORP., its sole member |
| By: | /s/ Xxxxx Xxxxxx | |||
| Name: | Xxxxx Xxxxxx | |||
| Its: Executive Vice President & Chief Financial Officer | ||||
| SENIOR CARE SOUTHERN PINES, LLC, a Delaware limited liability company |
||||
BY:
|
SENIOR CARE FLORIDA LEASING, LLC, its sole member |
BY:
|
DIVERSICARE LEASING CORP., its sole member |
| By: | /s/ Xxxxx Xxxxxx | |||
| Name: | Xxxxx Xxxxxx | |||
| Its: Executive Vice President & Chief Financial Officer | ||||
| DIVERSICARE XXXXX XXXX, LLC, a Delaware limited liability company |
||||
BY:
|
DIVERSICARE LEASING CORP., its sole member |
| By: | /s/ Xxxxx Xxxxxx | |||
| Name: | Xxxxx Xxxxxx | |||
| Its: Executive Vice President & Chief Financial Officer | ||||
| DIVERSICARE ASSISTED LIVING SERVICES NC I, LLC, a Delaware limited liability company |
||||
BY:
|
DIVERSICARE ASSISTED LIVING SERVICES NC, LLC, its sole member |
| By: | /s/ Xxxxx Xxxxxx | |||
| Name: | Xxxxx Xxxxxx | |||
| Its: Executive Vice President & Chief Financial Officer | ||||
| DIVERSICARE ASSISTED LIVING SERVICES NC II, LLC, a Delaware limited liability company |
||||
BY:
|
DIVERSICARE ASSISTED LIVING SERVICES NC, LLC, its sole member |
| By: | /s/ Xxxxx Xxxxxx | |||
| Name: | Xxxxx Xxxxxx | |||
| Its: Executive Vice President & Chief Financial Officer | ||||
| DIVERSICARE BRIARCLIFF, LLC, a Delaware limited liability company |
||||
BY:
|
DIVERSICARE LEASING CORP., its sole member |
| By: | /s/ Xxxxx Xxxxxx | |||
| Name: | Xxxxx Xxxxxx | |||
| Its: Executive Vice President & Chief Financial Officer | ||||
| DIVERSICARE XXXXXXX, LLC, a Delaware limited liability company |
||||
BY:
|
DIVERSICARE LEASING CORP., its sole member |
| By: | /s/ Xxxxx Xxxxxx | |||
| Name: | Xxxxx Xxxxxx | |||
| Its: Executive Vice President & Chief Financial Officer | ||||
| DIVERSICARE HARTFORD, LLC, a Delaware limited liability company |
||||
BY:
|
DIVERSICARE LEASING CORP., its sole member |
| By: | /s/ Xxxxx Xxxxxx | |||
| Name: | Xxxxx Xxxxxx | |||
| Its: Executive Vice President & Chief Financial Officer | ||||
| DIVERSICARE HILLCREST, LLC, a Delaware limited liability company |
||||
BY:
|
DIVERSICARE LEASING CORP., its sole member |
| By: | /s/ Xxxxx Xxxxxx | |||
| Name: | Xxxxx Xxxxxx | |||
| Its: Executive Vice President & Chief Financial Officer | ||||
| DIVERSICARE LAMPASAS, LLC, a Delaware limited liability company |
||||
BY:
|
DIVERSICARE LEASING CORP., its sole member |
| By: | /s/ Xxxxx Xxxxxx | |||
| Name: | Xxxxx Xxxxxx | |||
| Its: Executive Vice President & Chief Financial Officer | ||||
| DIVERSICARE PINEDALE, LLC, a Delaware limited liability company |
||||
BY:
|
DIVERSICARE LEASING CORP., its sole member |
| By: | /s/ Xxxxx Xxxxxx | |||
| Name: | Xxxxx Xxxxxx | |||
| Its: Executive Vice President & Chief Financial Officer | ||||
| DIVERSICARE WINDSOR HOUSE, LLC, a Delaware limited liability company |
||||
BY:
|
DIVERSICARE LEASING CORP., its sole member |
| By: | /s/ Xxxxx Xxxxxx | |||
| Name: | Xxxxx Xxxxxx | |||
| Its: Executive Vice President & Chief Financial Officer | ||||
| DIVERSICARE YORKTOWN, LLC, a Delaware limited liability company |
||||
BY:
|
DIVERSICARE LEASING CORP., its sole member |
| By: | /s/ Xxxxx Xxxxxx | |||
| Name: | Xxxxx Xxxxxx | |||
| Its: Executive Vice President & Chief Financial Officer | ||||
| DIVERSICARE XXXXXXXXX, LLC, a Delaware limited liability company |
||||
BY:
|
DIVERSICARE TEXAS I, LLC, its sole member |
| By: | /s/ Xxxxx Xxxxxx | |||
| Name: | Xxxxx Xxxxxx | |||
| Its: Executive Vice President & Chief Financial Officer | ||||
| DIVERSICARE DOCTORS, LLC, a Delaware limited liability company |
||||
BY:
|
DIVERSICARE TEXAS I, LLC, its sole member |
| By: | /s/ Xxxxx Xxxxxx | |||
| Name: | Xxxxx Xxxxxx | |||
| Its: Executive Vice President & Chief Financial Officer | ||||
| DIVERSICARE ESTATES, LLC, a Delaware limited liability company |
||||
BY:
|
DIVERSICARE TEXAS I, LLC, its sole member |
| By: | /s/ Xxxxx Xxxxxx | |||
| Name: | Xxxxx Xxxxxx | |||
| Its: Executive Vice President & Chief Financial Officer | ||||
| DIVERSICARE HUMBLE, LLC, a Delaware limited liability company |
||||
BY:
|
DIVERSICARE TEXAS I, LLC, its sole member |
| By: | /s/ Xxxxx Xxxxxx | |||
| Name: | Xxxxx Xxxxxx | |||
| Its: Executive Vice President & Chief Financial Officer | ||||
| DIVERSICARE KATY, LLC, a Delaware limited liability company |
||||
BY:
|
DIVERSICARE TEXAS I, LLC, its sole member |
| By: | /s/ Xxxxx Xxxxxx | |||
| Name: | Xxxxx Xxxxxx | |||
| Its: Executive Vice President & Chief Financial Officer | ||||
| DIVERSICARE NORMANDY TERRACE, LLC, a Delaware limited liability company |
||||
BY:
|
DIVERSICARE TEXAS I, LLC, its sole member |
| By: | /s/ Xxxxx Xxxxxx | |||
| Name: | Xxxxx Xxxxxx | |||
| Its: Executive Vice President & Chief Financial Officer | ||||
| DIVERSICARE TEXAS I, LLC, a Delaware limited liability company |
||||
| By: | /s/ Xxxxx Xxxxxx | |||
| Name: | Xxxxx Xxxxxx | |||
| Its: Executive Vice President & Chief Financial Officer | ||||
| DIVERSICARE TREEMONT, LLC, a Delaware limited liability company |
||||
BY:
|
DIVERSICARE TEXAS I, LLC, its sole member |
| By: | /s/ Xxxxx Xxxxxx | |||
| Name: | Xxxxx Xxxxxx | |||
| Its: Executive Vice President & Chief Financial Officer | ||||
| DIVERSICARE ROSE TERRACE, LLC, a Delaware limited liability company |
||||
BY:
|
DIVERSICARE LEASING CORP., its sole member |
| By: | /s/ Xxxxx Xxxxxx | |||
| Name: | Xxxxx Xxxxxx | |||
| Its: Executive Vice President & Chief Financial Officer | ||||
| LENDER: LASALLE BANK NATIONAL ASSOCIATION |
||||
| By: | /s/ Xxxxxx Xxxxxx | |||
| Xxxxxx Xxxxxx | ||||
| Vice President | ||||
SCHEDULE 1
1. BORROWERS
Advocat Ancillary Services, Inc.
Advocat Finance, Inc.
Diversicare Management Services Co.
Advocat Distribution Services, Inc.
Diversicare Assisted Living Services, Inc.
Diversicare Assisted Living Services NC, LLC
Diversicare Leasing Corp.
Sterling Health Care Management, Inc.
Senior Care Cedar Hills, LLC
Senior Care Golfcrest, LLC
Senior Care Golfview, LLC
Senior Care Florida Leasing, LLC
Senior Care Southern Pines, LLC
Diversicare Xxxxx Xxxx, LLC
Diversicare Assisted Living Services NC I, LLC
Diversicare Assisted Living Services NC II, LLC
Diversicare Briarcliff, LLC
Diversicare Xxxxxxx, LLC
Diversicare Hartford, LLC
Diversicare Hillcrest, LLC,
Diversicare Lampasas, LLC
Diversicare Pinedale, LLC
Diversicare Windsor House, LLC
Diversicare Yorktown, LLC
Diversicare Xxxxxxxxx, LLC
Diversicare Doctors, LLC
Diversicare Estates, LLC
Diversicare Humble, LLC
Diversicare Katy, LLC
Diversicare Normandy Terrace, LLC
Diversicare Texas I, LLC
Diversicare Treemont, LLC
Diversicare Rose Terrace, LLC
Advocat Finance, Inc.
Diversicare Management Services Co.
Advocat Distribution Services, Inc.
Diversicare Assisted Living Services, Inc.
Diversicare Assisted Living Services NC, LLC
Diversicare Leasing Corp.
Sterling Health Care Management, Inc.
Senior Care Cedar Hills, LLC
Senior Care Golfcrest, LLC
Senior Care Golfview, LLC
Senior Care Florida Leasing, LLC
Senior Care Southern Pines, LLC
Diversicare Xxxxx Xxxx, LLC
Diversicare Assisted Living Services NC I, LLC
Diversicare Assisted Living Services NC II, LLC
Diversicare Briarcliff, LLC
Diversicare Xxxxxxx, LLC
Diversicare Hartford, LLC
Diversicare Hillcrest, LLC,
Diversicare Lampasas, LLC
Diversicare Pinedale, LLC
Diversicare Windsor House, LLC
Diversicare Yorktown, LLC
Diversicare Xxxxxxxxx, LLC
Diversicare Doctors, LLC
Diversicare Estates, LLC
Diversicare Humble, LLC
Diversicare Katy, LLC
Diversicare Normandy Terrace, LLC
Diversicare Texas I, LLC
Diversicare Treemont, LLC
Diversicare Rose Terrace, LLC
SCHEDULE 1.1(g)
2. FACILITIES EXCLUDED FROM ADJUSTED LEASED ASSET EBITDA
Alabama
Hartford Health Care
Windsor House
Windsor House
Arkansas
Newport Healthcare & Rehabilitation
Tennessee
Briarcliff Health Care Center
Texas
Xxxxx Xxxx Healthcare & Rehabilitation
Xxxxxxx Trail Nursing & Rehabilitation Center
Hillcrest Manor Nursing & Rehabilitation Center
Xxxxxxx Trail Nursing & Rehabilitation Center
Hillcrest Manor Nursing & Rehabilitation Center
