EXHIBIT 10.120
SIXTH AMENDMENT
TO
REVENUE BOND
LEASE AGREEMENT
and
MORTGAGE AND INDENTURE OF TRUST
THIS SIXTH AMENDMENT is entered into by and between THE MEDICAL CLINIC
BOARD OF THE CITY OF HARTFORD, ALABAMA (the "Board"), DIVERSICARE LEASING CORP.,
(the "Tenant"), COLONIAL BANK, N.A. (FORMERLY COLONIAL BANK) ("Colonial"), CITY
BANK OF HARTFORD ("City Bank") and XXXXXXX NATIONAL BANK ("Slocomb"), and is
effective as of November 2, 2004.
WHEREAS, on June 28, 1996 the Board executed and delivered to Colonial
a $2,450,000.00 Mortgage and Indenture of Trust (the "First Mortgage") on the
Project (as that term is defined in the First Mortgage). This First Mortgage
pertains to the property described on Exhibit "A" attached hereto and is
recorded in Official Record Book 273 at Pages 105 to 139 in the Office of the
Judge of Probate of Geneva County, Alabama. This First Mortgage secures the
obligations due under Revenue Bond - Series 1996 No. R1 (Diversicare Leasing
Corp. Project) issued by the Board in the original principal amount of
$2,450,000.00 (the "Colonial Bond").
WHEREAS, on June 28, 1996 the Board executed and delivered to Slocomb a
$83,500.00 Mortgage and Indenture of Trust (the "Second Mortgage") on the
Project (as that term is defined in the Second Mortgage). This Second Mortgage
pertains to the property described on Exhibit "A" attached hereto and is
recorded in Official Record Book 273 at Pages 140 to 174 in the Office of the
Judge of Probate of Geneva County, Alabama. This Second Mortgage secures the
obligations due under a Revenue Bond - Series 1996 No. R2 (Diversicare Leasing
Corp. Project) issued by the Board in the original principal amount of
$83,500.00 (the "Slocomb Bond").
WHEREAS, on June 28, 1996 the Board executed and delivered to City Bank
a $83,500.00 Mortgage and Indenture of Trust (the "Third Mortgage") on the
Project (as that term is defined in the Third Mortgage). This Third Mortgage
pertains to the property described on Exhibit "A" attached hereto and is
recorded in Official Book 273 at Pages 175 to 209 in the Office of the Judge of
Probate of Geneva County, Alabama. This Third Mortgage secures the obligations
due under a Revenue Bond - Series 1996 No. R3 (Diversicare Leasing Corp.
Project) issued by the Board in the
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original principal amount of $83,500.00 (the "City Bank Bond").
WHEREAS, the Second Mortgage and the Third Mortgage and the
corresponding Slocomb Bond and the City Bank Bond are in parity each with the
other.
WHEREAS, on June 28, 1996, the Board and Tenant entered into a Lease
Agreement (the "Lease") pertaining to the property described on Exhibit "A"
attached hereto ("the Leased Realty") and the Project (as that term is defined
in the Lease). The Lease is recorded in Official Book 273 at Pages 210 to 246 in
the Office of the Judge of Probate of Geneva County, Alabama.
WHEREAS, on August 1, 2001 the Board, the Tenant, Colonial, City Bank
and Slocomb entered into a First Amendment to Revenue Bond, Lease Agreement and
Mortgage and Indenture of Trust (the "First Amendment"). The First Amendment is
recorded in Official Book 413 at Pages 125 to 135 in the Office of the Judge of
Probate of Geneva County, Alabama.
WHEREAS, effective August 1, 2002 the Board, the Tenant, Colonial, City
Bank and Slocomb entered into a Second Amendment to Revenue Bond, Lease
Agreement and Mortgage and Indenture of Trust (the "Second Amendment"). The
Second Amendment is recorded in Official Book 445 at Pages 281 to 292 in the
Office of the Judge of Probate of Geneva County, Alabama.
WHEREAS, effective November 2, 2002 the Board, the Tenant, Colonial,
City Bank and Slocomb entered into a Third Amendment to Revenue Bond, Lease
Agreement and Mortgage and Indenture of Trust (the "Third Amendment"). The Third
Amendment is recorded in Official Book 453 at Pages 149 to 160 in the Office of
the Judge of Probate of Geneva County, Alabama.
WHEREAS, effective May 2, 2003 the Board, the Tenant, Colonial, City
Bank and Slocomb entered into a Fourth Amendment to Revenue Bond, Lease
Agreement and Mortgage and Indenture of Trust (the "Fourth Amendment"). The
Fourth Amendment is recorded in Official Book 471 at Pages 308 to 319 in the
Office of the Judge of Probate of Geneva County, Alabama.
WHEREAS, effective November 2, 2003 the Board, the Tenant, Colonial,
City Bank and Slocomb entered into a Fifth Amendment to Revenue Bond, Lease
Agreement and Mortgage and Indenture of Trust (the "Fifth Amendment"). The Fifth
Amendment is recorded in Official Book 490 at Pages 450 to 461 in the Office of
the Judge of Probate of Geneva County, Alabama.
WHEREAS, Tenant has requested Board, Colonial, City Bank and Slocomb to
extend the maturity date of the Colonial Bond, the City Bank Bond and the
Slocomb Bond to February 2, 2005, and the Board, Colonial, City Bank, and
Slocomb are agreeable to do so provided Tenant, Board, Colonial, City Bank and
Slocomb enter into this agreement and cause the First Mortgage, Second Mortgage,
Third Mortgage, Colonial Bond, City Bank Bond, Slocomb Bond, the Lease, and the
documents executed in connection therewith to be modified as provided herein and
to be ratified and reconfirmed as so modified.
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NOW THEREFORE, in consideration of the terms and conditions contained
herein, and to induce Board, Colonial, City Bank and Slocomb to extend the
maturity date of the Colonial Bond, the City Bank Bond and the Slocomb Bond, the
First Mortgage, the Second Mortgage, the Third Mortgage, the Colonial Bond, the
City Bank Bond, the Slocomb Bond, the Lease and the agreements executed in
connection therewith are hereby amended as follows:
1. The maturity date or final payment date of the Colonial Bond
is hereby extended to February 2, 2005, the number of payments
due on the Colonial Bond is increased from fifty nine (59) to
one hundred two (102), and the second, third and fourth
sentence of the Colonial Bond are hereby amended to state:
"Such principal and interest shall mature and be
payable (unless duly redeemed prior thereto) in one
hundred two (102) consecutive monthly payments on the
second (2nd) day of each month from August 2, 1996,
through and including January 2, 2005, consisting of
the amount of principal and interest at the greater
of the Base Lending Rate of Bondholder plus one
percent (1.00%) or 6.50% that is necessary to
amortize the outstanding balance at such rate by
August 2, 2021, and a final payment due on February
2, 2005, in the amount of all principal and interest
outstanding on this obligation. Interest on the
outstanding balance shall be calculated on the
360-day accrual method by multiplying the product of
the principal amount outstanding by the applicable
rate stated herein by the actual number of days
elapsed divided by 360. The applicable interest rate
is the greater of the Base Lending Rate plus one
percent (1.00%), or 6.50%."
2. The maturity date or final payment date of the Slocomb Bond is
hereby extended to February 2, 2005, the number of payments
due on the Slocomb Bond is increased from fifty nine (59) to
one hundred two (102), and the second, third and fourth
sentence of the Slocomb Bond is hereby amended to state:
"Such principal and interest shall mature and be
payable (unless duly redeemed prior thereto) in one
hundred two (102) consecutive monthly payments on the
second (2nd) day of each month from August 2, 1996,
through and including January 2, 2005, consisting of
the amount of principal and interest at the greater
of the Base Lending Rate of Bondholder plus one
percent (1.00%) or 6.50% that is necessary to
amortize the outstanding balance at such rate by
August 2, 2021, and a final payment due on February
2, 2005, in the amount of all principal and interest
outstanding on this obligation. Interest on the
outstanding balance shall be calculated on the
360-day accrual method by multiplying the product of
the principal amount outstanding by the applicable
rate stated herein by the actual number of days
elapsed divided by 360. The applicable interest rate
is the greater of the Base Lending Rate plus one
percent (1.00%), or 6.50%."
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3. The maturity date or final payment date of the City Bank Bond
is hereby extended to February 2, 2005, the number of payments
due on the City Bank Bond is increased from fifty nine (59) to
one hundred two (102), and the second, third and fourth
sentence of the City Bank Bond is hereby amended to state:
"Such principal and interest shall mature and be
payable (unless duly redeemed prior thereto) in one
hundred two (102) consecutive monthly payments on the
second (2nd) day of each month from August 2, 1996,
through and including January 2, 2005, consisting of
the amount of principal and interest at the greater
of the Base Lending Rate of Bondholder plus one
percent (1.00%) or 6.50% that is necessary to
amortize the outstanding balance at such rate by
August 2, 2021, and a final payment due on February
2, 2005, in the amount of all principal and interest
outstanding on this obligation. Interest on the
outstanding balance shall be calculated on the
360-day accrual method by multiplying the product of
the principal amount outstanding by the applicable
rate stated herein by the actual number of days
elapsed divided by 360. The applicable interest rate
is the greater of the Base Lending Rate plus one
percent (1.00%), or 6.50%."
4. The form of the Colonial Bond contained in the preamble of the
First Mortgage is amended in conformity with paragraph 1
hereof.
5. The form of the Slocomb Bond contained in the preamble of the
Second Mortgage is amended in conformity with paragraph 2
hereof.
6. The form of the City Bank Bond contained in the preamble of
the Third Mortgage is amended in conformity with paragraph 3
hereof.
7. The Lease is hereby amended as follows:
a. The duration of the Lease Term as set forth in
Section 3.1 of the Lease is extended from midnight of
August 2, 2001 to midnight of February 2, 2005, and
the first sentence of Section 3.1 of the Lease is
hereby amended as follows:
"The term of this Lease Agreement and of the
Lease herein made shall begin on the date of
delivery of this Lease Agreement and,
subject to the provisions of this Lease
Agreement, shall continue until midnight of
February 2, 2005.
b. Tenant's option to renew contained in Section 9.2 of
the Lease is only exercisable upon full payment of
the Bonds.
8. Tenant acknowledges its obligations under the Lease to pay the
Colonial Bond, the City Bank Bond and the Slocomb Bond in
installments when same comes due in accordance with the terms
thereof, and in full upon maturity.
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9. Tenant further reaffirms and ratifies the Security Agreement
entered into by Tenant for the benefit of Colonial, and agrees
to be bound by the terms thereof.
10. Tenant further reaffirms and ratifies the Security Agreement
entered into by Tenant for the benefit of Slocomb, and agrees
to be bound by the terms thereof.
11. Tenant further reaffirms and ratifies the Security Agreement
entered into by Tenant for the benefit of City Bank, and
agrees to be bound by the terms thereof.
12. Tenant further reaffirms and ratifies the Hazardous Substances
Indemnification and Warranty Agreement entered into by Tenant
for the benefit of Colonial, and agrees to be bound by the
terms thereof.
13. Tenant further reaffirms and ratifies the Hazardous Substances
Indemnification and Warranty Agreement entered into by Tenant
for the benefit of Slocomb, and agrees to be bound by the
terms thereof.
14. Tenant further reaffirms and ratifies the Hazardous Substances
Indemnification and Warranty Agreement entered into by Tenant
for the benefit of City Bank, and agrees to be bound by the
terms thereof.
In addition hereto, all of the documents and agreements executed in connection
with the First Mortgage, the Second Mortgage, the Third Mortgage, the Colonial
Bond, the City Bank Bond, the Slocomb Bond, the Lease or the agreements executed
in connection therewith or pertaining thereto (the "Agreements") are hereby
amended in accordance with the terms as herein cited.
Tenant and Board hereby agree and direct Colonial, City Bank and Slocomb to take
any action necessary to conform the First Mortgage, the Second Mortgage, the
Third Mortgage, the Colonial Bond, the City Bank Bond, the Slocomb Bond, the
Lease and the Agreements as to the terms as herein cited and by these presents
accepts and confirms their liability under such documents and agreements with
the terms as herein modified.
All of the terms and provisions of the Fifth Amendment, Fourth Amendment, Third
Amendment, Second Amendment, First Amendment, First Mortgage, Second Mortgage,
Third Mortgage, Colonial Bond, City Bank Bond, Slocomb Bond and the Lease not
specifically amended herein, are hereby reaffirmed, ratified and restated. This
Amendment amends the agreements and is not a novation thereof.
This Agreement may be executed in any number of counterparts, each of which
shall be deemed to be an original and all of which, when taken together, shall
constitute one and the same instrument.
This Agreement shall be construed and enforced in accordance with the laws of
the State of Alabama.
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IN WITNESS WHEREOF, we have hereunto set our hands and seals effective
as of the 2st day of November, 2004.
BOARD THE MEDICAL CLINIC BOARD OF THE
CITY OF HARTFORD, ALABAMA
SEAL BY: /s/ Xx. Xxxxxx X. Xxxxxxxxxx, Xx.
-------------------------------------
(Its Chairman)
----------------------------------
ATTEST:
----------------------------------
(Its Secretary-Treasurer)
STATE OF ALABAMA
COUNTY OF GENEVA
I, the undersigned, a Notary Public in and for said County, in said
State, hereby certify that __________________________, whose name as Chairman
of THE MEDICAL CLINIC BOARD OF THE CITY OF HARTFORD, ALABAMA, a corporation, is
signed to the foregoing instrument and who is known to me, acknowledged before
me on this day that, being informed of the contents of said instrument, he/she,
as such officer, and with full authority, executed the same voluntarily, as an
act of said corporation, acting in its capacity as aforesaid.
Given under my hand and official seal, this the _____ day of November,
2004.
-----------------------------------------
NOTARY PUBLIC
My Commission Expires:
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TENANT: DIVERSICARE LEASING CORP., a Tennessee
Corporation
BY: /s/ Xxxxxxx X. Council III
------------------------------------
(Its President)
STATE OF
-----------------------------------
COUNTY OF
----------------------------------
I, the undersigned, a Notary Public in and for said County, in said
State, hereby certify that ________________________________, whose name as
_____________________________________________ of DIVERSICARE LEASING CORP., a
corporation, is signed to the foregoing instrument and who is known to me,
acknowledged before me on this day that, being informed of the contents of said
instrument, he/she, as such officer, and with full authority, executed the same
voluntarily, as an act of said corporation, acting in its capacity as aforesaid.
Given under my hand and official seal, this the _____ day of November,
2004.
----------------------------------------
NOTARY PUBLIC
My Commission Expires:
------------------
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COLONIAL COLONIAL BANK N.A.
(FORMERLY COLONIAL BANK)
BY: /s/ Xxxxxx Xxxxx
-------------------------------------
(Its Senior Vice President)
STATE OF ALABAMA
COUNTY OF JEFFERSON
I, the undersigned, a Notary Public in and for said County, in said
State, hereby certify that ________________________________, whose name as
_________________________________________ of COLONIAL BANK, N.A. (formerly
Colonial Bank), a corporation, is signed to the foregoing instrument and who is
known to me, acknowledged before me on this day that, being informed of the
contents of said instrument, he/she, as such officer, and with full authority,
executed the same voluntarily, as an act of said corporation, acting in its
capacity as aforesaid.
Given under my hand and official seal, this the _____ day of November,
2004.
------------------------------------------
NOTARY PUBLIC
My Commission Expires:
--------------------
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CITY BANK CITY BANK OF HARTFORD
BY: /s/ X.X. Xxxxxxx
-----------------------------------
(Its President/CEO)
STATE OF ALABAMA
COUNTY OF GENEVA
I, the undersigned, a Notary Public in and for said County, in said
State, hereby certify that ____________________________________________, whose
name as __________________________________________ of CITY BANK OF HARTFORD,
a corporation, is signed to the foregoing instrument and who is known to me,
acknowledged before me on this day that, being informed of the contents of said
instrument, he/she, as such officer, and with full authority, executed the same
voluntarily, as an act of said corporation, acting in its capacity as aforesaid.
Given under my hand and official seal, this the _____ day of November,
2004.
------------------------------------------
NOTARY PUBLIC
My Commission Expires:
--------------------
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SLOCOMB: XXXXXXX NATIONAL BANK
BY: /s/ Xxxxxx X. Xxxxxxx
------------------------------------
(Its Executive Vice President)
STATE OF ALABAMA
COUNTY OF GENEVA
I, the undersigned, a Notary Public in and for said County, in said
State, hereby certify that ____________________________________________, whose
name as ______________________________________________ of XXXXXXX NATIONAL BANK,
a corporation, is signed to the foregoing instrument and who is known to me,
acknowledged before me on this day that, being informed of the contents of said
instrument, he/she, as such officer, and with full authority, executed the same
voluntarily, as an act of said corporation, acting in its capacity as aforesaid.
Given under my hand and official seal, this the _____ day of November,
2004.
----------------------------------------
NOTARY PUBLIC
My Commission Expires:
------------------
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ACKNOWLEDGEMENT AND CONSENT BY GUARANTOR
ADVOCAT INC. (the "Guarantor"), the guarantor of i) the Colonial Bond,
ii) the Slocomb Bond, iii) the City Bank Bond, iv) the obligations of Tenant to
Colonial, v) the obligations of Tenant to Slocomb, and vi) the obligations of
Tenant to City Bank, hereby acknowledges and consents to this Sixth Amendment,
and Guarantor's obligations under its guaranty thereto, and hereby reaffirms and
restates its guaranty obligations to Colonial, Slocomb, and City Bank as
evidenced by those certain Guaranty(s) dated June 28, 1996 and delivered to
Colonial, Slocomb and City Bank.
ADVOCAT INC.
BY: /s/ Xxxxx Xxxxxx
--------------------------------
(Its Secretary)
STATE OF
-----------------------------------
COUNTY OF
----------------------------------
I, the undersigned, a Notary Public in and for said County, in said
State, hereby certify that __________________, whose name as _________________
of ADVOCAT INC, a corporation, is signed to the foregoing instrument and who is
known to me, acknowledged before me on this day that, being informed of the
contents of said instrument, he/she, as such officer, and with full authority,
executed the same voluntarily, as an act of said corporation, acting in its
capacity as aforesaid.
Given under my hand and official seal, this the _____ day of December,
2004.
------------------------------------------
NOTARY PUBLIC
My Commission Expires:
--------------------
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EXHIBIT "A"
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A parcel of land in the Town of Hartford, Geneva County, Alabama and being more
particularly described as follows: Commencing at the accepted Southeast corner
of the SW 1/4 of the NE 1/4 of Section 31, Township 2 North, Range 24 East, and
thence South 86 degrees 55 minutes 23 seconds West 518.20 feet to the East
right-of-way of Toro Road, thence North 62 degrees 02 minutes 38 seconds West
along the East right-of-way of said road 321.72 feet, thence North 47 degrees 36
minutes 56 seconds West along the East right-of-way of said road a chord
distance of 479.47 feet to the Point of Beginning; and thence North 25 degrees
18 minutes 41 seconds West along the East right-of-way of said road a chord
distance of 258.31 feet, thence North 17 degrees 54 minutes 10 seconds West
along the East right-of-way of said road 216.53 feet, thence North 86 degrees 42
minutes 53 seconds East along an existing fence 187.87 feet, thence North 86
degrees 51 minutes 44 seconds East 418.20 feet, thence South 03 degrees 35
minutes 50 seconds East 317.88 feet, thence South 70 degrees 52 minutes 05
seconds West 475.86 feet to the point of beginning. Said parcel being in the SW
1/4 of the NE 1/4 of Section 31, Township 2 North, Range 24 East, and containing
4.91 acres, more or less.
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THIS INSTRUMENT PREPARED BY AND AFTER
RECORDATION SHOULD BE RETURNED TO:
Xxxxxxx X. Xxxxxxxx III
XXXXX XXXXXXXX & XXXXXXXX, P.C.
4th Floor, 000 Xxxxx 00xx Xxxxxx
Xxxxxxxxxx, Xxxxxxx 00000
(000) 000-0000
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