EXHIBIT 10.22
THIRD AMENDMENT TO MASTER AMENDMENT TO LOAN DOCUMENTS
AND AGREEMENT
THIS THIRD 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 CANADA MANAGEMENT SERVICES
CO., INC., a corporation organized under the laws of Canada and wholly-owned
subsidiary of DLC ("DCMS"), 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 XXXXX XXXX,
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 October 1, 2000, and as amended by
that Second Amendment to Master Amendment to Loan
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Documents and Agreement executed by the parties to be effective as of December
15, 2002, 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 a Second Amendment to Master
Amendment to Loan Documents and Agreement executed by the parties hereto to be
effective as of December 15, 2002 (the "Second Amendment") AmSouth agreed to
further modify the Indebtedness and the Loan Documents; and
WHEREAS, pursuant to the terms of the Second Amendment, Advocat
executed a Capitalized Interest Note, as defined in the Second Amendment, which
Capitalized Interest Note has been paid in full by Debtors; and
WHEREAS, pursuant to the terms of the Second Amendment, DMS executed a
Modified Revolving Note, as defined in the Second Amendment, which Modified
Revolving Note was further modified by First Amendment to Reduced and Modified
Renewal Revolving Promissory Note dated July 11, 2003; and
WHEREAS, pursuant to the terms of the Second Amendment, Advocat
executed a Renewal Reimbursement Note, as defined in the Second Amendment; and
WHEREAS, pursuant to the terms of the Second Amendment, AmSouth and DMS
executed a Second Amendment to Renewal Promissory Note (Overline Facility) (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 Renewal Reimbursement Note,
the Overline Note and the NC Bridge Loan Note matured on July 11, 2003 and
Debtors have failed to satisfy the indebtedness arising thereunder; and
WHEREAS, pursuant to the terms of the Second Amendment, the Debtors
agreed that Senior Care Florida Leasing, LLC, a Delaware limited liability
company ("SCFL"), Senior Care Cedar Hills, LLC, a Delaware limited liability
company ("SCCH"), Senior Care Golfcrest, LLC, a Delaware limited liability
company ("SCGC"), Senior Care Golfview, LLC, a Delaware limited liability
company ("SCGV"); and Senior Care Southern Pines, LLC, a Delaware limited
liability company ("SCSP")would, upon formation, be joined as parties to the
Master Amendment and the Loan Documents and would execute Continuing Guaranty
and Suretyship Agreements in accordance with the terms of the Master Amendment;
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
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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 extend the maturity dates of the
Modified Revolving Note, the Renewal Reimbursement 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 Debtor), 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. In regard to the Renewal Reimbursement Note, paragraph (a) of the
Renewal Reimbursement Note is hereby amended only to extend the Maturity Date
from July 11, 2003 to January 9, 2004 in accordance with a First Amendment to
the Renewal Reimbursement Promissory Note executed by Advocat and AmSouth of
even date herewith.
2. In regard to the Modified Revolving Note, as amended on July 11,
2003 pursuant to the First Amendment to the Reduced and Modified Renewal
Revolving Promissory Note executed by DMS and AmSouth, the first full paragraph
of the Modified Revolving Note is hereby amended on to extend the Maturity Date
from August 11, 2003 to January 9, 2004 in accordance with a Second Amendment to
the Reduced and Modified Renewal Revolving Promissory Note executed by DMS and
AmSouth of even date herewith.
3. In regard to the NC Bridge Loan Note, as amended by the First
Amendment to Renewal Promissory Note executed by DALS-NC in December, 2000, and
as amended by the Second Amendment to Renewal Promissory Note executed by
DALS-NC and AmSouth effective as of December 15, 2002, the parties will execute
a Third Amendment to Renewal
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Promissory Note which shall change the Maturity Date defined therein from July
11, 2003 to January 9, 2004.
4. In regard to the current Overline Note, as amended by the First
Amendment to Renewal Promissory Note (Overline Facility) executed by DMS in
December, 2000, and as amended by the Second Amendment to Renewal Promissory
Note (Overline Facility) executed by DMS and AmSouth effective as of December
15, 2002, the parties will execute a Third Amendment to Renewal Promissory Note
(Overline Facility) which shall change the Maturity Date defined therein from
July 11, 2003 to January 9, 2004.
5. 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 parties agree that, absent a default under this
Agreement or the Loan Documents, the Letter of Credit shall continue in
accordance with its terms, unless earlier terminated pursuant to an agreement of
between the account party and beneficiary thereunder. If the Letter of Credit is
drawn prior to its termination date, Debtors shall pay to AmSouth monthly
payments, the first monthly payment being due thirty (30) days after the draw,
in the amount of $33,333.00 plus interest compounded from the date of draw until
either (a) payment in full or (b) the earlier of default or January 9, 2004.
Provided that there is no default, interest shall be compounded from the date of
draw until January 9, 2004, at the rate of seven and one-half percent (7.5%) per
annum. After default or January 9, 2004, interest shall accrue at the lesser of
fifteen percent (15%) per annum or the maximum rate allowed by applicable law.
6. 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 9, 2004.
7. 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.
8. 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
Reimbursement Note, the Letters of Credit remaining outstanding, the Working
Capital Line, the Overline Facility, the NC Bridge Loan, Renewal Reimbursement
Note, 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.
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9. 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, 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.
10. Advocat shall pay a commitment fee to AmSouth in the total amount
of $40,000.00 for the commitment and obligations of AmSouth as expressed herein
as follows: Advocat shall pay to AmSouth upon execution of this Amendment the
sum of $20,000.00, and on September 30, 2003, Advocat shall pay the balance of
$20,000.00 to AmSouth.
11. In regard to Paragraph 10 of the Master Amendment, provided that
the Debtors and SCFL, SCCH, SCGC, SCGV, and SCSP are not in default of the
additional covenants set forth in Paragraph 12 below, AmSouth agrees that the
direct and indirect subsidiaries of DLS referred to herein as SCFL, SCCH, SCGC,
SCGV and SCSP shall not be required to be joined as parties to the Master
Amendment and Loan Documents, shall not be required to execute continuing
Guaranty and Suretyship Agreements in accordance with the terms of the Master
Amendment and shall not be required to pledge the membership interests in such
entities as security for the Indebtedness.
12. In addition to all other covenants set forth in the Loan Documents,
Debtors shall not, without the prior written consent of AmSouth, loan or
otherwise transfer to SCFL, SCCH, SCGC, SCGV, or SCSP, the proceeds of the
Modified Revolving Note, or any assets whatsoever, including but not limited to,
cash, certificates of deposit, stock certificates, real property, personal
property, membership interests, fixtures, furniture, notes, accounts receivable,
and any other tangible or intangible assets. AmSouth acknowledges that in the
ordinary course of business, Debtors provide certain services to each of SCFL,
SCCH, SCGC, SCGV and SCSP, including operational and financial management,
insurance, employee benefits, and other similar services. In providing these
services, Debtors may purchase goods and services and subsequently receive
reimbursement for such purchases. AmSouth hereby consents to Debtors providing
these services and receiving reimbursement for these purchases and payments for
management services.
13. 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 expressly agree that they shall provide AmSouth
with copies of all monthly or other periodic operating, financial or
restructuring status reports that are generated by any Debtor for the senior
management of any Debtor or any of Debtors' boards of directors when provided to
management or the boards of directors. The Debtors shall provide AmSouth with
weekly written reports, unless AmSouth, in its sole discretion has approved a
verbal report regarding the following: (i) negotiations or discussions regarding
the sale of any Debtor entities or assets owned by any Debtor, (ii) negotiations
with other secured creditors of Debtors, and (iii) other information as AmSouth
may reasonably request to be included in the weekly report. Debtors shall
provide the Lender with (i) monthly
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borrowing base reports and monthly aging report of accounts receivable and
accounts payable, (ii) monthly (within 30 days), quarterly (within 45 days) and
annually (within 90 days) consolidated income statements, balance sheets and
cash flow statements prepared in conformity with GAAP, inclusive of management's
analysis and discussion of operating, and financial results and activities.
Debtors shall also provide AmSouth with a monthly compliance certificate
evidencing that the Debtors are in compliance with their obligations under this
Agreement. AmSouth representatives, accountants, consultants, attorneys or other
professionals shall have reasonable access to the premises, upon reasonable
advance notice, and books and records of the Debtors for the purpose of (i)
inspecting the collateral of the AmSouth and (ii) reviewing and copying such
books and records as reasonably determined by AmSouth.
14. 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.
15. The indebtedness evidenced by the Modified Revolving Note, the
Renewal Reimbursement Note, Overline Facility and NC Bridge Loan, may be prepaid
at any time without premium.
16. 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.
17. 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.
18. 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.
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IN WITNESS WHEREOF, the parties hereto have executed this instrument
this ____ day of August, 2003, to be effective July 11, 2003.
AMSOUTH BANK, successor in interest by
merger to First American National Bank
By: /s/ Xxx XxXxxxxx
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Xxx XxXxxxxx, Senior Vice President
DIVERSICARE MANAGEMENT
SERVICES CO., a Tennessee corporation
By: /s/ Xxxxxxx X. Council, III
----------------------------------------------
Name: Xxxxxxx X. Council, III
Title: President
ADVOCAT INC., a Delaware corporation
By: /s/ Xxxxxxx X. Council, III
----------------------------------------------
Name: Xxxxxxx X. Council, III
Title: President
DIVERSICARE LEASING CORP.,
a Tennessee corporation
By: /s/ Xxxxxxx X. Council, III
----------------------------------------------
Name: Xxxxxxx X. Council, III
Title: President
ADVOCAT ANCILLARY SERVICES,
INC., a Tennessee corporation
By: /s/ Xxxxxxx X. Council, III
----------------------------------------------
Name: Xxxxxxx X. Council, III
Title: President
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DIVERSICARE CANADA MANAGEMENT SERVICES CO.,
INC., an Ontario, Canada corporation
By: /s/ Xxxxxxx X. Council, III
----------------------------------------------
Name: Xxxxxxx X. Council, III
Title: President
DIVERSICARE GENERAL PARTNER,
INC., a Texas corporation
By: /s/ Xxxxxxx X. Council, III
----------------------------------------------
Name: Xxxxxxx X. Council, III
Title: President
FIRST AMERICAN HEALTH CARE,
INC., an Alabama corporation
By: /s/ Xxxxxxx X. Council, III
----------------------------------------------
Name: Xxxxxxx X. Council, III
Title: President
ADVOCAT DISTRIBUTION SERVICES,
INC., a Tennessee corporation
By: /s/ Xxxxxxx X. Council, III
---------------------------------------------
Name: Xxxxxxx X. Council, III
Title: President
ADVOCAT FINANCE, INC.,
a Delaware corporation
By: /s/ Xxxxxxx X. Council, III
----------------------------------------------
Name: Xxxxxxx X. Council, III
Title: President
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DIVERSICARE LEASING CORP. OF
ALABAMA, INC., an Alabama corporation
By: /s/ Xxxxxxx X. Council, III
----------------------------------------------
Name: Xxxxxxx X. Council, III
Title: President
DIVERSICARE ASSISTED LIVING SERVICES, INC.,
a Tennessee corporation
By: /s/ Xxxxxxx X. Council, III
----------------------------------------------
Name: Xxxxxxx X. Council, III
Title: President
DIVERSICARE ASSISTED LIVING SERVICES, NC, LLC,
a Tennessee limited liability company
By: /s/ Xxxxxxx X. Council, III
----------------------------------------------
Name: Xxxxxxx X. Council, III
Title: President
DIVERSICARE ASSISTED LIVING
SERVICES NC I, LLC,
a Delaware limited liability company
By: /s/ Xxxxxxx X. Council, III
----------------------------------------------
Name: Xxxxxxx X. Council, III
Title: President
DIVERSICARE ASSISTED LIVING
SERVICES NC II, LLC,
a Delaware limited liability company
By: /s/ Xxxxxxx X. Council, III
---------------------------------------------
Name: Xxxxxxx X. Council, III
Title: President
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STERLING HEALTH CARE
MANAGEMENT, INC.,
a Kentucky corporation
By: /s/ Xxxxxxx X. Council, III
----------------------------------------------
Name: Xxxxxxx X. Council, III
Title: President
DIVERSICARE XXXXX XXXX, LLC,
a Delaware limited liability company
By: /s/ Xxxxxxx X. Council, III
----------------------------------------------
Name: Xxxxxxx X. Council, III
Title: President
DIVERSICARE GOOD SAMARITAN, LLC,
a Delaware limited liability company
By: /s/ Xxxxxxx X. Council, III
----------------------------------------------
Name: Xxxxxxx X. Council, III
Title: President
DIVERSICARE PINEDALE, LLC,
a Delaware limited liability company
By: /s/ Xxxxxxx X. Council, III
----------------------------------------------
Name: Xxxxxxx X. Council, III
Title: President
DIVERSICARE WINDSOR HOUSE, LLC,
a Delaware limited liability company
By: /s/ Xxxxxxx X. Council, III
----------------------------------------------
Name: Xxxxxxx X. Council, III
Title: President
GMAC COMMERCIAL MORTGAGE
CORPORATION, a California corporation
By:
-----------------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
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