EIGHTH AMENDMENT TO CONSOLIDATED AMENDED AND RESTATED MASTER LEASE
EIGHTH
AMENDMENT TO CONSOLIDATED
AMENDED
AND RESTATED MASTER LEASE
This
Eighth Amendment to Consolidated Amended and Restated Master Lease (this “Amendment”) is
executed and delivered as of March 31, 2009 by and between STERLING ACQUISITION
CORP., a Kentucky corporation (“Lessor”), the address
of which is 0000 Xxxxxxx Xxxx, Xxxxx 000, Xxxxxxxx, XX 00000, and DIVERSICARE
LEASING CORP., a Tennessee corporation, the address of which is 0000 Xxxxxxxx
Xxxxxxxxx, Xxxxxxxxx, XX 00000.
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”) and
a Seventh Amendment to Consolidated Amended and Restated Master Lease dated as
of October 24, 2008 (collectively, the “Existing Master
Lease”) pursuant to which Lessee leases from Lessor certain healthcare
facilities.
B. The
State of Arkansas has filed suit in the Circuit Court of Garland County,
Arkansas (the “Court”) to condemn
the real property described in Schedule 1 to this
Amendment (the “Condemned
Property”).
C. Pursuant
to a Consent Judgment among Lessee, Lessor and the State of Arkansas, Lessee and
Lessor have consented to such condemnation.
X. Xxxxxx
and Lessee desire to delete the Condemned Property from the definition of “Land”
in the Master Lease.
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. Condemned
Property. Effective upon the entry by the Court of the Consent
Judgment, Exhibit
A-9 to the Existing Master Lease is amended and restated in its entirety
by Exhibit A-9
to this Amendment such that the Condemned Property is deleted from the real
property defined as the “Land” in the Master Lease and is no longer covered by
the Master Lease.
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. 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.
5. Headings. Section
headings used in this Amendment are for reference only and shall not affect the
construction of the Amendment.
6. 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
EIGHTH
AMENDMENT TO CONSOLIDATED
AMENDED
AND RESTATED MASTER LEASE
LESSOR:
STERLING
ACQUISITION CORP.,
a
Kentucky corporation
By:/s/ Xxxxxx X.
Xxxxx
Name:
Xxxxxx X. Xxxxx
Title: Chief
Operating Officer
STATE OF
MARYLAND )
COUNTY OF
BALTIMORE )
This
instrument was acknowledged before me on the 24th day of March,
2009, by Xxxxxx Xxxxx, the COO of STERLING ACQUISITION CORP., a Kentucky
corporation, on behalf of said company.
Xxxxxx X.
Xxxxxx
Notary Public, Baltimore County,
MD
My commission expires: May
12, 2012
Signature
Page 1 of 2
Signature
Page to
EIGHTH
AMENDMENT TO CONSOLIDATED
AMENDED
AND RESTATED MASTER LEASE
LESSEE:
DIVERSICARE
LEASING CORP.,
a
Tennessee corporation
By:/s/ Xxxxx
Xxxxxx
Name: Xxxxx
Xxxxxx
Title: EVP
and CFO
STATE OF
TENNESSEE )
COUNTY OF
XXXXXXXXXX )
This
instrument was acknowledged before me on the 25th day of March, 2009, by Xxxxx
Xxxxxx, the EVP & CFO of DIVERSICARE LEASING CORP., a Tennessee corporation,
on behalf of said company
Xxxxxxxxxx X.
Xxxx
Notary Public, Tenn. County,
Xxxxxxxxxx
My commission expires:
1/24/2010
Signature
Page 2 of
2
Acknowledgment
to
EIGHTH
AMENDMENT TO CONSOLIDATED
AMENDED
AND RESTATED MASTER LEASE
The
undersigned hereby consent to the transactions contemplated by this Eighth
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/ Xxxxx
Xxxxxx
Name: Xxxxx
Xxxxxx
Title: EVP
& CFO
STATE OF
TENNESSEE )
COUNTY OF
XXXXXXXXXX )
The
foregoing instrument was acknowledged before me this 25th day of March, 2009, by Xxxxx
Xxxxxx, 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.
Xxxxxxxxxx X.
Xxxx
Notary
Public, Tenn. County, Xxxxxxxxxx
My
Commission Expires: 1/24/2010
Acknowledgment
Page 1 of 5
Acknowledgment
to
EIGHTH
AMENDMENT TO CONSOLIDATED
AMENDED
AND RESTATED MASTER LEASE
DIVERSICARE
MANAGEMENT SERVICES CO.,
a
Tennessee corporation
By: /s/ Xxxxx
Xxxxxx
Name: Xxxxx
Xxxxxx
Title: EVP
& CFO
STATE OF
TENNESSEE )
COUNTY OF
XXXXXXXXXX )
The
foregoing instrument was acknowledged before me this 25th day of March, 2009, by Xxxxx
Xxxxxx, 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.
Xxxxxxxxxx X.
Xxxx
Notary
Public, Tenn. County, Xxxxxxxxxx
My
Commission Expires: 1/24/2010
Acknowledgment
Page 2 of 5
Acknowledgment
to
EIGHTH
AMENDMENT TO CONSOLIDATED
AMENDED
AND RESTATED MASTER LEASE
ADVOCAT
FINANCE INC.,
a
Delaware corporation
By: /s/ Xxxxx
Xxxxxx
Name: Xxxxx
Xxxxxx
Title: EVP
& CFO
STATE OF
TENNESSEE )
COUNTY OF
XXXXXXXXXX )
The
foregoing instrument was acknowledged before me this 25th day of March, 2009, by Xxxxx
Xxxxxx, 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.
Xxxxxxxxxx X.
Xxxx
Notary
Public, Tenn. County, Xxxxxxxxxx
My
Commission Expires: 1/24/2010
Acknowledgment
Page 3 of 5
Acknowledgment
to
EIGHTH
AMENDMENT TO CONSOLIDATED
AMENDED
AND RESTATED MASTER LEASE
STERLING
HEALTH CARE
MANAGEMENT,
INC., a Kentucky corporation
By: /s/ Xxxxx
Xxxxxx
Name: Xxxxx
Xxxxxx
Title: EVP
& CFO
STATE OF
TENNESSEE )
COUNTY OF
XXXXXXXXXX )
The
foregoing instrument was acknowledged before me this 25th day of March,
2009, by Xxxxx Xxxxxx, 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.
Xxxxxxxxxx X.
Xxxx
Notary
Public, Tenn. County, Xxxxxxxxxx
My
Commission Expires: 1/24/2010
Acknowledgment
Page 4 of 5
Acknowledgment
to
EIGHTH
AMENDMENT TO CONSOLIDATED
AMENDED
AND RESTATED MASTER LEASE
DIVERSICARE
TEXAS I, LLC
By: /s/ Xxxxx
Xxxxxx
Name: Xxxxx
Xxxxxx
Title: EVP
& CFO
DIVERSICARE
XXXXXXXXX, 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/ Xxxxx
Xxxxxx
Name: Xxxxx
Xxxxxx
Title: EVP
& CFO
STATE OF
TENNESSEE )
COUNTY OF
XXXXXXXXXX )
The
foregoing instrument was acknowledged before me this 25th
day of March, 2009, by Xxxxx Xxxxxx, who is EVP & CFO of DIVERSICARE TEXAS
I, LLC, on behalf of itself and as the sole member of each of DIVERSICARE
XXXXXXXXX, 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.
Xxxxxxxxxx X.
Xxxx
Notary
Public, Tenn. County, Xxxxxxxxxx
My
Commission Expires: 1/24/2010
Acknowledgment
Page 5 of 5
Exhibit
and Schedules to
EIGHTH
AMENDMENT TO CONSOLIDATED
AMENDED
AND RESTATED MASTER LEASE
Schedule
1
Condemned
Property
Part of
the Northeast Quarter of the Northeast Quarter of Section 22, Township 3 South;
Range 19 West, Garland County, Arkansas, more particularly described as
follows:
Commencing
at a 2 inch pipe being used as the Northeast sixteenth corner of Section 22:
thence North 01° 24’
08” East along the West line of the Northeast Quarter of the Northeast Quarter
of Section 22 a distance of 517.69 feet to a point on the Northwesterly
prescriptive right of way line of Arkansas State Highway 128 as established by
Affidavit from AHTD dated December 15, 2004; thence in a Northeasterly direction
along said right of way line on a curve to the right having a radius of 425.84
feet a distance of 4.26 feet having a chord bearing of North 62° 38’ 50” East a distance of
4.26 feet to a point; thence North 62° 56’ 01” East along said
right of way line a distance of 109.43 feet to a point; thence North 64° 00’ 24” East along said
right of way line a distance of 298.50 feet to a point on the Northwesterly
right of way line of Arkansas State Highway 128 as established by AHTD Job
061137 for the POINT OF BEGINNING; thence North 10° 56' 53" East along said
right of way line a distance of 49.99 feet to a point; thence North 66° 27' 15" East along said
right of way line a distance of 240.21 feet to a point; thence South 65° 51' 16" East along said
right of way line a distance of 38.96 feet to a point on the Northwesterly
prescriptive right of way line of Arkansas State Highway 128 as established by
Affidavit from AHTD dated December 15, 2004; thence South 64° 10' 43" West along said
right of way line a distance of 68.93 feet to a point; thence South 64° 00' 24" West along said
right of way line a distance of 226.07 feet to the point of beginning and
containing 0.21 acres more or less as shown on plans prepared by the AHTD
referenced as Job 061137.
End of
Description
Schedule
1 – Page 1 of 1
Exhibit
and Schedules to
EIGHTH
AMENDMENT TO CONSOLIDATED
AMENDED
AND RESTATED MASTER LEASE
EXHIBIT
A-9
DESCRIPION
OF LAND
Name of
Facility:
Garland Nursing and Rehabilitation Center
Facility
Address:
000 Xxxxxxxxx Xxx Xxxx
Xxx Xxxxxxx, Xxxxxxxx
00000
Name of
Facility: Garland
Village Apartments
Facility
Address: 000
Xxxxxxxxx Xxx Xxxx
Xxx Xxxxxxx, Xxxxxxxx
00000
Legal
Description:
Garland Nursing and
Rehabilitation Center
A part of
the NE ¼ NE ¼ of Section 00, Xxxxxxxx 0 Xxxxx, Xxxxx 19 West, Garland County,
Arkansas, and more particularly described as follows: Commence at the Northwest
corner of the said NE ¼ NE ¼ of Section 22; thence South along the West line of
said NE ¼ NE ¼ a distance of 281 feet to the point of beginning; thence East 402
feet; thence South 295 feet to the North right-of-way of Xxxxx Xxxxxxx Xx. 000;
thence South 63 degrees 25 minutes West along said right-of-way 450 feet to the
West line of said NE ¼ NE ¼; thence North 500 feet to the point of beginning.
LESS AND EXCEPT the following three tracts of land:
Tract
A: Begin at the Northwest corner of the said NE ¼ NE ¼; thence East
along the North line thereof a distance of 1,231.5 feet to the West right-of-way
line of State Highway No. 128, which is the point of beginning; thence West 10
feet; thence Southwesterly along a line which is parallel to and Northwesterly a
distance of 10 feet from said West right-of-way line of Xxxxx Xxxxxxx Xx. 000,
as presently located, a distance of 1,515 feet, more or less, to a point on the
West line of the said NE ¼ NE ¼ which is 10 feet more or less from said West
right-of-way line; thence South along the West line of said NE ¼ NE ¼ to the
West right-of-way line; thence Northeasterly along said West right-of-way line a
distance of 1,545.50 feet to the point of beginning; being a strip of ground 10
feet wide and adjacent to the West right-of-way of Sate Highway No. 128 (also
known as Xxxxxxxxx Dam Road) which is the Southeasterly 10 feet of the total
tract of real property described in Deeds appearing in Deed Book 919 at Pages
42, 43, 45, 46, 47, 231 and 232, all in the records of the Circuit Clerk and
Ex-Officio Recorder of Garland County, Arkansas.
Tract
B: Commence at the Northwest corner of the said NE ¼ NE ¼; thence
South along the West line of said NE ¼ NE ¼ a distance of 281.0 feet; thence
East 300 feet to the point of beginning; thence continue East 102 feet; thence
South 211.69 feet; thence South 62 degrees 23 minutes West 31.76 feet; thence
North 27 degrees 52 minutes West 158.0 feet; thence North 86.76 feet to the
point of beginning.
TRACT NO.
C
Part of
the Northeast Quarter of the Northeast Quarter of Section 22, Township 3 South;
Range 19 West, Garland County, Arkansas, more particularly described as
follows:
Commencing
at a 2 inch pipe being used as the Northeast sixteenth corner of Section 22:
thence North 01° 24’
08” East along the West line of the Northeast Quarter of the Northeast Quarter
of Section 22 a distance of 517.69 feet to a point on the Northwesterly
prescriptive right of way line of Arkansas State Highway 128 as established by
Affidavit from AHTD dated December 15, 2004; thence in a Northeasterly direction
along said right of way line on a curve to the right having a radius of 425.84
feet a distance of 4.26 feet having a chord bearing of North 62° 38’ 50” East a distance of
4.26 feet to a point; thence North 62° 56’ 01” East along said
right of way line a distance of 109.43 feet to a point; thence North 64° 00’ 24” East along said
right of way line a distance of 298.50 feet to a point on the Northwesterly
right of way line of Arkansas State Highway 128 as established by AHTD Job
061137 for the POINT OF BEGINNING; thence North 10° 56' 53" East along said
right of way line a distance of 49.99 feet to a point; thence North 66° 27' 15" East along said
right of way line a distance of 240.21 feet to a point; thence South 65° 51' 16" East along said
right of way line a distance of 38.96 feet to a point on the Northwesterly
prescriptive right of way line of Arkansas State Highway 128 as established by
Affidavit from AHTD dated December 15, 2004; thence South 64° 10' 43" West along said
right of way line a distance of 68.93 feet to a point; thence South 64° 00' 24" West along said
right of way line a distance of 226.07 feet to the point of beginning and
containing 0.21 acres more or less as shown on plans prepared by the AHTD
referenced as Job 061137.
Garland Village
Apartments
A part of
the NE ¼ NE ¼ of Section 00, Xxxxxxxx 0 Xxxxx, Xxxxx 19 West, Garland County,
Arkansas, and more particularly described as follows:
Commence
at the Northwest corner of the said NE ¼ NE ¼ of Section 22; thence South 281.0
feet; thence East 300.0 feet to the point of beginning; thence North 15 feet;
thence East 218 feet; thence South 166 feet; thence South 62 degrees 23 minutes
West 162.69 feet; thence North 27 degrees 52 minutes West 158.0 feet; thence
North 86.74 feet to the point of beginning.
All being
the same property conveyed to Omega Healthcare Investors, Inc. by Warranty Deed
from Diversicare Corporation of America – Arkansas recorded in Record Book 1452,
Page 735, Circuit Clerk and Ex-Officio Recorder, Garland County, Arkansas; and
further conveyed to Sterling Acquisition Corp., a Kentucky corporation, by
General Warranty Deed recorded in Book 2005, Pages 932-935 in the Office of the
Circuit Clerk and Ex-Officio Recorder, Garland County, Arkansas; provided that
Tract C above was conveyed to the State of Arkansas pursuant to a Consent
Judgment entered in the Circuit Court for the County of Garland, State of
Arkansas, and recorded in Book ____, Page ___ in the Office of the Circuit Clerk
and Ex-Officio Recorder, Garland County, Arkansas.
