EXHIBIT 10.1
FOURTH AMENDMENT TO MASTER AMENDMENT TO LOAN DOCUMENTS
AND AGREEMENT
THIS FOURTH AMENDMENT TO MASTER AMENDMENT TO LOAN DOCUMENTS AND
AGREEMENT ("Amendment") is made and entered into as of the 10th day of May, 2004
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 Documents and Agreement
executed by the parties to be effective as of December 15, 2002, and as further
amended by that Third Amendment to Master Amendment to Loan Documents and
Agreement dated August 2, 2003, to be effective July 11, 2003, 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, the Loan Documents defined in the Master Amendment include the
"Master Credit and Security Agreement" (as defined in the Master Amendment) and
the "Loan and Negative Pledge Agreement" (as defined in the Master Amendment);
and
WHEREAS, DCMS, one of the "Debtors" under the Master Amendment, is one
of the "Subsidiaries," "Guarantors" and "Pledgors" under the Master Credit and
Security Agreement, and is one of the Guarantors under the Loan and Negative
Pledge Agreement; and
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WHEREAS, DCMS has executed and delivered certain guaranty and
suretyship agreements in connection with the Indebtedness and DLC has executed
and delivered its stock pledge and security agreement of 100% of the stock of
DCMS, a wholly owned subsidiary of DLC, as collateral security for payment and
performance of the Indebtedness; and
WHEREAS, pursuant to the terms of a Share Purchase Agreement dated as
of August 25, 2003, and executed by DCMS, DLC, Advocat and DCMS Holdings, Inc.,
(the "Purchase Agreement") DLC is selling its stock in DCMS to DCMS Holdings,
Inc.; and
WHEREAS, in accordance with the terms of the Purchase Agreement, DCMS
Holdings, Inc. will execute a Promissory Note to DLC and a Securities Pledge
Agreement to finance a portion of the stock purchase (the "Promissory Note");
and
WHEREAS, in consideration of the agreement of DLC to assign the
Promissory Note, the Securities Pledge Agreement and the Purchased Shares, as
defined in the Purchase Agreement, to AmSouth and DLC's payment to AmSouth
toward the principal sums due under the notes evidencing the Indebtedness, as
set forth herein, AmSouth has agreed to release DCMS from its guaranty
obligations with respect to the payment and performance of the Indebtedness and
to release its lien and security interest in and to the stock and assets of DCMS
heretofore held by AmSouth as collateral security for the Indebtedness; and
WHEREAS, in connection with the release of DCMS as a guarantor of the
Indebtedness, the parties hereto have agreed that DCMS should be removed as a
"Debtor" under the Master Amendment and as a "Guarantor" "Pledgor" and/or
"Subsidiary" under the Master Credit Agreement, the Loan and Negative Pledge
Agreement and any of the other Loan Documents.
NOW, THEREFORE, for and in consideration of the foregoing recitals, and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged by the parties hereto, the parties hereby agree as follows:
1. Upon closing of the stock purchase as contemplated by the
Purchase Agreement (the "Closing") and the delivery of the executed Assignment
of Promissory Note, Securities Pledge Agreement and Purchased Shares and
Security Agreement, and all documents itemized therein, executed by AmSouth and
DLC (the "Note Assignment"), which Assignment shall be duly registered with the
proper Canadian filing authority to AmSouth, Debtors shall pay to AmSouth all of
the Net Proceeds from the transaction. ("Net Proceeds" is defined as all cash
proceeds received by DLC, less taxes, expenses and commissions on sale.)
2. Upon Closing and the delivery of the executed Note and Note
Assignment to AmSouth, DCMS is hereby discharged and released from, and shall no
longer be bound by nor the subject of, the obligations, representations,
covenants and agreements relating to the parties identified as Debtors,
Guarantors, Pledgors or Subsidiaries under the Master Amendment, the Master
Credit and Security Agreement, the Loan and Negative Pledge Agreement, or any of
the other Loan Documents, as applicable. From and after the date hereof, the
terms "Debtor," "Guarantor," "Pledgor," or "Subsidiary," or the plural thereof,
when and as used in the Master Amendment, the Master Credit Agreement, the Loan
and Negative Pledge Agreement, or any of the other Loan Documents, shall not be
deemed to mean, include or refer to DCMS.
3. The Debtors (other than DCMS) hereby ratify and restate all of
the covenants, warranties and representations contained in the Loan Documents,
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.
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4. The Master Amendment, Master Credit and Security Agreement,
Loan and Negative Pledge Agreement, 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.
5. All terms capitalized herein, but not specially defined
herein, are intended to have the meanings ascribed to them in the Master
Amendment, unless the context clearly indicates otherwise.
6. GMAC has executed this Amendment for purposes of consenting to
the terms hereof and for consenting to the release of the DCMS stock by AmSouth.
7. This Amendment shall be binding upon, and shall inure to the
benefit of, the parties hereto and their respective successors and assigns.
8. This document may be executed in multiple counterparts, each
of which shall be deemed an original, and all of which shall constitute on and
the same instrument. Signatures to this document may be transmitted by facsimile
or telecopy and such signatures shall be valid and effective to bind the party
so signing, it being expressly agreed that each party shall be bound by its own
facsimile or telecopied signature and shall accept the facsimile or telecopied
signature of the other party or parties to this document.
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment as
of the date first above written.
AMSOUTH BANK, successor in interest by
merger to First American National Bank
By: /s/ Xxx XxXxxxxx
------------------------------------
Xxx XxXxxxxx, 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
DIVERSICARE CANADA MANAGEMENT SERVICES
CO., INC., an Ontario, Canada
corporation
By: /s/ Xxxxxxx X. Council III
------------------------------------
Name: Xxxxxxx X. Council III
Title: Chief Executive Officer
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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
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
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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
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
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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: /s/ Xxxxx X. XxXxxxxx
------------------------------------
Name: Xxxxx X. XxXxxxxx
Title: Senior Vice President
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