FIRST AMENDMENT TO LOAN AGREEMENT
Exhibit 10.61
FIRST AMENDMENT TO LOAN AGREEMENT
This First Amendment to Loan Agreement (this “First Amendment”) is effective as of the 23rd day of
December, 2008, by and between DIVERSICARE XXXXX XXXX, LLC, a Delaware limited liability company
(the “Xxxxx Xxxx Borrower”), DIVERSICARE BRIARCLIFF, LLC, a Delaware limited liability company (the
“Briarcliff Borrower”), DIVERSICARE XXXXXXX, LLC, a Delaware limited liability company (the
“Xxxxxxx Borrower”), DIVERSICARE HARTFORD, LLC, a Delaware limited liability company (the “Hartford
Borrower”), DIVERSICARE HILLCREST, LLC, a Delaware limited liability company (the “Hillcrest
Borrower”), DIVERSICARE PINEDALE, LLC, a Delaware limited liability company (the “Newport
Borrower”) and DIVERSICARE WINDSOR HOUSE, LLC, a Delaware limited liability company (the “Windsor
Borrower”; the Xxxxx Xxxx Borrower, the Briarcliff Borrower, the Xxxxxxx Borrower, the Hartford
Borrower, the Hillcrest Borrower, the Newport Borrower and the Windsor Borrower, together with
their successors and/or assigns, may be referred to collectively herein as the “Borrowers” or
individually as a “Borrower”), and CAPMARK FINANCE INC., a California corporation (together with
its successors and assigns, the “Lender”).
Recitals
A. The Borrowers and the Lender executed that certain Loan Agreement dated August 7, 2006 (the
“Loan Agreement”; capitalized terms not further defined herein shall have the meaning assigned to
them in the Loan Agreement) governing a loan in the original principal amount of $30,625,000.00
(the “Loan”).
B. The Borrowers have requested that the Lender modify certain provisions of the Loan Agreement.
The Lender has agreed to such requests on certain conditions, one of which is the execution of this
Amendment by the Borrowers.
Agreement
NOW, THEREFORE, in consideration of the Recitals, the Borrower and the Lender hereby amend the
Loan Agreement as follows:
1. Section 4.15 of the Loan Agreement is hereby deleted in its entirety and replaced with the
following:
“4.15 Occupancy. Beginning with the quarter ending December 31, 2008, maintain or
cause to be maintained at all times, a daily average annual combined occupancy for the
Facilities, as tested quarterly (on the basis of a calendar year), of eighty percent (80%)
or more (based on the number of available beds at the Facilities). Notwithstanding anything
in the preceding sentence to the contrary, if the daily average annual combined occupancy
for the Facilities, as tested quarterly (on the basis of a calendar year), drops below
eighty-percent (80%) or more (based on the number of available beds at the Facilities),
commencing with the quarter ending December 31, 2008, the Lender shall not declare an Event
of Default so long as the daily average annual combined occupancy for the Facilities, as
tested quarterly (on the basis of a calendar year), is seventy-five percent (75%) or more
(based on the number of available beds at the Facilities) and the Combined Debt Service
Coverage for the Facilities, after deduction
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of Assumed Management Fees and Actual Cost of Professional and General Liability and before
the provision (benefit) for self-insured professional and general liability to the extent
deducted in determining net income, based on a rolling twelve (12) month period, tested
quarterly, is not less than 1.4 to 1.0. For purposes of this Section 4.15, the minimum
number of available beds at the Facilities must remain at or in excess of the number of beds
set forth on Schedule 4.15 herein.”
2. Borrowers shall be prohibited from altering the number of licensed beds as set forth in Article
I of the Loan Agreement or available beds as set forth on Schedule 4.15 herein without the prior
written consent of Lender in its sole discretion.
Except as expressly amended hereby, all other terms and conditions of the Loan Agreement shall
remain unchanged and shall continue in full force and effect.
The Borrower represents that (a) no Event of Default has occurred that is continuing on the
date hereof; and (b) the representations and warranties included in Article III of the Loan
Agreement are as true and correct on the date hereof as when originally made, except as such
representation or warranty expressly relates to an earlier date.
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IN WITNESS WHEREOF, the Borrower and the Lender have caused this First Amendment to be
executed by their duly authorized respective representatives as of the date set forth above.
| WITNESSES: | BORROWER: | |||||||||
| DIVERSICARE XXXXX XXXX, LLC, a | ||||||||||
| Delaware limited liability company | ||||||||||
/s/ Xxxxxxxxxx Xxxx
|
||||||||||
| By: | Diversicare Leasing Corp., a | |||||||||
| Xxxxxxxxxx Xxxx | Tennessee corporation, its sole | |||||||||
| [Print Name] | member | |||||||||
| By: | /s/ L. Xxxxx Xxxxxx | |||||||||
| L. Xxxxx Xxxxxx, | ||||||||||
| its Chief Financial Officer | ||||||||||
| DIVERSICARE BRIARCLIFF, LLC, a | ||||||||||
| Delaware limited liability company | ||||||||||
/s/ Xxxxxxxxxx Xxxx
|
||||||||||
| By: | Diversicare Leasing Corp., a | |||||||||
| Xxxxxxxxxx Xxxx | Tennessee corporation, its sole | |||||||||
| [Print Name] | member | |||||||||
| By: | /s/ L. Xxxxx Xxxxxx | |||||||||
| L. Xxxxx Xxxxxx, | ||||||||||
| its Chief Financial Officer | ||||||||||
| DIVERSICARE XXXXXXX, LLC, a | ||||||||||
| Delaware limited liability company | ||||||||||
/s/ Xxxxxxxxxx Xxxx
|
||||||||||
| By: | Diversicare Leasing Corp., a | |||||||||
| Xxxxxxxxxx Xxxx | Tennessee corporation, its sole | |||||||||
| [Print Name] | member | |||||||||
| By: | /s/ L. Xxxxx Xxxxxx | |||||||||
| L. Xxxxx Xxxxxx, | ||||||||||
| its Chief Financial Officer | ||||||||||
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| DIVERSICARE HARTFORD, LLC, a | ||||||||||
| Delaware limited liability company | ||||||||||
/s/ Xxxxxxxxxx Xxxx
|
||||||||||
| By: | Diversicare Leasing Corp., a | |||||||||
| Xxxxxxxxxx Xxxx | Tennessee corporation, its sole | |||||||||
| [Print Name] | member | |||||||||
| By: | /s/ L. Xxxxx Xxxxxx | |||||||||
| L. Xxxxx Xxxxxx, | ||||||||||
| its Chief Financial Officer | ||||||||||
| DIVERSICARE HILLCREST, LLC, a | ||||||||||
| Delaware limited liability company | ||||||||||
/s/ Xxxxxxxxxx Xxxx
|
||||||||||
| By: | Diversicare Leasing Corp., a | |||||||||
| Xxxxxxxxxx Xxxx | Tennessee corporation, its sole | |||||||||
| [Print Name] | member | |||||||||
| By: | /s/ L. Xxxxx Xxxxxx | |||||||||
| L. Xxxxx Xxxxxx, | ||||||||||
| its Chief Financial Officer | ||||||||||
| DIVERSICARE PINEDALE, LLC, a | ||||||||||
| Delaware limited liability company | ||||||||||
/s/ Xxxxxxxxxx Xxxx
|
||||||||||
| By: | Diversicare Leasing Corp., a | |||||||||
| Xxxxxxxxxx Xxxx | Tennessee corporation, its sole | |||||||||
| [Print Name] | member | |||||||||
| By: | /s/ L. Xxxxx Xxxxxx | |||||||||
| L. Xxxxx Xxxxxx, | ||||||||||
| its Chief Financial Officer | ||||||||||
| DIVERSICARE WINDSOR HOUSE, | ||||||||||
| LLC, a Delaware limited liability company | ||||||||||
/s/ Xxxxxxxxxx Xxxx
|
||||||||||
| By: | Diversicare Leasing Corp., a | |||||||||
| Xxxxxxxxxx Xxxx | Tennessee corporation, its sole | |||||||||
| [Print Name] | member | |||||||||
| By: | /s/ L. Xxxxx Xxxxxx | |||||||||
| L. Xxxxx Xxxxxx, | ||||||||||
| its Chief Financial Officer | ||||||||||
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| LENDER: CAPMARK FINANCE INC., a California corporation |
||||
| /s/ Xxxxx X. XxXxxxxx | ||||
| By: | Xxxxx X. XxXxxxxx | |||
| Its: | Senior Vice Presiden | |||
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