EXHIBIT 10.9
FIFTH AMENDMENT TO LOAN AGREEMENT
This Fifth Amendment to Loan Agreement is made as of July 1, 2003, by
and between DIVERSICARE ASSISTED LIVING SERVICES NC II, LLC, a Delaware limited
liability company (together with its successors and assigns, the "Borrower"),
and GMAC COMMERCIAL MORTGAGE CORPORATION, a California corporation (together
with its successors and assigns, the "Lender").
RECITALS:
A. Borrower and the Lender entered that certain Loan Agreement dated
June 4, 1999, as amended by that certain First Amendment to Loan Agreement dated
as of July 1, 2002, as amended by that certain Second Amendment to Loan
Agreement dated as of October 1, 2002, as amended by that certain Third
Amendment to Loan Agreement dated as of January 1, 2003, and as further amended
by that certain Fourth Amendment to Loan Agreement dated as of June 18, 2003
(the "Agreement"). Unless otherwise defined in this Fifth Amendment, capitalized
terms shall have the meaning given to them in the Agreement.
B. The Borrower and the Lender desire to amend the Agreement and have
agreed to execute this Fifth Amendment to evidence such modification.
AGREEMENT
NOW, THEREFORE, in consideration of the above Recitals, the Borrower
and the Lender hereby amend the Agreement as follows:
1. Paragraph 1.1, "Maturity Date", is hereby amended by changing the
date to "June 30, 2004".
2. Article I, "Definitions", is hereby amended by adding the following
definitions:
"Cross-Collateralization and Cross-Default Agreement" shall mean that
certain Cross-Collateralization and Cross-Default Agreement dated as of June 18,
2003, by and Borrower, Xxxxx Xxxx, NC I, Pinedale, Windsor House and Lender.
"Xxxxx Xxxx" shall mean Diversicare Xxxxx Xxxx, LLC.
"Xxxxx Xxxx Facility" shall mean the facility known as "Xxxxx Xxxx
Nursing Center," presently a 169-licensed bed (162 available) skilled nursing
facility located on the Xxxxx Xxxx Property, as it may now or hereafter exist,
together with any other general or specialized
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care facilities, if any (including any Alzheimer's care unit, subacute, and any
facility), now or hereafter operated on the Xxxxx Xxxx Property.
"Xxxxx Xxxx Loan" means the loan in the principal sum of $3,750,000
made by Lender to Xxxxx Xxxx.
"Xxxxx Xxxx Mortgage" means that certain Mortgage and Security
Agreement from Xxxxx Xxxx in favor of or for the benefit of Lender and covering
the Xxxxx Xxxx Property.
"Xxxxx Xxxx Property" means the real estate located in Houston, Xxxxxx
County, Texas, which is more particularly described in Exhibit "A" to the Xxxxx
Xxxx Mortgage.
"Collective Borrowers" means, collectively, the Borrower, Xxxxx Xxxx,
NC I, Pinedale and Windsor House.
"Collective Facilities" means, collectively, the Facilities, Xxxxx Xxxx
Facility, the NC I Facilities, the Pinedale Facility and the Windsor House
Facility.
"Collective Loans" means, collectively, the Loan, the Xxxxx Xxxx Loan,
the NC I Loan, the Pinedale Loan and the Windsor House Loan.
"Collective Mortgage" means, collectively, the Mortgage, the Xxxxx Xxxx
Mortgage, the NC I Mortgage, the Pinedale Mortgage and the Windsor House
Mortgage.
"Collective Properties" means, collectively, the Property, the Xxxxx
Xxxx Property, the NC I Properties, the Pinedale Property and the Windsor House
Property.
"NC I" means Diversicare Assisted Living Services NC I, LLC.
"NC I Facilities" shall mean the six (6) adult care facilities located
on the NC I Properties described on Schedule A to the NC I Mortgages, as they
may now or hereafter exist, together with any other general or specialized care
facilities, if any (including any Alzheimer's care unit, subacute, and any
skilled care facilities), now or hereafter operated on the NC I Properties.
"NC I Loan" means the loan in the principal sum of $12,770,000 made by
Lender to NC I.
"NC I Mortgage" means collectively those certain Deeds of Trust and
Security Agreements from NC I in favor of or for the benefit of Lender and
covering the NC I Properties.
"NC I Properties" means the real estate located in North Carolina,
which are more particularly described in Exhibit "A" to the NC I Mortgages.
"Pinedale" shall mean Diversicare Pinedale, LLC.
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"Pinedale Facility" shall mean the facility known as "Pinedale Nursing
and Rehabilitation Center," presently a 130-bed licensed skilled nursing
facility located on the Pinedale Property, as it may now or hereafter exist,
together with any other general or specialized care facilities, if any
(including any Alzheimer's care unit, subacute, and any facility), now or
hereafter operated on the Pinedale Property.
"Pinedale Loan" means the loan in the principal sum of $2,913,000 made
by Lender to Pinedale.
"Pinedale Mortgage" means that certain Mortgage and Security Agreement
from Pinedale in favor of or for the benefit of Lender and covering the Pinedale
Property.
"Pinedale Property" means the real estate located in Newport, Xxxxxxx
County, Arkansas, which is more particularly described in Exhibit "A" to the
Pinedale Mortgage.
"Windsor House" shall mean Diversicare Windsor House, LLC.
"Windsor House Facility" shall mean the facility known as "Windsor
House," presently a 134-bed licensed facility (117-bed licensed skilled nursing,
17-bed licensed assisted living) located on the Windsor House Property, as it
may now or hereafter exist, together with any other general or specialized care
facilities, if any (including any Alzheimer's care unit, subacute, and any
facility), now or hereafter operated on the Windsor House Property.
"Windsor House Loan" means the loan in the principal sum of $4,709,000
made by Lender to Windsor House.
"Windsor House Mortgage" means that certain Mortgage and Security
Agreement from Xxxxx Xxxx in favor of or for the benefit of Lender and covering
the Windsor House Property.
"Windsor House Property" means the real estate located in Huntsville,
Madison County, Alabama, which is more particularly described in Exhibit "A" to
the Windsor House Mortgage.
3. Paragraph 4.12(a), "Debt Service Coverage Requirements", is hereby
amended by deleting subsections (i), (ii) and (iii) in their entirety and
replacing them with the following:
(i) commencing with the quarter ending June 30, 2003, a Debt Service
Coverage for the Facilities, in the aggregate, after deduction of Assumed
Management Fees, of not less than 1.0 to 1.0, to be tested quarterly based on
the operation of the Facilities for the prior twelve (12) months;
(ii) commencing with the quarter ending June 30, 2003, a Debt Service
Coverage for the Facilities, in the aggregate, after deduction of Actual
Management Fees, of not less than 1.0 to 1.0, to be tested quarterly based on
the operation of the Facilities for the prior twelve (12) months; and
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(iii) commencing with the quarter ending June 30, 2003, a Debt Service
Coverage for the Collective Facilities, combined, after deduction of Assumed
Management Fees, of not less than 1.15 to 1.0, to be tested quarterly based on
the combined operations of the Collective Facilities for the prior twelve (12)
months.
4. A new Paragraph 2.4, "Release of Collective Facilities", is hereby
added as follows:
2.4 Release of Collective Facilities.
(a) In the event of a refinancing of a Collective Loan or sale of any
one of the Collective Facilities to a third party unrelated to Borrower, or
Guarantor, and so long as no Default Event of Default has occurred and is
continuing, or will occur as a result of a requested release, any one of the
Collective Facilities may be released from the lien and security interest of the
Cross-Collateralization and Cross-Default Agreement if, after giving effect to
such release, the Collective Facilities remaining subject to the
Cross-Collateralization and Cross-Default Agreement would have a combined Debt
Service Coverage equal to 1.15 to 1.0 for the twelve (12) month testing period
immediately preceding such proposed release, after an Assumed Management Fee.
Additionally, the release of the Xxxxx Xxxx Facility, the Pinedale Facility and
the Windsor House Facility shall require payment in full of their respective
Loan.
(b) In the event of a sale of all of the Facilities or all of the NC I
Facilities to a third party unrelated to the Borrower or to Guarantor, so long
as no Default or Event of Default has occurred and is continuing, or will occur
as a result of a requested release, except for the bankruptcy of Advocat, all of
the Facilities or all of the NC I Facilities may nevertheless be released from
the lien and security interest of the Cross-Collateralization and Cross-Default
Agreement upon fulfillment of the following conditions: (i) subject to the
determination, review and approval by Lender in its sole discretion, the
difference in the amount to pay in full the Loan or the NC I Loan, as the case
may be, and the net sales proceeds to be paid pursuant to the sale (the
"Deficiency") is reallocated among the remaining outstanding Collective Loans;
(ii) after giving effect to such release, the Collective Facilities remaining
subject to the Cross-Collateralization and Cross-Default Agreement would have a
combined Debt Service Coverage equal to 1.15 to 1.0 for the 12-month testing
period immediately preceding such proposed release, after an Assumed Management
Fee based upon a reamortization of the Collective Loans on a twenty-five (25)
year basis, and (iii) the Collective Borrowers and Guarantors execute such
documents as Lender deems necessary to evidence and secure such reallocation of
the Deficiency.
(c) In the event the Borrower requests a release of a Facility or a NC
I Facility (as opposed to all Facilities or all NC I Facilities, as contemplated
in 2.4(b) above), the test required in Section 2.4(a) above shall be applicable,
as will the release condition contained in Section 2.3 of the Agreement;
provided, however, the test in Section 2.3 is hereby amended for releases
related to a sale of a Facility or an NC I Facility to a third party unrelated
to the Borrower or the Guarantor, or in the event of the damage, destruction or
condemnation of a Facility or an NC I Facility, by deleting the phrase "the
greater of (a) 1.25 to 1.0 or (b)", resulting in a release test in Section 2.3
of a combined Debt
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Service Coverage equal to the Debt Service Coverage for all Facilities
(including the to-be-released Facility) for the 12-month testing period
immediately preceding such proposed release. For purposes of a refinance of a
Facility or an NC I Facility, the test in Section 2.3 shall remain unchanged,
without the deletion referenced above.
(d) Any release pursuant to Sections 2.3, 2.4 (b) and 2.4 (c) shall be
conditioned upon Lender's receipt of all net proceeds from the sale, refinance
or damage, destruction or condemnation giving rise to the release provisions.
5. A new Paragraph 2.5, "Consent to Closure of Suttons Rest Home", is
hereby added as follows:
2.5 Consent to Closure of Suttons Rest Home. Lender hereby (i)
acknowledges that the Facility known as Suttons Rest Home is no longer being
operated by Borrower as an adult care facility and (ii) consents to closure by
Borrower of said Suttons Rest Home; provided, however, that the Property and
Facility on which said Suttons Rest Home is located shall continue to serve as
security for Borrower's Loan Obligations to Lender.
6. Forbearance.
Provided no additional Event of Default occurs and provided that the
Borrower is in compliance with the Debt Service Coverage Requirements set forth
in Paragraph 4.12, as amended herein, the Lender hereby agrees to forbear from
exercising any of its rights and remedies against the Borrower and the
Guarantors for a violation of Paragraph 4.13 of the Agreement relating to
certain occupancy requirements for the Facilities. This forbearance shall only
be in connection with the Borrower's non-compliance with Lender's occupancy
requirements set forth in Paragraph 4.13 of the Agreement and shall not apply to
any other provision of the Agreement.
Except as expressly amended hereby, the Agreement shall remain in full
force and effect in accordance with its terms.
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IN WITNESS WHEREOF, the Borrower and the Lender have caused this Fifth
Amendment to be properly executed by their respective duly authorized officers
as of the date first above written.
DIVERSICARE ASSISTED LIVING SERVICES NC II, LLC,
a Delaware limited liability company
By: Diversicare Assisted Living Services NC, LLC
Its: Sole Member
By: /s/ Xxxxxxx X. Council, III
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Name: Xxxxxxx X. Council, III
Title: Chief Executive Officer
GMAC COMMERCIAL MORTGAGE CORPORATION
By /s/ Xxxxx X. XxXxxxxx
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Its: Senior Vice President
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