EX-10.1






Exhibit 10.1




SEVENTH AMENDMENT TO CONSOLIDATED

AMENDED AND RESTATED MASTER LEASE




     This Seventh Amendment to Consolidated Amended and Restated Master Lease (this
“Amendment”) is executed and delivered as of October 24, 2008 by and between STERLING
ACQUISITION CORP., a Kentucky corporation (“Lessor”), the address of which is 9690 Deereco
Road, Suite 100, Timonium, MD 21093, and DIVERSICARE LEASING CORP., a Tennessee corporation, the
address of which is 1621 Galleria Boulevard, Brentwood, TN 37027.



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”), and
a Sixth Amendment to Consolidated Amended and Restated Master Lease dated as of March 14, 2008 (the
“Sixth Amendment”) (collectively, the “Existing Master Lease”) pursuant to which
Lessee leases from Lessor certain healthcare facilities.



     B. Lessee and Lessor desire to amend certain terms used and set forth in the Sixth Amendment
and to provide Lessor and Lessee with certain additional rights and options under the Sixth
Amendment with respect to the Paris Facility described therein.



     NOW THEREFORE, the parties agree as follows:



     1. Definitions. 



          (a) 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.




          (b) The following definitions defined in Section 1(b) of the Sixth Amendment are hereby
amended in their entirety and restated as follows:





     “Maximum Funded Amount” means Seven Million Nine Hundred Thirty-Four Thousand
Five Hundred Fifty-Five and No/100 Dollars ($7,934,555.00).




     “Paris Cash Flow”: For any period, the sum of (a) Net Income of Lessee arising
solely from the operation of the Paris Facility for the applicable period, and (b) the
amounts deducted in computing Lessee’s Net Income for the period for (i) the provision for
self-insured, professional and general liability, (ii) depreciation, (iii) amortization,
(iv)



 









 







Paris Base Rent, (v) interest (including payments in the nature of interest under
Capitalized Leases and interest on any Purchase Money Financing for personal property used
in connection with the Paris Facility), (vi) income taxes (or, if greater, income tax
actually paid during the period attributable to the Paris Facility), and (vii) management
fees payable in connection with the Paris Facility, and less (c) an imputed management fee
equal to five percent (5%) of Gross Revenues for the Paris Facility, and less (d) the Cash
Cost of Self-Insured Professional and General Liability attributable to the Paris Facility.
The Cash Cost of Self-Insured Professional and General Liability shall mean: For any
period, the average total per bed cash expenditure associated with professional and general
liability related settlements, judgments, legal fees or administration for skilled nursing
facilities in the State of Texas as from time to time estimated and published by Aon Risk
Consultants, or its successors, for the American Health Care Association, multiplied by the
average number of occupied beds in the Paris Facility.



          (c) The following new definitions are hereby added to Section 1(b) of the Sixth Amendment:





     “Initial Rent Coverage Determination Date” shall mean the date that is the
first day of the first calendar month immediately following the expiration of the first
eighteen (18) months after the In Service Date.




     “Rent Coverage Determination Date” shall mean and include the Initial Rent
Coverage Determination Date and the first day of each successive calendar month thereafter.



     2. Amendments to Certain Schedules Attached to the Sixth Amendment. Schedule 1,
Construction Budget, attached to the Sixth Amendment is amended in its entirety and replaced with
Schedule 1, Construction Budget, attached to this Amendment.



     3. Amendments to Certain provisions of Existing Master Lease. Section 2 of the Sixth
Amendment is hereby amended in its entirety and restated as follows:



     “2. Paris Base Rent; Rent Reset; Termination Options; a “Texas Facility”; Delay. 



          (a) Paris Base Rent Commencement Date. Commencing as of the Paris Base Rent
Commencement Date, Lessee shall pay the Paris Base Rent pursuant to the terms and conditions of
Article III of the Master Lease. Notwithstanding the commencement of payment of the Paris Base
Rent by Lessee, in the event that the construction of the Paris Facility has not been completed and
the Maximum Funded amount has not been advanced by the Paris Rent Commencement Date, Lessor shall
continue to make further advances of the Funded Amount, up to but not exceeding the Maximum Funded
Amount, on or after the Paris Base Rent Commencement Date in accordance with the terms of this
Amendment.




          (b) Paris Base Rent Reset. If Lessee has not elected to terminate the Master Lease as
to the Paris Facility pursuant to sub-section (c) below, and subject to sub-section (e), below, as
soon as reasonably possible after the fifth anniversary of the Paris Base Rent Commencement Date,
Lessor and Lessee shall calculate the Paris Formula Rent. If the Paris



2









 






Formula Rent is greater than the Paris Scheduled Rent, then the Paris Base Rent shall be reset
to the Paris Formula Rent effective as of the Paris Rent Reset Date.




          (c) Lessee’s Paris Termination Option. Subject to sub-section (e), below, pursuant to
written notice (“Lessee’s Paris Termination Notice”) delivered by Lessee to Lessor not more
than thirty (30) days prior to, nor later than, the fifth anniversary of the Paris Base Rent
Commencement Date (“Lessee’s Paris Termination Period”), Lessee may elect to terminate the
Master Lease as to the Paris Facility only. After delivery of the Paris Termination Notice, this
Lease shall be terminated as to the Paris Facility only, effective on the earlier of (i) a date set
by written notice given by Lessor at least thirty (30) days prior to the effective date, and (ii)
the first day of the sixth month after fifth anniversary of the Paris Base Rent Commencement Date
(the “Lessee Paris Termination Date”). If Lessee’s Paris Termination Notice is delivered,
then Lessee shall have no further obligation to pay Paris Base Rent for periods from and after the
Lessee Paris Termination Date.




          (d) Lessor’s Paris Termination Option. As soon as reasonably possible after the
Initial Rent Coverage Determination Date and, subject to sub-section (e), below, each subsequent
Rent Coverage Determination Date thereafter occurring up to but not later than the date that is
thirty (30) days prior to the commencement of Lessee’s Paris Termination Period, Lessor and Lessee
shall calculate the Paris Cash Flow for the six (6) month period ending immediately prior to such
Rent Coverage Determination Date. In the event that the average annual Paris Cash Flow as
determined, on a rolling basis, for the six (6) month period ending immediately prior to any such
Rent Coverage Determination Date is less than the Paris Base Rent multiplied by 1.2 (the
“Minimum Rent Coverage”), then Lessor may elect to terminate the Master Lease as to the
Paris Facility only. Such election shall be made by delivery of written notice (“Lessor’s
Paris Termination Notice”) to Lessee not more than thirty (30) days after the determination by
Lessor and Lessee of the Paris Cash Flow for the Rent Coverage Determination Date in question (but,
as to the final such Rent Coverage Determination Date, prior to the commencement of Lessee’s Paris
Termination Period). Upon delivery of Lessor’s Paris Termination Notice, the Master Lease shall be
terminated as to the Paris Facility only, effective on the earlier of (i) a date set by written
notice given by Lessor at least thirty (30) days prior to the effective date and (ii) the first day
of the sixth calendar month after the date of Lessor’s Paris Termination Notice (“Lessor’s
Paris Termination Date”). If Lessor’s Paris Termination Notice is delivered, then Lessee shall
have no further obligation to pay Paris Base Rent for periods from and after Lessor’s Paris
Termination Date.




          (e) Elimination of Termination by Lessee or Lessor and Rent Reset. If for any Rent
Coverage Determination Date occurring up to but not later than thirty (30) days prior to the
commencement of Lessee’s Paris Termination Period, the average annual Paris Cash Flow as
determined, on a rolling basis, for the six (6) month period ending immediately prior to such Rent
Coverage Determination Date is more than the Paris Base Rent multiplied by 1.3 (the “Maximum
Rent Coverage”) then: (i) the right of the Lessee to terminate the Master Lease as to the Paris
Facility provided for in sub-section (c), above, shall automatically terminate and be of no further
force and effect, (ii) the right of the Lessor to terminate the Master Lease provided for in
sub-section (d), above, shall automatically terminate and be of no further force and effect, and
(iii) the Paris Base Rent reset provisions set forth in sub-section (b), above, shall automatically
terminate and be of no further force and effect. In such event, Lessee shall not have the right to



3









 






elect to terminate the Master Lease on the fifth anniversary of the Paris Base Rent
Commencement Date as provided in sub-section (e), above, Lessor shall no longer have the right to
elect to terminate the Master Lease due to the failure of Lessee to achieve the Minimum Rent
Coverage as provided in sub-section (d), above, and there shall be no resetting of the Paris Base
Rent to the Paris Formula Rent after the fifth anniversary of the Paris Base Rent Commencement Date
as provided in sub-section (b), above. Thereafter, the defined terms “Paris Formula Rent” and
“Paris Rent Reset Date” and the provisions of sub-section (a)(4) of the defined term “Paris Base
Rent” regarding adjustment of the Paris Base Rent to the Paris Formula Rent shall have no further
force and effect and shall be deleted from Section 1 of the Sixth Amendment.




          (f) Texas Facility. For all purposes under this Lease other than the calculation of
Base Rent, the Paris Facility shall constitute a Texas Facility.




          (g) Delay. In the event that Lessee is unable to obtain completion of the Paris
Facility as described in Section 6(a) below by the Target Completion Date due to an Event of Force
Majeure or Lessor Delay, then the Target Completion Date and the Paris Base Rent Commencement Date
shall each be extended by one (1) day for each one (1) day of delay in the completion of the Paris
Facility caused by such Event of Force Majeure or Lessor Delay. For purposes of this Amendment,
the term “Lessor Delay” shall mean any delay in achieving completion of the Paris Facility as
described in Section 6(a) below arising solely and directly as a result of:




               (i) Lessor’s failure to furnish any information or documents in accordance with this Amendment
and the continuation of such failure after the receipt of written notice from Lessee to Lessor, to
the extent such failure causes a delay in completion;



               (ii) Lessor’s failure or delay in giving approval or consent (or comments or corrections)
where Lessor’s approval or consent (or comments or corrections), as applicable, is required herein
and has been requested in writing by Lessee, to the extent such failure or delay causes a delay in
completion; and



               (iii) Lessor’s failure to perform or comply with its obligations under this Amendment and the
continuation of such failure after the receipt of written notice from Lessee to Lessor, to the
extent such failure causes a delay.”



     4. 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.



     5. 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.



     6. Headings. Section headings used in this Amendment are for reference only and shall
not affect the construction of the Amendment.



4









 





     7. 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]




5









 





Signature Page to

SEVENTH AMENDMENT TO CONSOLIDATED

AMENDED AND RESTATED MASTER LEASE




	 	 	 	 	 
	 	LESSOR:



STERLING ACQUISITION CORP.,

a Kentucky corporation

 	 
	 	By:  	/s/ Taylor Pickett
 	 
	 	 	Name:  	Taylor Pickett 	 
	 	 	Title:  	Chief Executive Officer 	 
	 



	 	 	 
	STATE OF MARYLAND
	 	)
	 
	 	 
	COUNTY OF BALTIMORE
	 	)





This instrument was acknowledged before me on the ___ day of October, 2008, by Taylor Pickett,
the CEO of STERLING ACQUISITION CORP., a Kentucky corporation, on behalf of said company.




	 	 	 	 	 
	 	 	 
	 	
 	 
	 	Notary Public, Baltimore County, MD 	 
	 	My commission expires: 
	 
	 



Signature Page 1 of 2




 









 








Signature Page to

SEVENTH AMENDMENT TO CONSOLIDATED

AMENDED AND RESTATED MASTER LEASE




	 	 	 	 	 
	 	LESSEE:



DIVERSICARE LEASING CORP., 

a Tennessee corporation

 	 
	 	By:  	/s/ Glynn Riddle
 	 
	 	 	Name:  	Glynn Riddle 	 
	 	 	Title:  	EVP and CFO 	 
	 



	 	 	 
	STATE OF TENNESSEE
	 	)
	 
	 	 
	COUNTY OF WILLIAMSON
	 	)





This instrument was acknowledged before me on the ___ day of October, 2008, by Glynn Riddle, the
EVP & CFO of DIVERSICARE LEASING CORP., a Tennessee corporation, on behalf of said company




	 	 	 	 	 
	 	 	 
	 	
 	 
	 	Notary Public, Tenn. County, Williamson 	 
	 	My commission expires: 
	 
	 


 Signature Page 2 of 2




 









 







Acknowledgment to

SEVENTH AMENDMENT TO CONSOLIDATED

AMENDED AND RESTATED MASTER LEASE





     The undersigned hereby consent to the transactions contemplated by this Seventh 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/ Glynn Riddle
 	 
	 	 	Name:  	Glynn Riddle 	 
	 	 	Title:  	EVP & CFO 	 
	 



	 	 	 
	STATE OF TENNESSEE
	 	)
	 
	 	 
	COUNTY OF WILLIAMSON
	 	)





The foregoing instrument was acknowledged before me this ___ day of October, 2008, by Glynn
Riddle, 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.




	 	 	 	 	 
	 	 	 
	 	
 	 
	 	Notary Public, Tenn. County,  Williamson 	 
	 	My Commission Expires:

	 
	 



Acknowledgment Page 1 of 5




 









 








Acknowledgment to

SEVENTH AMENDMENT TO CONSOLIDATED

AMENDED AND RESTATED MASTER LEASE




	 	 	 	 	 
	 	DIVERSICARE MANAGEMENT SERVICES CO.,

a Tennessee corporation

 	 
	 	By:  	/s/ Glynn Riddle
 	 
	 	 	Name:  	Glynn Riddle 	 
	 	 	Title:  	EVP & CFO 	 
	 



	 	 	 
	STATE OF TENNESSEE
	 	)
	 
	 	 
	COUNTY OF WILLIAMSON
	 	)





The foregoing instrument was acknowledged before me this ___ day of October, 2008, by Glynn
Riddle, 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.




	 	 	 	 	 
	 	 	 
	 	 	 
	 	Notary Public, Tenn. County,  Williamson 	 
	 	My Commission Expires:

	 
	 



Acknowledgment Page 2 of 5





 









 








Acknowledgment to

SEVENTH AMENDMENT TO CONSOLIDATED

AMENDED AND RESTATED MASTER LEASE




	 	 	 	 	 
	 	ADVOCAT FINANCE INC., 

a Delaware corporation

 	 
	 	By:  	/s/ Glynn Riddle
 	 
	 	 	Name:  	Glynn Riddle 	 
	 	 	Title:  	EVP & CFO 	 
	 



	 	 	 
	STATE OF TENNESSEE
	 	)
	 
	 	 
	COUNTY OF WILLIAMSON
	 	)





The foregoing instrument was acknowledged before me this ___ day of October, 2008, by Glynn
Riddle, 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.




	 	 	 	 	 
	 	 	 
	 	
 	 
	 	Notary Public, Tenn. County,  Williamson 	 
	 	My Commission Expires:

	 
	 



Acknowledgment Page 3 of 5




 









 








Acknowledgment to

SEVENTH AMENDMENT TO CONSOLIDATED

AMENDED AND RESTATED MASTER LEASE




	 	 	 	 	 
	 	STERLING HEALTH CARE 

MANAGEMENT, INC., a Kentucky corporation

 	 
	 	By:  	/s/ Glynn Riddle
 	 
	 	 	Name:  	Glynn Riddle 	 
	 	 	Title:  	EVP & CFO 	 
	 



	 	 	 
	STATE OF TENNESSEE
	 	)
	 
	 	 
	COUNTY OF WILLIAMSON
	 	)





The foregoing instrument was acknowledged before me this ___ day of October, 2008, by Glynn
Riddle, 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.




	 	 	 	 	 
	 	 	 
	 	
 	 
	 	Notary Public, Tenn. County,  Williamson 	 
	 	My Commission Expires:

	 
	 



Acknowledgment Page 4 of 5




 









 








Acknowledgment to

SEVENTH AMENDMENT TO CONSOLIDATED

AMENDED AND RESTATED MASTER LEASE




	 	 	 	 	 
	 	DIVERSICARE TEXAS I, LLC

 	 
	 	By:  	/s/ Glynn Riddle
 	 
	 	 	Name:  	Glynn Riddle 	 
	 	 	Title:  	EVP & CFO 	 
	 



DIVERSICARE BALLINGER, 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/ Glynn Riddle
 	 
	 	 	Name:  	Glynn Riddle 	 
	 	 	Title:  	EVP & CFO 	 
	 



	 	 	 
	STATE OF TENNESSEE
	 	)
	 
	 	 
	COUNTY OF WILLIAMSON
	 	)





The foregoing instrument was acknowledged before me this ___ day of October, 2008, by Glynn
Riddle, who is EVP & CFO of DIVERSICARE TEXAS I, LLC, on behalf of itself and as the sole member of
each of DIVERSICARE BALLINGER, 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.




	 	 	 	 	 
	 	 	 
	 	
 	 
	 	Notary Public, Tenn. County,  Williamson 	 
	 	My Commission Expires:

	 
	 



Acknowledgment Page 5 of 5