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Restructuring Agreement
Restructuring Agreement (50K)
Doc #115782: Click preview link for longer preview.
RESTRUCTURING AGREEMENT
(RSVP HOLDINGS)
THIS RESTRUCTURING AGREEMENT (this "Agreement"), is dated as of April
29, 2003, by and among RSVP Holdings, LLC, a Delaware limited liability company
("Holdings"), RSI Fund Management LLC, a Delaware limited liability company
("RSI Management"), New World Realty, LLC, a Delaware limited liability company
("NW"), New World Realty Management, LLC, a Delaware limited liability company
("NWM"), Reckson Asset Partners, LLC, a Delaware limited liability company
("RAP"), Reckson Strategic Venture Partners, LLC, a Delaware limited liability
company ("RSVP") and Frontline Capital Group, a Delaware corporation
("Frontline").
RECITALS
A. Holdings was formed as a limited liability company under the
Delaware Limited Liability Company Act on February 26, 1998;
B. RSI Management and NW entered into the Limited Liability Company
Agreement of Holdings, dated as of February 26, 1998 (the "LLC Agreement");
C. Paine Webber Real Estate Securities, LLC, Stratum Realty Fund, L.P.
and Holdings entered into the Limited Liability Company Agreement of RSVP dated
as of March 5, 1998 (the "RSVP LLC Agreement");
D. ROP and RSVP entered into the Limited Liability Company Agreement of
RAP, dated as of March 5, 1998 (the "RAP LLC Agreement");
E. The only members in Holdings as of the date of this Agreement are
RSI Management and NW, although RSVP Management Partners, LLC has a subordinated
financial interest in Holdings;
F. Concurrently on the date hereof, the UBS Restructuring Agreement has
been entered into to effectuate, among other things, the purchase of the Class A
membership interests of RSVP by Holdings; and
G. The parties to this Agreement have agreed to restructure certain
agreements with respect to Holdings, RAP and RSVP and the rights and obligations
of the members in connection therewith, as more particularly set forth herein,
which shall provide, among other things, that NWM shall be appointed as the
asset manager of the assets and investments of RSVP and RAP in the Platforms and
RSI Management shall be appointed as sole managing member of Holdings, that the
existing Class A membership interests in RSVP shall be purchased and
subsequently retired on the Effective Date, and the RSVP LLC Agreement shall,
and the RAP LLC Agreement may, be amended and restated to give effect to the
transactions contemplated by this Agreement and the other Related Documents. The
LLC Agreement shall be amended and restated to, among other things, be
consistent with the foregoing.
115782
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FrontLine
As referenced in this Restructuring Agreement:
Frontline Capital Group, – NWM"), Reckson Asset Partners, LLC, a Delaware limited liability company
("RAP"), Reckson Strategic Venture Partners, LLC, a Delaware limited liability
company ("RSVP") and Frontline Capital Group, a Delaware corporation
("Frontline").
RECITALS
A. Holdings was formed as a limited liability company under the
Delaware Limited Liability Company Act on
_____________
Frontline Capital Group, – Committee Member and not individually
Address for Notices:
225 Broadhollow Road
Melville, NY 11747-0983
Attention: Scott Rechler
RSI FUND MANAGEMENT LLC
BY: Frontline Capital Group, its Member
By:
----------------------------------
Name: Scott Rechler
Title: Chief Executive Officer
Address for Notices:
225 Broadhollow Road
Melville, NY 11747-0983
Attention: Scott
_____________
FRONTLINE CAPITAL GROUP
– H. Shepsman, as a Management
Committee member and not individually
Address for Notices:
225 Broadhollow Road
Melville, NY 11747-0983
Attention: Scott Rechler
FRONTLINE CAPITAL GROUP
By:
--------------------------------
Name: Scott Rechler
Title: Chief Executive Officer
Address for Notices:
225 Broadhollow Road
Melville, NY 11747-0983
Attention: Scott Rechler
{PAGE}
_____________
Frontline Capital Group – RSVP As defined in the preamble to this Agreement.
--------------------------------------------------------------------------------
{PAGE}
--------------------------------------------------------------------------------
SBL Seth B. Lipsay.
--------------------------------------------------------------------------------
SHS Steven H. Shepsman.
--------------------------------------------------------------------------------
Tax Loans The loans by Frontline Capital Group (f/k/a Reckson
Service Industries, Inc.) to each of SBL and SHS
pursuant to Section 8 of those certain Restricted
Stock
_____________
dt 236468
;
FrontLine
As referenced in this Restructuring Agreement:
Frontline Capital Group, – NWM"), Reckson Asset Partners, LLC, a Delaware limited liability company
("RAP"), Reckson Strategic Venture Partners, LLC, a Delaware limited liability
company ("RSVP") and Frontline Capital Group, a Delaware corporation
("Frontline").
RECITALS
A. Holdings was formed as a limited liability company under the
Delaware Limited Liability Company Act on
_____________
Frontline Capital Group, – Committee Member and not individually
Address for Notices:
225 Broadhollow Road
Melville, NY 11747-0983
Attention: Scott Rechler
RSI FUND MANAGEMENT LLC
BY: Frontline Capital Group, its Member
By:
----------------------------------
Name: Scott Rechler
Title: Chief Executive Officer
Address for Notices:
225 Broadhollow Road
Melville, NY 11747-0983
Attention: Scott
_____________
FRONTLINE CAPITAL GROUP
– H. Shepsman, as a Management
Committee member and not individually
Address for Notices:
225 Broadhollow Road
Melville, NY 11747-0983
Attention: Scott Rechler
FRONTLINE CAPITAL GROUP
By:
--------------------------------
Name: Scott Rechler
Title: Chief Executive Officer
Address for Notices:
225 Broadhollow Road
Melville, NY 11747-0983
Attention: Scott Rechler
{PAGE}
_____________
Frontline Capital Group – RSVP As defined in the preamble to this Agreement.
--------------------------------------------------------------------------------
{PAGE}
--------------------------------------------------------------------------------
SBL Seth B. Lipsay.
--------------------------------------------------------------------------------
SHS Steven H. Shepsman.
--------------------------------------------------------------------------------
Tax Loans The loans by Frontline Capital Group (f/k/a Reckson
Service Industries, Inc.) to each of SBL and SHS
pursuant to Section 8 of those certain Restricted
Stock
_____________
dt 236468
;
Reckson
As referenced in this Restructuring Agreement:
Reckson Associates Realty – Lipsay, Steven
H. Shepsman and New World Realty, LLC.
9. Letter Agreement regarding RSVP Holdings, LLC, dated February 26, 1998,
by and among Reckson Associates Realty Corp., Reckson Operating
Partnership, L.P., Seth B. Lipsay, Steven H. Shepsman, New World
Realty, LLC and RSI Fund Management LLC.
{PAGE}
Exhibit
_____________
dt 109826
;
|
RSI
As referenced in this Restructuring Agreement:
Reckson
Service Industries, Inc – to this Agreement.
--------------------------------------------------------------------------------
{PAGE}
--------------------------------------------------------------------------------
SBL Seth B. Lipsay.
--------------------------------------------------------------------------------
SHS Steven H. Shepsman.
--------------------------------------------------------------------------------
Tax Loans The loans by Frontline Capital Group (f/k/a Reckson
Service Industries, Inc .) to each of SBL and SHS
pursuant to Section 8 of those certain Restricted
Stock Grant, Pledge and Loan Agreements, each dated
_____________
dt 363177
;
RSI
As referenced in this Restructuring Agreement:
Reckson
Service Industries, Inc – to this Agreement.
--------------------------------------------------------------------------------
{PAGE}
--------------------------------------------------------------------------------
SBL Seth B. Lipsay.
--------------------------------------------------------------------------------
SHS Steven H. Shepsman.
--------------------------------------------------------------------------------
Tax Loans The loans by Frontline Capital Group (f/k/a Reckson
Service Industries, Inc .) to each of SBL and SHS
pursuant to Section 8 of those certain Restricted
Stock Grant, Pledge and Loan Agreements, each dated
_____________
dt 363177
;
 Paul Hastings
As referenced in this Restructuring Agreement:
Paul, Hastings – however, it being understood that the Indemnifying
Party shall not object to the use of Paul, Hastings , Janofsky &
Walker, LLP, unless Paul, Hastings, Janofsky & Walker, LLP has a
conflict-of-interest.
Paul, Hastings – Indemnifying
Party shall not object to the use of Paul, Hastings, Janofsky &
Walker, LLP, unless Paul, Hastings , Janofsky & Walker, LLP has a
conflict-of-interest.
9
{PAGE}
(iv) If the Indemnifying
Paul, Hastings – Road
Suite 612
Great Neck, NY 11021
And in all cases, with a copy to:
Paul, Hastings , Janofsky & Walker LLP
75 East 55th Street
New York, NY 10022
Attn: Frank Cannone,
dt 32844
|
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| 2003 |
Restructuring Agreement
Restructuring Agreement (202K)
Doc #139321: Click preview link for longer preview.
RESTRUCTURING AGREEMENT
THIS RESTRUCTURING AGREEMENT dated April 29, 2003 among Reckson
Strategic Venture Partners, LLC, a Delaware limited liability company (the
"Company"), RSVP Holdings LLC, a Delaware limited liability company
("Holdings"), Reckson Asset Partners LLC, a Delaware limited liability company
("RAP"), UBS Warburg Real Estate Securities Inc., a Delaware corporation
("UBS"), and Stratum Realty Fund, L.P., a Delaware limited partnership
("Stratum" and together with UBS, the "Class A Sellers").
RECITALS
A. The Company was formed as a limited liability company under the
Delaware Limited Liability Company Act on January 23, 1998.
B. Holdings and Paine Webber Real Estate Securities Inc. entered into
the Operating Agreement of the Company dated as of March 5, 1998, as amended by
the Supplemental Agreement to Operating Agreement of the Company dated as of
April 24, 1998 (as amended, the "Operating Agreement").
C. Certain disputes have arisen between Holdings and the Class A
Sellers regarding the management and operations of the Company.
D. In settlement of such disputes, the parties have agreed that
Holdings will purchase the interests of the Class A Sellers in the Company as
more particularly set forth herein.
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. DEFINED TERMS. All capitalized terms used herein are defined on
Schedule 1 annexed hereto.
2. TRANSACTIONS. At the closing of the transactions contemplated hereby
(the "Closing"), each of the Class A Sellers will convey to Holdings or its
designee ("Buyer") all of such Class A Member's membership interest in the
Company. The consideration for such conveyances shall be the payment to the
Class A Sellers of cash and the conveyance to the Class A Sellers of certain
property; such cash and property to have an aggregate valuation, as provided
herein, of $165,325,000 (the "Purchase Price").
3. CONTEMPORANEOUS TRANSACTIONS. On the date hereof, the Company shall
make the following payments and conveyances to the Class A Sellers on account of
the Purchase Price:
(i) The Company shall pay to the Class A Sellers the sum of
$30,165,000, representing a portion of the capital contributions previously made
to the Company for investment in the Medical Platform, which amount shall be
{PAGE}
paid by Federal wire transfer to one or more accounts designated by the Class A
Sellers in writing.
(ii) The Company shall convey to Florida Parking Lot LLC, a
Delaware limited liability company, as designee of the Class A Sellers, on an
"as is, where is" basis, all of the Company's right, title and interest in RSVP
Metropolitan Parking, LLC, pursuant to an Assignment and Assumption of
Membership Interest in the form annexed hereto as Exhibit A, for which
conveyance the Company shall receive a credit against the Purchase Price in the
amount of $28,500,000 (the "Quik-Park Credit"). Concurrently with such
conveyance, (i) the Class A Sellers shall have caused the execution of, and
delivered to, the Company Parties the release in the form annexed hereto as
Exhibit C-3; (ii) the Company Parties shall have caused the execution of, and
delivered to, the Class A Sellers the release in the form annexed hereto as
Exhibit D-3 and (iii) RSVP Metropolitan Parking, LLC shall have executed and
delivered to Metropolitan Quik Park of South Florida, LLC and M & E Holdings LLC
a letter of even date herewith and simultaneously therewith have wired the
amount of $1,250,000 in accordance with the first paragraph of that letter.
(iii) The Company shall pay to the Class A Sellers the amount
of $10,825,000, representing all undistributed Capital Event Proceeds as of the
date hereof, which amount shall be credited against the Purchase Price and paid
by Federal wire transfer to one or more accounts designated by the Class A
Sellers in writing.
4. CLOSING. The Closing shall occur on a date set forth in a notice
from Holdings to the Class A Sellers and the Escrow Agent (as such term is
hereinafter defined) (the "Closing Date"), which notice shall be given not less
than two (2) Business Days prior to the designated Closing Date; provided,
however, that in no event shall the Closing Date occur later than August 15,
2003 (the "Outside Closing Date").
(a) At the Closing, the following deliveries or payments shall be made
in accordance with the terms and conditions of the escrow agreement (the "Escrow
Agreement") annexed hereto as Exhibit F, pursuant to which Herrick, Feinstein
LLP (the "Escrow Agent") shall act as escrow agent:
(i) Each of the Class A Sellers shall assign to Buyer all of
such Class A Member's right, title and interest in the Company, free and clear
of all liens and encumbrances, pursuant to an Assignment and Assumption of
Membership Interest in the respective forms of Exhibit B-1 and Exhibit B-2
annexed hereto.
(ii) [Intentionally omitted.]
(iii) The Class A Sellers shall be paid an amount equal to the
excess of all undistributed Net Investment Revenues on the date of the Company
Deposit (as such term is defined in the Escrow Agreement) over $500,000, which
amount shall not be credited against the Purchase Price.
139321
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Citibank
As referenced in this Restructuring Agreement:
Citibank, N.A. – 339 ACCT#: 2553 00 9244
ACCT NAME: Herrick, Feinstein LLP Attorney Trust Account
{PAGE}
SCHEDULE C
----------
24.52842% to:
Stratum Realty Fund, LP
Citibank, N.A.
1748 Broadway, New York, NY 10019
ABA 021 0000 89
Account # 178 00 936
75.47158% to:
UBS AG
STAMFORD, CT
ABA#
_____________
dt 145882
;
FrontLine
As referenced in this Restructuring Agreement:
FrontLine Capital Group, – deliver this Agreement and to consummate the
transactions contemplated hereby, including, without limitation, the approval of
the bankruptcy court in the matter of FrontLine Capital Group, have been
obtained and there is no other Consent of, or filing or notification to, any
government or governmental agency or authority
_____________
FrontLine Capital Group, – written above.
RECKSON STRATEGIC
VENTURE PARTNERS, LLC
By: RSVP Holdings LLC,
its managing member
By: RSI Fund Management LLC,
its managing member
By: FrontLine Capital Group,
its managing member
By:
----------------------
Name:
Title:
RSVP HOLDINGS LLC
By: RSI Fund Management LLC,
its managing member
By: FrontLine Capital Group,
its
_____________
FrontLine Capital Group, – member
By: FrontLine Capital Group,
its managing member
By:
----------------------
Name:
Title:
RSVP HOLDINGS LLC
By: RSI Fund Management LLC,
its managing member
By: FrontLine Capital Group,
its managing member
By:
--------------------------
Name:
Title:
[SIGNATURE PAGE TO RESTRUCTURING AGREEMENT]
-15-
{PAGE}
RECKSON ASSET PARTNERS LLC
By: Reckson Strategic Venture Partners,
_____________
FrontLine Capital Group, – Strategic Venture Partners, LLC,
its managing member
By: RSVP Holdings LLC,
its managing member
By: RSI Fund Management LLC,
its managing member
By: FrontLine Capital Group,
its managing member
By:
-----------------------
Name:
Title:
UBS WARBURG REAL ESTATE
SECURITIES INC.
By:
--------------------------------
Name:
Title:
By:
--------------------------------
Name:
Title:
STRATUM REALTY FUND, L.
_____________
FrontLine Capital Group, – written.
ASSIGNOR:
RECKSON STRATEGIC VENTURE
PARTNERS, LLC
By: RSVP Holdings LLC, its managing member
By: RSI Fund Management LLC, its managing
member
By: FrontLine Capital Group, its managing
member
By:
-------------------------------------
Name:
Title:
ASSIGNEE:
FLORIDA PARKING LOT LLC
By: Florida Parking Lot Holdings LLC,
Manager
By:
-------------------------------------
Name:
Title:
By:
-------------------------------------
_____________
dt 236470
;
FrontLine
As referenced in this Restructuring Agreement:
FrontLine Capital Group, – deliver this Agreement and to consummate the
transactions contemplated hereby, including, without limitation, the approval of
the bankruptcy court in the matter of FrontLine Capital Group, have been
obtained and there is no other Consent of, or filing or notification to, any
government or governmental agency or authority
_____________
FrontLine Capital Group, – written above.
RECKSON STRATEGIC
VENTURE PARTNERS, LLC
By: RSVP Holdings LLC,
its managing member
By: RSI Fund Management LLC,
its managing member
By: FrontLine Capital Group,
its managing member
By:
----------------------
Name:
Title:
RSVP HOLDINGS LLC
By: RSI Fund Management LLC,
its managing member
By: FrontLine Capital Group,
its
_____________
FrontLine Capital Group, – member
By: FrontLine Capital Group,
its managing member
By:
----------------------
Name:
Title:
RSVP HOLDINGS LLC
By: RSI Fund Management LLC,
its managing member
By: FrontLine Capital Group,
its managing member
By:
--------------------------
Name:
Title:
[SIGNATURE PAGE TO RESTRUCTURING AGREEMENT]
-15-
{PAGE}
RECKSON ASSET PARTNERS LLC
By: Reckson Strategic Venture Partners,
_____________
FrontLine Capital Group, – Strategic Venture Partners, LLC,
its managing member
By: RSVP Holdings LLC,
its managing member
By: RSI Fund Management LLC,
its managing member
By: FrontLine Capital Group,
its managing member
By:
-----------------------
Name:
Title:
UBS WARBURG REAL ESTATE
SECURITIES INC.
By:
--------------------------------
Name:
Title:
By:
--------------------------------
Name:
Title:
STRATUM REALTY FUND, L.
_____________
FrontLine Capital Group, – written.
ASSIGNOR:
RECKSON STRATEGIC VENTURE
PARTNERS, LLC
By: RSVP Holdings LLC, its managing member
By: RSI Fund Management LLC, its managing
member
By: FrontLine Capital Group, its managing
member
By:
-------------------------------------
Name:
Title:
ASSIGNEE:
FLORIDA PARKING LOT LLC
By: Florida Parking Lot Holdings LLC,
Manager
By:
-------------------------------------
Name:
Title:
By:
-------------------------------------
_____________
dt 236470
;
|
RSI
As referenced in this Restructuring Agreement:
RECKSON SERVICE
INDUSTRIES, INC – Delaware limited liability
company ("RAP"), RSI FUND MANAGEMENT LLC, a Delaware limited liability company,
FRONTLINE CAPITAL GROUP, a Delaware corporation (f/k/a RECKSON SERVICE
INDUSTRIES, INC .), NEW WORLD REALTY, LLC, a Delaware limited liability company,
STEVEN H. SHEPSMAN, an individual, DONALD RECHLER, an individual, ROGER RECHLER,
an individual,
_____________
RECKSON SERVICE
INDUSTRIES, INC – Delaware limited liability
company ("RAP"), RSI FUND MANAGEMENT LLC, a Delaware limited liability company,
FRONTLINE CAPITAL GROUP, a Delaware corporation (f/k/a RECKSON SERVICE
INDUSTRIES, INC .), NEW WORLD REALTY, LLC, a Delaware limited liability company,
STEVEN H. SHEPSMAN, an individual, DONALD RECHLER, an individual, ROGER RECHLER,
an individual,
_____________
RECKSON SERVICE INDUSTRIES, INC – Delaware limited liability company ("RAP"), RSI FUND MANAGEMENT LLC, a
Delaware limited liability company, FRONTLINE CAPITAL GROUP, a Delaware
corporation (f/k/a RECKSON SERVICE INDUSTRIES, INC .), NEW WORLD REALTY, LLC, a
Delaware limited liability company, RSVP METROPOLITAN PARKING, LLC, a Delaware
limited liability company ("RSVP Parking"), STEVEN H.
_____________
RECKSON SERVICE INDUSTRIES, INC – Delaware
limited liability company ("RAP"), RSI FUND MANAGEMENT LLC, a Delaware limited
liability company, FRONTLINE CAPITAL GROUP, a Delaware corporation (f/k/a
RECKSON SERVICE INDUSTRIES, INC .), acting pursuant to a motion filed in its
bankruptcy case, which was approved by an order of the United States Bankruptcy
Court
_____________
RECKSON SERVICE INDUSTRIES, INC – Delaware
limited liability company ("RAP"), RSI FUND MANAGEMENT LLC, a Delaware limited
liability company, FRONTLINE CAPITAL GROUP, a Delaware corporation (f/k/a
RECKSON SERVICE INDUSTRIES, INC .), acting pursuant to a motion filed in its
bankruptcy case, which was approved by an order of the United States Bankruptcy
Court
_____________
dt 363178
;
RSI
As referenced in this Restructuring Agreement:
RECKSON SERVICE
INDUSTRIES, INC – Delaware limited liability
company ("RAP"), RSI FUND MANAGEMENT LLC, a Delaware limited liability company,
FRONTLINE CAPITAL GROUP, a Delaware corporation (f/k/a RECKSON SERVICE
INDUSTRIES, INC .), NEW WORLD REALTY, LLC, a Delaware limited liability company,
STEVEN H. SHEPSMAN, an individual, DONALD RECHLER, an individual, ROGER RECHLER,
an individual,
_____________
RECKSON SERVICE
INDUSTRIES, INC – Delaware limited liability
company ("RAP"), RSI FUND MANAGEMENT LLC, a Delaware limited liability company,
FRONTLINE CAPITAL GROUP, a Delaware corporation (f/k/a RECKSON SERVICE
INDUSTRIES, INC .), NEW WORLD REALTY, LLC, a Delaware limited liability company,
STEVEN H. SHEPSMAN, an individual, DONALD RECHLER, an individual, ROGER RECHLER,
an individual,
_____________
RECKSON SERVICE INDUSTRIES, INC – Delaware limited liability company ("RAP"), RSI FUND MANAGEMENT LLC, a
Delaware limited liability company, FRONTLINE CAPITAL GROUP, a Delaware
corporation (f/k/a RECKSON SERVICE INDUSTRIES, INC .), NEW WORLD REALTY, LLC, a
Delaware limited liability company, RSVP METROPOLITAN PARKING, LLC, a Delaware
limited liability company ("RSVP Parking"), STEVEN H.
_____________
RECKSON SERVICE INDUSTRIES, INC – Delaware
limited liability company ("RAP"), RSI FUND MANAGEMENT LLC, a Delaware limited
liability company, FRONTLINE CAPITAL GROUP, a Delaware corporation (f/k/a
RECKSON SERVICE INDUSTRIES, INC .), acting pursuant to a motion filed in its
bankruptcy case, which was approved by an order of the United States Bankruptcy
Court
_____________
RECKSON SERVICE INDUSTRIES, INC – Delaware
limited liability company ("RAP"), RSI FUND MANAGEMENT LLC, a Delaware limited
liability company, FRONTLINE CAPITAL GROUP, a Delaware corporation (f/k/a
RECKSON SERVICE INDUSTRIES, INC .), acting pursuant to a motion filed in its
bankruptcy case, which was approved by an order of the United States Bankruptcy
Court
_____________
dt 363178
;
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Settlement and Restructuring Agreement
Settlement and Restructuring Agreement (408K)
Doc #262463: Click preview link for longer preview.
SETTLEMENT AND RESTRUCTURING AGREEMENT
THIS AGREEMENT, made as of the 1st day of October, 2000, by and among
ADVOCAT INC., a Delaware corporation ("Advocat"), of 277 Mallory Station Road,
Suite 130, Franklin, Tennessee 37067, DIVERSICARE LEASING CORP., a Tennessee
corporation ("DLC"), of 277 Mallory Station Road, Suite 130, Franklin, Tennessee
37067, STERLING HEALTH CARE MANAGEMENT, INC., a Kentucky corporation ("SHCM"),
of 277 Mallory Station Road, Suite 130, Franklin, Tennessee 37067, DIVERSICARE
MANAGEMENT SERVICES CO., a Tennessee corporation ("DMSC"), of 277 Mallory
Station Road, Suite 130, Franklin, Tennessee 37067, ADVOCAT FINANCE, INC., a
Delaware corporation ("AFI"), of 277 Mallory Station Road, Suite 130, Franklin,
Tennessee 37067, OMEGA HEALTHCARE INVESTORS, INC., a Maryland corporation
("Omega"), of 900 Victors Way, Suite 350, Ann Arbor, Michigan 48108, and
STERLING ACQUISITION CORP., a Kentucky corporation ("Acquisition"), of 900
Victors Way, Suite 350, Ann Arbor, Michigan 48108.
RECITALS:
A. Omega, individually and/or through its wholly-owned subsidiary
Acquisition, as lessor, and Advocat, through its wholly owned subsidiary DLC,
and/or DLC's wholly owned subsidiary SHCM, as lessees, are parties, via mesne
assignments, subleases and other agreements, to four (4) master leases
(identified on Schedule 1 hereto as the "1992 Master Lease", the "1994 Master
Lease", the "1997 Master Lease", and the "West Liberty Master Sublease", and
collectively referred to herein as the "Master Leases") covering, in the
aggregate, twenty-eight (28) nursing care facilities located variously in
Kentucky, Tennessee, West Virginia, Alabama, Arkansas and Ohio, listed by name
and location on Schedule 1 (the "Master Leased Facilities").
B. Omega is the mortgagee of three (3) nursing care facilities located
in Florida (the "Florida Mortgaged Facilities"), listed by name and location on
Schedule 2 hereto, owned by Counsel Nursing Properties, Inc., a Delaware
corporation ("CNP"), and leased by CNP to DLC, pursuant to a Mortgage Note in
the original principal amount of $7,031,250, as amended and restated (the "CNP
Note"), secured by a Mortgage and Security Agreement and Fixture Filing of even
date therewith (the "CNP Mortgage"). DLC is obligated, under the terms of the
subject lease(s), to make debt service payments under the CNP Note directly to
Omega.
C. Omega is also the mortgagee of four (4) nursing care facilities
located in Florida (the "Florida Managed Facilities"), listed by name, location
and owner on Schedule 3 hereto, owned by various sister corporations of Emerald
Healthcare, Inc., a Florida corporation ("Emerald"), and managed by DMSC, a
wholly owned subsidiary of Advocat.
D. Counsel Corporation, an Ontario corporation ("Counsel") has provided
a financial undertaking to Omega relative to the obligations of the lessee under
the 1992 Master Lease and of CNP under the CNP Note and CNP Mortgage.
E. Advocat and/or certain of its subsidiaries and/or affiliates have
provided guaranties pertaining to the Master Leases and the CNP Note and CNP
Mortgage (the "Advocat Guaranties"), and DMSC has (i) subordinated its
management fees with respect to the Florida Managed Facilities, and (ii)
undertaken to make certain advances to the Florida Managed Facilities, as
provided in the relevant documents.
F. Advocat and its subsidiaries have been in default of their various
obligations to Omega and its subsidiaries since March 1, 2000 by virtue of,
among other things, non-payment of rental and other obligations under the Master
Leases and debt service under the CNP Note.
G. Advocat has made partial payments to Omega since April 24, 2000,
being the date of a Standstill Agreement (the "Standstill Agreement"), the
expiration date of which has been extended by the parties through September 30,
2000.
H. The parties have reached a settlement of the foregoing defaults, and
have agreed upon a restructuring of their various agreements and undertakings
with respect to the Master Leased Facilities, the Florida Mortgaged Facilities
and the Florida Managed Facilities, all as more particularly set forth
hereinbelow.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants contained herein, and for other good and valuable consideration, the
receipt and adequacy of which are acknowledged hereby, Omega, Acquisition,
Advocat, DLC, SHCM, AFI and DMSC covenant and agree as follows:
1. Acknowledgment of Default. A. Advocat, DLC, SHCM, AFI and DMSC each
acknowledges and agrees that: (i) DLC and SHCM are in material default under the
Master Leases; (ii) CNP is in material default under the CNP Note and CNP
Mortgage, and Advocat and DLC are in material default of their obligations to
Omega with respect thereto; (iii) all required notices of default under the
Master Leases, the CNP Note and CNP Mortgage, and the Advocat Guaranties have
been given or waived by all necessary parties, (iv) all grace and cure periods
relating to the aforementioned defaults under the Master Leases, the CNP Note
and CNP Mortgage, the Advocat Guaranties, or otherwise required by applicable
law, have expired without the defaults having been cured, and (v) the existence
of the defaults now entitles Omega and its subsidiaries to exercise (subject
only to the terms of the Standstill Agreement) all of their respective rights
and remedies under the Master Leases, the CNP Mortgage, the Advocat Guaranties
and applicable law. Advocat, DLC, SHCM, AFI and DMSC further acknowledge that
none of Advocat, DLC, SHCM, AFI or DMSC has any claim or cause of action against
Omega, Acquisition, or any of their respective subsidiaries and affiliates, nor
any defense to their respective obligations under the Master Leases or with
respect to the CNP Note and CNP Mortgage or any defense to or right of set-off
against the Master Lease Arrearage, the Interest Arrearage, and/or the CNP
Principal (all as defined below). The parties hereto acknowledge and agree that
the foregoing defaults under the Master Leases and the applicable and relevant
obligations of Advocat under the Advocat Guaranties with respect thereto will be
cured and/or settled upon and by virtue of the consummation of the transactions
contemplated by this Agreement relating to the Master Leased Facilities.
{PAGE}
Further, the parties acknowledge and agree that the foregoing defaults under the
CNP Note and CNP Mortgage, and the applicable and relevant obligations of
Advocat under the Advocat Guaranties with respect thereto will be cured and/or
settled upon consummation of the transactions contemplated by Paragraph 3
relating to the Florida Mortgaged Facilities. However, except as specifically
provided herein, pending consummation of those transactions, Omega retains all
rights under the CNP Note and the CNP Mortgage against CNP and Counsel and all
rights under the Advocat Guaranties as they relate to the CNP Note and CNP
Mortgage.
B. The parties to this Agreement acknowledge and agree that the unpaid
balance (excluding out-of-pocket costs and expenses incurred by Omega and/or its
subsidiaries, and net of payments made pursuant to the Standstill Agreement) for
Minimum Rent, Additional Rent and franchise and similar tax obligations of DLC
and SHCM under the Master Leases as of September 30, 2000 is $2,985,111.99 (the
"Master Lease Arrearage"), and that the unpaid balance (excluding out-of-pocket
costs and expenses incurred by Omega and/or its subsidiaries, and net of
payments made pursuant to the Standstill Agreement) for interest, accrual
interest, late charges and prepayment penalty under the CNP Note as of September
30, 2000, is $1,056,568.25 (the "Interest Arrearage"). The parties also
acknowledge that the principal balance on the CNP Note, in the amount of
$7,031,025 (the "CNP Principal") is due and owing.
2. Closings.
A. Initial Closing.
(I) Time and Place. The consummation of the transactions
contemplated by this Agreement and pertaining to the Master Leased Facilities
and the Florida Managed Facilities (the "Initial Closing") shall take place on
or before November 15, 2000 (the "Initial Closing Date"), with an effective date
of October 1, 2000 (the "Effective Date"). The Initial Closing Date may be
extended by mutual agreement of the parties, but no such extension shall operate
to postpone the Effective Date. The Initial Closing shall be held at the offices
of Harwell Howard Hyne Gabbert & Manner, P.C., 315 Deaderick Street, Suite 1800,
Nashville, Tennessee 37238-1800, or at such other place as shall be mutually
agreed upon by Omega and Advocat.
(II) Initial Closing Documents. The following documents and
instruments shall be executed and/or delivered at the Initial Closing:
(i) The Amended and Restated Master Lease (reference Paragraph 4.A);
(ii)The Amended and Restated Security Agreement (reference Paragraph 4.B);
(iii) UCC Financing Statements (reference Paragraph 4.B);
(iv) The Amended and Restated Guaranty (reference Paragraph 4.C);
262463
|
Advocat
As referenced in this Settlement and Restructuring Agreement:
ADVOCAT INC – SETTLEMENT AND RESTRUCTURING AGREEMENT
{TEXT}
SETTLEMENT AND RESTRUCTURING AGREEMENT
THIS AGREEMENT, made as of the 1st day of October, 2000, by and among
ADVOCAT INC ., a Delaware corporation ("Advocat"), of 277 Mallory Station Road,
Suite 130, Franklin, Tennessee 37067, DIVERSICARE LEASING CORP., a Tennessee
corporation ("DLC"), of
_____________
Advocat (inc – agrees to forbear from exercising
its remedies under the CNP Note and CNP Mortgage, and based on the undertakings
of Counsel and/or Advocat (inc luding the Advocat Guaranty) with respect thereto,
for the period of one hundred twenty (120) days following the Initial Closing.
During the time,
_____________
Advocat Inc – personal delivery, overnight courier service, or confirmed fax, at the addresses
set forth below:
If to Advocat, DLC, SHCM, AFI or DMSC:
{PAGE}
Advocat Inc .
277 Mallory Station Road, Suite 130
Franklin, Tennessee 37067
Attention: Chief Financial Officer
Telephone No.: (615) 771-7575
Facsimile No.: (615) 771-
_____________
ADVOCAT INC – to
Closure
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first above written.
[SIGNATURES ON FOLLOWING PAGE]
ADVOCAT INC ., a Delaware corporation DIVERSICARE LEASING CORP., a
Tennessee corporation
{PAGE}
By: /s/ James F. Mills, Jr. By: /s/ James F. Mills, Jr.
------------------------ --------------------------
_____________
Advocat, Inc – the Original Master Leases or any one of them.
"Settlement and Restructuring Agreement" means that certain settlement
and restructuring agreement by and among Advocat, Inc ., a Delaware corporation,
Debtor, Sterling Health Care Management, Inc., a Kentucky corporation,
Diversicare Management Services Co., a Tennessee corporation, Omega Healthcare
Investors,
_____________
dt 225061
;
Omega Healthcare
As referenced in this Settlement and Restructuring Agreement:
OMEGA HEALTHCARE INVESTORS, – Road, Suite 130, Franklin, Tennessee 37067, ADVOCAT FINANCE, INC., a
Delaware corporation ("AFI"), of 277 Mallory Station Road, Suite 130, Franklin,
Tennessee 37067, OMEGA HEALTHCARE INVESTORS, INC., a Maryland corporation
("Omega"), of 900 Victors Way, Suite 350, Ann Arbor, Michigan 48108, and
STERLING ACQUISITION CORP., a Kentucky corporation ("
_____________
Omega Healthcare Investors, – Deaderick Street
Nashville, Tennessee 37238
Attention: Mark Manner
Telephone No.: (615) 256-0500
Facsimile No.: (615) 251-1059
If to Omega or Acquisition:
Omega Healthcare Investors, Inc.
900 Victors Way, Suite 350
Ann Arbor, Michigan 48108
Attention: Susan Allene Kovach
Telephone No.: (734) 887-0200
Facsimile No.: (734)
_____________
OMEGA HEALTHCARE INVESTORS, – Senior Vice President Its: Senior Vice President
ADVOCAT FINANCE, INC., a Delaware
corporation
By: /s/ James F. Mills, Jr.
-------------------------
Its: Senior Vice President
OMEGA HEALTHCARE INVESTORS, INC., STERLING ACQUISITION CORP., a
a Maryland corporation Kentucky corporation
By: /s/ Susan Allene Kovach By: /s/ Susan Allene Kovach
----------------------- ------------------------
Susan Allene
_____________
Omega Healthcare Investors, – this Agreement the following
terms shall have the following meanings:
"1992 Master Lease" means the certain master lease dated August 14,
1992 between Omega Healthcare Investors, Inc. as lessor, and Diversicare
Corporation of America, as lessee, for the facilities described therein.
"1994 Master Lease" means the certain master
_____________
Omega Healthcare
Investors, – and among Advocat, Inc., a Delaware corporation,
Debtor, Sterling Health Care Management, Inc., a Kentucky corporation,
Diversicare Management Services Co., a Tennessee corporation, Omega Healthcare
Investors, Inc., a Maryland corporation, and Secured Party of even date
herewith.
{PAGE}
"Subordinated Note" means that certain subordinated note from Advocat,
Inc.,
_____________
dt 144842
;
 AmSouth Bank
As referenced in this Settlement and Restructuring Agreement:
AmSouth Bank – corporation in such states.
(III) Initial Closing Actions. At the Initial Closing, the
following actions shall be taken:
(i) Acquisition shall call, and AmSouth Bank shall fund, $3,000,000 of the 1992
Letter of Credit (reference Paragraph 7), for payment to Omega and for
application against amounts
_____________
AmSouth Bank – NewSub's) option, be transferred into a concentration account maintained by
Advocat (the "Advocat Concentration Account").
(iv) DLC ("NewSub") shall promptly establish, with AmSouth Bank or another
financial instution satisfactory to Omega and Acquisition, a separate
concentration account, unrelated to the Advocat Concentration Account, and which
shall be
_____________
AmSouth Bank; – interest due under the Subordinated Note in accordance with
its terms, and Omega shall provide a copy of notice of such
default to AmSouth Bank;
(2) Acquisition gives notice of termination of the Amended and
Restated Master Lease following an Event of Default, and
provides a copy
_____________
AmSouth Bank; – notice of termination of the Amended and
Restated Master Lease following an Event of Default, and
provides a copy of such notice to AmSouth Bank;
(3) An involuntary bankruptcy proceeding is initiated against
Advocat, DLC (or NewSub, as the case may be), or Advocat or
DLC (or
_____________
AmSouth Bank – States of America or any state thereof, subject to the
applicable provisions of the Bankruptcy Code (11 USC ss.101
et. seq.);
(4) AmSouth Bank or any successor thereto declares an event of
default, and accelerates any or all of the indebtedness, or
commences any action against DLC (
_____________
dt 215663
;
|
Dykema Gossett
As referenced in this Settlement and Restructuring Agreement:
Dykema Gossett – Michigan 48108
Attention: Susan Allene Kovach
Telephone No.: (734) 887-0200
Facsimile No.: (734) 887-0201
With a copy to: Fred J. Fechheimer
Dykema Gossett PLLC
39577 Woodward Avenue, Suite 300
Bloomfield Hills, Michigan 48304-2820
Telephone No.: (248) 203-0743
Facsimile No.: (248) 203-0763
All
_____________
dt 159171
;
Sterling Health Care Management, Inc.;
More... |
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Settlement and Restructuring Agreement
Settlement and Restructuring Agreement (79K)
Doc #366972: Click preview link for longer preview.
SETTLEMENT AND RESTRUCTURING AGREEMENT
THIS AGREEMENT, made as of the 1st day of October, 2000, by and among
ADVOCAT INC., a Delaware corporation ("Advocat"), of 277 Mallory Station Road,
Suite 130, Franklin, Tennessee 37067, DIVERSICARE LEASING CORP., a Tennessee
corporation ("DLC"), of 277 Mallory Station Road, Suite 130, Franklin, Tennessee
37067, STERLING HEALTH CARE MANAGEMENT, INC., a Kentucky corporation ("SHCM"),
of 277 Mallory Station Road, Suite 130, Franklin, Tennessee 37067, DIVERSICARE
MANAGEMENT SERVICES CO., a Tennessee corporation ("DMSC"), of 277 Mallory
Station Road, Suite 130, Franklin, Tennessee 37067, ADVOCAT FINANCE, INC., a
Delaware corporation ("AFI"), of 277 Mallory Station Road, Suite 130, Franklin,
Tennessee 37067, OMEGA HEALTHCARE INVESTORS, INC., a Maryland corporation
("Omega"), of 900 Victors Way, Suite 350, Ann Arbor, Michigan 48108, and
STERLING ACQUISITION CORP., a Kentucky corporation ("Acquisition"), of 900
Victors Way, Suite 350, Ann Arbor, Michigan 48108.
RECITALS:
A. Omega, individually and/or through its wholly-owned subsidiary
Acquisition, as lessor, and Advocat, through its wholly owned subsidiary DLC,
and/or DLC's wholly owned subsidiary SHCM, as lessees, are parties, via mesne
assignments, subleases and other agreements, to four (4) master leases
(identified on Schedule 1 hereto as the "1992 Master Lease", the "1994 Master
Lease", the "1997 Master Lease", and the "West Liberty Master Sublease", and
collectively referred to herein as the "Master Leases") covering, in the
aggregate, twenty-eight (28) nursing care facilities located variously in
Kentucky, Tennessee, West Virginia, Alabama, Arkansas and Ohio, listed by name
and location on Schedule 1 (the "Master Leased Facilities").
B. Omega is the mortgagee of three (3) nursing care facilities
located in Florida (the "Florida Mortgaged Facilities"), listed by name and
location on Schedule 2 hereto, owned by Counsel Nursing Properties, Inc., a
Delaware corporation ("CNP"), and leased by CNP to DLC, pursuant to a Mortgage
Note in the original principal amount of $7,031,250, as amended and restated
(the "CNP Note"), secured by a Mortgage and Security Agreement and Fixture
Filing of even date therewith (the "CNP Mortgage"). DLC is obligated, under the
terms of the subject lease(s), to make debt service payments under the CNP Note
directly to Omega.
C. Omega is also the mortgagee of four (4) nursing care
facilities located in Florida (the "Florida Managed Facilities"), listed by
name, location and owner on Schedule
{PAGE} 2
3 hereto, owned by various sister corporations of Emerald Healthcare, Inc., a
Florida corporation ("Emerald"), and managed by DMSC, a wholly owned subsidiary
of Advocat.
D. Counsel Corporation, an Ontario corporation ("Counsel") has
provided a financial undertaking to Omega relative to the obligations of the
lessee under the 1992 Master Lease and of CNP under the CNP Note and CNP
Mortgage.
E. Advocat and/or certain of its subsidiaries and/or affiliates
have provided guaranties pertaining to the Master Leases and the CNP Note and
CNP Mortgage (the "Advocat Guaranties"), and DMSC has (i) subordinated its
management fees with respect to the Florida Managed Facilities, and (ii)
undertaken to make certain advances to the Florida Managed Facilities, as
provided in the relevant documents.
F. Advocat and its subsidiaries have been in default of their
various obligations to Omega and its subsidiaries since March 1, 2000 by virtue
of, among other things, non-payment of rental and other obligations under the
Master Leases and debt service under the CNP Note.
G. Advocat has made partial payments to Omega since April 24,
2000, being the date of a Standstill Agreement (the "Standstill Agreement"), the
expiration date of which has been extended by the parties through September 30,
2000.
H. The parties have reached a settlement of the foregoing
defaults, and have agreed upon a restructuring of their various agreements and
undertakings with respect to the Master Leased Facilities, the Florida Mortgaged
Facilities and the Florida Managed Facilities, all as more particularly set
forth hereinbelow.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants contained herein, and for other good and valuable consideration, the
receipt and adequacy of which are acknowledged hereby, Omega, Acquisition,
Advocat, DLC, SHCM, AFI and DMSC covenant and agree as follows:
1. Acknowledgment of Default. A. Advocat, DLC, SHCM, AFI and DMSC
each acknowledges and agrees that: (i) DLC and SHCM are in material default
under the Master Leases; (ii) CNP is in material default under the CNP Note and
CNP Mortgage, and Advocat and DLC are in material default of their obligations
to Omega with respect thereto; (iii) all required notices of default under the
Master Leases, the CNP Note and CNP Mortgage, and the Advocat Guaranties have
been given or waived by all necessary parties, (iv) all grace and cure periods
relating to the aforementioned defaults under the
2
{PAGE} 3
Master Leases, the CNP Note and CNP Mortgage, the Advocat Guaranties, or
otherwise required by applicable law, have expired without the defaults having
been cured, and (v) the existence of the defaults now entitles Omega and its
subsidiaries to exercise (subject only to the terms of the Standstill Agreement)
all of their respective rights and remedies under the Master Leases, the CNP
Mortgage, the Advocat Guaranties and applicable law. Advocat, DLC, SHCM, AFI and
DMSC further acknowledge that none of Advocat, DLC, SHCM, AFI or DMSC has any
claim or cause of action against Omega, Acquisition, or any of their respective
subsidiaries and affiliates, nor any defense to their respective obligations
under the Master Leases or with respect to the CNP Note and CNP Mortgage or any
defense to or right of set-off against the Master Lease Arrearage, the Interest
Arrearage, and/or the CNP Principal (all as defined below). The parties hereto
acknowledge and agree that the foregoing defaults under the Master Leases and
the applicable and relevant obligations of Advocat under the Advocat Guaranties
with respect thereto will be cured and/or settled upon and by virtue of the
consummation of the transactions contemplated by this Agreement relating to the
Master Leased Facilities. Further, the parties acknowledge and agree that the
foregoing defaults under the CNP Note and CNP Mortgage, and the applicable and
relevant obligations of Advocat under the Advocat Guaranties with respect
thereto will be cured and/or settled upon consummation of the transactions
contemplated by Paragraph 3 relating to the Florida Mortgaged Facilities.
However, except as specifically provided herein, pending consummation of those
transactions, Omega retains all rights under the CNP Note and the CNP Mortgage
against CNP and Counsel and all rights under the Advocat Guaranties as they
relate to the CNP Note and CNP Mortgage.
B. The parties to this Agreement acknowledge and agree that the
unpaid balance (excluding out-of-pocket costs and expenses incurred by Omega
and/or its subsidiaries, and net of payments made pursuant to the Standstill
Agreement) for Minimum Rent, Additional Rent and franchise and similar tax
obligations of DLC and SHCM under the Master Leases as of September 30, 2000 is
$2,985,111.99 (the "Master Lease Arrearage"), and that the unpaid balance
(excluding out-of-pocket costs and expenses incurred by Omega and/or its
subsidiaries, and net of payments made pursuant to the Standstill Agreement) for
interest, accrual interest, late charges and prepayment penalty under the CNP
Note as of September 30, 2000, is $1,056,568.25 (the "Interest Arrearage"). The
parties also acknowledge that the principal balance on the CNP Note, in the
amount of $7,031,025 (the "CNP Principal") is due and owing.
2. Closings.
A. Initial Closing.
3
{PAGE} 4
(I) Time and Place. The consummation of the transactions
contemplated by this Agreement and pertaining to the Master Leased Facilities
and the Florida Managed Facilities (the "Initial Closing") shall take place on
or before November 15, 2000 (the "Initial Closing Date"), with an effective date
of October 1, 2000 (the "Effective Date"). The Initial Closing Date may be
extended by mutual agreement of the parties, but no such extension shall operate
to postpone the Effective Date. The Initial Closing shall be held at the offices
of Harwell Howard Hyne Gabbert & Manner, P.C., 315 Deaderick Street, Suite 1800,
Nashville, Tennessee 37238-1800, or at such other place as shall be mutually
agreed upon by Omega and Advocat.
(II) Initial Closing Documents. The following documents
and instruments shall be executed and/or delivered at the Initial Closing:
(i) The Amended and Restated Master Lease (reference Paragraph
4.A);
(ii) The Amended and Restated Security Agreement (reference
Paragraph 4.B);
(iii) UCC Financing Statements (reference Paragraph 4.B);
(iv) The Amended and Restated Guaranty (reference Paragraph 4.C);
(v) The Amended and Restated Memoranda of Leases (reference
Paragraph 4.D);
(vi) The Reaffirmation of Obligations (reference Paragraph 5);
(vii) The intercreditor agreement to be executed by and between
Omega, Acquisition and AmSouth (reference Paragraphs 4 and 8);
(viii) The Subordinated Note (reference Paragraph 10);
(ix) The Stock Subscription Agreement (reference Paragraph 11);
(x) The parties shall execute a closing statement reflecting the
transactions contemplated to occur at the Initial Closing;
(xi) In addition, Advocat, DLC, SHCM, AFI and DMSC shall each
deliver to Omega and Acquisition a certificate, signed by the Secretary or
Assistant Secretary of
4
{PAGE} 5
each such entity, confirming the incumbency of its respective officers, and to
which are attached the following:
(aa) a copy of the articles of incorporation or certificate of
incorporation of each entity, as amended, and certified by the Secretary of
State of the jurisdiction of incorporation as of a date not more than 40 days
prior to the Initial Closing;
(bb) a true, correct and complete copy of the current bylaws of
each entity, as amended;
(cc) a true, correct and complete copy of the resolutions adopted
by the Board of Directors of each entity, authorizing the execution and delivery
of this Agreement and the consummation of the transactions contemplated herein;
(dd) a certificate of good standing for each entity, issued as of a
366972
|
Advocat
As referenced in this Settlement and Restructuring Agreement:
ADVOCAT INC – txt
{DESCRIPTION}SETTLEMENT AND RESTRUCTURING AGREEMENT
{TEXT}
{PAGE} 1
EXHIBIT 10.1
SETTLEMENT AND RESTRUCTURING AGREEMENT
THIS AGREEMENT, made as of the 1st day of October, 2000, by and among
ADVOCAT INC ., a Delaware corporation ("Advocat"), of 277 Mallory Station Road,
Suite 130, Franklin, Tennessee 37067, DIVERSICARE LEASING CORP., a Tennessee
corporation ("DLC"), of 277 Mallory Station Road, Suite 130, Franklin,
_____________
Advocat (inc – as defined in Paragraph 4.G, Omega agrees
to forbear from exercising its remedies under the CNP Note and CNP Mortgage, and
based on the undertakings of Counsel and/or Advocat (inc luding the Advocat
Guaranty) with respect thereto, for the period of one hundred twenty (120) days
following the Initial Closing. During the time, and so long as, DLC shall timely
_____________
Advocat Inc – delivered by ordinary first class mail (postage
prepaid), personal delivery, overnight courier service, or confirmed fax, at the
addresses set forth below:
If to Advocat, DLC, SHCM, AFI or DMSC:
Advocat Inc .
277 Mallory Station Road, Suite 130
Franklin, Tennessee 37067
Attention: Chief Financial Officer
Telephone No.: (615) 771-7575
Facsimile No.: (615) 771-7409
With a copy to: Harwell Howard
_____________
ADVOCAT INC – Leased Facilities Not Subject to Closure
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first above written.
[SIGNATURES ON FOLLOWING PAGE]
28
{PAGE} 29
ADVOCAT INC ., a Delaware corporation DIVERSICARE LEASING CORP., a
Tennessee corporation
By: /s/ James F. Mills, Jr. By: /s/ James F. Mills, Jr.
--------------------------------- ---------------------------------
James F. Mills, Jr.
Its: Sr. Vice Pres.
_____________
dt 1475565
;
Omega Healthcare
As referenced in this Settlement and Restructuring Agreement:
OMEGA HEALTHCARE INVESTORS, INC – Tennessee corporation ("DMSC"), of 277 Mallory
Station Road, Suite 130, Franklin, Tennessee 37067, ADVOCAT FINANCE, INC., a
Delaware corporation ("AFI"), of 277 Mallory Station Road, Suite 130, Franklin,
Tennessee 37067, OMEGA HEALTHCARE INVESTORS, INC ., a Maryland corporation
("Omega"), of 900 Victors Way, Suite 350, Ann Arbor, Michigan 48108, and
STERLING ACQUISITION CORP., a Kentucky corporation ("Acquisition"), of 900
Victors Way, Suite 350, Ann
_____________
Omega Healthcare Investors, Inc – Manner, P.C.
315 Deaderick Street
Nashville, Tennessee 37238
Attention: Mark Manner
Telephone No.: (615) 256-0500
Facsimile No.: (615) 251-1059
22
{PAGE} 23
If to Omega or Acquisition:
Omega Healthcare Investors, Inc .
900 Victors Way, Suite 350
Ann Arbor, Michigan 48108
Attention: Susan Allene Kovach
Telephone No.: (734) 887-0200
Facsimile No.: (734) 887-0201
With a copy to: Fred J.
_____________
OMEGA HEALTHCARE INVESTORS, INC – F. Mills, Jr.
Its: Senior Vice President Its: Senior Vice President
29
{PAGE} 30
ADVOCAT FINANCE, INC., a Delaware
corporation
By: /s/ James F. Mills, Jr.
---------------------------------
Its: Sr. Vice Pres.
--------------------------------
OMEGA HEALTHCARE INVESTORS, INC ., STERLING ACQUISITION CORP., a
a Maryland corporation Kentucky corporation
By: /s/ Susan Allene Kovach By: /s/ Susan Allene Kovach
--------------------------------- --------------------------------
Susan Allene Kovach Susan Allene Kovach
Vice President Vice President
_____________
dt 1400196
;
|
AmSouth Bank
As referenced in this Settlement and Restructuring Agreement:
AmSouth Bank – authorized to transact
business as a foreign corporation in such states.
(III) Initial Closing Actions. At the Initial Closing, the
following actions shall be taken:
(i) Acquisition shall call, and AmSouth Bank shall fund,
$3,000,000 of the 1992 Letter of Credit (reference Paragraph 7), for payment to
Omega and for application against amounts owing under the CNP Note. Upon receipt
_____________
AmSouth Bank – each Facility Account may, at
DLC's (NewSub's) option, be transferred into a concentration account maintained
by Advocat (the "Advocat Concentration Account").
(iv) DLC ("NewSub") shall promptly establish, with AmSouth Bank or
another financial institution satisfactory to Omega and Acquisition, a separate
concentration
13
{PAGE} 14
account, unrelated to the Advocat Concentration Account, and which shall be
referred to herein as
_____________
AmSouth Bank; – Advocat fails to pay any principal or
interest due under the Subordinated Note in accordance with
its terms, and Omega shall provide a copy of notice of such
default to AmSouth Bank;
(2) Acquisition gives notice of termination of the Amended and
Restated Master Lease following an Event of Default, and
provides a copy of such notice to AmSouth Bank;
(3)
_____________
AmSouth Bank; – default to AmSouth Bank;
(2) Acquisition gives notice of termination of the Amended and
Restated Master Lease following an Event of Default, and
provides a copy of such notice to AmSouth Bank;
(3) An involuntary bankruptcy proceeding is initiated against
Advocat, DLC (or NewSub, as the case may be), or Advocat or
DLC (or New Sub, as the case may be): (
_____________
AmSouth Bank – applicable law or statute of the
United States of America or any state thereof, subject to the
applicable provisions of the Bankruptcy Code (11 USC ss.101
et. seq.);
(4) AmSouth Bank or any successor thereto declares an event of
default, and accelerates any or all of the indebtedness, or
commences any action against DLC (or NewSub, as the case may
be)
_____________
dt 1552487
;
Dykema Gossett
As referenced in this Settlement and Restructuring Agreement:
Dykema Gossett – 900 Victors Way, Suite 350
Ann Arbor, Michigan 48108
Attention: Susan Allene Kovach
Telephone No.: (734) 887-0200
Facsimile No.: (734) 887-0201
With a copy to: Fred J. Fechheimer
Dykema Gossett PLLC
39577 Woodward Avenue, Suite 300
Bloomfield Hills, Michigan 48304-2820
Telephone No.: (248) 203-0743
Facsimile No.: (248) 203-0763
All notices given by personal delivery or confirmed
_____________
dt 1474398
|
| Preview
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| 2001 |
Ancillary Restructuring Agreement
Ancillary Restructuring Agreement (52K)
Doc #422502: Click preview link for longer preview.
{DOCUMENT}
{TYPE}EX-10.6
{SEQUENCE}7
{FILENAME}g67027ex10-6.txt
{DESCRIPTION}ANCILLARY RESTRUCTURING AGREEMENT
{TEXT}
{PAGE} 1
EXHIBIT 10.6
CONFIDENTIAL: THIS DOCUMENT IS PROVIDED FOR SETTLEMENT PURPOSES ONLY AND IS
SUBJECT TO THE PROTECTIONS OF FEDERAL RULE OF EVIDENCE 408 AND ALL SIMILAR
PROVISIONS AND SUPPORTING AUTHORITIES.
ANCILLARY RESTRUCTURING AGREEMENT
THIS ANCILLARY RESTRUCTURING AGREEMENT (this "Agreement") is made as of
this 21st day of December, 2000, by and among (a) OMEGA HEALTHCARE INVESTORS,
INC., a Maryland corporation ("Omega"), (b) PROFESSIONAL HEALTH CARE MANAGEMENT,
INC., a Michigan corporation ("PHCM"), (c) each of the Michigan subsidiaries of
PHCM listed on the signature page hereto (the "Michigan Subsidiaries"), (d)
LIVING CENTERS - PHCM, INC., a North Carolina corporation ("LC-PHCM"), (e)
GRANCARE, INC., a Delaware corporation formerly known as New GranCare, Inc.
("GranCare"), and (f) MARINER POST-ACUTE NETWORK, INC., a Delaware corporation
formerly known as Paragon Health Network, Inc. ("Mariner," and, together with
PHCM, the Michigan Subsidiaries, LC-PHCM and GranCare, collectively, the
"Mariner Entities").
WITNESSETH:
WHEREAS, PHCM is the owner of thirteen (13) skilled nursing facilities
located in the State of Michigan and identified more particularly on Schedule A
hereto attached and incorporated herein by reference (the "Michigan
Facilities"), and leases each Michigan Facility to the Michigan Subsidiary
indicated opposite the name of such Michigan Facility on Schedule A under
separate facility leases (as amended, collectively, the "Michigan Facility
Leases"); and
WHEREAS, LC-PHCM is the owner of the three (3) North Carolina skilled
nursing facilities more particularly identified on Schedule A hereto attached
and incorporated herein by this reference (the "North Carolina Facilities", and
together with the Michigan Facilities, the "Facilities") and has leased the
North Carolina Facilities to PHCM, which operates the North Carolina Facilities
under facility leases between LC-PHCM, as lessor, and PHCM, as lessee
(collectively, the "North Carolina Facility Leases", and together with the
Michigan Facility Leases, the "Facility Leases"); and
WHEREAS, Omega has previously made a loan to PHCM in the original
principal amount of $58,800,000 (the "Omega Loan") pursuant to that certain
Michigan Loan Agreement
1
{PAGE} 2
dated as of June 7, 1992 (as heretofore amended, the "Omega Loan Agreement")
between Omega and PHCM; and
WHEREAS, the Omega Loan is evidenced by that certain Mortgage Note
dated August 14, 1992 (as amended, the "Omega Note"), issued by PHCM and payable
to the order of Omega in the original principal amount of $58,800,000, is
guaranteed by LC-PHCM and the Michigan Subsidiaries, and such loan and guaranty
obligations are secured by, among other things, mortgages on the Facilities and
blanket security interests in the personal property of PHCM and the affiliated
guarantors (the Omega Loan Agreement, the Omega Note and all documents,
instruments and agreements evidencing, guaranteeing or securing the Omega Loan
being hereinafter collectively referred to as the "Omega Loan Documents"); and
WHEREAS, the Mariner Entities have filed voluntary petitions under
chapter 11 of the United States Bankruptcy Code, 11 U.S.C. ss.ss.101 et seq., as
amended (the "Bankruptcy Code"), on January 18, 2000 (the "Petition Date"),
before the United States Bankruptcy Court for the District of Delaware (the
"Court"), bearing the case numbers set forth on Schedule B hereto attached and
incorporated herein by this reference (collectively, the "Cases"), which Cases
are currently pending and are being jointly administered; and
WHEREAS, no payments have been made on or with respect to the Omega
Loan since the Petition Date, and various disputes have arisen and now exist
between Omega and the Mariner Entities with respect to the Omega Loan, Omega's
ability to foreclose on the Facilities and related matters; and
WHEREAS, Omega and the Mariner Entities have been negotiating for an
extended period of time in an effort to resolve their disputes and restructure
the obligations of the Mariner Entities to Omega (the "Restructuring"); and
WHEREAS, the Mariner Entities desire to proceed with a portion of the
Restructuring - namely, the conveyance of the four (4) Michigan Facilities
identified on Schedule A as the "Ciena Facilities" (the "Ciena Facilities") to
an affiliate of Ciena Healthcare Management, Inc. ("Ciena Buyer") on the terms
and conditions set forth in the Ciena Purchase Agreement (as hereinafter
defined), free and clear of the Facility Leases pertaining to such Facilities
and free and clear of the liens and security interests securing the Omega Loan
(the "Ciena Transaction") - prior to finalizing the terms of the rest of the
Restructuring; and
WHEREAS, Omega is willing to permit the Ciena Transaction to occur
notwithstanding that the other aspects of the Restructuring have not been
finalized, subject to the terms and conditions of this Agreement;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements herein contained, and for other good and valuable
consideration, the receipt and adequacy of which are hereby acknowledged, Omega
and the Mariner Entities (collectively, the "Parties") hereby agree as follows:
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ARTICLE 1
DEFINITIONS
1.1. The following capitalized terms shall have the meanings set
forth below:
"Applicable Prepayment Amount" shall mean, with respect to any
particular Mandatory Prepayment Date under the Maintenance Obligation Note, the
amount by which the Net Lowest Daily Cash Balance for the second preceding
calendar month exceeds $850,000. If the Net Lowest Daily Cash Balance is equal
to or less than $850,000, the Applicable Prepayment Amount will be zero.
"Business Day" shall mean any day other than a Saturday, Sunday, or any
other day on which banking institutions in the State of Georgia are authorized
by law or executive action to close.
"Ciena Closing" shall mean the consummation of the Ciena Transaction.
"Ciena Event of Default" means an Event of Default by Ciena Buyer or
Ciena Guarantor as defined in the Purchase Money Financing Documents.
"Ciena Facility Subsidiaries" shall mean the subsidiaries of PHCM
indicated opposite the names of the respective Ciena Facilities on Schedule A.
"Ciena Purchase Agreement" shall mean that certain Asset Purchase
Agreement dated as of December 21, 2000, by and among PHCM, the Ciena Facility
Subsidiaries and the Ciena Buyer, pursuant to which PHCM has agreed to sell, and
the Ciena Buyer has agreed to buy, the Ciena Facilities, a copy of which is
attached hereto as Exhibit A.
"Ciena Transaction" shall mean the purchase and sale of the Ciena
Facilities pursuant to the Ciena Purchase Agreement.
"Final Audit Report" shall mean the final audit report for the Michigan
Facilities issued to PHCM by the applicable Governmental Authority of the State
of Michigan with respect to Medicaid cost reports for the years 1998 and 1999.
"GAAP" shall mean generally accepted accounting principles in effect at
the time in question.
"Governmental Authority" shall mean all agencies, authorities, bodies,
boards, commissions, courts, instrumentalities, legislatures and offices of any
nature whatsoever, of any government unit or political subdivision, whether
federal, state, county, district, municipal, city or otherwise, and whether now
or hereafter in existence.
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"Mandatory Prepayment Date" shall mean the 15th day of the second
calendar month after the calendar month in which PHCM receives the Final Audit
Report, and the 15th day of each successive calendar month thereafter until the
non-contingent portion of the Maintenance Obligation Note shall have been paid
in full.
"Medicaid Overpayment Claims" shall mean all claims for overpayment
under the State of Michigan Medicaid program asserted in the Final Audit Report
by any Governmental Authority of the State of Michigan against PHCM or the
Michigan Subsidiaries, whether or not relating to the Ciena Facilities, less any
amount thereof which has been waived or forgiven by the applicable Governmental
Authority or repaid by PHCM or the Michigan Subsidiaries.
"Net Lowest Daily Cash Balance" shall mean (i) at the time of closing
of the Ciena Transaction, the amount determined by deducting Medicaid
Overpayment Claims from the lowest daily consolidated cash balances of PHCM and
the Michigan Subsidiaries for the thirty-one (31)-day period immediately
preceding the date of the Ciena Closing, and (ii) at any other date, the amount
determined by deducting the Medicaid Overpayment Claims from the lowest daily
consolidated cash balances of PHCM and the Michigan Subsidiaries for the second
preceding calendar month ending prior to the date.
"Operators" shall mean PHCM, LC-PHCM and the Michigan Subsidiaries.
"Person" shall mean all individuals, corporations, general and limited
partnerships, limited liability companies, stock companies or associations,
joint ventures, unincorporated associations, companies, trusts, banks, trust
companies, land trusts, business trusts, Governmental Authorities and other
entities of every kind and nature.
"Purchase Money Financing Documents" shall mean all documents
evidencing, guaranteeing and securing the Purchase Money Loan, including, but
not limited to the Purchase Money Note and all guaranties, mortgages, security
agreements, pledge agreements, and UCC financing statements.
"Purchase Money Loan" shall mean the $9,000,000 purchase money loan to
be made by PHCM to Ciena Buyer in connection with the Ciena Transaction.
"Purchase Money Note" shall mean the promissory note from Ciena Buyer
and payable to the order of PHCM in the original principal amount of $9,000,000,
evidencing the Purchase Money Loan.
"Retained Facilities" shall mean the Retained Michigan Facilities plus
the North Carolina Facilities.
"Retained Michigan Facilities" shall mean the nine (9) Michigan
Facilities identified under the heading "Retained Facilities" on Schedule A
hereto.
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"Stay" shall mean an order of a court of competent jurisdiction staying
the Approval Order pending appeal.
"Subsidiary Guarantors" shall mean the Michigan Subsidiaries and
LC-PHCM, as guarantors of the Omega Loan.
"Third Party Payor Programs" shall mean all third party payor programs
in which any Facility participates, including, without limitation, Medicare,
Medicaid, CHAMPUS, Blue Cross and/or Blue Shield, TriCare, managed care plans,
other private insurance programs, workers compensation and employee assistance
programs.
"Third Party Payors" shall mean Medicare, Medicaid, CHAMPUS, Blue Cross
and/or Blue S |