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EXHIBIT 10.100
FOURTH MASTER AMENDMENT
FOURTH MASTER AMENDMENT (this "MASTER AMENDMENT") dated as of June 30
2000, by PITA GENERAL CORPORATION, an Illinois corporation ("BORROWER"), ZC
SPECIALTY INSURANCE COMPANY, a Texas corporation ("Surety"), GREENWICH CAPITAL
FINANCIAL PRODUCTS, INC., a Delaware corporation ("LENDER"), ALTERRA HEALTHCARE
CORPORATION, a Delaware corporation ("GUARANTOR"), AHC TENANT, INC., a Delaware
corporation ("LESSEE"), ALS-CLARE BRIDGE, INC., a Delaware corporation
("ALS-CLARE BRIDGE"), ALI PALMER RANCH EAST, INC., a Delaware corporation ("ALI
PALMER RANCH"), SELCO SERVICE CORPORATION, an Ohio corporation ("SELCO"), BANK
ONE, NATIONAL ASSOCIATION, a national banking association duly established with
its principal corporate trust office located in Chicago, Illinois (formerly
known as THE FIRST NATIONAL BANK OF CHICAGO) ("TRUSTEE"), CLARE BRIDGE OF CITRUS
HEIGHTS L.P., CLARE BRIDGE OF COBB COUNTY L.P., CLARE BRIDGE OF COLORADO SPRINGS
L.P., CLARE BRIDGE OF DECATUR L.P., CLARE BRIDGE OF EAST MESA L.P., CLARE BRIDGE
OF OVERLAND PARK L.P., CLARE BRIDGE OF PEORIA L.P., CLARE BRIDGE OF RENO L.P.,
CLARE BRIDGE OF ROANOKE L.P., CLARE BRIDGE OF SOUTH PARK L.P., CLARE BRIDGE OF
SUN CITY WEST DEER VALLEY L.P., WYNWOOD OF BOYNTON BEACH WEST L.P., WYNWOOD OF
BREA L.P., WYNWOOD OF DUNEDIN L.P., WYNWOOD OF EMERSON L.P., WYNWOOD OF TUCSON
L.P., WYNWOOD OF WAYNE L.P., WYNWOOD OF WESTLAKE L.P., WYNWOOD OF WEST ORANGE,
L.P. AND WYNWOOD OF WHITTIER L.P. (collectively, the "INITIAL JOINT VENTURES")
and CLARE BRIDGE OF DENVER L.P., WYNWOOD OF BOYNTON BEACH CONGRESS L.P., WYNWOOD
OF PALMER RANCH EAST L.P., WYNWOOD OF SARASOTA L.P., CLARE BRIDGE OF FULTON
COUNTY L.P. AND WYNWOOD OF FULTON COUNTY L.P. (the "ADDITIONAL JOINT VENTURES",
and together with the Initial Joint Ventures, the "JOINT VENTURES").
R E C I T A L S
WHEREAS, Borrower, Lessee, Surety, Lender, Guarantor, SELCO,
and Trustee are parties to that certain Amended and Restated Trust Agreement,
dated as of December 20, 1999 (as amended, restated, supplemented or otherwise
modified from time to time, the "TRUST AGREEMENT"), pursuant to which the
parties thereto have, among other things, appointed Trustee to act as trustee.
WHEREAS, Borrower, Lessee and Lender are parties to that
certain Amended and Restated Loan Agreement, dated as of December 20, 1999 (as
amended, restated, supplemented or otherwise modified from time to time, the
"LOAN AGREEMENT"), pursuant to which the Lender has made the Loans (as defined
therein) to Borrower.
WHEREAS, Borrower, Lessee, Surety, Lender, Guarantor, SELCO
and Trustee are parties to that certain Participation Agreement, dated as of
July 16, 1999, as amended by that
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certain Master Amendment, Confirmation and Acknowledgment Agreement, dated as of
September 28, 1999, and further amended by that certain Second Master Amendment,
dated as of December 20, 1999 and that certain Third Master Amendment dated as
of May 31, 2000, each among the parties (as amended, restated, supplemented or
otherwise modified from time to time, the "PARTICIPATION AGREEMENT").
WHEREAS, pursuant to a letter agreement dated as of May 31,
2000, the parties have agreed to amend Section 9.5 of the Participation
Agreement and certain definitions used therein as hereinafter provided.
NOW, THEREFORE, in consideration of the foregoing and the
agreements contained herein, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 DEFINITIONS. Capitalized terms used but not
otherwise defined herein shall have the respective meanings given thereto in
that certain Amended and Restated Master Glossary of Definitions dated as of
December 20, 1999 (as amended, restated, supplemented or otherwise modified from
time to time, the "MASTER GLOSSARY").
ARTICLE II
AMENDMENT OF TRANSACTION DOCUMENTS
Section 2.1 AMENDMENT OF THE MASTER GLOSSARY OF DEFINITIONS.
The Master Glossary of Definitions is hereby amended as follows:
(a) The following definitions are hereby added to
the Master Glossary of Definitions:
(i) "FOURTH MASTER AMENDMENT" shall mean that
certain Fourth Master Amendment, dated as of JUNE 30, 2000,
among Borrower, Surety, Lender, Guarantor, Lessee, Trustee and
certain other parties thereto.
(ii) "GUARANTOR RENTAL OBLIGATIONS" means
rental expense under leases which have been or should be, in
accordance with GAAP, treated as operating leases (net of
sublease income with respect to such leases).
(iii) "NET INCOME" shall mean, for any period,
with respect to Guarantor and its Subsidiaries on a
consolidated basis, net income (excluding extraordinary items)
after Guarantor Interest Obligations, income taxes,
depreciation and amortization, all as determined in accordance
with GAAP (net of sublease income with respect to operating
leases).
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(iv) "SYNTHETIC LEASE" means any synthetic
lease, tax retention operating lease, off-balance sheet loan
or similar off-balance sheet financing product where such
transaction is considered borrowed money indebtedness for tax
purposes but is classified as an operating lease on the books
of Guarantor.
(b) The definitions of "EBITDAR," "GUARANTOR INTEREST
OBLIGATIONS", "TOTAL CAPITAL" and "TOTAL FUNDED DEBT" are hereby
deleted in their entirety and replaced with the following:
(i) "EBITDAR" shall mean, for any period, with
respect to Guarantor and its Subsidiaries on a consolidated
basis, the sum of (i) Net Income for such period plus (ii) the
following to the extent deducted in computing such Net Income:
(a) income tax expense, (b) interest expense, (c) depreciation
and amortization expense, (d) non-cash non-recurring losses
arising out of the ordinary course of business (including
without limitation any adjustments to Guarantor's and its
Subsidiaries' book tax valuation allowance), (e) cash
non-recurring net losses related to the sale of assets in an
amount not to exceed $25 million and (f) cash non-recurring
losses in connection with any charges related to the reduction
or elimination of overhead cost or restructuring of
Guarantor's and its Subsidiaries' stock option program in an
amount not to exceed $10 million, all as determined in
accordance with GAAP plus (iii) Guarantor Rental Obligations
minus (iv) the following to the extent added in computing such
Net Income: (a) income tax benefit, (b) interest income and
(c) extraordinary or non-recurring gains, all as determined in
accordance with GAAP.
(ii) "GUARANTOR INTEREST OBLIGATIONS" means the
sum of all interest expense net of interest income (including
the amortization of debt discount and premium and the interest
component under leases which have been or should be, in
accordance with GAAP, capitalized on the books of the
Guarantor and its Subsidiaries and the implied interest
component under Synthetic Leases but excluding the
amortization of deferred financing costs, amendment fees paid
and bridge loan fees paid), as determined in accordance with
GAAP.
(iii) "TOTAL CAPITAL" shall mean the sum of Net
Worth, Total Funded Debt, Subordinated Debt (expressly
including the Debentures issued pursuant to the Purchase
Agreement) and book equity which exists in entities for which
guaranties are included in the definition of Total Funded
Debt.
(iv) "TOTAL FUNDED DEBT" shall mean, at any
time, the sum at such time of (a) indebtedness for borrowed
money (expressly excluding, however, the amount of convertible
securities of the Guarantor
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and its Subsidiaries (including the Debentures issued pursuant
to the Purchase Agreement) outstanding on such date) or for
the deferred purchase price of property or services, (b) any
obligations in respect of letters of credit, banker's or other
acceptances or similar obligations issued or created for the
account of the Guarantor and its Subsidiaries, (c) the
principal portion of lease obligations which have been or
should be, in accordance with GAAP, capitalized on the books
of the Guarantor and its Subsidiaries, (d) all liabilities
secured by any property owned by the Guarantor or its
Subsidiaries, as the case may be, to the extent attached to
the Guarantor's or its Subsidiary's interest in such property,
even though the Guarantor or its Subsidiary has not assumed or
become liable for the payment thereof, (e) the principal
amount of all obligations of Guarantor and its Subsidiaries
under Synthetic Leases (f) obligations of the type identified
in clauses (a) through (e) above of another Person which are
guaranteed by Guarantor and its Subsidiaries and (g)
obligations of the type identified in clauses (a) through (e)
above of any partnership or unincorporated joint venture in
which Guarantor or any of its Subsidiaries is legally
obligated or has a reasonable expectation of being liable with
respect thereto; but excluding (a) trade and other accounts
payable in the ordinary course of business in accordance with
customary trade terms and which are not overdue (as determined
in accordance with customary trade practices) or which are
being disputed in good faith by the Guarantor or its
Subsidiary and for which adequate reserves are being provided
on the books of the Guarantor and its Subsidiaries in
accordance with GAAP and (b) customary reservations or
retentions of title under agreements with suppliers entered
into in the ordinary course of business.
Section 2.2 AMENDMENT OF PARTICIPATION AGREEMENT. Sections 9.5 (a),
(b) and (c) of the Participation Agreement are hereby deleted in their entirety
and replaced with the following:
(a) Invested Equity. Guarantor shall maintain at
all times the sum of (i) Net Worth plus (ii) the outstanding
amount of the Debentures (as defined in the Purchase
Agreement, dated as of April 26, 2000, among Guarantor,
RDVEPCO, L.L.C., Group One Investors, L.L.C. and Holiday
Retirement 2000, L.L.C., as amended (the "PURCHASE
AGREEMENT")) greater than or equal to $110,000,000, increased
on a cumulative basis as of the end of each fiscal quarter of
Guarantor commencing with the fiscal quarter ending March 31,
2000 by (A) an amount equal to 50% of Net Income (to the
extent positive) for the fiscal quarter then ended plus (B) an
amount equal to 75% of the proceeds from any equity capital
(or equity equivalent) securities offering subsequent to
December 31, 1999, and 75% of the amount of any pay-in-kind
dividends or coupons issued subsequent to December 31, 1999.
(b) Ratio of Total Funded Debt to Total Capital.
Guarantor shall maintain on a consolidated basis with all
Subsidiaries a
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maximum ratio of Total Funded Debt to Total Capital of
seventy-five percent (75%) measured as of the last day of any
fiscal quarter of Guarantor.
(c) Ratio of EBITDAR to Interest and Rent.
Guarantor shall maintain on a consolidated basis with all
Subsidiaries, (i) as of the end of the fiscal quarter ending
March 31, 2000, for the three month period ending on such
date, (ii) as of the end of the fiscal quarter ending June 30,
2000, for the six month period ending on such date, (iii) as
of the fiscal quarter ending September 30, 2000 for the nine
month period ending on such date and (iv) as of the end of
each fiscal quarter beginning with the fiscal quarter ending
December 31, 2000, for the four fiscal quarter period ending
on such date, a minimum ratio of EBITDAR to the sum of
Guarantor Interest Obligations plus Guarantor Rental
Obligations, greater than or equal to:
Fiscal Year 1st Quarter 2nd Quarter 3rd Quarter 4th Quarter
----------- ----------- ----------- ----------- -----------
2000 0.75 to 1.0 0.75 to 1.0 0.75 to 1.0 0.75 to 1.0
2001 0.75 to 1.0 0.82 to 1.0 0.91 to 1.0 1.0 to 1.0
2002 1.06 to 1.0 1.13 to 1.0 1.19 to 1.0 1.25 to 1.0
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF LESSEE AND GUARANTOR
To induce Lender, Borrower and Surety to amend the Transaction
Documents upon the terms and conditions of this Master Amendment, each of Lessee
and Guarantor represents and warrants that the following statements are true,
correct and complete as of the date hereof and shall be true and correct as of
the Effective Date (hereinafter defined):
Section 3.1 ORGANIZATION, POWERS, CAPITALIZATION, GOOD
STANDING, BUSINESS.
(a) Organization and Powers. Each of Guarantor and
Lessee is a corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware. Guarantor is the sole
stockholder of Lessee. Each of Guarantor and Lessee has all requisite
power and authority to own and operate its properties, to carry on its
business as now conducted and proposed to be conducted, and to enter
into this Master Amendment and to perform the terms hereof.
(b) Capitalization; Ownership. All issued and
outstanding shares of capital stock of Lessee and Guarantor are duly
authorized and validly issued, fully paid, nonassessable, free and
clear of all Liens (other than Permitted Liens), and such shares were
issued in compliance with all applicable state and federal laws
concerning the issuance of securities. There are no preemptive or other
outstanding rights, options,
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warrants, conversion rights or similar agreements or understandings for
the purchase or acquisition of any shares of capital stock or other
securities of such entities (except, in the case of Guarantor, as
described in Sections 4.1(a) and 4.1(b) below or as disclosed in its
most recent quarterly report on Form 10-Q filed with the SEC).
(c) Qualification. Each of Guarantor and Lessee is
duly qualified and in good standing in the state of its formation.
Guarantor and Lessee are also duly qualified and in good standing in
the states where the Properties are located, and in each state where it
is necessary to carry on its present business and operations, except in
jurisdictions in which the failure to be qualified and in good standing
could not reasonably be expected to have a Material Adverse Effect.
(d) Business; Assets. The sole assets of Lessee are
its leasehold interests in and to the Properties, Improvements and
Assisted Living Facilities and Equipment under the Master Lease, its
sublessor's interest in the Subleases and its right, title and
interest, if any, in and to the Permits, if any, and personal property
appurtenant or related thereto and the Excluded Collateral.
Section 3.2 AUTHORIZATION.
(a) Authorization. The execution, delivery and
performance by Guarantor and Lessee of this Master Amendment (and each
of the Transaction Documents to which it is a party as amended hereby)
and the consummation of the transactions contemplated hereby, have been
duly authorized by all necessary corporate action.
(b) No Conflicts; No Consents or Approvals. The
execution, delivery and performance by each of Guarantor and Lessee of
this Master Amendment and the consummation of the transactions
contemplated hereby, do not and will not: (1) violate (x) any provision
of law applicable to it; (y) its Charter Documents; or (z) any order,
judgment or decree of any court or other agency of government binding
on either of them or any of their Affiliates; (2) conflict with, result
in a breach of or constitute (with due notice or lapse of time or both)
a default under any material Contractual Obligation of Guarantor or
Lessee or any of their Affiliates; (3) result in or require the
creation or imposition of any material Lien (other than the Lien of the
Transaction Documents and the Lien or other interest of SELCO or its
Affiliates in and to the Excluded Collateral) upon the Property or
assets of Guarantor or Lessee or any of their Affiliates; or (4) except
as set forth on Schedule 3.2(b), require any approval or consent of any
Person under any material Contractual Obligation of any Borrower Party,
which approvals or consents have been obtained on or before the dates
required under such Contractual Obligation, but in no event later than
the Effective Date.
(c) Governmental Consents. The execution, delivery
and performance by each of Guarantor and Lessee of this Master
Amendment and the consummation of the transactions contemplated hereby,
do not and will not require any registration with, consent or approval
of, or notice to, or other action to, with or by, any federal, state or
other governmental authority or regulatory body.
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(d) Binding Obligations. This Master Amendment (and
the other Transaction Documents each, as amended hereby) are the
legally valid and binding obligations of Guarantor and Lessee, as
applicable, enforceable against Guarantor and Lessee, as applicable, in
accordance with their respective terms, subject to bankruptcy,
insolvency, moratorium, reorganization and other similar laws affecting
creditor's rights. Neither Guarantor nor Lessee has any defense or
offset to any of its obligations under this Master Amendment or the
Transaction Documents.
ARTICLE IV
MISCELLANEOUS
Section 4.1 REFERENCES. Upon the effectiveness of this
Master Amendment, all references in any of the Transaction Documents and in all
other agreements, documents, certificates, exhibits and instruments executed
pursuant thereto, including, without limitation, references to "this Agreement,"
"hereunder," "hereof," "herein" and words of like import contained in any such
Transaction Documents shall, except where the context otherwise requires, mean
and be a reference to the applicable Transaction Document as amended hereby.
Section 4.2 COUNTERPARTS, SEVERABILITY AND EFFECTIVENESS.
This Master Amendment may be executed in any number of counterparts and by
different parties hereto in separate counterparts, each of which when so
executed shall be deemed to be an original and all of which when taken together
shall constitute one and the same agreement. Any provisions of this Master
Amendment which are prohibited or unenforceable in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction. This Master
Amendment shall become effective upon the execution of a copy hereof, whether by
the same or different copies, by the parties hereto.
Section 4.3 TRUSTEE. The parties hereto acknowledge and agree
that Trustee is acting not in its individual capacity, but solely in its
capacity as Trustee under the Trust Agreement, and at the direction of the
Controlling Party, as evidenced by the Controlling Party's execution hereof.
Section 4.4 GOVERNING LAW. THIS MASTER AMENDMENT SHALL BE
GOVERNED BY AND SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
ILLINOIS.
Section 4.5 NO WAIVERS. Except as otherwise expressly set
forth herein, nothing herein, nor any actions taken or omitted to be taken by
Surety, Borrower, SELCO or Lender pursuant hereto or pursuant to the Transaction
Documents shall, or shall be deemed to, (i) constitute a waiver or amendment of
any other covenant, term or agreement set forth in the Transaction Documents,
(ii) constitute a waiver of any Default or Event of Default now or hereafter
existing under any of the Transaction Documents (other than the Existing
Defaults), (iii) constitute a waiver of any rights or remedies of Surety,
Borrower, SELCO or Lender under any of the Transaction Documents or at law or in
equity, each of such rights and remedies being
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hereby expressly reserved by Surety, Borrower, SELCO and Lender or (iv)
constitute a course of dealing among the parties.
Section 4.6 EXPENSES. Guarantor shall be required to pay all
reasonable out-of-pocket costs and expenses (including, without limitation,
reasonable attorneys' fees and disbursements) incurred by Lender, Borrower,
SELCO, Trustee and Surety in connection with the preparation, negotiation,
execution and delivery of this Master Amendment and any and all other documents
and agreements executed and delivered in connection with this Master Amendment
and the consummation of the transactions contemplated hereby.
Section 4.7 RATIFICATION BY CLARE BRIDGE OF FULTON COUNTY
L.P. To avoid any ambiguity caused by a clerical error delaying the filing by
the Secretary of State of Delaware of a name change from Clare Bridge/Wynwood of
Fulton County L.P. to Clare Bridge of Fulton County L.P., the undersigned Clare
Bridge of Fulton County hereby ratifies and affirms all obligations undertaken
in the name of Clare Bridge of Fulton County L.P. pursuant to the Transaction
Documents and related documents and any amendments thereto, and acknowledge that
such obligations are its obligations and are in full force and effect.
Section 4.8 CONSENT TO TERMINATION OF SUBMANAGER. The parties
hereto hereby consent to the termination of that certain Nursing Facility
Consultant and Submanagement Services Agreement dated as of September 28, 1999
between ALI Palmer Ranch and Manor Care of Boynton Beach, Inc.
Section 4.9 RATIFICATION AND REAFFIRMATION BY GRANTOR.
Guarantor's obligations under the Guaranty and the Excluded Collateral Agreement
are hereby reaffirmed and ratified and shall continue in full force and effect
notwithstanding (a) the transactions contemplated by this Master Amendment, and
(b) the execution and delivery of (i) this Master Amendment and any other
documents to be delivered in connection with the transactions contemplated
hereby and (ii) any amendments to the Transaction Documents and related
documents by the parties thereto.
IN WITNESS WHEREOF, the parties hereto have caused this Master
Amendment to be executed by their respective officers thereunto duly authorized,
as of the date first above written.
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"BORROWER":
PITA GENERAL CORPORATION,
an Illinois corporation
By: /s/ Mindy Berman
-----------------------------------------
Mindy Berman
Vice President
"SURETY":
ZC SPECIALTY INSURANCE COMPANY,
a Texas corporation
By: /s/ Lynn Finkel
-----------------------------------------
Lynn Finkel
Vice President
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"LENDER":
GREENWICH CAPITAL FINANCIAL PRODUCTS, INC.,
a Delaware corporation
By: /s/ Warren Ashenmil
-----------------------------------------
Warren Ashenmil
Senior Vice President
"GUARANTOR":
ALTERRA HEALTHCARE CORPORATION,
a Delaware corporation
By: /s/ Mark W. Ohlendorf
-----------------------------------------
Mark W. Ohlendorf
Chief Financial Officer
"LESSEE":
AHC TENANT, INC.,
a Delaware corporation
By: /s/ Mark W. Ohlendorf
----------------------------------------
Mark W. Ohlendorf
Vice President
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"SELCO":
SELCO SERVICE CORPORATION,
an Ohio corporation
By: /s/ Donald C. Davis
----------------------------------------
Donald C. Davis
Vice President
"TRUSTEE":
BANK ONE, NATIONAL ASSOCIATION, with
its principal office located in Chicago,
Illinois (formerly known as THE FIRST NATIONAL
BANK OF CHICAGO), as Trustee
By: /s/ Jeffrey L. Kinney
------------------------------------------
Jeffrey L. Kinney
Vice President
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"JOINT VENTURES"
CLARE BRIDGE OF CITRUS HEIGHTS L.P., CLARE
BRIDGE OF COBB COUNTY L.P., CLARE BRIDGE OF
COLORADO SPRINGS L.P., CLARE BRIDGE OF DECATUR
L.P., CLARE BRIDGE OF EAST MESA L.P., CLARE
BRIDGE OF OVERLAND PARK L.P., CLARE BRIDGE OF
PEORIA L.P., CLARE BRIDGE OF RENO L.P., CLARE
BRIDGE OF ROANOKE L.P., CLARE BRIDGE OF SOUTH
PARK L.P., CLARE BRIDGE OF SUN CITY WEST DEER
VALLEY L.P., WYNWOOD OF BOYNTON BEACH WEST L.P.,
WYNWOOD OF BREA L.P., WYNWOOD OF DUNEDIN L.P.,
WYNWOOD OF EMERSON L.P., WYNWOOD OF TUCSON L.P.,
WYNWOOD OF WAYNE L.P., WYNWOOD OF WESTLAKE L.P.,
WYNWOOD OF WEST ORANGE, L.P. AND WYNWOOD OF
WHITTIER L.P., CLARE BRIDGE OF DENVER L.P.,
WYNWOOD OF BOYNTON BEACH CONGRESS L.P., WYNWOOD
OF PALMER RANCH EAST L.P., WYNWOOD OF SARASOTA
L.P., CLARE BRIDGE OF FULTON COUNTY L.P. AND
WYNWOOD OF FULTON COUNTY L.P.
By: Alterra Healthcare Corporation, the sole
general partner of each of the foregoing
limited partnerships
By: /s/ Mark W. Ohlendorf
--------------------------------------------
Mark W. Ohlendorf
Chief Financial Officer
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"ALS-CLARE BRIDGE":
ALS-CLARE BRIDGE INC.,
a Delaware corporation
By: /s/ Mark W. Ohlendorf
--------------------------------------------
Mark W. Ohlendorf
Vice President
"ALI PALMER RANCH":
ALI PALMER RANCH EAST, INC.,
a Delaware corporation
By: /s/ Mark W. Ohlendorf
--------------------------------------------
Mark W. Ohlendorf
Vice President
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