EXHIBIT 10.60
CONFIDENTIAL TREATMENT REQUESTED
The asterisked portions of this document have been omitted and are filed
separately with the Securities and Exchange Commission.
AMENDMENT NO. 6 TO AMENDED AND
RESTATED PARTICIPATION AGREEMENT
This AMENDMENT NO. 6 TO AMENDED AND RESTATED PARTICIPATION AGREEMENT
(this "Amendment"), is entered into as of February 28, 2003, among BEVERLY
ENTERPRISES, INC., a Delaware corporation ("BEI"), as the Representative,
Construction Agent, Parent Guarantor and a Lessee (in its capacity as
Representative, the "Representative"; in its capacity as Construction Agent, the
"Construction Agent"; in its capacity as Parent Guarantor, the "Parent
Guarantor" and together with the Guarantors listed on the signature page to the
Guaranty (each a "Guarantor") and the Structural Guarantors, collectively, the
"Guarantors"; and, in its capacity as Lessee, a "Lessee"); certain subsidiaries
of BEI that are signatories hereto, as Lessees; BANK OF MONTREAL GLOBAL CAPITAL
SOLUTIONS, INC. (formerly known as BMO LEASING (U.S.), INC.), a Delaware
corporation, as a Lessor (together with any permitted successors and assigns
thereto, each a "Lessor" and collectively the "Lessors") and as Agent Lessor for
the Lessors (in such capacity, the "Agent Lessor"); the various financial
institutions as are or may from time to time become lenders (the "Lenders")
under the Loan Agreement; and BANK OF MONTREAL, a Canadian banking organization
("BMO"), as Administrative Agent (in such capacity, the "Administrative Agent")
for the Lenders, and as Arranger and Syndication Agent (all of the parties of
this preamble, collectively, the "Parties").
The effective date of this Amendment shall be the date of effectiveness
of Credit Amendment No. 4 (the "Amendment No. 6 Effective Date").
RECITALS:
The Parties entered into an Amended and Restated Participation
Agreement dated as of August 28, 1998 (the "Original Participation Agreement"
and as amended by the Prior Amendments and this Amendment, the "Participation
Agreement"), amending and restating the Participation Agreement dated as of
March 21, 1997.
The Parties entered into a Master Amendment No. 1 to Amended and
Restated Participation Agreement and Amended and Restated Master Lease and
Open-End Mortgage, dated as of September 30, 1999 (the "First Amendment"), which
amended the Original Participation Agreement.
The Parties entered into an Amendment No. 2 to Amended and Restated
Participation Agreement, dated as of November 1, 1999 (the "Second Amendment"),
which amended the Original Participation Agreement as amended by the First
Amendment.
The Parties entered into a Master Amendment No. 3 to Amended and
Restated Participation Agreement, dated as of April 25, 2001 (the "Third
Amendment"), which amended
the Original Participation Agreement as amended by the First Amendment and the
Second Amendment.
The Parties entered into an Amendment No. 4 to Amended and Restated
Participation Agreement, dated as of December 31, 2001 (the "Fourth Amendment"),
which amended the Original Participation Agreement as amended by the First
Amendment, the Second Amendment and the Third Amendment.
The Parties entered into an Amendment No. 5 to the Amended and Restated
Participation Agreement, dated as of December 20, 2002 (the "Fifth Amendment"
and, together with the First Amendment, Second Amendment, Third Amendment and
Fourth Amendment collectively the "Prior Amendments"), which amended the
Original Participation Agreement as amended by the First Amendment, the Second
Amendment, the Third Amendment and the Fourth Amendment.
The Parties wish to further amend certain provisions of the Original
Participation Agreement, as amended by the Prior Amendments, as set forth
herein.
AGREEMENT:
NOW, THEREFORE, in consideration of the premises made hereunder, and
for good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the Parties hereto, intending to be legally bound, hereby
agree as follows:
1. Defined Terms; References. Unless otherwise expressly defined
herein, all capitalized terms used herein and defined in Appendix A to the
Participation Agreement shall be used herein as so defined. Unless otherwise
expressly stated herein, all Section and Article references herein shall refer
to Sections and Articles of the Participation Agreement.
2. Added Defined Terms. (a) Effective as of the Amendment No. 6
Effective Date, the following defined terms shall be added to Appendix A of the
Participation Agreement.
"Additional Mortgages" means mortgages or deeds of trust from the owner
of each property on which a Lien is required to be granted pursuant to
Section 10.1(m), as mortgagor, securing the Obligations (and, if the
Representative so elects, the obligations of such owner under the
Financing Documents), in each case in form and substance reasonably
satisfactory to the Administrative Agent and as the same may be amended
from time to time."
"Adjusted Leverage Ratio" means, (a) for any day prior to September 30,
2003, the ratio of Adjusted Consolidated Debt on such day to Annualized
Consolidated EBITDAR for the fiscal quarter most recently ended on or
prior to such day and (b) for any day on or after September 30, 2003,
the ratio of Adjusted Consolidated Debt on such day to
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Consolidated EBITDAR for the period of four consecutive fiscal quarters
most recently ended on or prior to such day.
"Amended Mortgage Condition" means the satisfaction by the
Representative and its Subsidiaries of all of their obligations under
Section 10.1(1).
"Amended Mortgage Deadline" means the sixtieth day after the Amendment
No. 6 Effective Date.
"Amended Mortgage Property" means the property described in Schedule
VII hereto.
"Amended Mortgages" means amended mortgages or deeds of trust from each
of Beverly Enterprises-Georgia, Inc. and Beverly Enterprises-Arkansas,
Inc. (collectively, the "Designated Mortgagors") of each respective
Amended Mortgage Property, as mortgagor, to the Administrative Agent,
as mortgagee, in respect of the Amended Mortgage Properties, in each
case amended in form and substance reasonably satisfactory to the
Administrative Agent and as the same may be amended from time to time.
"Amendment No. 6" means Amendment No. 6 to Amended and Restated
Participation Agreement entered into as of February 28, 2003 among
Beverly Enterprises, Inc., as the Representative, Construction Agent,
Parent Guarantor and a Lessee, Bank of Montreal Global Capital
Solutions, Inc., as the Agent Lessor and as a Lessor, the Lenders, Bank
of Montreal, as Arranger, the Administrative Agent and as a Lender and
the Guarantors.
"Amendment No. 6 Effective Date" means the date on which Amendment No.
6 becomes effective in accordance with its terms.
"AmSouth Mortgage Facility" means the Amended and Restated Term Loan
Agreement, dated December 31, 1998, between Beverly
Enterprises-Mississippi, Inc. and AmSouth Bank (successor by merger to
First American National Bank), as amended by the First Amendment to
Amended and Restated Term Loan Agreement and Promissory Notes, dated
September 30, 1999, and as further amended, restated, supplemented or
otherwise modified from time to time.
"Annualized Consolidated EBITDAR" means (a) for the fiscal quarter
ended December 31, 2002, Consolidated EBITDAR for such fiscal quarter
multiplied by 4, (b) for the fiscal quarter ended March 31, 2003,
Consolidated EBITDAR for the period of two fiscal quarters ended March
31, 2003 multiplied by 2 and (c) for the fiscal quarter ended June 30,
2003, Consolidated EBITDAR for the period of three fiscal quarters
ended June 30, 2003 multiplied by 4/3.
"Annualized Mortgage EBITDA" means (i) for the fiscal quarter ended
December 31, 2002, EBITDA for Mortgaged Facilities for such fiscal
quarter multiplied by 4, (ii) for the fiscal quarter ended March 31,
2003, EBITDA for Mortgaged Facilities for the period
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of two fiscal quarters ended March 31, 2003 multiplied by 2, (iii) for
the fiscal quarter ended June 30, 2003, EBITDA for Mortgaged Facilities
for the period of three fiscal quarters ended June 30, 2003 multiplied
by 4/3 and (iv) for any fiscal quarter thereafter, EBITDA for Mortgaged
Facilities for the period of four consecutive fiscal quarters ended on
the last day of such fiscal quarter.
"Asset Sale" means any sale, lease, transfer or other disposition of
any assets or property other than (i) sales of assets or property
(other than assisted living and skilled nursing facilities, separate
business units, businesses and divisions and stock of Subsidiaries of
the Representative) in the ordinary course of business, and (ii) sales,
transfers, leases and other dispositions by the Representative or any
of its Subsidiaries to the Representative or any of the Subsidiaries.
"Care Focus" means, as of the Amendment No. 4 Effective Date (as
defined in Credit Amendment No. 4), the personal care business, located
in North Carolina, operated by Community Care, Inc. and Compassion and
Personal Care Services, Inc.
"Consolidated Cash Balance" means on any day the cash and Temporary
Cash Investments held by the Representative and its Consolidated
Subsidiaries on such day.
"Coverage Limitation" means, for any day, an amount equal to (i) the
product of 5 multiplied by the Annualized Mortgage EBITDA, as
determined on such day, for the most recent fiscal quarter for which
financial statements have been, or are required to have been, delivered
pursuant to Section 10.1(d)(i) and (ii), divided by (ii) 1.5; provided
that if, on or prior to such day, the Representative has prepaid any
New Senior Notes or Senior Notes pursuant to Section 5.21(iii)(B) of
the Morgan Credit Agreement, the "Coverage Limitation" for such day
shall be an amount equal to the amount set forth in clause (i) as
determined for such day, divided by 2.
"Credit Amendment No. 4" means Amendment No. 4 to Amended and Restated
Credit Agreement and Amendment No. 2 to Amended and Restated Pledge
Agreement dated as of February 28, 2003 among BEI, the Existing Banks
and JPMorgan Chase Bank.
"Disposition Program" means, the sale, transfer or other disposition by
the Representative and its Subsidiaries, in one or more transactions
and pursuant to sales of facilities and related assets, sales of stock
of Subsidiaries or a combination thereof, of assisted living and
skilled nursing facilities of the Representative and its Subsidiaries,
all in substantial conformity with the plan of disposition described in
the Strategic Review.
"DUCC Business Line" means the management of occupational therapy and
medicine clinics operated by Matrix Occupational Health, Inc. in North
Carolina.
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"EBITDA for Mortgaged Facilities" means, for any period, Net Income for
Mortgaged Facilities for such period plus, without duplication, any
amounts deducted in determining such Net Income for Mortgaged
Facilities in respect of (a) Consolidated Interest Charges for such
period, (b) Consolidated Tax Charges for such period and (c) expenses
for such period of the types classified as "depreciation and
amortization" on the consolidated statement of operations included in
the Base Financials.
"Existing Mortgages" means mortgages and deeds of trust described in
Schedule I to Amendment No. 6, in each case as the same has been or may
be amended from time to time.
"Extended Amended Mortgage Deadline" has the meaning set forth in
Section 10.1(1).
"Federal Way Facility" means the skilled nursing facility operated by
Beverly Enterprises-Washington, Inc., located at 135 South 336 Street,
Federal Way, Washington, 98003.
"Initial Specified Portion" means, with respect to any prepayment
required under clause (b)(ii)(A) of Section 7.11, (a) with respect to
the Obligations, 80% and (b) with respect to the Mortgage Facility
Obligations, 20%; provided that if at the time that any such repayment
would otherwise be required, (i) the Obligations have been repaid in
full or would be repaid in full by the application of less than all of
the applicable Initial Specified Portion of the applicable amount or
(ii) the Mortgage Facility Obligations have been repaid in full or
would be repaid in full by the application of less than all of the
applicable Initial Specified Portion of the applicable amount, the
Initial Specified Portion (or the portion of such Initial Specified
Portion in excess of the amount necessary to repay such Obligations or
Mortgage Facility Obligations) that would otherwise have been applied
to repay such Obligations or Mortgage Facility Obligations shall be
included in the Initial Specified Portion of Obligations or Mortgage
Facility Obligations remaining outstanding.
"Investments Side Letter" means the side letter dated February 28, 2003
delivered by the Representative and acknowledged by the Administrative
Agent under the Morgan Credit Agreement.
"MK Medical" means, as of the Amendment No. 6 Effective Date,
collectively, the business divisions of HomeCare Preferred Choice, Inc.
which operate a respiratory therapy business, durable medical equipment
business and rehabilitation business, in each case in Nevada and
California.
"Mortgage Credit Facilities" means, collectively, the AmSouth Mortgage
Facility and the Washington Mutual Mortgage Facilities.
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"Mortgaged Facility Obligations" means all amounts now or hereafter
payable by the Representative or its Subsidiaries pursuant to the
Mortgage Credit Facilities.
"Net Cash Proceeds" means, with respect to any Asset Sale, (a) the cash
proceeds received by the Representative or any of its Subsidiaries in
respect of such Asset Sale, including any cash received in respect of
any non-cash proceeds, but only as and when received, net of (b) the
sum of (i) all reasonable fees and out-of-pocket expenses paid by the
Representative and its Subsidiaries to third parties (other than
Affiliates) in connection with such Asset Sale, (ii) the amount of all
(x) payments required to be made by the Representative and its
Subsidiaries as a result of such Asset Sale to repay Indebtedness
(other than prepayments of Mortgage Facility Obligations or Obligations
required under clauses (a), (b)(ii), (b)(iii) and (c) of Section 7.11
and prepayments of Loans (as defined in the Morgan Credit Agreement)
required under Section 2.05(d) of the Morgan Credit Agreement in
connection with the reductions of the Commitments (as defined in the
Morgan Credit Agreement) pursuant to clauses (i), (ii)(B), (ii)(C) and
(iii) of Section 2.11(b) of the Morgan Credit Agreement) secured by
such asset or otherwise subject to mandatory prepayment as a result of
such Asset Sale and (y) reductions in the Commitments (as defined in
the Morgan Credit Agreement) pursuant to Section 2.11(b)(ii)(A) of the
Morgan Credit Agreement, (iii) the amount of all taxes paid (or
reasonably estimated to be payable) by the Representative and its
Subsidiaries during the year that such Asset Sale occurred or the next
succeeding year and that are directly attributable to such Asset Sale
(as determined reasonably and in good faith by the chief financial
officer of the Representative) and (iv) the amount of all payments
required to be made by the Representative and its Subsidiaries to pay
severance, salary for accrued and unused vacation days and other
employee termination expenses during the year that such Asset Sale
occurred or the next succeeding year and that are directly attributable
to such Asset Sale.
"Net Income for Mortgaged Facilities" means, for any period and as
determined on any date, the net income (loss) (calculated exclusive of
the effect of any extraordinary or other material non-recurring gain or
loss outside the ordinary course of business) for such period for all
assisted living and skilled nursing facilities subject to (x) an
Existing Mortgage or (y) an Amended Mortgage as to which all the
conditions set forth in Section 10.1(1) have been satisfied, and, in
each case, which has not theretofore been released.
"New Senior Note Agreement" means that certain Indenture, dated as of
April 25, 2001, between the Representative, the guarantors party
thereto and The Bank of New York, as trustee, as amended, modified or
supplemented.
"Security Documents" means the Pledge Agreement, the Mortgages and the
Additional Mortgages, together with all related filings, assignments,
instruments, mortgages and other papers.
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"Senior Note Agreement" has the meaning set forth in the Morgan Credit
Agreement.
"Senior Notes" means the senior unsecured notes of the Representative
due 2006 issued pursuant to the Senior Note Agreement.
"Specified Portion" means, with respect to any repayment required under
clause (b)(ii)(B), (b)(iii) or (c) of Section 7.11 or any Commitment
(as defined in the Morgan Credit Agreement) reduction pursuant to
clause (ii)(B)(2), (ii)(C) or (iii) of Section 2.11(b) of the Morgan
Credit Agreement, (a) with respect to the Commitments, 50%, (b) with
respect to the Obligations, 40% and (c) with respect to the Mortgage
Facility Obligations, 10%; provided that if at the time that any such
Commitment (as defined in the Morgan Credit Agreement) reduction or
repayment would otherwise be required, (i) the aggregate Commitments
(as defined in the Morgan Credit Agreement) of all Existing Banks have
been reduced to $85,000,000 or would be reduced to $85,000,000 by the
application of less than the applicable Specified Portion of the
applicable amount, (ii) the Obligations have been repaid in full or
would be repaid in full by the application of less than all of the
applicable Specified Portion of the applicable amount or (iii) the
Mortgage Facility Obligations have been repaid in full or would be
repaid in full by the application of less than all of the applicable
Specified Portion of the applicable amount, the Specified Portion (or
the portion of such Specified Portion in excess of the amount necessary
to reduce such aggregate Commitments (as defined in the Morgan Credit
Agreement) to $85,000,000 or to repay such Obligations or Mortgage
Facility Obligations in full) that would otherwise have been applied to
reduce such Commitments (as defined in the Morgan Credit Agreement) or
repay such Obligations or Mortgage Facility Obligations shall be
included in the Specified Portions applicable to the outstanding
Commitments (as defined in the Morgan Credit Agreement) in excess, in
the aggregate for all Existing Banks, of $85,000,000 and the
Obligations and Mortgage Facility Obligations remaining outstanding in
proportion to the relative Specified Portions set forth in clauses (a),
(b) and (c) above.
"Strategic Review" means the "Strategic Discussion and Review" dated
January 10, 2003 provided by the Representative.
"Survey" shall mean a survey of the real property (and all improvements
thereon) (i) prepared by a surveyor or engineer licensed to perform
surveys in the state, commonwealth or applicable jurisdiction where
such real property is located, (ii) dated (or redated) not earlier than
six months prior to the date of delivery thereof unless there shall
have occurred within six months prior to such date of delivery any
exterior construction on the site of such real property, in which event
such survey shall be dated (or redated) after the completion of such
construction or if such construction shall not have been completed as
of such date of delivery, not earlier than twenty days prior to such
date of delivery, (iii) certified by the surveyor (in a manner
reasonably acceptable to the Administrative Agent) to the
Administrative Agent and the TIC, (iv) complying in all
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respects with the minimum detail requirements of the American Land
Title Association as such requirements are in effect on the date of
preparation of such survey and (v) sufficient for the TIC to remove all
standard survey exceptions from the title policy relating to such real
property and issue title endorsements of the type reasonably required
by the Administrative Agent.
"TIC" has the meaning set forth in Section 10.1(l)(iv).
"Washington Mutual Mortgage Facilities" means, collectively, (1) the
Loan Agreement, dated October 15, 1996, between Beverly Enterprises -
Arkansas, Inc. and Washington Mutual Bank FA (successor by merger to
Bank United) ("Washington Mutual"), (2) the Loan Agreement, dated
October 15, 1996, between Beverly Enterprises - Alabama, Inc. and
Washington Mutual, (3) the Loan Agreement, dated October 15, 1996,
between Beverly Enterprises - Washington, Inc. and Washington Mutual
and (4) the Loan Agreement, dated October 15, 1996, between Beverly
Enterprises - Wisconsin, Inc. and Washington Mutual, each as amended
from time to time.
3. Amended Defined Terms. (a) The definition of "Operative
Documents" set forth in Appendix A to the Participation Agreement is hereby
amended by (i) deleting the word "and" at the end of clause (s) therein, (ii)
deleting the period at the end of clause (t) and replacing the same with ";
and", and (iii) adding "(u) the Amended Mortgages." at the end thereof.
(b) The following defined terms in Appendix A to the
Participation Agreement are hereby amended by deleting such definitions
in their entirety and inserting the following in lieu thereof:
"Adjusted Consolidated Debt" means, at any date, the sum, without
duplication, of (i) all liabilities of the Representative and its
Subsidiaries at such date of the types classified as "current
liabilities: short-term borrowings", "current liabilities: current
portion of long-term obligations", "long-term obligations" and, to the
extent arising out of claims made by governmental authorities relating
to reimbursement obligations or settlements thereof, "other liabilities
and deferred items" on the consolidated balance sheet included in the
Base Financials, (ii) all guarantees at such date of obligations of
other issuers (other than (x) guarantees outstanding on the Amendment
No. 6 Effective Date of obligations outstanding on the Amendment No. 6
Effective Date, in amounts not in excess of $57,191,572 and reported in
the Base Financials and (y) obligations, or guarantees of obligations,
with respect to facilities or Subsidiaries disposed of, which
obligations or guarantees existed prior to such dispositions and are
initially recorded as liabilities or obligations on the consolidated
balance sheet of the Representative and its Consolidated Subsidiaries
pursuant to FASB Interpretation 45 after the Closing Date, so long as
(A) no event of the type referred to in Section 6.01(h) or (i) of the
Morgan Credit Agreement (without regard to whether a period of 60 days
shall have passed as contemplated in
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CONFIDENTIAL TREATMENT REQUESTED
The asterisked portions of this document have been omitted and are filed
separately with the Securities and Exchange Commission.
Section 6.01(i) of the Morgan Credit Agreement) shall have occurred
with respect to the Person that is primarily liable in respect of such
obligations, or who has agreed with the Representative or any of its
Subsidiaries to be responsible for such obligations, and (B) the
obligee of such obligation, or the beneficiary of such guarantee, shall
not have made a demand for payment in respect of such obligation or
guarantee) and (iii) an amount equal to the product of eight multiplied
by the Consolidated Rental Expense for the four fiscal quarters of the
Representative most recently completed on or prior to such date;
provided that for purposes of this clause (iii), Consolidated Rental
Expense for any such period of four fiscal quarters shall be calculated
after giving pro forma effect (including, in the case of any
acquisition, but only to the extent permitted under Regulation S-X
promulgated by the Securities and Exchange Commission) to any
acquisition or disposition by the Representative or any of its
Subsidiaries of any business, nursing home or other facility or any
Subsidiary consummated after the first day of such period and on or
prior to the date on which such determination is to be made, as if such
acquisition or disposition had been consummated on the first day of
such period, if, but only if, the Consolidated EBITDAR attributable to
all such businesses, nursing homes and other facilities and all such
Subsidiaries, in any transaction or series of related transactions, for
such period, in the aggregate, equals or exceeds $10,000,000.
"Consolidated Net Income" means, for any period, the net income (loss)
(calculated (a) before preferred and common stock dividends and (b)
exclusive of the effect of (i) any extraordinary or other material
non-recurring gain or loss outside the ordinary course of business,
(ii) Specified Restructuring Charges in an aggregate amount, on a
pretax basis, during the period from October 1, 2000 through March 31,
2001 not exceeding $105,000,000, (iii) the charges or losses, in an
aggregate amount, on a pretax basis, not exceeding $130,000,000,
incurred by the Representative and its Consolidated Subsidiaries on or
prior to January 8, 2002 in connection with the Florida Disposition,
(iv) charges and losses incurred by the Representative and its
Consolidated Subsidiaries on or after the Amendment No. 6 Effective
Date as a result of (x) Asset Sales outside the ordinary course of
business and dispositions made pursuant to the Disposition Program and
(y) payments relating to the past billing practices of MK Medical in an
aggregate amount not exceeding ***********, (v) non-cash charges and
losses incurred by the Representative and its Consolidated Subsidiaries
on or after the Amendment No. 6 Effective Date as a result of (x)
closures of assisted living and skilled nursing facilities of the
Representative and its Subsidiaries and (y) any change in GAAP that
requires the Obligations and the assets subject to the Transactions to
be included on the balance sheet of the Representative and its
Consolidated Subsidiaries and (vi) transaction fees and expenses of the
Representative and its Subsidiaries incurred in connection with
Amendment No. 6 and any related amendments to the Operative Documents,
the Morgan Credit Agreement and the Mortgage Credit Facilities) for the
Representative and its Consolidated Subsidiaries, determined on a
consolidated basis for such period.
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CONFIDENTIAL TREATMENT REQUESTED
The asterisked portions of this document have been omitted and are filed
separately with the Securities and Exchange Commission.
"Consolidated Net Worth" means, at any date, the consolidated
stockholders' equity of the Representative and its Consolidated
Subsidiaries at such date, without giving effect to (a) charges and
losses incurred by the Representative and its Consolidated Subsidiaries
on or after the Amendment No. 6 Effective Date as a result of (i) Asset
Sales outside the ordinary course of business and dispositions made
pursuant to the Disposition Program, (ii) payments relating to the past
billing practices of MK Medical in an aggregate amount not exceeding
***********, (b) non-cash charges and losses incurred by the
Representative and its Consolidated Subsidiaries on or after the
Amendment No. 6 Effective Date as a result of (i) closures of assisted
living and skilled nursing facilities of the Representative and its
Subsidiaries and (ii) any change in GAAP that requires the Obligations
and the assets subject to the Transactions to be included on the
balance sheet of the Representative and its Consolidated Subsidiaries
and (c) transaction fees and expenses of the Representative and its
Subsidiaries in connection with Amendment No. 6 and any related
amendments to the Operative Documents and the Mortgage Credit
Facilities.
"Fixed Charge Coverage Ratio" means, on any date, the ratio of (i)
Consolidated EBITDAR for the four consecutive fiscal quarters most
recently ended on or prior to such date to (ii) the sum of Consolidated
Interest Charges and Consolidated Rental Expense for such fiscal
quarters.
"Maturity Date" means April 25, 2004, unless such Maturity Date is
extended pursuant to Section 2.7 of the Loan Agreement and Section 11.1
of the Participation Agreement.
"Morgan Credit Agreement" means the Amended and Restated Credit
Agreement dated as of April 25, 2001 amending and restating the Amended
and Restated Credit Agreement dated as of April 30, 1998 among the
Representative, the Banks listed on the signature pages thereof, Morgan
Guaranty Trust Company of New York, as Issuing Bank, and Morgan
Guaranty Trust Company of New York, as Agent, as the same has been or
may be modified, amended or supplemented.
"Mortgages" means the Existing Mortgages and the Amended Mortgages.
"Refinanced Debt" is defined in Section 10.2(i)(v) of the Participation
Agreement.
"Refinancing Debt" is defined in Section 10.2(i)(v) of the
Participation Agreement.
4. Distributions. Effective as of the Amendment No. 6
Effective Date, Article VII of the Participation Agreement is hereby amended by
adding, at the end thereof, a new Section 7.11 to read in full as follows:
"Section 7.11 Prepayment of Obligations and Mortgage Facility
Obligations. The Representative shall prepay, or cause its
Subsidiaries to prepay
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CONFIDENTIAL TREATMENT REQUESTED
The asterisked portions of this document have been omitted and are filed
separately with the Securities and Exchange Commission.
(or, in the case of the Obligations, deposit funds with the
Administrative Agent that are committed to the repayment of),
the Obligations and the Mortgage Facility Obligations,
(a) on the Amendment No. 6 Effective Date, in the
case of the Obligations, in the amount of $20,000,000;
$16,800,000 of which shall be paid in consideration for the
sale to the Representative of certain properties subject to an
Existing Mortgage in favor of the Administrative Agent (which
properties shall continue to be subject to a Lien in favor of
the Administrative Agent pursuant to Amended Mortgages) and
$3,200,000 of which shall be deposited into a cash collateral
account maintained by the Administrative Agent,
(b) upon the consummation of any Asset Sale, by an
amount equal to:
(i) if any Asset Sale includes assets that
were subject to a Lien securing the Obligations or
the Mortgage Facility Obligations, (A) in the case of
the Obligations, the amount set forth on Schedule
VIII hereto with respect to such assets and (B) in
the case of the Mortgage Facility Obligations, the
amount required to be repaid pursuant to the AmSouth
Mortgage Facility or the Washington Mutual Mortgage
Facilities, as applicable; and
(ii) if any Net Cash Proceeds result from
any Asset Sale,
(A) until the Obligations have been
prepaid by $15,000,000 in the aggregate and
the Mortgage Facility Obligations have been
prepaid by $3,750,000 in the aggregate, in
each case pursuant to this clause (A) (or,
in either case, repaid in full), the Initial
Specified Portion of the Net Cash Proceeds
in respect of such Asset Sale; provided that
if, prior to the earlier of (x) ***********
********************************************
and (y) *********************************
******************, the Representative shall
have reached a final agreement related to
past billing practices of MK Medical, which
agreement requires the Representative and
its Subsidiaries to make cash payments in an
aggregate amount greater than ***********
but less than ***********, no prepayment
shall be required in respect of the Net Cash
Proceeds received on or after the date that
such agreement becomes final in an amount
equal to the
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CONFIDENTIAL TREATMENT REQUESTED
The asterisked portions of this document have been omitted and are filed
separately with the Securities and Exchange Commission.
excess of the aggregate amount of such
payments over ***********; provided further
that the provisions of this clause (A) shall
remain in effect thereafter until the
Obligations have been prepaid by $15,000,000
in the aggregate and the Mortgage Facility
Obligations have been prepaid by $3,750,000
in the aggregate, in each case pursuant to
this clause (A),
(B) after the Obligations have been
prepaid by $15,000,000 in the aggregate and
the Mortgage Facility Obligations have been
prepaid by $3,750,000 in the aggregate, in
each case pursuant to clause (ii)(A) of this
Section 7.11 (or, in either case, repaid in
full), the Specified Portion of 65% of the
Net Cash Proceeds of such Asset Sales; and
(iii) if, in the absence of any additional
Commitment (as defined in the Morgan Credit
Agreement) reductions and/or repayments of Mortgage
Facility Obligations and/or the Obligations, the
Representative would be required to make a Senior
Asset Sale Offer (as defined in the Senior Note
Agreement or the New Senior Note Agreement) under the
Senior Note Agreement or the New Senior Note
Agreement, the applicable Specified Portion of the
amount of Net Cash Proceeds that must be applied to
repay Senior Debt (as defined in the Senior Note
Agreement or the New Senior Note Agreement) in order
for the Representative to avoid the making of a
Senior Asset Sale Offer under the Senior Note
Agreement or the New Senior Note Agreement; and
(c) on any Business Day, by the applicable Specified
Portion of the amount by which the average of the Consolidated
Cash Balances at the close of business on the three
consecutive Business Days immediately preceding such day (in
each case after giving effect to any Commitment (as defined in
the Morgan Credit Agreement) reductions required pursuant to
clause (ii) of Section 2.11(b) of the Morgan Credit Agreement
and related prepayments pursuant to Section 2.05(d) of the
Morgan Credit Agreement and any prepayments required pursuant
to clause (b) of this Section 7.11, in each case to be made on
any such Business Day) exceeds $125,000,000;
provided that (x) if the Mortgage Facility Obligations remain
outstanding, the Representative may elect to apply 100% of any
prepayment that would
-12-
otherwise be applied under this Section 7.11 to prepay the
Mortgage Facility Obligations, to prepay the Obligations and
reduce the Commitments (as defined in the Morgan Credit
Agreement) in the same manner as if the Mortgage Facility
Obligations had theretofore been repaid in full pursuant to
this Section 7.11, (y) if the Mortgage Facility Obligations
have been prepaid in full (other than pursuant to this Section
7.11), the Representative may retain any amount that would
otherwise have been applied under this Section 7.11 to prepay
the Mortgage Facility Obligations to the extent that the
aggregate of such retained amounts does not exceed the amount
of Mortgage Facility Obligations so prepaid on or after the
Amendment No. 6 Effective Date less $5,000,000 and (z) any
proceeds resulting from the sale of assets that were not
subject to a Lien securing the Obligations and received by the
Representative or such Subsidiary prior to July 1, 2003
pursuant to clause (b)(ii)(A) or (B) of this Section 7.11 and
which are to be applied to the repayment of the Obligations,
may, in the Representative's sole discretion, either (I) be
promptly (but in any event, within one Business Day following
receipt by the Representative of such proceeds) deposited into
a cash collateral account maintained by the Administrative
Agent and applied upon the earlier of (A) July 1, 2003 or (B)
upon the occurrence of an Event of Default to the repayment of
the Obligations as otherwise set forth in this Section 7.11 or
(II) be paid in accordance with clause (b)(ii)(A) or (B) of
this Section 7.11, as applicable."
5. Affirmative Covenants of the Representative. Effective as
of the Amendment No. 6 Effective Date, Section 10.1 of the Participation
Agreement is hereby amended as follows:
(a) Section 10.1(d)(iii) is hereby amended by deleting said
section in its entirety and inserting the following in lieu thereof:
"(iii) together with each delivery of financial
statements of the Representative and its Subsidiaries pursuant
to Sections 10.1(d)(i) and 10.1(d)(ii) above, (A) a
certificate of a Financial Officer (x) stating that the signer
thereof has reviewed the terms of this Participation Agreement
and the Master Lease and has made, or caused to be made under
his supervision, a review in reasonable detail of the
transactions and condition of the Representative and its
Subsidiaries (including the other Beverly Entities) during the
accounting period covered by such financial statements and
that such review has not disclosed the existence during or at
the end of such accounting period, and that the signer does
not have knowledge of the existence as at the date of such
certificate, of any condition or event which constitutes a
Lease Event of Default or Lease
-13-
Default, or, if any such condition or event existed or exists,
specifying the nature and period of existence thereof and what
action the Representative has taken, is taking and proposes to
take with respect thereto, (y) setting forth in reasonable
detail calculations of the Pricing Ratio as of the date of the
Balance Sheet contained therein and for the period of four
fiscal quarters ending on such date and (z) in the case of
each such certificate delivered after the Amended Mortgage
Deadline, setting forth in reasonable detail the Coverage
Limitation as of the date of the balance sheet contained
therein; and (B) a Compliance Certificate demonstrating in
reasonable detail compliance during and at the end of such
accounting periods with the restrictions contained in Section
10.2(a), Section 10.2(b), Section 10.2(c), Section 10.2(e)(v),
Section 10.2(f), Section 10.2(g), Section 10.2(i), Section
10.2(l) and Section 10.2(m)."
(b) Section 10.1(1) is hereby amended by deleting said section
in its entirety and inserting the following in lieu thereof:
"(1) Mortgages. On or prior to the Amended Mortgage
Deadline or such other date or dates (each, an "Extended Amended
Mortgage Deadline") as the Representative, the Administrative Agent and
the Agent Lessor shall agree:
(i) the Designated Mortgagors shall have each
delivered to the Administrative Agent and the Agent Lessor
duly executed counterparts of an Amended Mortgage in respect
of each Amended Mortgage Property owned by it, and
simultaneously therewith or immediately thereafter (A) the
Designated Mortgagors shall be released solely from their
obligation to make scheduled installments of Basic Rent solely
with respect to each Amended Mortgage Property, but shall not
be released from the obligations to pay any other amounts or
from any other obligations under any Operative Document, it
being agreed that the liability of the Designated Mortgagors
with respect to all other Obligations under the Operative
Documents, including without limitation, the Lease Balance,
shall remain in full force and effect and (B) the Agent Lessor
shall transfer to the Designated Mortgagors or their designees
the Agent Lessor's record title (but specifically excluding
rights under the Amended Mortgages) in and to the Amended
Mortgage Properties without representations or warranties,
except that such Amended Mortgage Property is free from
Lessor's Liens;
(ii) the Representative shall deliver, or cause to be
delivered, to the Administrative Agent and the Agent Lessor
legal opinions of local counsel reasonably satisfactory to the
Administrative Agent and the Agent Lessor with respect of each
of the Amended Mortgages, which legal
-14-
opinion shall be in form and substance reasonably satisfactory
to the Administrative Agent and the Agent Lessor;
(iii) the Representative shall deliver, or cause to
be delivered, to the Administrative Agent and the Agent Lessor
evidence satisfactory to the Administrative Agent and the
Agent Lessor that such action (including, without limitation,
the filing of appropriately completed Uniform Commercial Code
financing statements and the recording of Mortgages) as may be
necessary or as the Administrative Agent and the Agent Lessor
shall have reasonably requested to perfect the Liens created
pursuant to the Amended Mortgages shall have been taken, or
that arrangements therefor satisfactory to the Administrative
Agent and the Agent Lessor shall have been made;
(iv) the Representative shall deliver, or cause to be
delivered, to the Administrative Agent and the Agent Lessor
policies of title insurance (or commitments therefor with all
conditions marked satisfied), in form and substance
satisfactory to the Administrative Agent and the Agent Lessor
and issued by an insurance company or companies as are
acceptable to the Administrative Agent and the Agent Lessor
(the "TIC"), insuring the perfection, enforceability and
priority of the Liens on the Amended Mortgage Property created
under the Amended Mortgages in amounts as are satisfactory to
the Administrative Agent and the Agent Lessor, subject only to
such exceptions as are reasonably satisfactory to the
Administrative Agent and the Agent Lessor, containing such
endorsements (other than endorsements that would require a new
survey) and affirmative assurances as have been previously
agreed to by, or are otherwise satisfactory to, the
Administrative Agent and the Agent Lessor, and reinsured in
amounts and under reinsurance agreements in form and substance
satisfactory to the Administrative Agent and the Agent Lessor,
and the Representative shall have paid or made arrangements
satisfactory to the Administrative Agent and the Agent Lessor
to pay to the TIC all expenses and premiums of the TIC in
connection with the issuance of such policies and in addition
shall have paid or made arrangements satisfactory to the
Administrative Agent and the Agent Lessor to pay to the TIC an
amount equal to the recording and stamp taxes payable in
connection with recording the Amended Mortgages in the
appropriate county land offices;
(v) the Representative shall deliver, or cause to be
delivered, to the Administrative Agent and the Agent Lessor
copies of file search reports from the Uniform Commercial Code
filing office in each jurisdiction (i) in which is located any
Amended Mortgage Property subject to an Amended Mortgage, (ii)
in which is located the chief executive office of any
-15-
Subsidiary of the Representative that owns or holds any right,
title or interest in any Amended Mortgage Property subject to
an Amended Mortgage or (iii) in which any such Subsidiary is
located (within the meaning of Section 9-307 of the UCC),
setting forth the results of Uniform Commercial Code file
searches conducted in the name of the Representative or such
Subsidiary, as the case may be;
(vi) the Representative shall deliver, or cause to be
delivered, to the Administrative Agent and the Agent Lessor
all documents the Administrative Agent and the Agent Lessor
may reasonably request relating to the existence of each
Subsidiary of the Representative party to any Amended
Mortgage, the corporate authority for and the validity of the
Amended Mortgages, and any other matters relevant thereto, all
in form and substance satisfactory to the Administrative Agent
and the Agent Lessor;
(vii) the Representative shall have paid all other
costs, fees and expenses (including, without limitation,
mortgage recording, intangibles or documentary stamp on
similar taxes, reasonable legal fees and expenses) payable to
the Administrative Agent and the Agent Lessor with respect to
the Amended Mortgages, in each case invoiced prior to the
Amended Mortgage Deadline; and
(viii) the Representative shall deliver a Survey with
respect to each Amended Mortgage."
(c) Section 10.1 is hereby amended by adding, at the end
thereof, a new clause (m) to read in full as follows:
"(m) Additional Collateral. In the event that the
Representative or any of its Subsidiaries grants to the agent
or the lenders under the Morgan Credit Agreement in respect of
the obligations under the Financing Documents, at any time
after the Amendment No. 6 Effective Date, a Lien on any of its
property or assets (other than any Lien on (i) the New
Mortgage Property (as defined in the Morgan Credit Agreement)
or (ii) any Substituted Assets on which a Lien is permitted
under Section 10.2(g)(xvi)) the Representative shall, or shall
cause its Subsidiary to, as the case may be, simultaneously
grant to the Administrative Agent and/or the Agent Lessor for
the benefit of all the Lenders, a security interest in such
property or assets on an equal and ratable basis with the
grant of the security interest to the agent or the lenders
under the Morgan Credit Agreement. If all amounts now or
hereafter payable by the Representative and its Subsidiaries
under the AmSouth Mortgage Facility or the Washington Mutual
Mortgage Facilities shall have been repaid in full, then, to
the extent permitted
-16-
under the Senior Note Agreement and the New Senior Note
Agreement, the Representative shall, or shall cause its
applicable Subsidiary to, grant to the Administrative Agent
and/or the Agent Lessor for the benefit of all the Lenders
Liens on the property or assets theretofore securing such
Mortgage Facility Obligations to secure the Obligations (which
Liens may equally and ratably secure the obligations of the
Representative and the Subsidiary Guarantors (as defined under
the Morgan Credit Agreement) under the Financing Documents)."
6. Negative Covenants of the Representative. Effective as of
the Amendment No. 6 Effective Date, Section 10.2 of the Participation Agreement
is hereby amended as follows:
(a) Section 10.2(b) of the Participation Agreement is
hereby amended by deleting said section in its entirety and inserting
the following in lieu thereof:
"(b) Fixed Charge Coverage Ratio. The Fixed
Charge Coverage Ratio at any date shall not be less than 1.10
to 1.00."
(b) Section 10.2(c) of the Participation Agreement is
hereby amended by deleting said section in its entirety and inserting
the following in lieu thereof:
"(c) Adjusted Consolidated Debt Ratio. The
ratio at any date during any period set forth below of (a)
Adjusted Consolidated Debt to (b) Consolidated EBITDAR for the
period of four consecutive fiscal quarters most recently ended
on or prior to such date shall not be more than the ratio set
forth below opposite such period:
<Table>
<Caption>
PERIOD MAXIMUM RATIO
------ -------------
January 1, 2003 - June 29, 2003 5.50 to 1.00
June 30, 2003 - September 29, 2003 6.50 to 1.00
September 30, 2003 - December 30, 2003 6.80 to 1.00
December 31, 2003 - March 30, 2004 7.30 to 1.00
March 31, 2004 and thereafter 7.45 to 1.00"
</Table>
(c) (i) Section 10.2(e)(ix) is hereby amended by
deleting said section in its entirety and inserting the following in
lieu thereof:
"(ix)(a) promissory notes (and, in the case of
facilities or stock sold other than as part of the Disposition
Program or the sale of certain assets specified in the
Investments Side Letter, or stock of Subsidiaries holding
solely such specified assets, other Investments) received as
consideration for facilities or stock of Subsidiaries sold
(other than in
-17-
connection with, or as part of, the Florida Disposition),
provided that (x) the aggregate net book value of all
outstanding Investments permitted by this subclause (ix)(a)
shall not exceed at any time (1) in the case of promissory
notes received in connection with the sale of facilities and
stock of Subsidiaries pursuant to the Disposition Program, 10%
of the gross proceeds received by the Representative and its
Subsidiaries at or prior to such time in connection with all
sales of facilities and stock of Subsidiaries pursuant to the
Disposition Program, (2) in the case of promissory notes
received in connection with the sale of certain assets
specified in the Investments Side Letter, or the stock of
Subsidiaries holding solely such specified assets, the
percentages set forth in the Investments Side Letter of the
gross proceeds received by the Representative and its
Subsidiaries in connection with such sale and (3) in the case
of all other promissory notes and Investments so received,
$25,000,000 and (y) in the case of promissory notes referred
to in subclauses (1) and (2) of clause (x) above, (A) if the
obligations of the Representative and the Guarantors under the
Financing Documents, the Mortgage Credit Facilities or the
Operative Documents were secured by a Lien on the facilities
sold, or the facilities owned by the Subsidiary whose stock
was sold, and such obligations remain outstanding, then the
promissory notes received in connection with the sale of such
facilities or stock shall be pledged to the Person or Persons
that held such Lien and (B) if none of the obligations of the
Representative and the Guarantors under the Financing
Documents, the Mortgage Credit Facilities or the Operative
Documents was secured by a Lien on the facilities sold, or the
facilities owned by the Subsidiary whose stock was sold, then,
to the extent permitted under the Senior Note Agreement and
the New Senior Note Agreement, the promissory notes received
in connection with the sale of such facilities or stock shall
be pledged to secure, equally and ratably, the obligations of
the Representative and the Guarantors under the Financing
Documents, the Mortgage Credit Facilities and the Operative
Documents and (b) promissory notes received as partial
consideration for the Florida Disposition, provided that the
aggregate principal amount of all such promissory notes
permitted by this subclause (ix)(b) shall not, at any time,
exceed $20,000,000."
(ii) Section 10.2(e) is hereby amended by adding, at the end
thereof, the following:
"In addition, neither the Representative nor any of its
Subsidiaries will, during any period on or after the Amendment
No. 6 Effective Date during which the Adjusted Leverage Ratio
exceeds 5.00 to 1.00 make or acquire any Investments of the
types referred to in clauses (ii), (iv), (v), or (xv) of
-18-
this Section 10.2(e), acquire any health care facilities
(including, without limitation, any acquisition of such a
facility pursuant to a Lease Conversion) or make any Lease
Conversion other than (i) Lease Conversions with respect to
the Transactions and (ii) Investments, Lease Conversions and
acquisitions of facilities in an aggregate amount not
exceeding $15,000,000."
(d) Section 10.2(f)(v) is hereby amended by deleting
said section in its entirety and inserting the following in lieu
thereof:
"(v) the Representative may make any such payment or
distribution if, after giving effect thereto, the aggregate
amount of all such payments or distributions made after the
Amendment No. 6 Effective Date (including, without limitation,
any such payments or distributions permitted under subclause
(ii)(A) or clause (iv) above) does not exceed (A) on any date
on which no Event of Default shall have occurred and be
continuing or shall result from such payment and the Adjusted
Leverage Ratio as at the last day of the most recently ended
fiscal quarter is (I) less than 5.00 to 1.00 but not less than
4.75 to 1.00, $25,000,000, (II) less than 4.75 to 1.00 but not
less than 4.50 to 1.00, $30,000,000, and (III) less than 4.50
to 1.00, $40,000,000 and (B) on any other date, $10,000,000;
provided that no payment or distribution otherwise permitted
under this clause (v) shall be made by the Representative on
any day on or after the Amendment No. 6 Effective Date on
which the Adjusted Leverage Ratio is greater than 5.00 to
1.00."
(e) Section 10.2(g)(a)(iv) is hereby amended by
deleting said section in its entirety and inserting the following in
lieu thereof:
"(iv) any Lien on any asset securing Indebtedness or
lease obligations incurred or assumed for the purpose of
financing all or any part of the cost of acquiring or
constructing such asset or reconstructing substantially all of
such asset, provided that (x) such Lien attached or attaches
to such asset concurrently with or within one year (or in the
case of any such Lien on the Federal Way Facility that
attached prior to the Amendment No. 6 Effective Date, 385
days) after such acquisition, construction or reconstruction
and (y) on any day on or after the Amendment No. 6 Effective
Date on which the Adjusted Leverage Ratio is greater than 5.00
to 1.00, Liens may be created or assumed under this clause
(iv) only to secure Indebtedness referred to in clause (iv) of
the definition of Indebtedness.
-19-
CONFIDENTIAL TREATMENT REQUESTED
The asterisked portions of this document have been omitted and are filed
separately with the Securities and Exchange Commission.
(f) Section 10.2(g) is hereby amended by deleting the
word "and" at the end of clause (xiv) thereof, adding the word "and" at
the end of clause (xv) thereof and by adding, at the end thereof, the
following new clauses (xvi) and (xvii):
"(xvi) With respect to each property covered by a
Mortgage (as defined in the Morgan Credit Agreement), the
Permitted Property Liens (as defined in the Morgan Credit
Agreement); provided that the assets subject to any such
Mortgage shall be limited to (i) the assets subject to any
Existing Mortgage (as defined in the Morgan Credit Agreement
as in existence on the Amendment No. 4 Effective Date), (ii)
any New Mortgage Property (as defined in the Morgan Credit
Agreement as in existence on the Amendment No. 4 Effective
Date) and (iii) any assets ("Substituted Assets") substituted
for assets ("Original Assets") referred to in clause (i) or
(ii) above so long as the value of such Substitute Assets is
not greater than (other than by a de minimus amount) the value
of the Original Assets for which they are substituted; and
(xvii) Liens in respect of Additional Mortgages."
(g) Section 10.2(h) is hereby amended by deleting
said section in its entirety and inserting the following in lieu
thereof:
"(h) Consolidations, Mergers and Sales of Assets.
Neither the Representative nor any of its Subsidiaries will:
(i) consolidate or merge with or into any other
Person, unless the Representative, or, except in the case of a
merger or consolidation to which the Representative is a
party, a Wholly-Owned Subsidiary of the Representative is the
surviving corporation or
(ii) sell, lease or otherwise transfer (A) if the
Adjusted Leverage Ratio as of the day of such sale, lease or
other transfer is less than or equal to 5.00 to 1.00, all or
any substantial part of the assets of the Representative and
its Subsidiaries, taken as a whole, to any other Person and
(B) if the Adjusted Leverage Ratio as of the day of such sale,
lease or other transfer is greater than 5.00 to 1.00, any
assets or property;
provided (i) that this Section 10.2(h) shall not apply to (A)
mergers, dissolutions, reorganizations or liquidations of
Subsidiaries of the Representative that have disposed of all
or substantially all of their assets, (B) sales, leases or
other transfers by the Representative or any of its
Subsidiaries to the Representative or any Guarantor and (C)
sales, transfers or other dispositions of MK Medical,
**********, ********************** and
**********************************
-20-
CONFIDENTIAL TREATMENT REQUESTED
The asterisked portions of this document have been omitted and are filed
separately with the Securities and Exchange Commission.
*************************** or made pursuant to the
Disposition Program and (ii) Section 10.2(h)(ii)(B) does not
apply to sales, leases or other transfers of (A) assets or
property made in respect of Sale and Leaseback Transactions
permitted under Section 10.2(m), (B) assets or property (other
than assisted living and skilled nursing facilities, separate
business units, businesses or divisions or stock of
Subsidiaries) not covered by clause (A) above and (1) disposed
of in the ordinary course of business or (2) to the extent not
disposed of in the ordinary course of business, so long as the
aggregate gross proceeds of sales, transfers and other
dispositions made pursuant to this clause (2) does not exceed
$2,000,000 and (C) any transfer of assets or property pursuant
to condemnations or in lieu of condemnations; and provided
further that the Representative and its Subsidiaries may
assign or grant security interests in their Medicare, Medicaid
or other patient accounts receivable to a Special Purpose
Receivables Financing Subsidiary to secure Permitted
Receivables Financing Securities (provided that the net amount
at any time of all uncollected accounts receivable owing to
the Representative or any of its Subsidiaries that are so
assigned or in which a security interest is so granted shall
not exceed 200% of the aggregate principal or redemption
amount of all Permitted Receivables Financing Securities then
outstanding)."
(h) Section 10.2(i) is hereby amended by adding, at
the end thereof, a new clause (c) to read in full as follows:
"(c) If at any time on or after the Amendment No. 6
Effective Date the Adjusted Leverage Ratio exceeds 5.00 to
1.00, the Representative will not, and will not permit any of
its Subsidiaries to, incur or assume any Indebtedness, except:
(i) Indebtedness incurred in connection with Lease
Cancellation Payments;
(ii) Indebtedness of the type referred to in clause
(iv) of the definition of Indebtedness secured by a Lien
permitted pursuant to clause (iv) of Section 10.2(g)(a);
(iii) Indebtedness of any corporation that became or
becomes a Consolidated Subsidiary of the Representative that
existed or exists at the time such corporation became or
becomes such a Consolidated Subsidiary and (other than in a
Workout Transaction) not created in contemplation thereof;
-21-
(iv) Refinancing Debt incurred to refinance
Indebtedness permitted under clauses (i) through (iii) above,
provided that (A) the principal amount of such Refinancing
Debt shall not exceed the principal amount of such Refinanced
Debt and (B) such Refinancing Debt shall have a weighted
average life of not less than the remaining weighted average
life of such Refinanced Debt or such Refinancing Debt shall
not have any required payments of principal prior to the first
anniversary of the Termination Date;
(v) to the extent it refinances Indebtedness
permitted to have been incurred, and in fact incurred, prior
to the Amendment No. 6 Effective Date or when the Adjusted
Leverage Ratio did not exceed 5.00 to 1.00, Refinancing Debt
permitted under clause (v) of Section 10.2(i)(a) (treating
such Section 10.2(i)(a) solely for purposes of this clause (v)
as if it applied to the Representative as well as its
Subsidiaries);
(vi) Permitted Receivables Financing Securities,
provided that the aggregate principal and redemption amount of
all Permitted Receivables Financing Securities outstanding at
any time shall not exceed $100,000,000;
(vii) Indebtedness incurred under the Financing
Documents;
(viii) Guarantees by the Representative or any of its
Subsidiaries of any obligation of the Representative or any of
its Subsidiaries that the Representative or such guaranteeing
Subsidiary would have been permitted to incur hereunder as a
primary obligation;
(ix) Indebtedness consisting of advances from the
Representative or any of its Subsidiaries in connection with
the normal operation of the business of the Representative and
its Subsidiaries;
(x) Indebtedness incurred in connection with and as
part of a Workout Transaction;
(xi) Indebtedness incurred or assumed for the purpose
of financing the cost of acquiring, constructing or improving
an asset of the Representative or any of its Subsidiaries;
(xii) Indebtedness not otherwise permitted under
clauses (i) through (xi) of this Section 10.2(i)(c);
provided that the aggregate principal amount of Indebtedness
permitted under clauses (i), (ii), (iv) (to the extent that
the Indebtedness incurred
-22-
under such clause (iv) refinances Indebtedness incurred under
clause (i) or (ii) of this Section 10.2(i)(c)), (xi) and (xii)
of this Section 10.2(i)(c) shall not exceed $10,000,000 at any
time outstanding."
(i) Section 10.2(j) shall be amended by (a) deleting "and" at
the end of clause (i) thereof, (b) inserting the expression "; and" at
the end of clause (ii) thereof and (iii) adding, at the end thereof,
the following as a new clause (iii):
"(iii) if such Lease Conversion is made on
any day on or after the Amendment No. 6 Effective
Date on which the Adjusted Leverage Ratio is greater
than 5.00 to 1.00, such Lease Conversion is permitted
under the last sentence of Section 10.2(e)."
(j) Section 10.2(l) shall be amended by deleting said
section in its entirety and inserting the following in lieu thereof:
"(l) Consolidated Gross Capital Expenditures.
Consolidated Gross Capital Expenditures will not, for any
fiscal year ending on or after December 31, 2002 exceed (A) if
the Adjusted Leverage Ratio on the first day of such fiscal
year is greater than 5.00 to 1.00, $55,000,000 and (B) if the
Adjusted Leverage Ratio on the first day of such fiscal year
is less than or equal to 5.00 to 1.00, the amount indicated
below opposite such fiscal year:
<Table>
<Caption>
FISCAL YEAR ENDING AMOUNT
------------------ ------
December 31, 2003 $80,000,000
December 31, 2004 $80,000,000
</Table>
To the extent that Consolidated Gross Capital
Expenditures for any fiscal year referred to in clause (B) of
this Section 10.2(l) are less than the applicable amount
specified pursuant to this Section 10.2(l), the difference may
be carried forward to the next fiscal year unless the Adjusted
Leverage Ratio is greater than 5.00 to 1.00 on the first day
of such next fiscal year (and, for this purpose, Consolidated
Gross Capital Expenditures in any subsequent fiscal year shall
be applied, first, to any such carry-forward amount and,
second, to the specified amount for such year)."
(k) Section 10.2(m) shall be amended by deleting said
section in its entirety and inserting the following in lieu thereof:
"(m) Sale and Leaseback Transactions.
-23-
(i) The Representative will not, and will not permit
any of its Subsidiaries to, enter into any arrangement,
directly or indirectly, whereby it shall sell or transfer any
property, real or personal, used or useful in its business,
whether now owned or hereafter acquired, which property has
been owned and operated by the Representative and its
Subsidiaries for more than 180 days, and thereafter rent or
lease such property or other property that it intends to use
for substantially the same purpose or purposes as the property
sold or transferred (each, a "Sale and Leaseback
Transaction"), except for Sale and Leaseback Transactions the
aggregate amount of Attributable Debt in respect of which does
not exceed $20,000,000.
(ii) On any day on or after the Amendment No. 6
Effective Date on which the Adjusted Leverage Ratio is greater
than 5.00 to 1.00, the Representative will not and will not
permit any of its Subsidiaries to enter into any Sale and
Leaseback Transaction other than Sale and Leaseback
Transactions with respect to specified equipment previously
identified to the Administrative Agent for which the
Attributable Debt, together with all other Attributable Debt
arising on or after the Amendment No. 6 Effective Date from
Sale and Leaseback Transactions in respect of all other
specified equipment previously identified to the
Administrative Agent and entered into on a day on which the
Adjusted Leverage Ratio was greater than 5.00 to 1.00, does
not exceed $2,000,000."
(l) Section 10.2 of the Participation Agreement is
hereby amended by adding, at the end thereof, a new clause (n) to read
in full as follows:
"(n) Prepayment of Notes. The Representative will
not, and will not permit any of its Subsidiaries to, prepay the New
Senior Notes or the Senior Notes; provided that the Representative may
prepay or redeem New Senior Notes or Senior Notes on any day with the
amount, if any, by which the average of the Consolidated Cash Balances
at the close of business on the three consecutive Business Days
immediately preceding such day (exclusive of any amount escrowed
pursuant to clause (iii)(B)(II) below), exceeds $125,000,000 if on such
day
(i) there shall be no Loans (as defined in the Morgan
Credit Agreement) outstanding;
(ii) the Obligations and the Mortgage Facility
Obligations have been repaid in full; and
(iii) either (A) (I) the Adjusted Leverage Ratio does
not and did not exceed 5.00 to 1.00 on (x) such day, both
prior to and after giving effect to such
-24-
prepayment, and (y) the last day of each of the two fiscal
quarters most recently ended prior to such day and (II) the
aggregate Commitments (as defined in the Morgan Credit
Agreement) of all Existing Banks do not exceed $85,000,000 or
(B) all of (I) the aggregate Commitments (as defined in the
Morgan Credit Agreement) of all Existing Banks do not exceed
$65,000,000, (II) the Representative shall have delivered to
the Administrative Agent cash in an amount equal to the
aggregate Letter of Credit Exposures (as defined in the Morgan
Credit Agreement) of all Existing Banks then outstanding, to
be held in escrow by the Administrative Agent to the extent
that such Letter of Credit Exposures (as defined in the Morgan
Credit Agreement) remain outstanding, (III) the Representative
shall have entered into a binding agreement not thereafter to
request or borrow any Loans (as defined in the Morgan Credit
Agreement) under the Morgan Credit Agreement and (IV) the
product of 5 multiplied by Annualized Mortgage EBITDA
determined as of the date of such prepayment for the most
recent fiscal quarter for which financial statements have
been, or are required to have been, delivered pursuant to
Section 10.1(d)(i) or (ii), shall equal or exceed the product
of 2 multiplied by the aggregate Commitments (as defined in
the Morgan Credit Agreement) of all Existing Banks then
outstanding.
7. Effective as of the Amendment No. 6 Effective Date,
Schedule IV of the Participation Agreement are hereby amended by deleting said
schedule in its entirety and replacing said schedule with Schedule IV attached
hereto and made a part hereof.
8. Effective as of the Amendment No. 6 Effective Date,
Schedule VII and Schedule VIII hereto are hereby added as Schedule VII and
Schedule VIII, respectively, to the Participation Agreement.
9. Representations and Warranties. To induce the
Administrative Agent, the Agent Lessor and the Participants to execute and
deliver this Amendment, each of the Beverly Entities that is a party hereto
represents and warrants (which representations and warranties shall survive the
execution and delivery of this Amendment) to each of the Administrative Agent,
the Agent Lessor and the Participants that:
(a) this Amendment has been duly authorized, executed
and delivered by it and this Amendment constitutes the legal, valid and
binding obligation, contract and agreement of such Beverly Entity
enforceable against it in accordance with its terms, except as
enforcement may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws or equitable principles relating to or
limiting creditors' rights generally;
(b) the Original Participation Agreement, as amended
by the Prior Amendments and this Amendment, constitutes the legal,
valid and binding obligation, contract and agreement of such Beverly
Entity enforceable against it in accordance with
-25-
their respective terms, except as enforcement may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws or
equitable principles relating to or limiting creditors' rights
generally;
(c) the execution, delivery and performance by such
Beverly Entity of this Amendment (i) has been duly authorized by all
requisite corporate action and, if required, shareholder action, (ii)
does not require the consent or approval of any governmental or
regulatory body or agency, and (iii) will not (A) violate (l) any
provision of law, statute, rule or regulation or its certificate of
incorporation or bylaws, (2) any order of any court or any rule,
regulation or order of any other agency or government binding upon it,
or (3) any provision of any material indenture, agreement or other
instrument to which it is a party or by which its properties or assets
are or may be bound, including, without limitation, the Morgan Credit
Agreement (as the same has been amended or modified), or (B) constitute
(alone or with due notice or lapse of time or both) a default under any
indenture, agreement or other instrument referred to in clause
(iii)(A)(3) of this subsection (c);
(d) as of the date hereof and after giving effect to
this Amendment, no Default or Event of Default has occurred which is
continuing; and
(e) all the representations and warranties contained
in Section 8.2 of the Participation Agreement (after giving effect to
this Amendment) are true and correct in all material respects with the
same force and effect as if made by such Beverly Entity on and as of
the date hereof.
10. Conditions to Effectiveness of this Amendment. This
Amendment shall not become effective until, and shall become effective when,
each and every one of the following conditions shall have been satisfied to the
satisfaction of the Agent Lessor, the Administrative Agent and each Participant
(the conditions precedent are for the benefit of the Agent Lessor, the
Administrative Agent and each Participant only):
(a) The Agent Lessor, the Administrative Agent and
the Participants shall have received executed counterparts of this
Amendment, duly executed by the Beverly Entities party hereto;
(b) The Agent Lessor, the Administrative Agent and
the Participants shall have received evidence satisfactory to them that
the Morgan Credit Agreement has been amended as of February 28, 2003 in
form and substance reasonably satisfactory to the Administrative Agent,
the Agent Lessor and the Participants;
(c) The representations and warranties of the Beverly
Entities set forth in Section 9 hereof are true and correct on and as
of the date hereof;
-26-
(d) (A) Each of the Lenders that has executed and
delivered to the Administrative Agent a counterpart of this Amendment
on or prior to the date hereof shall have received, ratably in
proportion to its Commitment Percentage, an amendment fee equal to
0.375% of the Commitment of such Lender as in effect immediately after
giving effect to the $16,800,000 payment contemplated by Section
7.11(a) of the Participation Agreement, as amended by this Amendment
(but, for the avoidance of doubt, no other payment contemplated by this
Amendment) and (B) each of the Lenders that executed and delivered to
the Administrative Agent a counterpart of the Fifth Amendment on or
prior to December 20, 2002, shall have received, ratably in proportion
to its Commitment Percentage, an amendment fee equal to 0.125% of the
Commitment of such Lender as of December 20, 2002;
(e) The Administrative Agent shall have received from
the Representative a counterpart of the Investments Side Letter signed
by the Representative or facsimile or other written confirmation (in
form satisfactory to the Administrative Agent) that the Representative
has signed a counterpart thereof;
(f) Receipt by the Administrative Agent of evidence
satisfactory to it that the Representative shall have prepaid (or
deposited funds that are committed to the prepayment of) the
Obligations in an aggregate principal amount of $20,000,000; and
(g) Receipt by the Administrative Agent of payment of
all out-of-pocket expenses due and payable to it pursuant to Section
9.1(b) of the Participation Agreement (including, to the extent
invoiced, all fees and expenses of Mayer, Brown, Rowe & Maw, special
counsel to the Lessors, pursuant to Section 11 hereof).
Upon receipt of all of the foregoing, this Amendment shall become
effective.
11. Payment of Fees and Expenses. The Representative agrees to
pay upon or prior to the effectiveness of this Amendment, the reasonable fees
and expenses of Mayer, Brown, Rowe & Maw, counsel to the Lessors, in connection
with the negotiation, preparation, approval, execution and delivery of this
Amendment and all reasonable fees and expenses attendant to any filing,
registration, recording or perfection of any Lien contemplated hereby.
12. Application of Certain Payments. The Administrative Agent
shall apply the proceeds received pursuant to (a) Section 7.11(a) of the
Participation Agreement in the amount of $3,200,000 and (b) Section 7.11(b)(ii)
of the Participation Agreement to the prepayment of the Participant Balance.
13. Counterparts. This Amendment may be executed in
counterparts, each of which shall constitute an original, but all of which when
taken together shall constitute but one instrument.
-27-
14. Governing Law. This Amendment shall be governed by and
construed in accordance with the laws of the State of New York.
15. Successors and Assigns. This Amendment shall be binding
upon and shall inure to the benefit of the parties hereto and their respective
successors and assigns.
16. General Release. In consideration of the amendments
provided for herein, the Representative and the Guarantors, on behalf of
themselves and their respective Subsidiaries and their respective Subsidiaries'
successors and assigns (collectively, "Releasors"), hereby forever waive,
release and discharge to the fullest extend permitted by law any and all claims
(including, without limitation, crossclaims, counterclaims, rights of set-off
and recoupment), causes of action, demands, suits, costs, expenses and damages
(collectively, the "Claims"), that any Releasor now has or hereafter may have,
or whatsoever nature and kind, whether known or unknown, whether now existing or
hereafter arising, whether arising at law or in equity, against any or all of
the Administrative Agent and any Lender and their respective affiliates,
shareholders and "controlling persons" (within the meaning of the federal
securities laws), and their respective successors and assigns and each and all
of the officers, directors, employees, agents, attorneys and other
representatives of each of the foregoing (collectively, the "Releasees"), based
in whole or in part on facts, whether or not now known, existing on or before
the execution of this Amendment, except for Claims solely arising out of the
gross negligence or willful misconduct of any Releasees (the "Excluded Claims").
In entering into this Amendment, the Representative has consulted with and been
represented by counsel and expressly disclaims any reliance on any
representations, acts or omissions by any of the Releasees and hereby agrees and
acknowledges that the validity and effectiveness of the release set forth above
do not depend in any way on any such representations, acts and/or omissions or
the accuracy, completeness or validity thereof. The provisions of this Section
shall survive the termination of the Participation Agreement and the other
Operative Documents and payment in full of all amounts owing thereunder.
-28-
IN WITNESS WHEREOF, the Parties have caused this Amendment to
be duly executed by their respective authorized officers as of the day and year
first above written.
BEVERLY ENTERPRISES, INC., as
Representative, Construction Agent, Parent
Guarantor and a Lessee
By
---------------------------------------
Name:
Title:
BANK OF MONTREAL, as Arranger,
Administrative Agent and as a Lender
By
---------------------------------------
Name:
Title:
BANK OF MONTREAL GLOBAL CAPITAL
SOLUTIONS, INC., as Agent Lessor and as a
Lessor
By
---------------------------------------
Name:
Title:
GENERAL ELECTRIC CAPITAL
CORPORATION, as a Lender
By
---------------------------------------
Name:
Title:
S-1
TORONTO-DOMINION (TEXAS), INC., as a
Lender
By
---------------------------------------
Name:
Title:
BANK OF AMERICA, NATIONAL
ASSOCIATION, as a Lender
By
---------------------------------------
Name:
Title:
VANTAGE HEALTHCARE CORPORATION, as
Lessee and Structural Guarantor
By
---------------------------------------
Name:
Title:
PETERSEN HEALTH CARE, INC., as Lessee and
Structural Guarantor
By
---------------------------------------
Name:
Title:
S-2
BEVERLY SAVANA CAY MANOR, INC., as
Lessee and Structural Guarantor
By
---------------------------------------
Name:
Title:
BEVERLY ENTERPRISES - GEORGIA, INC., as
Lessee and Structural Guarantor
By
---------------------------------------
Name:
Title:
BEVERLY ENTERPRISES - CALIFORNIA, INC.,
as Lessee and Structural Guarantor
By
---------------------------------------
Name:
Title:
BEVERLY ENTERPRISES - ARKANSAS, INC.,
as Lessee and Structural Guarantor
By
---------------------------------------
Name:
Title:
S-3
BEVERLY ENTERPRISES - FLORIDA, INC., as
Lessee and Structural Guarantor
By
---------------------------------------
Name:
Title:
BEVERLY HEALTH AND REHABILITATION
SERVICES, INC., as Lessee and Structural
Guarantor
By
---------------------------------------
Name:
Title:
BEVERLY ENTERPRISES - WASHINGTON,
INC., as Lessee and Structural Guarantor
By
---------------------------------------
Name:
Title:
S-4
SCHEDULE I
EXISTING MORTGAGES
1. That certain Lease Supplement No. 2 (And Memorandum of Lease Supplement,
Memorandum of Master Lease and Memorandum of Option to Purchase) and Deed to
Secure Debt and Security Agreement, dated as of May 30, 1997, between Beverly
Enterprises-Georgia, Inc., as the Lessee and as grantor and BMO Leasing (U.S.),
Inc., as the Agent Lessor and as grantee for the benefit of the Participants and
Beverly Enterprises, Inc., as the Representative, such instrument having been
recorded with the Cobb County Superior Court Clerk on June 2, 1997, in Deed Book
10396, Page 1 and also recorded on June 2, 1997 in Deed Book 10396, Page 161.
2. That certain Master Lease and Open-End Mortgage and Lease Supplement No. 12,
dated as of March 21, 1997 and April 30, 1998, by and between BMO Leasing
(U.S.), Inc., as the Agent Lessor for the Lessors, Beverly Enterprises-Arkansas,
Inc., as the Lessee, and Beverly Enterprises, Inc., as the Representative, such
instrument having been recorded on May 1, 1998 as Instrument #983572 of the
Public Records of Union County, Arkansas.
3. That certain Master Lease and Open-End Mortgage and Lease Supplement No. 16,
dated as of March 21, 1997 and May 29, 1998, by and between BMO Leasing (U.S.),
Inc., as Agent Lessor for the Lessors, Beverly Enterprises-Arkansas, Inc., as
the Lessee, and Beverly Enterprises, Inc., as the Representative, such
instrument having been recorded on June 1, 1998 as Document #98-40781 of the
Public Records of Pulaski County, Arkansas.
SCHEDULE IV
TO PARTICIPATION AGREEMENT
PRICING SCHEDULE
For purposes of this Pricing Schedule, the following terms have the
following meanings:
"LESSOR MARGIN" means, with respect to the Lessor Amounts on any day,
the percentage set forth below opposite the Pricing Category in effect for such
date for the applicable type of Lessor Amount (or, in the case of any day on or
after the Amendment No. 6 Effective Date and prior to the date upon which
financial statements for the second full fiscal quarter occurring after the
Amendment No. 6 Effective Date shall have been delivered pursuant to Section
10.1(d)(i), the greater of (i) the applicable rate so determined for such day
and (ii) (y) in the case of the LIBO Margin, 4.500% and (z) in the case of the
Base Rate Margin, 3.500%):
<Table>
<Caption>
Pricing Category LIBO Margin Base Rate Margin
---------------- ----------- ----------------
I 3.875% 2.875%
II 4.500% 3.500%
III 5.000% 4.000%
IV 5.375% 4.375%
V 5.750% 4.750%
</Table>
"LOAN MARGIN" means, with respect to the Loans on any day, the
percentage set forth below opposite the Pricing Category in effect for such day
for the applicable type of Loan (or, in the case of any day on or after the
Amendment No. 6 Effective Date and prior to the date upon which financial
statements for the second full fiscal quarter occurring after the Amendment No.
6 Effective Date shall have been delivered pursuant to Section 10.1(d)(i), the
greater of (i) the applicable rate so determined for such day and (ii) (y) in
the case of the LIBO Margin, 4.000% and (z) in the case of the Base Rate Margin,
3.000%):
<Table>
<Caption>
Pricing Category LIBO Margin Base Rate Margin
---------------- ----------- ----------------
I 3.375% 2.375%
II 4.000% 3.000%
III 4.500% 3.500%
IV 4.875% 3.875%
V 5.250% 4.250%
</Table>
"PRICING RATIO" means, on any day, the ratio of Adjusted Consolidated
Indebtedness on such day to Consolidated EBITDAR for the four consecutive fiscal
quarters most recently ended on or prior to such day.
"CATEGORY I PRICING" applies on any day if, as of the last day of the
fiscal quarter of the Representative most recently ended on or prior to such day
and as to which the Representative shall have delivered, or been required to
deliver, on or prior to such day a certificate pursuant to Section 10.1(d)(iii),
the Pricing Ratio is less than 5.0 to 1.0.
"CATEGORY II PRICING" applies on any day if, as of the last day of the
fiscal quarter of the Representative most recently ended on or prior to such day
and as to which the Representative shall have delivered, or been required to
deliver, on or prior to such day a certificate pursuant to Section 10.1(d)(iii),
(i) the Pricing Ratio is less than 5.5 to 1.0 and (ii) Category I Pricing does
not apply.
"CATEGORY III PRICING" applies on any day if, as of the last day of the
fiscal quarter of the Representative most recently ended on or prior to such day
and as to which the Representative shall have delivered, or been required to
deliver, on or prior to such day a certificate pursuant to Section 10.1(d)(iii),
(i) the Pricing Ratio is less than 6.0 to 1.0 and (ii) Category II Pricing does
not apply.
"CATEGORY IV PRICING" applies on any day if, as of the last day of the
fiscal quarter of the Representative most recently ended on or prior to such day
and as to which the Representative shall have delivered, or been required to
deliver, on or prior to such day a certificate pursuant to Section 10.1(d)(iii),
(i) the Pricing Ratio is less than 6.5 to 1.0 and (ii) Category III Pricing does
not apply.
"CATEGORY V PRICING" applies on any day if, on such day, no other
Pricing Category applies.
"PRICING CATEGORY" means any one of the five pricing levels dominated
Category I Pricing, Category II Pricing, Category III Pricing, Category IV
Pricing or Category V Pricing.
-2-
SCHEDULE VII
TO PARTICIPATION AGREEMENT
AMENDED MORTGAGE PROPERTY
<Table>
<Caption>
ENTITY ADDRESS COUNTY
------ ------- ------
1. Beverly Enterprises-Georgia, Inc. 613 Roselane Street Cobb County
Marietta, Georgia 30060
2. Beverly Enterprises-Arkansas, Inc. 2415 West Hillsboro Union County
El Dorado, Arkansas 71730
3. Beverly Enterprises-Arkansas, Inc. 3600 Richards Road Pulaski County
North Little Rock, Arkansas 72117
</Table>
SCHEDULE VIII
TO PARTICIPATION AGREEMENT
<Table>
<Caption>
FACILITY NUMBER LOCATION US$
- --------------- -------- ---
0776 Corporate Headquarters 36,010,011.00
3835 Arkadelphia 4,920,573.00
4850 El Dorado 4,589,223.00
4141 North Little Rock 5,364,812.00
4138 Murrieta 7,325,034.00
4310 Murrieta 4,417,644.00
3715 Cobb Co. 6,828,586.00
2046 Fontanbleu Nursing Center 500,000.00
Bloomington, Indiana
2272 Lincoln Hills Nursing Center, 800,000.00
Tell City Indiana
3678 Woodlands Convalescent Center 1,200,000.00
Newburgh, Indiana
</Table>