EXHIBIT 10.66
CONFIDENTIAL TREATMENT REQUESTED
The asterisked portions of this document have been omitted and are filed
separately with the Securities and Exchange Commission.
AMENDMENT NO. 4 TO AMENDED AND RESTATED CREDIT
AGREEMENT AND AMENDMENT NO. 2 TO AMENDED
AND RESTATED PLEDGE AGREEMENT
AMENDMENT dated as of February 28, 2003 to (i) the Amended and Restated
Credit Agreement dated as of April 25, 2001 (as amended prior to the date
hereof, the "Credit Agreement") among BEVERLY ENTERPRISES, INC. (with its
successors, the "Borrower"), the BANKS listed on the signature pages thereof,
JPMORGAN CHASE BANK (formerly known as The Chase Manhattan Bank, successor by
merger to Morgan Guaranty Trust Company of New York), as Issuing Bank (with its
successors in such capacity, the "Issuing Bank"), and JPMORGAN CHASE BANK, as
Administrative Agent (the "Administrative Agent") and (ii) the Amended and
Restated Pledge Agreement dated as of April 25, 2001 (as amended prior to the
date hereof, the "Pledge Agreement") among the Borrower, Beverly Health and
Rehabilitation Services, Inc. and the Administrative Agent.
WITNESSETH:
WHEREAS, the parties hereto desire to amend the Credit Agreement as set
forth herein;
NOW, THEREFORE, the parties hereto agree as follows:
SECTION 1. Defined Terms; References. Unless otherwise specifically
defined herein, each term used herein which is defined in the Credit Agreement
or the Pledge Agreement has the meaning assigned to such term in the Credit
Agreement or the Pledge Agreement, as the context requires. Each reference to
"hereof", "hereunder", "herein" and "hereby" and each other similar reference
and each reference to "this Agreement" and each other similar reference
contained in the Credit Agreement or any other Financing Document shall, after
this Amendment becomes effective, refer to the Credit Agreement or the Pledge
Agreement, as the case may be, as amended hereby.
SECTION 2. New Definitions. Section 1.01 of the Credit Agreement is
hereby amended by adding, in appropriate alphabetical order, the following
definitions:
"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 5.23, as mortgagor, securing the obligations of
such owner under the Financing Documents (and, if the Borrower so
elects, the Bank of Montreal Synthetic Lease Obligations), 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
Consolidated EBITDAR for the period of four consecutive fiscal quarters
most recently ended on or prior to such day.
"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 the Borrower, the
Banks party thereto and the Administrative Agent.
"AMENDMENT NO. 4 EFFECTIVE DATE" means the date on which
Amendment No. 4 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 the 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,
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2003, EBITDA for Mortgaged Facilities for the period 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 the
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 Borrower) in the ordinary course of business, and
(ii) sales, transfers, leases and other dispositions by the Borrower or
any of its Subsidiaries to the Borrower or any of the Subsidiaries.
"AVAILABLE AMOUNT" means (i) for any day prior to the
satisfaction of the New Mortgage Condition, the lesser of (x) the
Specified Amount for such day and (y) $75,000,000 and (ii) for any day
on or after the satisfaction of the New Mortgage Condition, the
Specified Amount for such day.
"AVAILABLE COMMITMENT" means, for each Bank on any day, an
amount equal to the product of (i) the Available Amount for such day
multiplied by (ii) such Bank's Ratable Share for such day.
"BANK OF MONTREAL SYNTHETIC LEASE OBLIGATIONS" means all
amounts now or hereafter payable by the Borrower and its Subsidiaries
pursuant to the Bank of Montreal Synthetic Lease.
"CARE FOCUS" means, as of the Amendment No. 4 Effective Date,
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 Borrower 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 Sections 5.01(a) and (b), divided by (ii) 1.5; provided
that if,
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on or prior to such day, the Borrower has prepaid any New Senior Notes
or Senior Notes pursuant to Section 5.21(iii)(B), 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 2.0.
"CURABLE ENCUMBRANCES" means an encumbrance on New Mortgage
Property in existence as of the New Mortgage Deadline (or, in the case
of a New Mortgage Property as to which the Agent shall have consented
to an Extended New Mortgage Deadline, as of the Extended New Mortgage
Deadline in respect of such New Mortgage Property) and set forth in an
executed letter accepted by the Administrative Agent pursuant to
Section 5.20(d).
"CURE DATE" means the date specified in an executed letter
accepted by the Administrative Agent pursuant to Section 5.20(d) as the
date by which the Curable Encumbrances set forth in such letter are to
be cured by the owner of the New Mortgage Property on which such
encumbrances exist; provided that if no date is specified in the
applicable letter for the cure of any Curable Encumbrance set forth
therein, the Cure Date in respect of such Curable Encumbrance shall be
the 90th day following the delivery of the relevant New Mortgage to the
Administrative Agent pursuant to Section 5.20(a).
"DISPOSITION PROGRAM" means, the sale, transfer or other
disposition by the Borrower 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 Borrower 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.
"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.
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"EXISTING MORTGAGES" means mortgages and deeds of trust
described in Schedule V hereto, in each case as the same has been or
may be amended from time to time.
"EXTENDED NEW MORTGAGE DEADLINE" has the meaning set forth in
Section 5.20.
"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 (ii)(B)(1) of Section 5.22, (a) with
respect to the Bank of Montreal Synthetic Lease 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 Bank of Montreal Synthetic Lease 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 Bank
of Montreal Synthetic Lease Obligations or Mortgage Facility
Obligations) that would otherwise have been applied to repay such Bank
of Montreal Synthetic Lease Obligations or Mortgage Facility
Obligations shall be included in the Initial Specified Portion of Bank
of Montreal Synthetic Lease Obligations or Mortgage Facility
Obligations remaining outstanding.
"INVESTMENTS SIDE LETTER" means the side letter dated February
28, 2003 delivered by the Borrower and acknowledged by the
Administrative Agent.
"MATRIX ENTITIES" means AnMed/VBS Rehabilitative Services,
MATRIX Rehabilitation, Inc., MATRIX Healthcare Services, LLC, MATRIX
Rehabilitation - Delaware, Inc., MATRIX Rehabilitation -Georgia, Inc.,
MATRIX Rehabilitation - Maryland, Inc., MATRIX Rehabilitation - Ohio,
Inc., MATRIX Rehabilitation - Texas, Inc., MATRIX Rehabilitation -
South Carolina, Inc., Theraphysics Corp., Theraphysics Partners of
Colorado, Inc., Theraphysics Partners of Western Pennsylvania, Inc.,
Theraphysics Partners of Texas, Inc., Carrollton Physical Therapy
Clinic, Inc., Las Colinas Physical Therapy Center, Inc.,
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Greenville Rehabilitation Services, Inc., Home Health and
Rehabilitation Services, Inc., North Dallas Physical Therapy
Associates, Inc. and The Parks Physical Therapy and Work Hardening
Center, Inc.
"MK MEDICAL" means, as of the Amendment No. 4 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.
"MORTGAGE FACILITY OBLIGATIONS" means all amounts now or
hereafter payable by the Borrower 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 Borrower 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
Borrower 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 Borrower and its Subsidiaries as a result of
such Asset Sale to repay Debt (other than prepayments of Mortgage
Facility Obligations or Bank of Montreal Synthetic Lease Obligations
required under clauses (i), (ii)(B), (ii)(C) and (iii) of Section 5.22
and prepayments of Loans required under Section 2.05(d) in connection
with the reductions of the Commitments pursuant to clauses (i),
(ii)(B), (ii)(C) and (iii) of Section 2.11(b)) secured by such asset or
otherwise subject to mandatory prepayment as a result of such Asset
Sale and (y) reductions in the Commitments pursuant to Section
2.11(b)(ii)(A), (iii) the amount of all taxes paid (or reasonably
estimated to be payable) by the Borrower 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
Borrower) and (iv) the amount of all payments required to be made by
the Borrower 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.
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"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) a New Mortgage as to which
all the conditions set forth in Section 5.20 have been satisfied, and,
in each case, which has not theretofore been released.
"NEW MORTGAGE CONDITION" means the satisfaction by the
Borrower and its Subsidiaries of all of their obligations under Section
5.20 (including the cure of all Curable Encumbrances).
"NEW MORTGAGE DEADLINE" means the sixtieth day after the
Amendment No. 4 Effective Date.
"NEW MORTGAGE PROPERTY" means the property described in
Schedule VI hereto; provided that the Borrower may, with the written
consent of the Administrative Agent, which may be granted or withheld
in its reasonable discretion, substitute for one or more properties
listed on such Schedule VI one or more new properties not listed
thereon so long as (i) such new property or properties are of equal or
greater value than the property or properties for which they are to be
substituted based on the "2003 Budget EBITDA with Cliff" assigned to
such properties in the Strategic Review and (ii) at the time of such
substitution the Borrower (x) represents in a writing to the
Administrative Agent that after giving effect to such substitution, the
aggregate "2003 Budget EBITDA with Cliff" assigned to all New Mortgage
Properties in the Strategic Review shall be at least $33,000,000 and
(y) provides an amended Schedule VI reflecting such substitution and
any prior substitutions. Upon any such substitution, Schedule VI shall
be deemed automatically to be amended to reflect such substitution.
"NEW MORTGAGES" means mortgages or deeds of trust from the
owner of each New Mortgage Property, as mortgagor, to the
Administrative Agent, as mortgagee, in respect of the New Mortgage
Properties, in each case in form and substance reasonably satisfactory
to the Administrative Agent and as the same may be amended from time to
time.
"NEW SENIOR NOTE AGREEMENT" means that certain Indenture,
dated as of April 25, 2001, between the Borrower, the guarantors party.
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thereto and The Bank of New York, as trustee, as amended, modified or
supplemented.
"PERMITTED PROPERTY LIENS", with respect to any property
covered by an Existing Mortgage, a New Mortgage or an Additional
Mortgage, has the meaning set forth in the related Existing Mortgage,
New Mortgage or Additional Mortgage, respectively.
"RATABLE SHARE" means, with respect to any Bank on any day, a
fraction, the numerator of which is such Bank's Commitment on such day
and the denominator of which is the aggregate Commitments of all Banks
on such day.
"RESTRICTED PERIOD" means any period that is not an
Unrestricted Period.
"SENIOR NOTES" means the senior unsecured notes of the
Borrower due 2006 issued pursuant to the Senior Note Agreement.
"SPECIFIED AMOUNT" means (a) for any day during a Restricted
Period (i) if such day occurs prior to the New Mortgage Deadline, the
lesser of (x) the aggregate Commitments of all Banks on such day and
(y) $100,000,000 and (ii) if such day occurs on or after the New
Mortgage Deadline, the least of (x) the aggregate Commitments of all
Banks on such day, (y) the Coverage Limitation for such day and (z)
$100,000,000 and (b) for any day during an Unrestricted Period, (i) if
such day occurs prior to the New Mortgage Deadline, the aggregate
Commitments of all Banks on such day and (ii) if such day occurs on or
after the New Mortgage Deadline, the lesser of (x) the aggregate
Commitments of all Banks on such day and (y) the Coverage Limitation
for such day.
"SPECIFIED PORTION" means, with respect to any repayment
required under clause (ii)(B)(2), (ii)(C) or (iii) of Section 5.22 or
any Commitment reduction pursuant to clause (ii)(B)(2), (ii)(C) or
(iii) of Section 2.11(b), (a) with respect to the Commitments, 50%, (b)
with respect to the Bank of Montreal Synthetic Lease Obligations, 40%
and (c) with respect to the Mortgage Facility Obligations, 10%;
provided that if at the time that any such Commitment reduction or
repayment would otherwise be required, (i) the aggregate Commitments of
all 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 Bank of Montreal Synthetic
Lease 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
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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 to $85,000,000 or to repay such
Bank of Montreal Synthetic Lease Obligations or Mortgage Facility
Obligations in full) that would otherwise have been applied to reduce
such Commitments or repay such Bank of Montreal Synthetic Lease
Obligations or Mortgage Facility Obligations shall be included in the
Specified Portions applicable to the outstanding Commitments in excess,
in the aggregate for all Banks, of $85,000,000 and the Bank of Montreal
Synthetic Lease 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 Borrower to the Banks.
"UNRESTRICTED PERIOD" means any period of one or more days in
which both (i) the aggregate gross cash proceeds received by the
Borrower and its Subsidiaries from all Asset Sales made by the Borrower
and its Subsidiaries on or after the Amendment No. 4 Effective Date and
on or prior to such day (excluding all proceeds received from Assets
Sales of the facilities and related assets, stock or any combination
thereof pertaining to the Matrix Entities) equals or exceeds
$175,000,000 and (ii) the Adjusted Leverage Ratio as of the last day of
the two most recent fiscal quarters for which financial statements have
been, or are required to have been, delivered pursuant to Sections
5.01(a) and (b) did not exceed 5.0 to 1.0.
"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.
SECTION 3. Amendment of Definitions. (a) The definition of "Permitted
Encumbrances" set forth in Section 1.01 of the Credit Agreement is hereby
deleted in its entirety.
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(b) The definitions of "Adjusted Consolidated Debt", "Consolidated Net
Income", "Consolidated Net Worth", "Financing Documents", "Fixed Charge Coverage
Ratio", "Letter of Credit Commitment", "Mortgages" and "Security Documents", set
forth in Section 1.01 of the Credit Agreement, are hereby amended to read in
full as follows:
"ADJUSTED CONSOLIDATED DEBT" means, at any date, the sum,
without duplication, of (i) all liabilities of the Borrower 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 Effective
Date of obligations outstanding on the 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 Borrower 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) (without regard to whether a period of 60 days
shall have passed as contemplated in Section 6.01(i)) shall have
occurred with respect to the Person that is primarily liable in respect
of such obligations, or who has agreed with the Borrower 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
Borrower 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, as
to any cost savings and the like resulting from such 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 Borrower 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
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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 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 Borrower and its Consolidated
Subsidiaries on or prior to January 8, 2002 in connection with the
Florida Disposition, (iv) charges and losses incurred by the Borrower
and its Consolidated Subsidiaries on or after the Amendment No. 4
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 Borrower and its Consolidated
Subsidiaries on or after the Amendment No. 4 Effective Date as a result
of (x) closures of assisted living and skilled nursing facilities of
the Borrower and its Subsidiaries and (y) any change in GAAP that
requires the Bank of Montreal Synthetic Lease Obligations and the
assets subject to the Bank of Montreal Synthetic Lease to be included
on the balance sheet of the Borrower and its Consolidated Subsidiaries
and (vi) transaction fees and expenses of the Borrower and its
Subsidiaries incurred in connection with Amendment No. 4 and any
related amendments to the Bank of Montreal Synthetic Lease and the
Mortgage Credit Facilities) for the Borrower and its Consolidated
Subsidiaries, determined on a consolidated basis for such period.
"CONSOLIDATED NET WORTH" means, at any date, the consolidated
stockholders' equity of the Borrower and its Consolidated Subsidiaries
at such date, without giving effect to (a) charges and losses incurred
by the Borrower and its Consolidated Subsidiaries on or after the
Amendment No. 4 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 Borrower
and its Consolidated Subsidiaries on or after the Amendment No. 4
Effective Date as a result of (i) closures of
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assisted living and skilled nursing facilities of the Borrower and its
Subsidiaries and (ii) any change in GAAP that requires the Bank of
Montreal Synthetic Lease Obligations and the assets subject to the Bank
of Montreal Synthetic Lease to be included on the balance sheet of the
Borrower and its Consolidated Subsidiaries and (c) transaction fees and
expenses of the Borrower and its Subsidiaries in connection with
Amendment No. 4 and any related amendments to the Bank of Montreal
Synthetic Lease and the Mortgage Credit Facilities.
"FINANCING DOCUMENTS" means this Agreement, the Notes, the
Subsidiary Guaranty and the Security Documents.
"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.
"LETTER OF CREDIT COMMITMENT" means, with respect to any Bank
at any time, an amount equal to the lesser of (i) such Bank's Available
Commitment at such time and (ii) the product of $75,000,000 multiplied
by such Bank's Ratable Share at such time.
"MORTGAGES" means the Existing Mortgages and the New
Mortgages.
"SECURITY DOCUMENTS" means the Pledge Agreement, the Mortgages
and any Additional Mortgage (excluding, on any day prior to the
execution and delivery of any New Mortgage or Additional Mortgage, such
New Mortgage or Additional Mortgage), together with all related
filings, assignments, instruments, mortgages and other papers.
SECTION 4. Loans on and after the Effective Date. Clause (b) of Section
2.01 of the Credit Agreement is amended to read in full as follows:
"(b) Loans on and after the Effective Date. Each Bank
severally agrees, on the terms and conditions set forth in this
Agreement, to make loans to the Borrower pursuant to this Section
2.01(b) from time to time from and including the Effective Date to but
excluding the Termination Date in amounts such that such Bank's
Exposure shall not exceed such Bank's Available Commitment. Each
Borrowing under this Section 2.01(b) shall be in an aggregate principal
amount of $1,000,000 or any larger multiple of $1,000,000 (except that
any such Borrowing may be in the aggregate amount available under
Section 3.02(b)) and shall be made
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from each Bank in the amount of its Ratable Share of such Borrowing.
Within the foregoing limits, the Borrower may borrow under this Section
2.01(b), prepay loans to the extent permitted by Section 2.13, and
reborrow pursuant to this Section 2.01(b)."
SECTION 5. Maturity of Loans; Mandatory Prepayments. Section 2.05 of
the Credit Agreement is amended to read in full as follows:
"SECTION 2.05. Maturity of Loans; Mandatory Prepayments. (a)
Each Loan shall mature, and the principal amount thereof shall be due
and payable in full, on the Termination Date.
(b) The Loans shall be prepaid on the first Business Day of
each calendar month in an aggregate amount equal to the amount (if any)
by which the Consolidated Cash Balance on last Business Day of the
immediately preceding calendar month (after giving effect to any
prepayment of the Bank of Montreal Synthetic Lease Obligations and/or
the Mortgage Facility Obligations pursuant to Section 5.22 or the Loans
pursuant to clause (d) of this Section 2.05, in each case to be made on
such Business Day and net of the aggregate amount of checks issued by
the Borrower and its Consolidated Subsidiaries on or prior to such
Business Day that have not cleared at the close of business on such
Business Day), exceeds $50,000,000.
(c) If, on any day, the aggregate Exposure of all Banks shall
exceed the Available Amount for such day, the Borrower shall prepay
Loans (and, to the extent that such amount exceeds the aggregate
principal amount of all Loans then outstanding, cash collateralize
Letters of Credit) in an aggregate principal amount equal to such
excess.
(d) If, on any day on which the Commitments are reduced
pursuant to Section 2.11(b), there shall be any Loans outstanding, the
Borrower shall prepay Loans in an aggregate principal amount equal to
the lesser of (x) the aggregate principal amount of all Loans then
outstanding and (y) the amount of such Commitment reduction.
(e) Each prepayment of all or part of a Group of Loans
pursuant to this Section 2.05 shall be applied to prepay ratably the
Loans of the several Banks included in such Group."
SECTION 6. Fees. (a) Clause (a) of Section 2.08 of the Credit Agreement
is amended to read in full as follows:
13
"(a) The Borrower shall pay to the Administrative Agent for
the account of the Banks, ratably in proportion to their Commitments, a
commitment fee at a rate per annum (the "COMMITMENT FEE RATE")
determined for each day in accordance with the Pricing Schedule, on the
amount by which the aggregate amount of the Commitments on such day
exceeds the aggregate Exposure on such day; provided that for any day
during a Restricted Period, the Commitment Fee Rate applicable to any
portion of the unused Commitments that represents aggregate Commitments
in excess of $100,000,000 shall be 0.50% per annum. Such fees shall
accrue from and including the Effective Date to but excluding the
Termination Date (or earlier date of termination of the Commitments in
their entirety)."
SECTION 7. No Increase of Commitments. Section 2.09 of the Credit
Agreement is amended to read in full as follows:
"SECTION 2.09. [INTENTIONALLY OMITTED]."
SECTION 8. Mandatory Termination or Reduction of Commitments. Section
2.11 of the Credit Agreement is amended to read in full as follows:
"SECTION 2.11. Mandatory Termination or Reduction of
Commitments. (a) All Commitments shall terminate in their entirety on
the Termination Date.
(b) The Commitments shall automatically be reduced
(i) on the Amendment No. 4 Effective Date, by
$25,000,000,
(ii) upon the receipt by the Borrower or any of its
Subsidiaries of any proceeds of any Asset Sale, by an amount
equal to
(A) if the assets subject to such Asset Sale
constituted Collateral immediately prior to such
Asset Sale, the product of 5 multiplied by the
Annualized Mortgage EBITDA for the assets subject to
such Asset Sale, as determined based on the most
recent fiscal quarter for which financial statements
have been delivered pursuant to Sections 5.01(a) and
(b);
14
CONFIDENTIAL TREATMENT REQUESTED
The asterisked portions of this document have been omitted and are filed
separately with the Securities and Exchange Commission.
(B) if any Net Cash Proceeds result from
such Asset Sale,
(1) until the Commitments have been
reduced by $18,750,000 in the aggregate
pursuant to this clause (1), 100% of the Net
Cash Proceeds in respect of such Asset Sale;
provided that if, prior to the earlier of
(x) *************************************
***************** and (y) ***************
*******************************************,
the Borrower shall have reached a final
agreement related to past billing practices
of MK Medical, which agreement requires the
Borrower and its Subsidiaries to make cash
payments in an aggregate amount greater than
************ but less than *************, no
Commitment reduction 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
excess of the aggregate amount of such
payments over ***********; provided further
that the provisions of this clause (1) shall
remain in effect thereafter until the
Commitments have been reduced by $18,750,000
in the aggregate pursuant to this clause
(1),
(2) after the Commitments have been
reduced by $18,750,000 in the aggregate
pursuant to clause (ii)(B)(1) of this
Section 2.11(b), the Specified Portion in
respect of the Commitments of 65% of the Net
Cash Proceeds of such Asset Sales and
(C) if, in the absence of any additional
Commitment reductions and/or repayments of Mortgage
Facility Obligations and/or Bank of Montreal
Synthetic Lease Obligations, the Borrower 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, by an
amount equal to the Specified Portion in respect of
the Commitments 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
15
Note Agreement) in order for the Borrower to avoid
the making of a Senior Asset Sale Offer under the
Senior Note Agreement or the New Senior Note
Agreement; and
(iii) on any Business Day, by the Specified Portion
in respect of the Commitments 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 reductions required pursuant to clause (ii) of this
Section 2.11(b) and related prepayments pursuant to Section
2.05(d) and any prepayments required under clause (ii) of
Section 5.22, in each case to be made on any such Business
Day) exceeds $125,000,000;
provided that in no event (other than pursuant to clause (ii)(C) above)
shall the aggregate Commitments be reduced to less than $85,000,000
pursuant to this Section 2.11(b).
(c) Each reduction of the Commitments pursuant to this Section
2.11 shall be applied ratably to the respective Commitments of all
Banks."
SECTION 9. Conditions to Each Borrowing and Letter of Credit Issuance.
Clause (b) of Section 3.02 is amended to read in full as follows:
"(b) in the case of any Borrowing or the issuance of any
Letter of Credit, the fact that, immediately after such Borrowing or
the issuance of such Letter of Credit, as the case may be, the
aggregate Exposures of all Banks does not exceed the Available Amount;"
SECTION 10. Subsidiaries. The last sentence of Section 4.01 of the
Credit Agreement is amended by replacing the expression "Effective Date" with
"Amendment No. 4 Effective Date".
SECTION 11. Binding Effect; Liens. Clause (b) of Section 4.03 of the
Credit Agreement is amended to read in full as follows:
"(b) The Security Documents create valid security interests in
and mortgage liens on the Collateral purported to be covered thereby,
which security interests and mortgage liens are and will remain
perfected security interests and mortgage liens, prior to all Liens
other than Permitted Property Liens and, at any time prior to the
applicable Cure Date, applicable Curable Encumbrances, and as to which,
in the case of the Pledged Stock, the Administrative Agent has control
(within the meaning
16
of Sections 8-106 and 9-106 of the UCC), subject, in the case of the
Pledged Stock, to the Administrative Agent's maintaining possession
thereof, and, in the case of the Mortgages, to the recording of the
Mortgages in the county recording offices set forth on Schedules 1
thereto and the filing of Uniform Commercial Code financing statements
in the Uniform Commercial Code filing offices and county recording
offices set forth or Schedules 2 thereto."
SECTION 12. Compliance Certificate. Clause (d) of Section 5.01 of the
Credit Agreement is amended to read in full as follows:
"(d) simultaneously with the delivery of each set of financial
statements referred to in clauses (a) and (b) above, a certificate of
an Authorized Financial Officer of the Borrower (i) setting forth in
reasonable detail the calculations required to establish whether the
Borrower was in compliance with the requirements of Sections 5.05,
5.06, 5.07, 5.09, 5.10, 5.11, 5.13, 5.18, 5.19, 5.21 and 5.22 hereof
and Section 5(C) of the Pledge Agreement on the date of such financial
statements, and, if such compliance is being determined on a pro forma
basis in accordance with the proviso to the definition of Consolidated
EBITDAR or Adjusted Consolidated Debt, setting forth in reasonable
detail the nature and amount of each pro forma adjustment included in
such calculations, (ii) setting forth in reasonable detail calculations
of the Pricing Ratio as at the date of the balance sheet contained
therein and for the period of four fiscal quarters ending on such date,
(iii) in the case of each such certificate delivered after the New
Mortgage Deadline, setting forth in reasonable detail the Coverage
Limitation as of the date of the balance sheet contained therein and
(iv) stating whether any Default exists on the date of such certificate
and, if any Default then exists, setting forth the details thereof and
the action which the Borrower is taking or proposes to take with
respect thereto;"
SECTION 13. Fixed Charge Coverage Ratio. Section 5.06 of the Credit
Agreement is amended to read in full as follows:
"SECTION 5.06. Fixed Charge Coverage Ratio. The Fixed Charge
Coverage Ratio at any date shall not be less than 1.1 to 1.0."
SECTION 14. Leverage Ratio. Section 5.07 of the Credit Agreement is
amended to read in full as follows:
"SECTION 5.07. Leverage Ratio. The ratio at any date during
any period set forth below of (a) Adjusted Consolidated Debt to (b)
17
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 1.0
June 30, 2003 - September 29, 2003 6.50 to 1.0
September 30, 2003 - December 30, 2003 6.80 to 1.0
December 31, 2003 - March 30, 2004 7.30 to 1.0
March 31, 2004 and thereafter 7.45 to 1.0
</Table>
SECTION 15. Investments. (a) Clause (i) of Section 5.09 of the Credit
Agreement is amended to read in full as follows:
"(i) (i) 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 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 (i)(i) 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 Borrower 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 Borrower
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 Borrower and
the Subsidiary Guarantors under the Financing Documents, the Mortgage
Credit Facilities or the Bank of Montreal Synthetic Lease were secured
by a Lien on the facilities sold, or the facilities owned by the
Subsidiary whose stock was sold, and such obligations remain
18
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
Borrower and the Subsidiary Guarantors under the Financing Documents,
the Mortgage Credit Facilities or the Bank of Montreal Synthetic Lease
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 Borrower and the Subsidiary Guarantors under the
Financing Documents, the Mortgage Credit Facilities and the Bank of
Montreal Synthetic Lease and (ii) 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 (i)(ii) shall not, at any time, exceed $20,000,000;"
(b) Section 5.09 of the Credit Agreement is amended by adding, at the
end thereof, the following:
"In addition, neither the Borrower nor any of its Subsidiaries will,
during any period on or after the Amendment No. 4 Effective Date during
which the Adjusted Leverage Ratio exceeds 5.0 to 1.0 make or acquire
any Investments of the types referred to in clauses (b), (d), (e) or
(o) of this Section 5.09, 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 Bank of Montreal Synthetic
Lease and (ii) Investments, Lease Conversions and acquisitions of
facilities in an aggregate amount not exceeding $15,000,000."
SECTION 16. Restricted Payments on Stock. Clause (v) of Section 5.10 of
the Credit Agreement is amended to read in full as follows:
"(v) the Borrower may make any such payment or distribution
if, after giving effect thereto, the aggregate amount of all such
payments or distributions made after the 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
19
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 Borrower on any day on or after the Amendment No. 4 Effective Date
on which the Adjusted Leverage Ratio is greater than 5.00 to 1.00."
SECTION 17. Negative Pledge. Clause (a) of Section 5.11 of the Credit
Agreement is amended by: (a) amending clause (iv) thereof to read in full as
follows:
"(iv) any Lien on any asset securing Debt 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. 4 Effective Date, 385 days) after such
acquisition, construction or reconstruction and (y) on any day on or
after the Amendment No. 4 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 Debt referred to in clause (iv)
of the definition of Debt in Section 1.01;" and
(b) (i) deleting the expression "and" at the end of clause (xiv)
thereof, (ii) replacing the period at the end of clause (xv) thereof with the
expression"; and" and (iii) inserting at the end thereof the following:
"(xvi) with respect to each property covered by a Mortgage or
an Additional Mortgage, the Permitted Property Liens (as defined in the
Mortgage or Additional Mortgage covering such property)."
SECTION 18. Consolidations, Mergers and Sales of Assets. Section 5.12
of the Credit Agreement is amended to read in full as follows:
"SECTION 5.12. Consolidations, Mergers and Sales of Assets.
Neither the Borrower nor any of its Subsidiaries will:
(a) consolidate or merge with or into any other Person, unless
the Borrower or, except in the case of a merger or consolidation to
which the Borrower is a party, a Wholly-Owned Subsidiary of the
Borrower is the surviving corporation or
20
CONFIDENTIAL TREATMENT REQUESTED
The asterisked portions of this document have been omitted and are filed
separately with the Securities and Exchange Commission.
(b) sell, lease or otherwise transfer (i) 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 Borrower and its Subsidiaries, taken as a whole, to any
other Person and (ii) 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 that (i) this Section 5.12 shall not apply to (A) mergers,
dissolutions, reorganizations or liquidations of Subsidiaries of the
Borrower that have disposed of all or substantially all of their
assets, (B) sales, leases or other transfers by the Borrower or any of
its Subsidiaries to the Borrower or any Subsidiary Guarantor and (C)
sales, transfers or other dispositions of MK Medical, ****************
**********************************************************************
**************************** or made pursuant to the Disposition
Program and (ii) Section 5.12(b)(ii) 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 5.19, (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 (ii)(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) assets or property
pursuant to condemnations or in lieu of condemnations; and provided
further that the Borrower 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 Borrower 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)."
SECTION 19. Incurrence of Debt. Section 5.13 of the Credit Agreement is
amended by adding, at the end thereof, a new clause (c) to read in full as
follows:
"(c) At any time on or after the Amendment No. 4 Effective
Date at which the Adjusted Leverage Ratio exceeds 5.00 to 1.00, the
Borrower will not, and will not permit any of its Subsidiaries to,
incur or assume any Debt, except:
21
(i) Debt incurred in connection with Lease Cancellation
Payments;
(ii) Debt of the type referred to in clause (iv) of the
definition of "Debt" secured by a Lien permitted pursuant to clause
(iv) of subsection 5.11(a);
(iii) Debt of any corporation that became or becomes a
Consolidated Subsidiary of the Borrower 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;
(iv) Refinancing Debt incurred to refinance Debt 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 Debt permitted to have been
incurred, and in fact incurred, prior to the Amendment No. 4 Effective
Date or when the Adjusted Leverage Ratio did not exceed 5.00 to 1.00,
Refinancing Debt permitted under clause (v) of Section 5.13(a)
(treating such Section 5.13(a) solely for purposes of this clause (v)
as if it applied to the Borrower 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) Debt incurred under the Financing Documents;
(viii) Guarantees by the Borrower or any of its Subsidiaries
of any obligation of the Borrower or any of its Subsidiaries that the
Borrower or such guaranteeing Subsidiary would have been permitted to
incur hereunder as a primary obligation;
22
(ix) Debt consisting of advances from the Borrower or any of
its Subsidiaries in connection with the normal operation of the
business of the Borrower and its Subsidiaries;
(x) Debt incurred in connection with and as part of a Workout
Transaction;
(xi) Debt incurred or assumed for the purpose of financing the
cost of acquiring, constructing or improving an asset of the Borrower
or any of its Subsidiaries;
(xii) Debt not otherwise permitted under clauses (i) through
(xi) of this Section;
provided that the aggregate principal amount of Debt permitted under
clauses (i), (ii), (iv) (to the extent that the Debt incurred under
such clause (iv) refinances Debt incurred under clause (i) or (ii) of
this Section 5.13(c)), (xi) and (xii) of this Section 5.13(c) shall not
exceed $10,000,000 at any time outstanding."
SECTION 20. Use of Proceeds and Letters of Credit. Section 5.14 of the
Credit Agreement is amended to read in full as follows:
"SECTION 5.14. Use of Proceeds and Letters of Credit. The
Letters of Credit issued (or deemed issued), and the proceeds of the
Loans made, under this Agreement will be used for general corporate
purposes; provided that none of such Letters of Credit or proceeds of
Loans will be used, directly or indirectly, for the purpose, whether
immediate, incidental or ultimate, of (a) buying or carrying any
"margin stock" within the meaning of Regulation U or (b) prepaying any
Debt of the Borrower or its Subsidiaries."
SECTION 21. Lease Conversions. Section 5.16 of the Credit Agreement is
amended by (i) deleting "and" at the end of clause (i) thereof, (ii) inserting
the expression"; and" at the end of clause (ii) thereof and (iii) adding the
following at the end thereof:
"(iii) if such Lease Conversion is made on any day on or after the
Amendment No. 4 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 5.09."
23
SECTION 22. Consolidated Gross Capital Expenditures. Section 5.18 of
the Credit Agreement is amended to read in full as follows:
"SECTION 5.18. 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 5.18 are less
than the applicable amount specified pursuant to this Section 5.18, 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)."
SECTION 23. Sale and Leaseback Transactions. Section 5.19 of the Credit
Agreement is amended to read in full as follows:
"SECTION 5.19. Sale and Leaseback Transactions. (a) The
Borrower 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 Borrower 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.
(b) On any day on or after the Amendment No. 4 Effective Date
on which the Adjusted Leverage Ratio is greater than 5.00 to 1.00, the
24
Borrower 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.
4 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.
SECTION 24. Mortgages. Article 5 of the Credit Agreement is hereby
amended by adding, immediately after Section 5.19, new Sections 5.20, 5.21, 5.22
and 5.23 to read in their entirety as follows:
"SECTION 5.20. Mortgages. On or prior to the New Mortgage
Deadline or, if requested by the Borrower and agreed to by the Agent in
its reasonable discretion with respect to one or more New Mortgage
Properties that do not exceed in value (as determined on the basis of
the "2003 Budget EBITDA with Cliff" assigned to each New Mortgage
Property in the Strategic Review) 40% of the aggregate value (so
determined) of all New Mortgage Properties, such other date or dates
(which shall not, except in the case of New Mortgage Properties that do
not exceed in value (so determined) 15% of the aggregate value (so
determined) of all New Mortgage Properties, be later than the ninetieth
day after the Amendment No. 4 Effective Date) (each, an "EXTENDED NEW
MORTGAGE DEADLINE") as the Borrower and the Agent shall agree:
(a) the owner of each New Mortgage Property shall
have delivered to the Agent duly executed counterparts of a
New Mortgage in respect of each New Mortgage Property owned by
it;
(b) the Borrower shall deliver, or cause to be
delivered, to the Agent legal opinions of local counsel
reasonably satisfactory to the Agent with respect to each of
the New Mortgages, which legal opinion shall be in form and
substance reasonably satisfactory to the Agent;
(c) the Borrower shall deliver, or cause to be
delivered, to the Agent evidence satisfactory to the Agent
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 Agent shall have reasonably requested to perfect the
Liens created pursuant to the
25
New Mortgages shall have been taken, or that arrangements
therefor satisfactory to the Agent shall have been made;
(d) the Borrower shall deliver, or cause to be
delivered, to the Agent policies of title insurance (or
commitments therefor with all conditions marked satisfied), in
form and substance satisfactory to the Agent and issued by an
insurance company or companies as are acceptable to the Agent
(the "TIC"), insuring the perfection, enforceability and
priority of the Liens on the New Mortgage Property created
under the New Mortgages in amounts not less than 110% of the
product of 5 multiplied by the "2003 Budget EBITDA with Cliff"
assigned to such New Mortgage Property in the Strategic
Review, subject only to such exceptions as are reasonably
satisfactory to the Agent, containing such endorsements (other
than endorsements that would require a new survey or survey
update) and affirmative assurances as have been previously
agreed to by, or are otherwise satisfactory to, the Agent, and
reinsured in amounts and under reinsurance agreements in form
and substance satisfactory to the Agent; and the Borrower
shall have paid or made arrangements satisfactory to the Agent
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 Agent
to pay to the TIC an amount equal to the recording and stamp
taxes payable in connection with recording the New Mortgages
in the appropriate county land offices; provided that, if with
respect to any New Mortgage Property there are encumbrances of
record, as of the New Mortgage Deadline (or, in the case of a
New Mortgage Property as to which the Agent shall have
consented to an Extended New Mortgage Deadline, as of the
Extended New Mortgage Deadline in respect of such New Mortgage
Property) that are not reasonably acceptable to the
Administrative Agent, then unless the Administrative Agent, in
its reasonable discretion, enters into a letter agreement with
the Borrower, the owner of the New Mortgaged Property and the
TIC setting forth such encumbrances and providing for the
removal of such encumbrances and the execution and delivery of
documentation evidencing such removal by the applicable Cure
Date, the Administrative Agent shall accept a New Mortgage on
a substitute property as described in the proviso to the
definition of New Mortgage Property set forth in Section 1.01
hereof (and title insurance complying with the provisions of
this clause (d)) in lieu of such New Mortgage Property;
26
(e) the Borrower shall deliver, or cause to be
delivered, to the Agent copies of file search reports from the
Uniform Commercial Code filing office in each jurisdiction (i)
in which is located any Collateral (other than Pledged Stock)
subject to a New Mortgage, (ii) in which is located the chief
executive office of any Subsidiary of the Borrower that owns
or holds any right, title or interest in any property that
constitutes Collateral (other than the Pledged Stock) subject
to a New 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 Borrower or such
Subsidiary, as the case may be;
(f) the Borrower shall deliver, or cause to be
delivered, to the Agent all documents the Agent may reasonably
request relating to the existence of each Subsidiary of the
Borrower party to any New Mortgage, the corporate authority
for and the validity of the New Mortgages, and any other
matters relevant thereto, all in form and substance
satisfactory to the Agent; and
(g) the Borrower 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 Agent with
respect to the New Mortgages, in each case invoiced prior to
the New Mortgage Deadline or the Extended New Mortgage
Deadline, as applicable.
SECTION 5.21. Prepayment of Notes. The Borrower will not, and
will not permit any of its Subsidiaries to, prepay the New Senior Notes
or the Senior Notes; provided that the Borrower 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 outstanding;
(ii) the Bank of Montreal Synthetic Lease 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
27
giving effect to such 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 of all Banks do not
exceed $85,000,000 or (B) all of (I) the aggregate Commitments
of all Banks do not exceed $65,000,000, (II) the Borrower
shall have delivered to the Agent cash in an amount equal to
the aggregate Letter of Credit Exposures of all Banks then
outstanding, to be held in escrow by the Agent to the extent
that such Letter of Credit Exposures remain outstanding, (III)
the Borrower shall have entered into a binding agreement not
thereafter to request or borrow any Loans under this 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 5.01(a) or (b), shall equal or exceed the product of 2
multiplied by the aggregate Commitments of all Banks then
outstanding.
SECTION 5.22. Prepayment of Bank of Montreal Synthetic Lease
Obligations and Mortgage Facility Obligations. The Borrower shall
prepay, or cause its Subsidiaries to prepay (or, in the case of the
Bank of Montreal Synthetic Lease Obligations, deposit funds that are
committed to the repayment of), the Bank of Montreal Synthetic Lease
Obligations and the Mortgage Facility Obligations,
(i) on the Amendment No. 4 Effective Date, in the
case of the Bank of Montreal Synthetic Lease Obligations, in
the amount of $20,000,000,
(ii) upon the receipt by the Borrower or any of its
Subsidiaries of any proceeds of any Asset Sale, by an amount
equal to
(A) if such Asset Sale includes assets that
were subject to a Lien securing the Bank of Montreal
Synthetic Lease Obligations or the Mortgage Facility
Obligations, solely to the obligations secured by
such assets, (1) in the case of the Bank of Montreal
Synthetic Lease Obligations, in the amount set forth
on Schedule VII hereto with respect to such assets
and (2) in the case of the Mortgage Facility
Obligations, in the amount required to be repaid
pursuant to the AmSouth Mortgage Facility or the
Washington Mutual Mortgage Facilities, as applicable;
28
CONFIDENTIAL TREATMENT REQUESTED
The asterisked portions of this document have been omitted and are filed
separately with the Securities and Exchange Commission.
(B) if any Net Cash Proceeds result from
such Asset Sale,
(1) until the Bank of Montreal
Synthetic Lease 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 (1) (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 Borrower
shall have reached a final agreement related
to past billing practices of MK Medical,
which agreement requires the Borrower 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 excess of the aggregate amount
of such payments over ***********; provided
further that the provisions of this clause
(1) shall remain in effect thereafter until
the Bank of Montreal Synthetic Lease
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 (1),
(2) after the Bank of Montreal
Synthetic Lease 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 (B)(1) of this
Section 5.22(ii) (or, in either case, repaid
in full), the Specified Portion of 65% of
the Net Cash Proceeds of such Asset Sales,
and
(C) if, in the absence of any additional
Commitment reductions and/or repayments of Mortgage
Facility
29
Obligations and/or Bank of Montreal Synthetic Lease
Obligations, the Borrower 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, in an amount equal to 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 Borrower to avoid the
making of a Senior Asset Sale Offer under the Senior
Note Agreement or the New Senior Note Agreement; and
(iii) 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 reductions
required pursuant to clause (ii) of Section 2.11(b) and
related prepayments pursuant to Section 2.05(d) and any
prepayments required pursuant to clause (ii) of this Section
5.22, 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 Borrower may elect to apply 100% of any
prepayment that would otherwise be applied under this Section
5.22 to prepay the Mortgage Facility Obligations to prepay the
Bank of Montreal Synthetic Lease Obligations and reduce the
Commitments in the same manner as if the Mortgage Facility
Obligations had theretofore been repaid in full pursuant to
this Section 5.22 and (y) if the Mortgage Facility Obligations
have been prepaid in full (other than pursuant to this Section
5.22), the Borrower may retain any amount that would otherwise
have been applied under this Section 5.22 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. 4 Effective Date less $5,000,000.
SECTION 5.23. Additional Collateral. (a) In the event that the
Borrower or any of its Subsidiaries grants to the agent or the lenders
under Bank of Montreal Synthetic Lease in respect of the Bank of
Montreal Synthetic Lease Obligations, at any time after the Amendment
No. 4
30
Effective Date, a Lien on any of its property or assets (other than a
Lien on (i) Amended Mortgage Property (as defined in the Bank of
Montreal Synthetic Lease) or (ii) any property (the "SUBSTITUTE
PROPERTY") substituted for property (the "ORIGINAL PROPERTY") referred
to in clause (i) above so long as the value of such Substitute Property
is not greater than (other than by a de minimus amount) the value of
the Original Property for which it is substituted), the Borrower shall,
or shall cause its Subsidiary to, as the case may be, simultaneously
grant to the Agent for the benefit of the Secured Parties, 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 Bank of Montreal Synthetic Lease.
(b) If all amounts now or hereafter payable by the Borrower
and its Subsidiaries under (a) the AmSouth Mortgage Facility or (b) the
Washington Mutual Mortgage Facilities shall have been repaid in full,
then, to the extent permitted under the Senior Note Agreement and the
New Senior Note Agreement, the Borrower shall, or shall cause its
applicable Subsidiary to, grant Liens on the assets theretofore
securing such Mortgage Facility Obligations to secure the obligations
of the Borrower and the Subsidiary Guarantors under the Financing
Documents (which Liens may equally and ratably secure the Bank of
Montreal Synthetic Lease Obligations)."
SECTION 25. Events of Default. (a) Section 6.01 of the Credit Agreement
is amended by:
(i) replacing the word "or" on the second line of clause (b)
thereof with a comma; and
(ii) adding, following the expression "5.19" on the second
line of clause (b) thereof, the expression", 5.20, 5.21, 5.22 or
5.23".
(b) Clause (n) of Section 6.01 of the Credit Agreement is amended to
read in full as follows:
"(n) the Security Documents shall at any time on or after the
Amendment No. 4 Effective Date (or, in the case of any New Mortgage to
be delivered pursuant to Section 5.20 or any Additional Mortgage to be
delivered pursuant to Section 5.23, the date upon which such New
Mortgage or Additional Mortgage is recorded in accordance with Section
5.20 or 5.23), for any reason (other than solely due to actions taken
by the Agent or any Bank) fail to create perfected Liens in favor of
the Secured Parties on the Collateral, securing all of the Secured
Obligations purported
31
to be secured thereby, and as to which, in the case of Pledged Stock,
the Agent has control (within the meaning of Sections 8-106 and 9-106
of the UCC), subject to no other Liens other than, in the case of
Collateral covered by any Mortgage or Additional Mortgage, Permitted
Property Liens and, at any time prior to the applicable Cure Date,
applicable Curable Encumbrances, or, in the case of any Collateral
other than Pledged Stock, Liens permitted under Section 5.11(a)(x) as
to which the Liens created under the Security Documents have priority;"
SECTION 26. Amendment to Schedules. Schedule I and Schedule IV of the
Credit Agreement are hereby replaced in their entirety by Schedule I and
Schedule IV hereto, respectively.
SECTION 27. Additional Schedules. Schedules VI and VII hereto are
hereby added as Schedules VI and VII, respectively, to the Credit Agreement.
SECTION 28. Pledge Agreement Amendments. (a) Section 5(C) of the Pledge
Agreement is hereby amended by adding, at the beginning of clause (ii) thereof,
the following expression:
"if the New Mortgage Condition is not satisfied on or prior to the New
Mortgage Deadline or, to the extent that the Agent shall have agreed to
an Extended New Mortgage Deadline with respect to any New Mortgage
Property, in respect of such New Mortgage Property only, such Extended
New Mortgage Deadline (it being understood that the Borrower will not
be required to take any action under this clause (ii) between the
Amendment No. 4 Effective Date and the later of the New Mortgage
Deadline and any such Extended New Mortgage Deadline),".
(b) The last sentence of Section 10 of the Pledge Agreement is hereby
amended to read in full as follows:
"The Administrative Agent and the Obligors agree that such notice
constitutes `REASONABLE AUTHENTICATED NOTIFICATION' within the meaning
of Section 9-611(b) of the UCC."
SECTION 29. Representations. (a) The Borrower represents and warrants
that (i) the representations and warranties of the Borrower set forth in Article
4 of the Credit Agreement will be true on and as of the Amendment No. 4
Effective Date, (ii) no Default will have occurred and be continuing on such
date and (iii) the aggregate "2003 Budget EBITDA with Cliff" allocated in the
Strategic Review to the assisted living and skilled nursing facilities set forth
on Schedule VI hereto is at least $33,000,000.
32
(b) Each Subsidiary Guarantor represents and warrants that the
representations and warranties set forth in Article 3 of the Amended and
Restated Subsidiary Guaranty dated as of April 25, 2001 (as amended through to
the Amendment No. 4 Effective Date) among the Borrower and the Subsidiaries of
the Borrower party thereto will be true on and as of the Amendment No. 4
Effective Date.
SECTION 30. General Release. In consideration of the amendments
provided for herein, the Borrower and the Subsidiary Guarantors, on behalf of
themselves and their respective Subsidiaries and their and their respective
Subsidiaries' successors and assigns (collectively, "RELEASORS"), hereby forever
waive, release and discharge to the fullest extent 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, of 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 Agent and any Bank 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 Borrower 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 Credit Agreement and the other Financing Documents and payment in full of
all amounts owing thereunder.
SECTION 31. Governing Law. This Amendment shall be governed by and
construed in accordance with the laws of the State of New York.
SECTION 32. Counterparts. This Amendment may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
SECTION 33. Effectiveness. This Amendment shall become effective as of
the date hereof on the date when the following conditions are met:
33
(a) the Administrative Agent shall have received from each of the
Borrower, the Subsidiary Guarantors, and the Required Banks a counterpart hereof
signed by such party or facsimile or other written confirmation (in form
satisfactory to the Administrative Agent) that such party has signed a
counterpart hereof;
(b) the Administrative Agent shall have received a favorable written
opinion of each of (i) John Arena, General Counsel - Corporate Law, of the
Borrower, and (ii) Weil, Gotshal & Manges LLP, in each case covering such
matters as the Required Banks shall reasonably request and in form and substance
satisfactory to the Administrative Agent;
(c) receipt by the Administrative Agent of a certificate of an
Authorized Financial Officer of the Borrower setting forth in reasonable detail
calculations that establish that the aggregate fair market value of the assisted
living and skilled nursing facilities set forth on Schedule VI does not exceed
the amount of the available and unused Permitted Liens under clause (xi) of the
definition of Permitted Liens in the Senior Note Agreement immediately prior to
the Amendment No. 4 Effective Date;
(d) the Administrative Agent shall have received from the Borrower a
counterpart of the Investments Side Letter signed by the Borrower or facsimile
or other written confirmation (in form satisfactory to the Administrative Agent)
that the Borrower has signed a counterpart thereof;
(e) receipt by the Administrative Agent of evidence satisfactory to it
that the Borrower shall have prepaid (or deposited funds that are committed to
the prepayment of) the Bank of Montreal Synthetic Lease Obligations in an
aggregate principal amount of $20,000,000;
(f) receipt by the Administrative Agent of a fully executed amendment
to the Bank of Montreal Synthetic Lease, in form and substance satisfactory to
the Administrative Agent, and evidence satisfactory to it that such amendment is
effective;
(g) receipt by the Administrative Agent (i) for the account of the
Banks which have executed Amendment No. 3 on or prior to the date hereof,
ratably in proportion to their Commitments, of an amendment fee equal to 0.125%
of the Commitments of such Banks as in effect immediately prior to giving effect
to Amendment No. 4 and (ii) for the account of the Banks executing Amendment No.
4 on or prior to the date hereof, ratably in proportion to their Commitments, of
an amendment fee equal to 0.375% of the Commitments of such Banks as in effect
immediately prior to giving effect to Amendment No. 4;
34
(h) receipt of arrangement fees in the amounts, and for the accounts of
the Persons, previously agreed with the Borrower; and
(i) receipt by the Administrative Agent of payment of all out-of-pocket
expenses due and payable to it pursuant to Section 9.03(a) of the Credit
Agreement (including, to the extent invoiced, all fees and disbursements of
Davis Polk & Wardwell, special counsel to the Administrative Agent).
35
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed as of the date first above written.
BEVERLY ENTERPRISES, INC.
By: /s/ RICHARD D. SKELLY, JR.
----------------------------------------
Name: Richard D. Skelly, Jr.
Title: Senior Vice President and Treasurer
SUBSIDIARY GUARANTORS:
4F FUNDING, INC. (f/k/a Beverly Enterprises
- Oklahoma, Inc.)
AEDON STAFFING, LLC
AEDON HOMECARE, LLC
AEGIS THERAPIES, INC. (f/k/a
Beverly Rehabilitation, Inc.)
AEGIS THERAPIES-FLORIDA, INC.
(f/k/a AEGIS-Florida, Inc.)
AGI-CAMELOT, INC.
BEVERLY- BELLA VISTA HOLDING, INC.
BEVERLY - INDIANAPOLIS, LLC
BEVERLY - MISSOURI VALLEY
HOLDING, INC.
BEVERLY - RAPID CITY HOLDING, INC.
BEVERLY CLINICAL, INC.
BEVERLY ENTERPRISES
INTERNATIONAL LIMITED
BEVERLY ENTERPRISES -
ALABAMA, INC.
BEVERLY ENTERPRISES -
ARIZONA, INC.
BEVERLY ENTERPRISES -
ARKANSAS, INC.
BEVERLY ENTERPRISES -
CALIFORNIA, INC. (f/k/a
Hospital Facilities Corporation)
BEVERLY ENTERPRISES -
COLORADO, INC.
BEVERLY ENTERPRISES -
CONNECTICUT, INC.
BEVERLY ENTERPRISES -
DELAWARE, INC.
BEVERLY ENTERPRISES -
DISTRIBUTION SERVICES, INC. (f/k/a
Beverly Enterprises - New York, Inc.)
BEVERLY ENTERPRISES - DISTRICT OF
COLUMBIA, INC.
BEVERLY ENTERPRISES -
FLORIDA, INC.
BEVERLY ENTERPRISES -
GARDEN TERRACE, INC.
BEVERLY ENTERPRISES -
GEORGIA, INC.
BEVERLY ENTERPRISES - HAWAII, INC.
BEVERLY ENTERPRISES - IDAHO, INC.
BEVERLY ENTERPRISES - ILLINOIS, INC.
BEVERLY ENTERPRISES -
INDIANA, INC.
BEVERLY ENTERPRISES - IOWA, INC.
BEVERLY ENTERPRISES - KANSAS, LLC
(successor to Beverly Enterprises -
Kansas, Inc.)
BEVERLY ENTERPRISES -
KENTUCKY, INC.
BEVERLY ENTERPRISES -
LOUISIANA, INC.
BEVERLY ENTERPRISES - MAINE, INC.
BEVERLY ENTERPRISES -
MARYLAND, INC.
BEVERLY ENTERPRISES -
MASSACHUSETTS, INC.
BEVERLY ENTERPRISES -
MICHIGAN, INC.
BEVERLY ENTERPRISES -
MINNESOTA, LLC (successor to
Beverly Enterprises - Minnesota, Inc.)
BEVERLY ENTERPRISES -
MISSISSIPPI, INC.
BEVERLY ENTERPRISES -
MISSOURI, INC.
BEVERLY ENTERPRISES -
MONTANA, INC.
BEVERLY ENTERPRISES -
NEBRASKA, INC.
BEVERLY ENTERPRISES -
NEVADA, INC.
BEVERLY ENTERPRISES - NEW
HAMPSHIRE, INC.
BEVERLY ENTERPRISES - NEW
JERSEY, INC.
BEVERLY ENTERPRISES - NEW
MEXICO, INC.
BEVERLY ENTERPRISES - NORTH
CAROLINA, INC.
BEVERLY ENTERPRISES - NORTH
DAKOTA, INC.
BEVERLY ENTERPRISES - OHIO, INC.
BEVERLY ENTERPRISES - OREGON,
INC.
BEVERLY ENTERPRISES -
PENNSYLVANIA, INC.
BEVERLY ENTERPRISES - RHODE
ISLAND, INC.
BEVERLY ENTERPRISES - SOUTH
CAROLINA, INC.
BEVERLY ENTERPRISES - TENNESSEE,
INC.
BEVERLY ENTERPRISES - TEXAS, INC.
BEVERLY ENTERPRISES - UTAH, INC.
BEVERLY ENTERPRISES - VERMONT, INC.
BEVERLY ENTERPRISES - VIRGINIA, INC.
BEVERLY ENTERPRISES -
WASHINGTON, INC.
BEVERLY ENTERPRISES - WEST
VIRGINIA, INC.
BEVERLY ENTERPRISES - WISCONSIN,
INC.
BEVERLY ENTERPRISES - WYOMING, INC.
BEVERLY HEALTH AND
REHABILITATION SERVICES, INC.
BEVERLY HEALTHCARE, LLC
BEVERLY HEALTHCARE - CALIFORNIA,
INC.
BEVERLY HOLDINGS I, INC.
BEVERLY INDEMNITY, LTD.
BEVERLY MANOR INC. OF HAWAII
BEVERLY REAL ESTATE HOLDINGS, INC.
BEVERLY SAVANA CAY MANOR, INC.
BEVRD, LLC
CERES OXYGEN SERVICES, LLC
CERES STRATEGIES, INC. (f/k/a/ Beverly
Healthcare Acquisition, Inc.)
CERES STRATEGIES MEDICAL SERVICES,
LLC
COMMERCIAL MANAGEMENT, INC.
COMMUNITY CARE, INC.
COMPASSION AND PERSONAL CARE
SERVICES, INC.
EASTERN HOME HEALTH SUPPLY &
EQUIPMENT CO., INC.
HALLMARK CONVALESCENT HOMES, INC.
HOMECARE PREFERRED CHOICE, INC.
HOSPICE OF EASTERN CAROLINA, INC.
HOSPICE PREFERRED CHOICE, INC.
LARES CARE RESOURCE, LLC
LIBERTY NURSING HOMES,
INCORPORATED
MATRIX OCCUPATIONAL HEALTH, INC.
MATRIX WELLNESS, LLC
MEDICAL ARTS HEALTH FACILITY OF
LAWRENCEVILLE, INC.
MODERNCARE OF LUMBERTON, INC.
NEBRASKA CITY S-C-H, INC.
NURSING HOME OPERATORS, INC.
PETERSEN HEALTH CARE, INC.
SOUTH ALABAMA NURSING HOME, INC.
SOUTH DAKOTA - BEVERLY
ENTERPRISES, INC.
SPECTRA HEALTHCARE ALLIANCE, INC.
TAR HEEL INFUSION COMPANY, INC.
TMD DISPOSITION COMPANY
VANTAGE HEALTHCARE
CORPORATION
All by: /s/ JOHN G. ARENA
-------------------------------------
Name: John G. Arena
Title: Secretary
JPMORGAN CHASE BANK (formerly
known as The Chase Manhattan Bank
successor by merger to Morgan Guaranty
Trust Company of New York)
By: /s/ DAWN LEE LUM
-----------------------------------------
Name: Dawn Lee Lum
Title: Vice President
BANK OF AMERICA, N.A.
By: /s/ WILLIAM E. LIVINGSTON
-----------------------------------------
Name: William E. Livingston
Title: Managing Director
THE BANK OF NEW YORK
By: /s/ BRENDAN T. NEDEI
-----------------------------------------
Name: Brendan T. Nedei
Title: Senior Vice President
BANK OF MONTREAL
By: /s/ EDWARD P. McGUIRE
-----------------------------------------
Name: Edward P. McGuire
Title: Vice President
GENERAL ELECTRIC CAPITAL
CORPORATION
By: /s/ JANET K. WILLIAMS
-----------------------------------------
Name: Janet K. Williams
Title: Duly Authorized Signatory
SCHEDULE I
PRICING SCHEDULE
The "EURO-DOLLAR MARGIN", "CD MARGIN", "BASE RATE MARGIN", "LETTER OF
CREDIT COMMISSION RATE" and "COMMITMENT FEE RATE" for any day are the respective
rates per annum set forth below in the applicable row in the column
corresponding to the Pricing Level that applies on such day (or, in the case of
any day on or after the Amendment No. 4 Effective Date and prior to the date
upon which financial statements for the second full fiscal quarter occurring
after the Amendment No. 4 Effective Date shall have been delivered pursuant to
Section 5.01(b), the greater of (i) the applicable rate so determined for such
day and (ii) (v) in the case of the Euro-Dollar Margin, 3.500%, (w) in the case
of the CD Margin, 3.625%, (x) in the case of the Base Rate Margin, 2.500%, (y)
in the case of the Letter of Credit Commission Rate, 3.500% and (z) in the case
of the Commitment Fee Rate, 0.6875%):
<Table>
<Caption>
Level I Level II Level III Level IV Level V
------- -------- --------- -------- -------
Euro-Dollar Margin 2.875% 3.500% 4.000% 4.375% 4.750%
CD Margin 3.000% 3.625% 4.125% 4.500% 4.875%
Base Rate Margin 1.875% 2.500% 3.000% 3.375% 3.750%
Letter of Credit
Commission Rate 2.875% 3.500% 4.000% 4.375% 4.750%
Commitment Fee Rate 0.500% 0.6875% 0.875% 1.125% 1.500%
</Table>
For purposes of this Pricing Schedule, the following terms
have the following meanings:
"PRICING RATIO" means, on any day, the ratio of Adjusted
Consolidated Debt on such day to Consolidated EBITDAR for the four
consecutive fiscal quarters most recently ended on or prior to such
day.
"LEVEL I PRICING" applies on any day if, as of the last day of
the fiscal quarter most recently ended on or prior to such day and as
to which the Borrower shall have delivered, or been required to
deliver, on or prior to such day a certificate pursuant to Section
5.01(d), (i) the Pricing Ratio is less than 5.0 to 1.0.
"LEVEL II PRICING" applies on any day if, as of the last day
of the fiscal quarter most recently ended on or prior to such day and
as to which the Borrower shall have delivered, or been required to
deliver, on or prior to such day a
certificate pursuant to Section 5.01(d), (i) the Pricing Ratio is less
than 5.5 to 1.0 and (ii) Level I Pricing does not apply.
"LEVEL III PRICING" applies on any day if, as of the last day
of the fiscal quarter most recently ended on or prior to such day and
as to which the Borrower shall have delivered, or been required to
deliver, on or prior to such day a certificate pursuant to Section
5.01(d), (i) the Pricing Ratio is less than 6.0 to 1.0 and (ii) Level
II Pricing does not apply.
"LEVEL IV PRICING" applies on any day if, as of the last day
of the fiscal quarter most recently ended on or prior to such day and
as to which the Borrower shall have delivered, or been required to
deliver, on or prior to such day a certificate pursuant to Section
5.01(d), (i) the Pricing Ratio is less than 6.5 to 1.0 and (ii) Level
III Pricing does not apply.
"LEVEL V PRICING" applies on any day if, on such day, no other
Pricing Level applies.
"PRICING LEVEL" means any one of the six pricing levels
denominated Level I Pricing, Level II Pricing, Level III Pricing, Level
IV Pricing or Level V Pricing.
SCHEDULE IV
SUBSIDIARIES OF THE BORROWER
4F FUNDING, INC. (f/k/a Beverly Enterprises - Oklahoma, Inc.)
AEDON STAFFING, LLC
AEDON HOMECARE, LLC
AEGIS THERAPIES, INC. (f/k/a Beverly Rehabilitation, Inc.)
AEGIS THERAPIES-FLORIDA, INC. (f/k/a AEGIS-Florida, Inc.)
AGI-CAMELOT, INC.
BEVERLY- BELLA VISTA HOLDING, INC.
BEVERLY - INDIANAPOLIS, LLC
BEVERLY - MISSOURI VALLEY HOLDING, INC.
BEVERLY - RAPID CITY HOLDING, INC.
BEVERLY CLINICAL, INC.
BEVERLY ENTERPRISES INTERNATIONAL LIMITED
BEVERLY ENTERPRISES - ALABAMA, INC.
BEVERLY ENTERPRISES - ARIZONA, INC.
BEVERLY ENTERPRISES - ARKANSAS, INC.
BEVERLY ENTERPRISES - CALIFORNIA, INC. (f/k/a Hospital Facilities
Corporation)
BEVERLY ENTERPRISES - COLORADO, INC.
BEVERLY ENTERPRISES - CONNECTICUT, INC.
BEVERLY ENTERPRISES - DELAWARE, INC.
BEVERLY ENTERPRISES - DISTRIBUTION SERVICES, INC. (f/k/a Beverly
Enterprises - New York, Inc.)
BEVERLY ENTERPRISES - DISTRICT OF COLUMBIA, INC.
BEVERLY ENTERPRISES - FLORIDA, INC.
BEVERLY ENTERPRISES - GARDEN TERRACE, INC.
BEVERLY ENTERPRISES - GEORGIA, INC.
BEVERLY ENTERPRISES - HAWAII, INC.
BEVERLY ENTERPRISES - IDAHO, INC.
BEVERLY ENTERPRISES - ILLINOIS, INC.
BEVERLY ENTERPRISES - INDIANA, INC.
BEVERLY ENTERPRISES - IOWA, INC.
BEVERLY ENTERPRISES - KANSAS, LLC
(successor to Beverly Enterprises - Kansas, Inc.)
BEVERLY ENTERPRISES - KENTUCKY, INC.
BEVERLY ENTERPRISES - LOUISIANA, INC.
BEVERLY ENTERPRISES - MAINE, INC.
BEVERLY ENTERPRISES - MARYLAND, INC.
BEVERLY ENTERPRISES - MASSACHUSETTS, INC.
BEVERLY ENTERPRISES - MICHIGAN, INC.
BEVERLY ENTERPRISES - MINNESOTA, LLC
(successor to Beverly Enterprises - Minnesota, Inc.)
BEVERLY ENTERPRISES - MISSISSIPPI, INC.
BEVERLY ENTERPRISES - MISSOURI, INC.
BEVERLY ENTERPRISES - MONTANA, INC.
BEVERLY ENTERPRISES - NEBRASKA, INC.
BEVERLY ENTERPRISES - NEVADA, INC.
BEVERLY ENTERPRISES - NEW HAMPSHIRE, INC.
BEVERLY ENTERPRISES - NEW JERSEY, INC.
BEVERLY ENTERPRISES - NEW MEXICO, INC.
BEVERLY ENTERPRISES - NORTH CAROLINA, INC.
BEVERLY ENTERPRISES - NORTH DAKOTA, INC.
BEVERLY ENTERPRISES - OHIO, INC.
BEVERLY ENTERPRISES - OREGON, INC.
BEVERLY ENTERPRISES - PENNSYLVANIA, INC.
BEVERLY ENTERPRISES - RHODE ISLAND, INC.
BEVERLY ENTERPRISES - SOUTH CAROLINA, INC.
BEVERLY ENTERPRISES - TENNESSEE, INC.
BEVERLY ENTERPRISES - TEXAS, INC.
BEVERLY ENTERPRISES - UTAH, INC.
BEVERLY ENTERPRISES - VERMONT, INC.
BEVERLY ENTERPRISES - VIRGINIA, INC.
BEVERLY ENTERPRISES - WASHINGTON, INC.
BEVERLY ENTERPRISES - WEST VIRGINIA, INC.
BEVERLY ENTERPRISES - WISCONSIN, INC.
BEVERLY ENTERPRISES - WYOMING, INC.
BEVERLY FUNDING CORPORATION
BEVERLY HEALTH AND REHABILITATION SERVICES, INC.
BEVERLY HEALTHCARE, LLC
BEVERLY HEALTHCARE - CALIFORNIA, INC.
BEVERLY HOLDINGS I, INC.
BEVERLY INDEMNITY, LTD.
BEVERLY MANOR INC. OF HAWAII
BEVERLY REAL ESTATE HOLDINGS, INC.
BEVERLY SAVANA CAY MANOR, INC.
BEVRD, LLC
CERES OXYGEN SERVICES, LLC
CERES STRATEGIES, INC. (f/k/a/ Beverly Healthcare Acquisition, Inc.)
CERES STRATEGIES MEDICAL SERVICES, LLC
COMMERCIAL MANAGEMENT, INC.
COMMUNITY CARE, INC.
COMPASSION AND PERSONAL CARE SERVICES, INC.
EASTERN HOME HEALTH SUPPLY & EQUIPMENT CO., INC.
HALLMARK CONVALESCENT HOMES, INC.
HOMECARE PREFERRED CHOICE, INC.
HOSPICE OF EASTERN CAROLINA, INC.
HOSPICE PREFERRED CHOICE, INC.
LARES CARE RESOURCE, LLC
LIBERTY NURSING HOMES, INCORPORATED
MATRIX OCCUPATIONAL HEALTH, INC.
MATRIX WELLNESS, LLC
MEDICAL ARTS HEALTH FACILITY OF LAWRENCEVILLE, INC.
MODERNCARE OF LUMBERTON, INC.
NEBRASKA CITY S-C-H, INC.
NURSING HOME OPERATORS, INC.
PETERSEN HEALTH CARE, INC.
SOUTH ALABAMA NURSING HOME, INC.
SOUTH DAKOTA - BEVERLY ENTERPRISES, INC.
SPECTRA HEALTHCARE ALLIANCE, INC.
TAR HEEL INFUSION COMPANY, INC.
TMD DISPOSITION COMPANY
VANTAGE HEALTHCARE CORPORATION
SCHEDULE VI
NEW MORTGAGE PROPERTIES
<Table>
STATE FAC NO. ADDRESS
- ----- ------- ---------
AL 00359 1130 S. Hale Street, Oxford, AL 36203
AL 00650 600 Corley Avenue, Boas, AL 35957
AL 00732 1701 N. Alston, Foley, AL 35064
AL 04870 119 Watterson Parkway, Trussville, AL 35173
GA 00766 5470 Meridian Mark Road, Atlanta, GA 30342
GA 00769 2787 N. Decatur Road, Decatur, GA 30033
MA 00116 25 Armory Street, West Newton, MA 02165
MA 00117 188 Florence Street, Chestnut Hill, MA 02467
MA 02062 76 N. Street, Middleboro, MA 02346
MA 02061 27 George Street, Attleboro, MA 02703
MA 02063 195 Pleasant Street, Attleboro, MA 02703
MA 02070 383 Mill Street, Worchester, MA 01602
MA 02236 19 Obery Street, Plymouth, MA 02360
MA 02249 120 Main Street, Malden, MA 02148
MA 02259 Chief Justice Cushing Highway, Rte. 3A, Cohasset,
MA 02025
MA 02260 146 Dean Street, Taunton, MA 02780
MA 02413 1650 Washington Street, West Newton, MA 02465
MA 03969 460 Washington Street, Norwood, MA 02062
MN 00438 305 Fremont Street, Anoka, MN 55303
MN 00442 2957 Redwood Avenue, Slayton, MN 56172
MN 00876 313 S. Greeley Street, Stillwater, MN 55082
MN 00883 2810 Second Avenue North, Moorhead, MN 56560
MN 02332 15409 Wayzata Boulevard, Wayzata, MN 55391
MO 02279 1050 Dawson, New Madrid, MO
MN 02325 2727 N. Victoria , Roseville, MN 55113
MO 02367 215 Rear West Grant, Dexter, MO 63841
MO 02380 Sidney Street, R.R. 2, St. James, MO 65559
NC 00063 127 Moye Boulevard, Greenville, NC 27834
NE 00451 3918 27th Street, Columbus, NE 68601
NE 00458 202 N. Esther, Fullerton, NE 68638
NE 00489 5505 Grover Street, Omaha, NE 68106
NE 00492 N. Highway 2181, O'Neill, NE 68763
NE 00510 602 S. 18th Street, Plattsmouth, NE 68048
NE 00511 2023 Colfax Avenue, Schuyler, NE 68661
NE 00512 823 M Street, Tekamah, NE 68061
NE 02183 610 B Darr, Grand Island, NE 68803
NE 02187 1405 W. Highway 34, Grand Island, NE 68801
</Table>
<Table>
STATE FAC NO. ADDRESS
- ----- ------- ---------
NE 02188 1100 North "T" Street, Neligh, NE 68756
NE 02190 224 E. South East Street, Broken Bow, NE 68822
NE 02193 111 W. 36th Street, Scottsbluff, NE 69361
NE 02194 1435 Toledo Street, Sidney, NE 69162
PA 00262 824 Adams Ave, Scranton, PA 18510
PA 00266 833 S. Main Street, Phoenixville, PA 19460
PA 00267 35 Rosemont Avenue, Rosemont, PA 19010
PA 00268 221 E. Brown Street, E. Stroudsburg, PA 18301
PA 00284 3300 Logan Ferry Road, Murrayville, PA 15668
PA 00287 2686 Peach Street, Erie, PA 16508
PA 02145 26 Ann Street, Oakmont, PA 15139
PA 03533 7310 Stenton Avenue, Philadelphia, PA 19150
PA 03959 46 Erford Road, Camp Hill, PA 17011
PA 03963 700 S. Cayuga Avenue, Altoona, PA 16602
PA 03964 700 S. Cayuga Avenue, Altoona, PA 16602
SD 00321 1106 N. 2nd Street, Groton, SD 57445
SD 02199 803 Park Street, Lake Norden, SD 57248
SD 02201 1100 4th Avenue East, Mobridge, SD 57601
SD 02203 916 Mountain View Road, Rapid City, SD 57702
SD 02743 718 N.W. 8th Street, Madison, SD 57042
VA 00086 835 Glendale Road, Galax, VA 24333
</Table>
SCHEDULE VII
<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 Fontanblue Nursing Center
Bloomington, Indiana 500,000.00
2272 Lincoln Hills Nursing Center Tell
City, Indiana 800,000.00
3687 Woodlands Convalescent Center
Newburgh, Indiana 1,200,000.00
</Table>