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EXHIBIT 4.2
BEVERLY ENTERPRISES, INC.
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$180,000,000
9% SENIOR NOTES DUE 2006
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SUPPLEMENTAL INDENTURE NO. 2
DATED AS OF , 1997
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THE CHASE MANHATTAN BANK,
AS TRUSTEE
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FORM OF
SUPPLEMENTAL INDENTURE NO. 2
SUPPLEMENTAL INDENTURE NO. 2 dated as of , 1997 among BEVERLY
ENTERPRISES, INC., a Delaware corporation ("Beverly"), NEW BEVERLY HOLDINGS,
INC., a Delaware corporation ("New Beverly"), the corporations listed on the
signature pages hereto in their capacity as guarantors (each a "Guarantor" and
collectively, the "Guarantors") and THE CHASE MANHATTAN BANK (successor by
merger to Chemical Bank), as trustee (the "Trustee").
WITNESSETH:
WHEREAS, Beverly, certain of its subsidiaries and the Trustee have
heretofore entered into an Indenture dated as of February 1, 1996 (the "Original
Indenture", as supplemented by Supplemental Indenture No. 1, dated as of
December 16, 1996 and as supplemented hereby, the "Indenture");
WHEREAS, Beverly desires and has requested the Trustee to join with it in
the execution and delivery of this Supplemental Indenture No. 2 and the Holders
of a majority in principal amount of the Senior Notes outstanding have consented
to such execution and delivery;
WHEREAS, Beverly has entered into an agreement and plan of distribution
dated as of April 15, 1997, with New Beverly and Capstone Pharmacy Services,
Inc., a Delaware corporation ("Capstone"), pursuant to which, among other
things, (i) Beverly will transfer all of its assets and properties to New
Beverly other than the stock of Pharmacy Corporation of America, a Delaware
corporation ("PCA") and the Subsidiaries of PCA; (ii) New Beverly will assume
all of Beverly's rights and obligations under the Indenture and the Senior
Notes; (iii) Beverly, PCA and each of PCA's Subsidiaries shall be released from
all obligations under the Indenture and the Senior Notes; (iv) Beverly will
distribute all of the issued and outstanding capital stock of New Beverly to the
stockholders of Beverly; and (v) thereafter Beverly will merge with and into
Capstone with Capstone as the surviving corporation in such merger (the
"Merger") pursuant to an Agreement and Plan of Merger dated as of April 15,
1997, between Beverly and Capstone (all of the foregoing being collectively
called the "New Beverly Transaction");
WHEREAS, Article 5 of the Indenture permits Beverly to transfer all or
substantially all of its assets and properties to another Person if certain
conditions set forth in Section 5.1 of the Indenture have been met, which
conditions require modification as herein provided to facilitate the New Beverly
Transaction;
WHEREAS, prior to consummation of the New Beverly Transaction Beverly
desires to prepay all its 7 5/8% Convertible Subordinated Debentures due 2003
regardless of any limitation on Restricted Payments under Section 4.7 of the
Indenture; and
WHEREAS, Beverly has represented to the Trustee that all conditions
precedent to the execution and delivery of this Supplemental Indenture No. 2
have been satisfied;
NOW, THEREFORE, the parties hereto, intending to be legally bound, agree as
follows:
SECTION 1. Definitions; References. All capitalized terms used and not
defined herein have the respective meaning assigned to them in the Indenture.
Each reference to "hereof", "hereunder", "herein" and "hereby" and each other
similar reference contained in the Indenture or in any Security shall from and
after the date hereof refer to the Indenture, as amended hereby.
SECTION 2. Amendment of Indenture. Effective as of the date hereof the
Indenture is hereby amended as follows:
a. The definitions contained in Section 1.1 of the Indenture are amended to
add the following new definitions in their correct alphabetical sequence:
"New Beverly" means New Beverly Holdings, Inc., a Delaware corporation
(to be renamed Beverly Enterprises, Inc., upon consummation of the New
Beverly Transaction) and, prior to the distribution
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referred to in clause (iv) of the definition of New Beverly Transaction,
a wholly-owned Subsidiary of Beverly.
"New Beverly Transaction" means the transactions contemplated by that
certain Agreement and Plan of Distribution dated as of April 15, 1997,
among Beverly, New Beverly and Capstone pursuant to which (i) Beverly
will transfer all of its assets and properties to New Beverly other than
the stock of PCA and the Subsidiaries of PCA; (ii) New Beverly will
assume all of the rights and obligations of Beverly under the Indenture
and the Senior Notes; (iii) Beverly, PCA and each of PCA's Subsidiaries
shall be released from all obligations under the Indenture and the
Senior Notes; (iv) Beverly will distribute all of the issued and
outstanding capital stock of New Beverly to the stockholders of Beverly;
and (v) Beverly will merge with and into Capstone pursuant to that
certain Agreement and Plan of Merger dated as of April 15, 1997, between
Beverly and Capstone, with Capstone as the surviving corporation in such
merger.
b. The definition of "Asset Sale" contained in Section 1.1 is amended to
add the following at the end of the first sentence thereof immediately preceding
the period:
"; provided that the second paragraph of Section 4.10 shall apply to the
New Beverly Transaction and the disposition of all the capital stock of
New Beverly to the stockholders of Beverly as described in subclause
(iv) of the definition of New Beverly Transaction shall not constitute
an Asset Sale."
c. The definition of "Change of Control" contained in Section 1.1 is
amended to add the following at the end thereof immediately preceding the
period:
"; provided that the New Beverly Transaction shall not constitute a
Change of Control."
d. The definition of "Spinoff Transaction" contained in Section 1.1 is
amended by adding at the end thereof the following proviso:
"provided, however, that such term shall also be deemed to mean and
include the New Beverly Transaction."
e. Section 4.7 of the Indenture is amended to delete the word "and" at the
end of subclause (iv) following Section 4.7(c), to insert "; and" in place of
the period after subclause (v) following Section 4.7(c) and to delete the
proviso immediately after subclause (v) following Section 4.7(c) and to add a
new subclause (vi) and the paragraph appearing below in replacement thereof:
"(vi) the redemption of all of Beverly's 7 5/8% Convertible
Subordinated Debentures due 2003."
"provided, however, in the case of each of clauses (ii), (iii), (iv),
(v) and (vi) of this paragraph, no Default or Event of Default shall
have occurred and be continuing at the time of such Restricted Payment
or would occur as a consequence thereof."
f. Section 5.1(iv) of the Indenture is amended by inserting at the end
thereof immediately preceding the period the following:
"; provided, however, that this Section 5.1(iv) shall not apply to the
New Beverly Transaction and the New Beverly Transaction shall be deemed
to satisfy this Section 5.1(iv)."
g. Section 5.2 of the Indenture is hereby amended by inserting at the end
thereof immediately preceding the period the following:
"and upon such assignment of all of Beverly's rights and obligations
under this Indenture and the Senior Notes, and the assumption thereof by
the successor corporation or Person, Beverly shall be unconditionally
released from any and all further liability under this Indenture and the
Senior Notes."
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h. Section 10.5 of the Indenture is amended to insert at the end of the
first paragraph thereof immediately preceding the period, the following:
"provided that upon the assumption by New Beverly of all Beverly's
rights and obligations under the Indenture and the Senior Notes as
contemplated by subclause (ii) of the definition of New Beverly
Transaction pursuant to Section 3 of Supplemental Indenture No. 2 dated
as of , 1997 to this Indenture, PCA and each of PCA's
Subsidiaries shall be unconditionally released from its Guarantee of the
Senior Notes and shall have no obligation under the Indenture or the
Senior Notes."
SECTION 3. Assumption, Release and Discharge. Effective upon the transfer
by Beverly to New Beverly of all of Beverly's assets and properties other than
the stock of PCA and the Subsidiaries of PCA pursuant to the New Beverly
Transaction, New Beverly hereby assumes all of Beverly's rights and obligations
under the Indenture and the Securities. The Trustee is hereby authorized to
evidence the release and discharge of Beverly, PCA and each Subsidiary of PCA
from all of their rights and obligations hereunder upon the assumption by New
Beverly of all Beverly's rights and obligations under the Indenture and the
Senior Notes (as provided in Section 10.5 of the Indenture) by executing and
delivering a release and discharge confirmation in the form of Exhibit A hereto.
SECTION 4. Governing Law. This Supplemental Indenture No. 2 shall be
governed by and construed in accordance with the laws of the State of New York,
applicable to instruments made and performed entirely in such state.
SECTION 5. Counterparts; Effectiveness. This Supplemental Indenture No. 2
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 6. The Trustee. The Trustee shall not be responsible in any manner
whatsoever for or in respect of the validity or the sufficiency of this
Supplemental Indenture or for or in respect of the recitals contained herein,
all of which recitals are made solely by Beverly and the Guarantors.
IN WITNESS WHEREOF, the parties hereto have caused this SUPPLEMENTAL
INDENTURE NO. 2 to be duly executed as of the date hereof.
BEVERLY ENTERPRISES, INC.
By:
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Title:
NEW BEVERLY HOLDINGS, INC.
By:
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Title:
GUARANTORS
A.B.C. HEALTH CARE EQUIPMENT CORP.
A-1 HOME HEALTH SERVICES, INC.
ADVINET, INC.
AGI -- CAMELOT, INC.
AGI -- McDONALD COUNTY HEALTH CARE, INC.
ALLIANCE HEALTH SERVICES, INC.
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ALLIANCE HOME HEALTH CARE, INC.
AMCO MEDICAL SERVICE, INC.
AMERICAN TRANSITIONAL CARE CENTERS OF
TEXAS, INC.
AMERICAN TRANSITIONAL CARE DALLAS --
FT. WORTH, INC.
AMERICAN TRANSITIONAL HEALTH CARE, INC.
AMERICAN TRANSITIONAL HOSPITALS, INC.
AMERICAN TRANSITIONAL HOSPITALS OF
INDIANA, INC.
AMERICAN TRANSITIONAL HOSPITALS OF
OKLAHOMA, INC.
AMERICAN TRANSITIONAL HOSPITALS OF
TENNESSEE, INC.
AMERICAN TRANSITIONAL HOSPITALS --
TEXAS MEDICAL CENTER, INC.
ATH -- CLEAR LAKE, INC.
ATH COLUMBUS, INC.
ATH DEL ORO, INC.
ATH HEIGHTS, INC.
ATH OKLAHOMA CITY, INC.
ATH TUCSON, INC.
BEVERLY ACQUISITION CORPORATION
BEVERLY ASSISTED LIVING, INC.
BEVERLY BELLA VISTA HOLDING, INC.
BEVERLY HEALTH AND REHABILITATION
SERVICES, INC.
BEVERLY ENTERPRISES -- ALABAMA, INC.
BEVERLY ENTERPRISES -- ARIZONA, INC.
BEVERLY ENTERPRISES -- ARKANSAS, INC.
BEVERLY ENTERPRISES -- CALIFORNIA, INC.
BEVERLY ENTERPRISES -- COLORADO, INC.
BEVERLY ENTERPRISES -- CONNECTICUT, INC.
BEVERLY ENTERPRISES -- DELAWARE, INC.
BEVERLY ENTERPRISES -- DISTRIBUTION
SERVICES, 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, INC.
BEVERLY ENTERPRISES -- KENTUCKY, INC.
BEVERLY ENTERPRISES -- LOUISIANA, INC.
BEVERLY ENTERPRISES -- MAINE, INC.
BEVERLY ENTERPRISES -- MARYLAND, INC.
BEVERLY ENTERPRISES -- MASSACHUSETTS, INC.
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BEVERLY ENTERPRISES -- MICHIGAN, INC.
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 -- OKLAHOMA, 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 ENTERPRISES JAPAN LIMITED
BEVERLY ENTERPRISES MEDICAL EQUIPMENT
CORPORATION
BEVERLY ENTERPRISES REHABILITATION
CORPORATION
BEVERLY HOLDINGS I, INC.
BEVERLY INDEMNITY, LTD.
BEVERLY MANOR INC. OF HAWAII
BEVERLY MISSOURI VALLEY HOLDING, INC.
BEVERLY RAPID CITY HOLDING, INC.
BEVERLY REAL ESTATE HOLDINGS, INC.
BEVERLY REMIC DEPOSITOR, INC.
BEVERLY SAVANA CAY MANOR, INC.
BROWNSTONE PHARMACY, INC.
COLUMBIA -- VALLEY NURSING HOME, INC.
COMMERCIAL MANAGEMENT, INC.
COMPUTRAN SYSTEMS, INC.
CONTINENTAL CARE CENTERS OF COUNCIL
BLUFFS, INC.
DD WHOLESALE, INC.
DUNNINGTON DRUG, INC.
DUNNINGTON RX SERVICES OF RHODE ISLAND,
INC.
DUNNINGTON RX SERVICES OF MASSACHUSETTS,
INC.
FOREST CITY BUILDING LTD.
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HALLMARK CONVALESCENT HOMES, INC.
HEALTHCARE PRESCRIPTION SERVICES, INC.
HOME MEDICAL SYSTEMS, INC.
HOSPICE PREFERRED CHOICE, INC.
HOSPITAL FACILITIES CORPORATION
INSTA-CARE HOLDINGS, INC.
INSTA-CARE PHARMACY SERVICES
CORPORATION
INSURANCE SOFTWARE PACKAGES, INC.
KENWOOD VIEW NURSING HOME, INC.
LIBERTY NURSING HOMES, INCORPORATED
MEDICAL ARTS HEALTH FACILITY OF
LAWRENCEVILLE, INC.
MODERNCARE OF LUMBERTON, INC.
NEBRASKA CITY S-C-H, INC.
NURSING HOME OPERATORS, INC.
OMNI MED B, INC.
PETEREN HEALTH CARE, INC.
PHARMACY CORPORATION OF AMERICA
PHARMACY CORPORATION OF AMERICA --
MASSACHUSETTS, INC.
PHARMACY DYNAMICS GROUP, INC.
PHYMEDSCO, INC.
RESOURCE OPPORTUNITIES, INC.
SALEM NO. 1, INC.
SOUTH ALABAMA NURSING HOME, INC.
SOUTH DAKOTA -- BEVERLY ENTERPRISES, INC.
SPECTRA REHAB ALLIANCE, INC.
SYNERGOS -- NORTH HOLLYWOOD, INC.
SYNERGOS -- PLEASANT HILL, INC.
SYNERGOS -- SCOTTSDALE, INC.
TAYLOR COUNTY HEALTH FACILITY, INC.
TMD DISPOSITION COMPANY
VANTAGE HEALTHCARE CORPORATION
By:
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Title:
THE CHASE MANHATTAN BANK, as Trustee
By:
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Title:
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EXHIBIT A
RELEASE AND DISCHARGE CONFIRMATION
THIS IS TO CONFIRM THAT each of Beverly Enterprises, Inc. and the
Guarantors listed on Schedule 1 hereto are released from any and all obligations
under the Indenture dated as of February 1, 1996 between Beverly Enterprises,
Inc., a Delaware corporation, certain of its subsidiaries and The Chase
Manhattan Bank (successor by merger to Chemical Bank), as trustee, as
supplemented by a Supplemental Indenture No. 1 dated as of December 16, 1996 and
a Supplemental Indenture No. 2 dated as of , 1997.
THE CHASE MANHATTAN BANK,
as Trustee
By:
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Title:
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SCHEDULE 1
PHARMACY CORPORATION OF AMERICA
- - Alliance Health Services, Inc.
- - Alliance Home Health Care, Inc.
- - America-Massachusetts, Inc.
- - Beverly Acquisition Corporation
- - Brownstone Pharmacy, Inc.
- - Computran Systems, Inc.
- - D D Wholesale, Inc.
- - Dunnington Drug, Inc.
- - Dunnington Rx Services of Massachusetts, Inc.
- - Dunnington Rx Services of Rhode Island, Inc.
- - Healthcare Prescription Services, Inc.
- - Insta-Care Holdings, Inc.
- - Insta-Care Pharmacy Services Corporation
- - Medical Health Industries, Inc.
- - Omni Med B, Inc.
- - Pharmacy Corporation of America-Massachusetts, Inc.
- - Pharmacy Dynamics Group, Inc.