EXHIBIT 10.44
AMENDMENT NO. 4 TO AMENDED AND
RESTATED PARTICIPATION AGREEMENT
This AMENDMENT NO. 4 TO AMENDED AND RESTATED PARTICIPATION AGREEMENT
(this "Amendment"), is entered into as of December 31, 2001, among XXXXXXX
ENTERPRISES, INC., a Delaware corporation ("BEI"), as the Representative,
Construction Agent, Parent Guarantor and a Lessee (in its capacity as
Representative, the "Representative"; in its capacity as Construction Agent, the
"Construction Agent"; in its capacity as Parent Guarantor, the "Parent
Guarantor" and together with the Guarantors listed on the signature page to the
Guaranty (each a "Guarantor") and the Structural Guarantors, collectively, the
"Guarantors"; and, in its capacity as Lessee, a "Lessee"); certain subsidiaries
of BEI that are signatories hereto, as Lessees; BANK OF MONTREAL GLOBAL CAPITAL
SOLUTIONS, INC. (formerly known as BMO LEASING (U.S.), INC.), a Delaware
corporation, as a Lessor (together with any permitted successors and assigns
thereto, each a "Lessor" and collectively the "Lessors") and as Agent Lessor for
the Lessors (in such capacity, the "Agent Lessor"); the various financial
institutions as are or may from time to time become lenders (the "Lenders")
under the Loan Agreement; BANK OF MONTREAL, a Canadian banking organization
("BMO"), as Administrative Agent (in such capacity, the "Administrative Agent")
for the Lenders, as Arranger and Syndication Agent (all of the parties of this
preamble, collectively, the "Parties").
RECITALS:
The Parties entered into an Amended and Restated Participation
Agreement dated as of August 28, 1998 (the "Original Participation Agreement"),
amending and restating the Participation Agreement dated as of March 21, 1997 .
The Parties entered into a Master Amendment No. 1 to Amended and
Restated Participation Agreement and Amended and Restated Master Lease and
Open-End Mortgage, dated as of September 30, 1999 (the "First Amendment"), which
amended the Original Participation Agreement.
The Parties entered into an Amendment No. 2 to Amended and Restated
Participation Agreement, dated as of November 1, 1999 (the "Second Amendment"),
which amended the Original Participation Agreement as amended by the First
Amendment.
The Parties entered into a Master Amendment No. 3 to Amended and
Restated Participation Agreement, dated as of April 25, 2001 (the "Third
Amendment"), which amended the Original Participation Agreement as amended by
the First Amendment and the Second Amendment.
The Parties wish to further amend certain provisions of the Original
Participation Agreement, as amended by the First Amendment, the Second Amendment
and the Third Amendment, as set forth herein.
AGREEMENT:
NOW, THEREFORE, in consideration of the premises made hereunder, and
for good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the Parties hereto, intending to be legally bound, hereby
agree as follows:
1. Defined Terms; References. Unless otherwise expressly defined
herein, all capitalized terms used herein and defined in Appendix A to the
Participation Agreement shall be used herein as so defined. Unless otherwise
expressly stated herein, all Section and Article references herein shall refer
to Sections and Articles of the Participation Agreement.
2. Defined Terms. (a) The following defined term shall be added
in Appendix A to the Participation Agreement:
"Specified 2001 Charges" means the restructuring charges, writedowns,
severance costs and special charges, the material components of which
were described during a meeting between the Representative and the
Existing Banks in New York City on January 15, 2002, in each case to
the extent actually recorded by the Representative or one of its
Consolidated Subsidiaries in the fiscal quarter of the Representative
ended December 31, 2001 in compliance with GAAP.
(b) The following defined terms in Appendix A to the
Participation Agreement are hereby amended by deleting such definitions in their
entirety and inserting the following in lieu thereof:
"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 and (iii) the charges or losses, in an
aggregate amount, on a pretax basis, not exceeding $130,000,000,
incurred by the Representative and its Consolidated Subsidiaries on or
prior to January 8, 2002 in connection with the Florida Disposition)
for the Representative 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 Representative and its Consolidated
Subsidiaries at such date.
"Xxxxxx Credit Agreement" means the Amended and Restated Credit
Agreement, dated as of April 25, 2001, among the Representative, the
Banks listed on the signature pages thereof, XX Xxxxxx Chase Bank
(formerly known as The Chase Manhattan Bank successor by merger
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to Xxxxxx Guaranty Trust Company of New York), as Issuing Bank,
and XX Xxxxxx Chase Bank, as Administrative Agent, as the same
has been or may be amended, restated, supplemented or otherwise
modified from time to time, including pursuant to Amendment No. 1
to Amended and Restated Credit Agreement, dated as of December
31, 2001.
3. Negative Covenants of the Representative. Section 10.2(a) of
the Participation Agreement is hereby amended by deleting such section in its
entirety and replacing the same with the following:
"(a) Minimum Consolidated Net Worth.
Consolidated Net Worth shall be at least 85% of the
consolidated stockholders" equity of the Representative and
its Consolidated Subsidiaries at December 31, 2001 plus (i)
50% of the aggregate positive Consolidated Net Income
(excluding any consolidated net loss) of the Representative
and its Consolidated Subsidiaries for each fiscal quarter
ending after December 31, 2001 plus (ii) 50% of the aggregate
net proceeds, including the fair market value of property
other than cash (as determined in good faith by the
Representative"s board of directors), received by the
Representative from the issuance and sale after December 31,
2001 of any capital stock of the Representative (other than
the proceeds of any issuance and sale of any capital stock (x)
to a Subsidiary or (y) which is required to be redeemed, or is
redeemable at the option of the holder, if certain events or
conditions occur or exist or otherwise) or in connection with
the conversion or exchange of any Indebtedness of the
Representative into capital stock of the Representative
after December 31, 2001 plus (iii) the excess (if any) of the
aggregate amount of Specified 2001 Charges (exclusive of
charges against reserves established on or prior to September
30, 2001) over $290,000,000."
4. Representations and Warranties. To induce the Administrative
Agent, the Agent Lessor and the Participants to execute and deliver this
Amendment, each of the Xxxxxxx Entities that is a party hereto represents and
warrants (which representations and warranties shall survive the execution and
delivery of this Amendment) to each of the Administrative Agent, the Agent
Lessor and the Participants that:
(a) this Amendment has been duly authorized, executed
and delivered by it and this Amendment constitutes the legal, valid and
binding obligation, contract and agreement of such Xxxxxxx Entity
enforceable against it in accordance with its terms, except as
enforcement may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws or equitable principles relating to or
limiting creditors" rights generally;
(b) the Original Participation Agreement, as amended
by the First Amendment, the Second Amendment, the Third Amendment and
this Amendment,
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constitutes the legal, valid and binding obligation, contract and
agreement of such Xxxxxxx Entity enforceable against it in
accordance with their respective terms, except as enforcement may
be limited by bankruptcy, insolvency, reorganization, moratorium
or similar laws or equitable principles relating to or limiting
creditors" rights generally;
(c) the execution, delivery and performance by such
Xxxxxxx Entity of this Amendment (i) has been duly authorized by all
requisite corporate action and, if required, shareholder action, (ii)
does not require the consent or approval of any governmental or
regulatory body or agency, and (iii) will not (A) violate (l) any
provision of law, statute, rule or regulation or its certificate of
incorporation or bylaws, (2) any order of any court or any rule,
regulation or order of any other agency or government binding upon it,
or (3) any provision of any material indenture, agreement or other
instrument to which it is a party or by which its properties or assets
are or may be bound, including, without limitation, the Xxxxxx Credit
Agreement (as the same has been amended or modified), or (B) result in
a breach or constitute (alone or with due notice or lapse of time or
both) a default under any indenture, agreement or other instrument
referred to in clause (iii)(A)(3) of this subsection (c);
(d) as of the date hereof and after giving effect to
this Amendment on its effective date pursuant to Section 5, no Default
or Event of Default has occurred which is continuing; and
(e) all the representations and warranties contained
in Section 8.2 of the Participation Agreement (after giving effect to
this Amendment) are true and correct in all material respects with the
same force and effect as if made by such Xxxxxxx Entity on and as of
the date hereof and on the effective date of this Amendment pursuant to
Section 5.
5. Conditions to Effectiveness of this Amendment. This Amendment
shall not become effective until, and shall become effective when, each and
every one of the following conditions shall have been satisfied to the
satisfaction of the Agent Lessor, the Administrative Agent and each Participant
(the conditions precedent are for the benefit of the Agent Lessor, the
Administrative Agent and each Participant only):
(a) The Agent Lessor, the Administrative Agent and
the Participants shall have received executed counterparts of this
Amendment, duly executed by the Xxxxxxx Entities party hereto;
(b) The Agent Lessor, the Administrative Agent and
the Participants shall have received evidence satisfactory to them that
the Xxxxxx Credit Agreement has been amended as of December 31, 2001 in
form and substance satisfactory to the Agent Lessor, the Administrative
Agent and the Participants;
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(c) The representations and warranties of the Xxxxxxx
Entities set forth in Section 4 hereof are true and correct; and
(d) The payment by the Representative to each
Participant which approves this Amendment a fee of 25 basis points
multiplied by the amount of the Participant Balance of such Participant
under the Participation Agreement.
6. Payment of Fees and Expenses. The Representative agrees to pay
upon or prior to the effectiveness of this Amendment, the reasonable fees and
expenses of Xxxxx, Xxxxx & Xxxxx, counsel to the Lessors, in connection with the
negotiation, preparation, approval, execution and delivery of this Amendment and
all reasonable fees and expenses attendant to any filing, registration,
recording or perfection of any Lien contemplated hereby.
7. Counterparts. This Amendment may be executed in counterparts,
each of which shall constitute an original, but all of which when taken together
shall constitute but one instrument.
8. Governing Law. This Amendment shall be governed by and
construed in accordance with the laws of the State of New York.
9. Successors and Assigns. This Amendment shall be binding upon
and shall inure to the benefit of the parties hereto and their respective
successors and assigns.
THERE IS NO FURTHER TEXT ON THIS PAGE
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IN WITNESS WHEREOF, the Parties have caused this Amendment to
be duly executed by their respective authorized officers as of the day and year
first above written.
XXXXXXX ENTERPRISES, INC., as Representative,
Construction Agent, Parent Guarantor and a
Lessee
By
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Name:
Title:
BANK OF MONTREAL, as Arranger, Administrative
Agent and as a Lender
By
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Name:
Title:
BANK OF MONTREAL GLOBAL CAPITAL SOLUTIONS,
INC., as Agent Lessor and as a Lessor
By
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Name:
Title:
GENERAL ELECTRIC CAPITAL CORPORATION, as a
Lender
By
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Name:
Title:
TORONTO-DOMINION (TEXAS), INC., as a Lender
By
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Name:
Title:
BANK OF AMERICA, NATIONAL ASSOCIATION, as a
Lender
By
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Name:
Title:
VANTAGE HEALTHCARE CORPORATION, as Lessee and
Structural Guarantor
By
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Name:
Title:
XXXXXXXX HEALTH CARE, INC., as Lessee and
Structural Guarantor
By
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Name:
Title:
XXXXXXX SAVANA CAY MANOR, INC., as Lessee and
Structural Guarantor
By
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Name:
Title:
XXXXXXX ENTERPRISES - GEORGIA, INC., as
Lessee and Structural Guarantor
By
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Name:
Title:
XXXXXXX ENTERPRISES - CALIFORNIA, INC., as
Lessee and Structural Guarantor
By
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Name:
Title:
XXXXXXX ENTERPRISES - ARKANSAS, INC., as
Lessee and Structural Guarantor
By
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Name:
Title:
XXXXXXX ENTERPRISES - FLORIDA, INC., as
Lessee and Structural Guarantor
By
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Name:
Title:
XXXXXXX HEALTH AND REHABILITATION SERVICES,
INC., as Lessee and Structural Guarantor
By
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Name:
Title:
XXXXXXX ENTERPRISES - WASHINGTON, INC., as
Lessee and Structural Guarantor
By
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Name:
Title:
