EXHIBIT 10.43
MASTER AMENDMENT NO. 3 TO AMENDED AND
RESTATED PARTICIPATION AGREEMENT
This AMENDMENT NO. 3 TO AMENDED AND RESTATED PARTICIPATION AGREEMENT
(this "Amendment"), is entered into as of April 25, 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").
The effective date of this Amendment shall be the Effective Date of the
Xxxxxx Credit Agreement (the "Amendment No.3 Effective Date").
RECITALS:
The Parties entered into an Amended and Restated Participation
Agreement dated as of August 28, 1998, amending and restating the Participation
Agreement dated as of March 21, 1997 (the "Original Participation Agreement").
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 wish to further amend certain provisions of the Original
Participation Agreement, as amended by the First Amendment and the Second
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. Added Defined Terms. (a) Effective as of the Amendment No. 3
Effective Date, the following defined terms shall be added to Appendix A of the
Participation Agreement.
"Credit Agreement Bank" means each BANK party to the Xxxxxx Credit
Agreement from time to time.
"Bank of Montreal Synthetic Lease" means the Participation Agreement
and the Operative Documents, as defined therein. "Credit Agreement
Administrative Agent" means Xxxxxx Guaranty Trust Company of New York.
"Existing Bank" means a Bank as defined in the Xxxxxx Credit Agreement.
"Financing Documents" has the meaning set forth in the Xxxxxx Credit
Agreement.
"Florida Disposition" means the sale, transfer or other disposition by
the Representative and its Subsidiaries, in one or more transactions
and pursuant to sales of facilities and related assets, sales of stock
of Subsidiaries or a combination thereof, of all or substantially all
of the assisted living and skilled nursing facilities of the
Representative and its Subsidiaries located in Florida.
"Foreign Jurisdiction" is defined in Section 10.2(e)(xv).
"Guarantee" by any Person means any obligation, contingent or
otherwise, of such Person directly or indirectly guaranteeing any
Indebtedness or other obligation of any other Person and, without
limiting the generality of the foregoing, any obligation, direct or
indirect, contingent or otherwise, of such Person (i) to purchase or
pay (or advance or supply funds for the purchase or payment of) such
Indebtedness or other obligation (whether arising by virtue of
partnership arrangements, by agreement to keep-well, to purchase
assets, goods, securities or services, to take-or-pay, or to maintain
financial statement conditions or otherwise) or (ii) entered into for
the purpose of assuring in any
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other manner the obligee of such Indebtedness or other obligation of
the payment thereof or to protect such obligee against loss in respect
thereof (in whole or in part); provided that the term Guarantee shall
not include endorsements for collection or deposit in the ordinary
course of business. The term "Guarantee" used as a verb has a
corresponding meaning.
"Issuer" shall have the meaning set forth in the Xxxxxx Credit
Agreement.
"Issuing Bank" means Xxxxxx Guaranty Trust Company of New York in its
capacity as issuer of Letters of Credit, and its successors in such
capacity.
"Letter of Credit" shall have the meaning set forth in the Xxxxxx
Credit Agreement.
"Mortgage Assets" is defined in Section 10.2(g)(xii).
"Mortgages" means the mortgages and deeds of trust described in Exhibit
I attached hereto and made a part hereof, in each case as the same has
been or may be amended from time to time.
"New Senior Notes" means the senior unsecured notes of the
Representative due April 15, 2009 in an aggregate principal amount of
not less than $150,000,000, issued pursuant to the Indenture dated as
of April 25, 2001 between the Representative and The Bank of New York,
as trustee.
"Other Financing Agreements" means the Bank of Montreal Synthetic
Lease, the PNC Facilit y and the Encore Facilit y. "Other Financing
Agreements Liens" means the (i) Liens outstanding on the Amendment No.
3 Effective Date securing the obligations of the Representative and
certain of its Subsidiaries under the Other Financing Agreements and
(ii) Liens on property ("Substitute Collateral") substituted for
property (the "Original Collateral") subject to a Lien referred to in
clause (i) above; provided that (x) such Lien on Substitute Collateral
secures the same obligations as the Lien on the Original Collateral for
which it is substituted and (y) the value (determined on the basis of
an amount equal to (A) Consolidated EBITDA for such Substituted
Collateral for the four consecutive fiscal quarters most recently
completed prior to the date upon which such substitution is made for
which financial statements have been delivered pursuant to Section
10.1(d)(i) or 10.1(d)(ii) multiplied by (B) 6) of such Substitute
Collateral shall not exceed, by more than 5%, the value (as so
determined) of the Original Collateral for which it is substituted.
"Participation Agreement" means the Original Participation Agreement,
as amended by the First Amendment, the Second Amendment and this
Amendment, as the same may be further amended from time to time.
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"Pledge Agreement" means the Amended and Restated Pledge Agreement
dated as of April 25, 2001 among the Representative, Xxxxxxx Health and
the Credit Agreement Administrative Agent , amending and restating the
Pledge Agreement dated as of September 30,1999, as the same has been or
may be amended from time to time.
"Pledged Subsidiary Mortgage Assets" is defined in Section 10.2(g)(b).
"Security Documents" means the Pledge Agreement and the Mortgages,
together with all related filings, assignments, instruments, mortgages
and other papers.
"Specified Restructuring Charges" means the restructuring charges,
writedowns, severance costs and special charges, the material
components of which are described in the memorandum dated December 15,
2000 from the Representative to the Credit Agreement Administrative
Agent and the Existing Banks, in each case to the extent actually
incurred by the Representative or one of its Consolidated Subsidiaries
during the fiscal quarters of the Representative ended December 31,
2000 and March 31, 2001.
"Subsidiary Guaranty" means the Amended and Restated Subsidiary
Guaranty dated as of April 25, 2001 by the Representative and the
Subsidiaries of the Representative parties thereto in favor of the
Credit Agreement Banks, the Credit Agreement Administrative Agent and
the Issuing Bank, amending and restating the Subsidiary Guaranty dated
as of September 30, 1999, as the same may be amended from time to time.
"Termination Date" means April 25, 2004.
3. Amended Defined Terms. (a) The following defined terms in
Appendix A to the Participation Agreement are hereby amended by deleting such
definitions in their entirety and inserting the following in lieu thereof:
"Adjusted Consolidated Debt" means, at any date, the sum, without
duplication, of (i) all liabilities of the Representative and its
Subsidiaries at such date of the types classified as "current
liabilities: short-term borrowings", "current liabilities: current
portion of long-term obligations," "long-term obligations" and, to the
extent arising out of claims made by governmental authorities relating
to reimbursement obligations or settlements thereof, "other liabilities
and deferred items" on the consolidated balance sheet included in the
Base Financials, (ii) all guarantees at such date of obligations of
other issuers (other than guarantees outstanding on the Amendment No. 3
Effective Date of obligations outstanding on the Amendment No. 3
Effective Date, in amounts not in excess of $57,191,572 and reported in
the Base Financials) and (iii) an amount equal to the product of eight
multiplied by the Consolidated Rental Expense for the four fiscal
quarters of the Representative most recently completed on or prior to
such date; provided that for purposes of determining compliance with
Section 10.2(c) and 10.2(f)(v) and determining the Pricing Ratio only,
Consolidated Rental Expense for any such period of four fiscal quarters
shall be calculated after giving pro forma effect (including, in the
case
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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 Representative or any of its
Subsidiaries of any business, nursing home or other facility or any
Subsidiary consummated after the first day of such period and on or
prior to the date as of which such determination is to be made, as if
such acquisition or disposition had been consummated on the first day
of such period, if, but only if, the Consolidated EBITDAR attributable
to all such businesses, nursing homes and other facilities and all such
Subsidiaries, in any transaction or series of related transactions, for
such period, in the aggregate, equals or exceeds $10,000,000.
"Base Financials" means the consolidated balance sheet of the
Representative and its Consolidated Subsidiaries as of December 31,
2000 and the related consolidated statements of operations,
stockholders' equity and cash flows for the year then ended, together
with the notes thereto, included in the Representative's 2000 Form 10-K
and reported on without qualification by Ernst & Young LLP.
"Consolidated EBITDA" means, for any period, Consolidated Net Income of
the Representative and its Consolidated Subsidiaries for such period
plus, without duplication, any amounts deducted in determining such
Consolidated Net Income 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.
"Consolidated EBITDAR" means, for any period, the sum of Consolidated
EBITDA and Consolidated Rental Expense for such period; provided that
for purposes of determining compliance with Sections 10.2(c) and
10.2(f)(v) and determining the Pricing Ratio only, Consolidated EBITDAR
for any period of four fiscal quarters referred to therein 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 Representative or any of its
Subsidiaries of any business, nursing home or other facility or any
Subsidiary consummated after the first day of such period and on or
prior to the date as of which such determination is to be made, as if
such acquisition or disposition had been consummated on the first day
of such period if, but only if, the Consolidated EBITDAR attributable
to all such businesses, nursing homes and other facilities and all such
Subsidiaries, in any transaction, or series of related transactions,
for such period equals or exceeds $10,000,000.
"Consolidated Gross Capital Expenditures" means, for any period, the
total amount of additions to property and equipment, other than
software development costs, of the Representative and its Consolidated
Subsidiaries during such period of the types
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classified as "capital expenditures" on the consolidated statement of
cash flows included in the Base Financials.
"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 $110,000,000 during
the term of this [Participation Agreement], incurred by the
Representative and its Consolidated Subsidiaries (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, without giving effect to (i) charges and
losses, in an aggregate amount, on a pretax basis, not exceeding
$110,000,000 during the term of this [Participation Agreement],
incurred by the Representative and its Consolidated Subsidiaries in
connection with the Florida Disposition and (ii) Specified
Restructuring Charges recorded in the fiscal quarter ended March 31,
2001 in an amount not exceeding, on a pretax basis, $20,000,000.
"Fixed Charge Coverage Ratio" means, on any date, the ratio of (i)
Consolidated EBITDAR minus Consolidated Gross Capital Expenditures 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 four fiscal quarters.
"Lessor Margin" shall have the meaning ascribed to such term on
Schedule IV attached hereto and made a part hereof. "Loan Margin" shall
have the meaning ascribed to such term on Schedule IV attached hereto
and made a part hereof.
"Xxxxxx Credit Agreement" means the Amended and Restated Credit
Agreement dated as of April 30, 1998 amending and restating the Amended
and Restated Credit Agreement dated as of August 20, 1997 among the
Representative, the Banks listed on the signature pages thereof, Xxxxxx
Guaranty Trust Company of New York, as Issuing Bank, and Xxxxxx
Guaranty Trust Company of New York, as Agent, as the same has been or
may be modified, amended or supplemented.
"Sale and Leaseback Transaction" has the meaning set forth in Section
10.2(m).
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4. Negative Covenants of the Representative. Effective as of the
Amendment No. 3 Effective Date, Section 10.2 of the Participation Agreement is
hereby amended as follows:
(a) Section 10.2(a) is hereby amended by deleting such
section in its entirety and replacing same with the following:
"(a) Minimum Consolidated Net Worth. Consolidated Net
Worth of the Representative shall be at least $525,000,000,
plus (i) 50% of the aggregate positive Consolidated Net Income
(excluding any consolidated net loss) of BEI and its
Consolidated Subsidiaries for each fiscal quarter ending after
December 31, 2000, plus (ii) 50% of the aggregate net
proceeds, including the fair market value of property other
than cash (as determined in good faith by BEI's board of
directors), received by BEI from the issuance and sale after
December 31, 2000 of any capital stock of BEI (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 BEI into
capital stock of BEI after December 31, 2000."
(b) Section 10.2(b) of the Participation Agreement is hereby
amended by deleting such section in its entirety and replacing same
with the following:
"(b) Fixed Charge Coverage Ratio. The Fixed Charge
Coverage Ratio at any date shall not be less than 1.15 to
1.0."
(c) Section 10.2(c) of the Participation Agreement is hereby
amended by deleting such section in its entirety and replacing same
with the following:
"(c) Adjusted Consolidated Debt Ratio. The ratio at
any date during any period set forth below of (a) Adjusted
Consolidated Debt to (b) Consolidated EBITDAR for the period
of four consecutive fiscal quarters most recently ended on or
prior to such date shall not be more than the ratio set forth
below opposite such period:
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Period Maximum Ratio
------ -------------
January 1, 2001 - December 30, 2001 5.50 to 1.0
December 31, 2001 - December 30, 2002 5.25 to 1.0
December 31, 2002 and thereafter 5.00 to 1.0 "
(d) Section 10.2(d) is hereby amended by deleting said
section in its entirety and inserting the following in lieu thereof:
"(d) Ownership of Stock of Wholly-Owned Subsidiaries.
Fail to at all times maintain, or cause a Wholly-Owned
Subsidiary of the Representative to maintain, ownership of
100% of each class of voting securities (except for directors'
qualifying shares) in, each of their Subsidiaries that are
Wholly-Owned Subsidiaries of the Representative on the date
hereof and each Person that shall become a Wholly-Owned
Subsidiary of the Representative after the date hereof, except
in each case any such Wholly-Owned Subsidiary that shall
hereafter be disposed of in its entirety, consolidated or
merged with or into the Representative or another such
Wholly-Owned Subsidiary or liquidated."
(e) Section 10.2(e) is hereby amended by deleting said
section in its entirety and inserting the following in lieu thereof:
"(e) Investments. Has neither made or acquired nor
will make or acquire after the Amendment No. 3 Effective Date
any Investment in any Person other than:
(i) Investments in the Representative or in
Persons that were Subsidiaries of the
Representative on the Amendment No. 3
Effective Date;
(ii) Investments in Persons that are (i)
primarily engaged in the health-care
business and (ii) after the making of such
Investment, are Subsidiaries of the
Representative;
(iii) Temporary Cash Investments;
(iv) extensions of credit or Guarantees of
obligations of one or more other Persons
(other than Encore Nursing Center Partners,
Ltd.-85) as an integral part of the
financing of the acquisition, construction,
equipping or improving of
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facilities from which the Representative or
its Subsidiaries will provide medical or
related services;
(v) other miscellaneous Investments related to
the acquisition and financing (in the
ordinary course of the Representative's
business) of health-care facilities t hrough
industrial development revenue bonds issued
for the benefit of the Representative and
its Subsidiaries;
(vi) capital contributions required to be made by
the Representative to Xxxxxxx Indemnity,
Ltd. in accordance with applicable law and
insurance regulations;
(vii) stock, obligations or securities received
from nursing home patients in the ordinary
course of business of the Representative and
its Subsidiaries;
(viii) negotiable instruments endorsed for deposit
or collection or similar instruments in the
ordinary course of business;
(ix) (a) promissory notes and other Investments
received as consideration for facilities
sold (other than in connection with, or as
part of, the Florida Disposition), provided
that the aggregate net book value of all
outstanding Investments permitted by this
subclause (ix)(i) shall not, at any time,
exceed $25,000,000 and (b) promissory notes
received as partial consideration for the
Florida Disposition, provided that the
aggregate principal amount of all such
promissory notes permitted by this subclause
(ix)(b) shall not, at any time, exceed
$20,000,000;
(x) Guarantees permitted by Section 10.2(i);
(xi) any Investment made by the Representative or
any of its Subsidiaries in connection with
and as part of a Workout Transaction;
(xii) Investments made by the Representative or
any of its Subsidiaries in one or more
Special Purpose Receivables Financing
Subsidiaries by means of the sale of, or the
granting of security interests in, Medicare,
Medicaid or other patient accounts
receivable owing to the Representative or
such Subsidiary, in either case to such
Special Purpose Receivables Financing
Subsidiaries
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pursuant to a Receivables Financing Program,
provided that the net amount of all
uncollected accounts receivable owing to the
Representative or any of its Subsidiaries
that have been so sold or in which a
security interest has been so granted shall
not exceed 200% of the aggregate principal
or redemption amount of all Permitted
Receivables Financing Securities then
outstanding;
(xiii) Investments made in Xxxxxxx Japan
Corporation in an aggregate amount
outstanding at any time not to exceed
$10,000,000;
(xiv) Investments made in Persons that are
primarily engaged in the health-care
business, the consideration for which
consists exclusively of common stock of the
Borrower or Permitted Preferred Stock; and
(xv) any Investment not otherwise permitted by
the foregoing clauses of this Section (other
than promissory notes and other Investments
received as consideration for facilities
sold) in any Person engaged primarily in the
health-care business if, immediately after
such Investment is made or acquired, (i) the
aggregate net book value of all such
Investments then held by the Borrower or its
Subsidiaries and permitted by this clause
(xv) does not exceed $75,000,000 and (ii)
the aggregate net book value of all such
Investments then held by the Borrower or its
Subsidiaries in Persons organized under the
laws of any jurisdiction other than the
United States or any political subdivision
thereof (each such other jurisdiction a
"Foreign Jurisdiction") or having their
chief executive offices or a substantial
portion of their operations or assets in any
Foreign Jurisdiction that is otherwise
permitted by this clause (xv) does not
exceed $15,000,000."
(f) Sections 10.2(f) is hereby amended by deleting said
section in its entirety inserting the following in lieu thereof:
"(f) Restricted Payments on Stock. (x) declare or
make any dividend payment or other distribution on any capital
stock of the Representative (other than dividends payable
solely in shares of the Representative's capital stock) or (y)
declare or make any payment on account of the purchase,
redemption, retirement or acquisition of the Representative's
capital stock; provided that, so long as at the time of and
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after giving effect to any such payment no Event of Default shall have
occurred and be continuing,
(i) the Representative may make any such payment
or distribution from the proceeds of the
sale by the Representative (other than a
sale to a Subsidiary of the Representative)
after the Amendment No. 3 Effective Date of
its common stock,
(ii) the Representative may make dividend
payments with respect to its preferred stock
(A) from any source in an amount not to
exceed $2,500,000 in any fiscal quarter and
(B) from proceeds of the sale by the
Representative (other than a sale to a
Subsidiary of the Representative) after the
Amendment No. 3 Effective Date of Permitted
Preferred Stock in any amount,
(iii) the Representative may make payments on
account of the purchase, redemption,
retirement or acquisition of its preferred
stock from the proceeds of the sale by the
Representative (other than a sale to a
Subsidiary of the Representative) after the
Amendment No. 3 Effective Date of any
Permitted Preferred Stock,
(iv) the Representative may make odd-lot
repurchases of its common stock for an
aggregate consideration not exceeding
$10,000 in any calendar year, and
(v) the Representative may make any such payment
or distribution if, after giving effect
thereto, the aggregate amount of all such
payments or distributions made after the
Amendment No. 3 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 ratio of (x) Adjusted Consolidated
Debt on such day to (y) Consolidated EBITDAR
for the period of four consecutive fiscal
quarters most recently ended on or prior to
such date is (I) less than 5.00 to 1.00 but
not less than 4.75 to 1.00, $25,000,000,
(II) less than 4.75 to 1.00 but not less
than 4.50 to 1.00, $30,000,000, and (III)
less than 4.50 to 1.00, $40,000,000 and (B)
on any other date, $10,000,000.
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Nothing in this Section shall prohibit the payment of any dividend or
distribution within 45 days after the declaration thereof if such
declaration was not prohibited by this Section."
(g) Section 10.2(g) is hereby amended by deleting said
section in its entirety and inserting the following in lieu thereof:
"(g) Negative Pledge. (a) Create, assume or suffer to
exist any Lien on any asset now owned or hereafter acquired by
it, except:
(i) Liens existing on the Amendment No. 3
Effective Date securing Indebtedness and
other obligations outstanding on the
Amendment No. 3 Effective Date;
(ii) any Lien on any asset of any corporation
that became or that becomes a Consolidated
Subsidiary of the Representative after the
Amendment No. 3 Effective Date that 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;
(iii) any Lien existing on any asset prior to the
acquisition thereof, acquired after the
Amendment No. 3 Effective Date by the
Representative or a Subsidiary of the
Representative and (other than in a Workout
Transaction) not created in contemplation
thereof;
(iv) any Lien on any asset securing Indebtedness
or lease obligations incurred or assumed for
the purpose of financing all or any part of
the cost of acquiring or constructing such
asset or reconstructing substantially all of
such asset, provided that such Lien attached
or attaches to such asset concurrently with
or within one year after such acquisition,
construction or reconstruction;
(v) any Lien on any asset securing Indebtedness
or lease obligations incurred or assumed for
the purpose of improving or making any
addition to such asset, provided that (A)
such Lien attached or attaches to such asset
concurrently with or within one year after
the completion of the improvement thereof or
addition thereto and (B) the aggregate
outstanding principal amount of all such
Indebtedness incurred after the Amendment
No. 3 Effective Date (and refinancings
thereof under clause (viii) below)
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secured by such Liens shall not, at any
time, exceed $30,000,000;
(vi) Liens securing Indebtedness incurred in
connection with Lease Cancellation Payments,
provided that the aggregate amount of all
such Indebtedness incurred after the
Amendment No. 3 Effective Date (and
refinancings thereof under clause (viii)
below) secured by such Liens shall not, at
any time, exceed $20,000,000;
(vii) Liens securing industrial development
revenue bonds (or securing contingent
obligations to issuers of letters of credit
issued to support industrial development
revenue bonds) arising in connection with
the conversion of the interest rate on such
bonds from floating to long-term fixed rates
or from fixed rates to other long-term fixed
rates;
(viii) any Lien arising out of the refinancing,
extension, renewal or refunding of any
Indebtedness secured by any Lien permitted
by any of the foregoing clauses of this
Section, provided that the principal amount
of such Indebtedness is not increased and
such Indebtedness is not secured by any
additional assets other than assets that
relate directly to the facility subject to
the original financing;
(ix) Liens on Medicare, Medicaid or other patient
accounts receivable of the Representative or
any of its Subsidiaries, or on Permitted
Receivables Financing Securities, granted to
secure Permitted Receivables Financing
Securities, provided that the net amount of
all uncollected accounts receivable owing to
the Representative or any of its
Subsidiaries over which such a Lien is
granted, together, without duplication, with
the net amount of all uncollected accounts
receivable owing to the Representative or
any of its Subsidiaries that are assigned to
secure such Permitted Receivables Financing
Securities, shall not exceed, at any time,
200% of the aggregate principal or
redemption amount of all Permitted
Receivables Financing Securities then
outstanding;
(x) Liens incidental to the conduct of its
business or the ownership of its assets
which (A) do not secure Indebtedness or
Derivatives Obligations and (B) do not in
the aggregate materially detract from the
value of its assets
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or materially impair the use thereof in the
operation of its business;
(xi) Liens on cash and cash equivalents securing
Derivatives Obligations, provided that the
aggregate amount of cash and cash
equivalents subject to such Liens may at no
time exceed $10,000,000;
(xii) Liens on nursing homes and related real
estate improvements and equipment ("Mortgage
Assets") given in substitution for Liens on
Mortgage Assets existing on the Amendment
No. 3 Effective Date or for Liens on
Mortgage Assets incurred pursuant to this
clause (xii) or clause (xiii) below,
provided that the sum of (A) the excess of
the Appraised Value of all Mortgage Assets
subjected to Liens pursuant to this clause
(xiii) on or after the Amendment No. 3
Effective Date over the Appraised Value of
all such Mortgage Assets released from Liens
on or after the Amendment No. 3 Effective
Date and (B) all Indebtedness incurred after
the Amendment No. 3 Effective Date and
secured by Liens permitted under clause
(xiii) below shall not at any time exceed
$25,000,000;
(xiii) Liens not otherwise permitted under clauses
(i) through (xii) of this Section, provided
that the sum of the amounts set forth in
subclause (A) of clause (xii) above and the
aggregate principal amount of all
Indebtedness incurred after the Amendment
No. 3 Effective Date and secured by Liens
permitted under this clause (xiii) shall not
at any time exceed $25,000,000;
(xiv) Liens created under the Security Documents;
and
(xv) the Other Financing Agreements Liens.
(b) The Representative will not permit any Issuer or any
Subsidiary of an Issuer to create, assume or suffer to exist any Lien on any
asset now owned or hereafter acquired by it except (i) Liens permitted by
clauses (i), (ii), (iii), (iv), (v), (vi), (vii), (viii), (ix), (x), (xiv) and
(xv) of Section 10.2(g)(a) above, (ii) Liens on nursing homes and related real
estate improvements and equipment of Issuers and their Subsidiaries ("Pledged
Subsidiary Mortgage Assets") given in substitution for Liens on Pledged
Subsidiary Mortgage Assets incurred pursuant to this clause (ii) or clause (iii)
below, provided that the sum of (A) the excess of the Appraised Value of all
Pledged Subsidiary Mortgage Assets subjected to Liens pursuant to this clause
(ii) on or after the Amendment No. 3 Effective Date over the Appraised Value of
all such
14
Pledged Subsidiary Mortgage Assets released from Liens on or after the Amendment
No. 3 Effective Date and (B) all Indebtedness incurred after the Amendment No. 3
Effective Date and secured by Liens permitted under clause (iii) below shall not
at any time exceed $25,000,000 and (iii) Liens not otherwise permitted under
clauses (i) and (ii) of this subsection (b), provided, that the sum of the
amounts set forth in subclause (A) of clause (ii) above and the aggregate
principal amount of all Indebtedness incurred after September 30, 1999 and
secured by Liens permitted under this clause (iii) shall not exceed
$25,000,000."
(h) Section 10.2(h) is hereby amended by deleting said
section in its entirety and inserting the following language in lieu
thereof:
"(h) Consolidations, Mergers and Sales of Assets.
Neither the Representative nor any of its Subsidiaries will
(i) consolidate or merge with or into any other Person, unless
the Representative or, except in the case of a merger or
consolidation to which the Representative is a party, a
Wholly-Owned Subsidiary of the Representative is the surviving
corporation or (ii) sell, lease or otherwise transfer all or
any substantial part of the assets of the Representative and
its Subsidiaries, taken as a whole, to any other Person,
provided that (A) this Section shall not apply to mergers,
dissolutions, reorganizations or liquidations of Subsidiaries
of the Representative that have disposed of all or
substantially all of their assets and (B) the Representative
and its Subsidiaries may assign or grant security interests in
their Medicare, Medicaid or other patient accounts receivable
to a Special Purpose Receivables Financing Subsidiary to
secure Permitted Receivables Financing Securities (provided
that the net amount at any time of all uncollected accounts
receivable owing to the Representative or any of its
Subsidiaries that are so assigned or in which a security
interest is so granted shall not exceed 200% of the aggregate
principal or redemption amount of all Permitted Receivables
Financing Securities then outstanding)."
(i) Section 10.2(i) is hereby amended by deleting said
section in its entirety and inserting the following language in lieu
thereof:
"(i) Incurrence of Indebtedness. (a) The
Representative will not permit any of its Subsidiaries to
incur, assume or suffer to exist any Indebtedness, except:
(i) Indebtedness outstanding on the Amendment
No. 3 Effective Date and included either in
the Base Financials or listed in Schedule
III hereto;
(ii) Indebtedness incurred after the Amendment
No. 3 Effective Date in connection with
Lease Cancellation Payments,
15
provided that the aggregate principal amount of all such Indebtedness
outstanding at any time shall not exceed $20,000,000;
(iii) Indebtedness secured by a Lien permitted
pursuant to clause (iii) of subsection
10.2(g)(a);
(iv) Indebtedness of any corporation that became
or becomes a Consolidated Subsidiary of the
Representative after the Amendment No. 3
Effective Date 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;
(v) Indebtedness ("Refinancing Debt") incurred
to refinance Indebtedness ("Refinanced
Debt") permitted under clauses (i) through
(iv) 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;
(vi) Permitted Receivables Financing Securities,
provided that the aggregate principal and
redemption amount of all Permitted
Receivables Financing Securities outstanding
at any time shall not exceed $100,000,000;
(vii) Indebtedness incurred under the Financing
Documents;
(viii) Guarantees by any Subsidiary of the
Representative of any obligation of the
Representative or any of its other
Subsidiaries that such guaranteeing
Subsidiary would have been permitted to
incur hereunder as a primary obligation;
(ix) Indebtedness consisting of advances from the
Representative or any of its Subsidiaries in
connection with the normal operation of the
business of the Representative and its
Subsidiaries;
(x) Indebtedness incurred in connection with and
as part of a Workout Transaction;
16
(xi) Indebtedness incurred or assumed for the
purpose of financing the cost of acquiring,
constructing or improving an asset of the
Representative or any of its Subsidiaries;
(xii) Indebtedness incurred under the New Senior
Notes and Guarantees thereof by the
Subsidiary Guarantors;
(xiii) Permitted Preferred Stock; and
(xiv) Indebtedness not otherwise permitted under
clauses (i) through (xiii) of this Section,
provided that the aggregate principal amount
of all Indebtedness permitted under this
clause (xiv) that is incurred on or after
the Amendment No. 3 Effective Date shall not
at any time exceed $20,000,000.
(b) The Representative will not permit any Issuer or
any Subsidiary of any Issuer to incur, assume or suffer to
exist Indebtedness other than (A) Indebtedness permitted under
clauses (i), (ii) (but only to the extent that the Lease
Cancellation Payments relate to a facility operated by any
such Issuer or Subsidiary), (iii), (iv), (v) (to the extent
the Refinanced Indebtedness referred to therein is
Indebtedness referred to in clauses (i), (ii) (but only to the
extent that the Lease Cancellation Payments relate to a
facility operated by any such Issuer or Subsidiary), (iii) and
(iv)), (vi), (vii), (viii), (ix), (x), (xi) (but only to the
extent that the assets acquired, constructed or approved with
the proceeds of such Indebtedness are assets of such Issuer or
such Subsidiary), (xii) and (xiv) of subsection 10.2(i)(a)
above; provided that the aggregate principal amount of
Indebtedness of such Issuers and Subsidiaries permitted under
clauses (viii) (other than guarantees by an Issuer or any of
its Subsidiaries of Indebtedness of an Issuer or any of its
Subsidiaries) and (xiv) shall not exceed, in the aggregate,
$20,000,000 and (B) guarantees of obligations of Subsidiaries
of the Representative, which obligations are permitted under
clause (xi) of Section 10.2(i)(a) above and arise under any of
the Other Financing Agreements and refinancings, extensions,
replacements and increases of any of the foregoing, provided
that the aggregate principal amount of Indebtedness permitted
under this clause (B) may not exceed $160,000,000."
(j) Section 10.2(j) shall be amended by deleting said
section in its entirety and inserting the following in lieu thereof:
"(j) Lease Conversions. The Representative will not,
and will not permit any of its Subsidiaries to, make any Lease
Conversion in any calendar year unless:
17
(i) the aggregate consideration paid or to be
paid by the Representative and its
Subsidiaries in connection with the
termination of leases or the acquisition of
facilities and related property pursuant to
such Lease Conversion and all other Lease
Conversions made during such calendar year
would not exceed $100,000,000; and
(ii) to the extent such Lease Conversion is
financed or will be financed with
Indebtedness of the Representative or any of
its Subsidiaries, such Indebtedness is
incurred within one year of such Lease
Conversion."
(k) Section 10.2(k) shall be amended by deleting said
section in its entirety and inserting the following in lieu thereof:
"(k) Transactions with Affiliates. The Representative
will not, after the date hereof, and will not permit any of
its Subsidiaries to, after the date hereof, enter into any
transaction or arrangement with any Affiliate (including,
without limitation, the purchase from, sale to or exchange of
property with, or the rendering of any service by or for, any
Affiliate), except in the ordinary course of and pursuant to
the reasonable requirements of the Representative's or such
Subsidiary's (as the case may be) business and upon fair and
reasonable terms no less favorable to the Representative or
such Subsidiary than would be obtained in a comparable
arm's-length transaction with a Person other than an
Affiliate."
(l) Section 10.2 is hereby amended by adding the following
Section 10.2(l) and 10.2(m) after Section 10.2(k):
"(l) Consolidated Gross Capital Expenditures.
Consolidated Gross Capital Expenditures will not, for any of
the fiscal years set forth below, exceed the amount indicated
opposite such fiscal year:
Fiscal Year Ending Amount
------------------ ------
December 31, 2001 $125,000,000
December 31, 2002 $125,000,000
December 31, 2003 $125,000,000
December 31, 2004 $130,000,000
18
To the extent that Consolidated Gross Capital Expenditures for
any fiscal year set forth above are less than the applicable
amount specified in the table, the difference may be carried
forward to the 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)."
"(m) Sale and Leaseback Transactions. The Representative will
not, and will not permit any of its Subsidiaries to, enter into any
arrangement, directly or indirectly, whereby it shall sell or transfer
any property, real or personal, used or useful in its business, whether
now owned or hereafter acquired, which property has been owned and
operated by the Representative and its Subsidiaries for more than 180
days, and thereafter rent or lease such property or other property that
it intends to use for substantially the same purpose or purposes as the
property sold or transferred (each, a "Sale and Leaseback
Transaction"), except for Sale and Leaseback Transactions the aggregate
amount of Attributable Indebtedness in respect of which does not exceed
$20,000,000 at any time outstanding."
5. Effective as of the Amendment No. 3 Effective Date, Schedule
IV of the Participation Agreement is hereby amended by deleting said schedule in
its entirety and replacing said schedule with Schedule IV attached hereto and
made a part hereof.
6. 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 and this Amendment, 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 limiti ng creditors' ri ghts 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
19
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, 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.
7. 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 in form and substance
satisfactory to the Administrative Agent, the Agent Lessor and the
Participants; and
(c) The representations and warranties of the Xxxxxxx
Entities set forth in Section 8 hereof are true and correct on and with
respect to the date hereof.
Upon receipt of all of the foregoing, this Amendment shall become
effective.
8. Payment of Fees and Expenses. The Representative agrees to
pay upon demand, 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.
20
9. 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.
10. Governing Law. This Amendment shall be governed by and
construed in accordance with the laws of the State of
New York.
11. 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
21
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
---------------------------------
Name:
Title:
BANK OF MONTREAL, as Arranger,
Administrative Agent and as a Lender
By
---------------------------------
Name:
Title:
BANK OF MONTREAL GLOBAL CAPITAL
SOLUTIONS, INC., as Agent Lessor and
as a Lessor
By
---------------------------------
Name:
Title:
GENERAL ELECTRIC CAPITAL
CORPORATION, as a Lender
By
---------------------------------
Name:
Title:
TORONTO-DOMINION (TEXAS), INC., as a
Lender
By
---------------------------------
Name:
Title:
BANK OF AMERICA, NATIONAL
ASSOCIATION, as a Lender
By
---------------------------------
Name:
Title:
VANTAGE HEALTHCARE CORPORATION, as
Lessee and Structural Guarantor
By
---------------------------------
Name:
Title:
XXXXXXXX HEALTH CARE, INC., as
Lessee and Structural Guarantor
By
---------------------------------
Name:
Title:
XXXXXXX SAVANA CAY MANOR, INC., as
Lessee and Structural Guarantor
By
---------------------------------
Name:
Title:
XXXXXXX ENTERPRISES - GEORGIA, INC.,
as Lessee and Structural Guarantor
By
---------------------------------
Name:
Title:
XXXXXXX ENTERPRISES - CALIFORNIA,
INC., as Lessee and Structural
Guarantor
By
---------------------------------
Name:
Title:
XXXXXXX ENTERPRISES - ARKANSAS,
INC., as Lessee and Structural
Guarantor
By
---------------------------------
Name:
Title:
XXXXXXX ENTERPRISES - FLORIDA, INC.,
as Lessee and Structural Guarantor
By
---------------------------------
Name:
Title:
XXXXXXX HEALTH AND REHABILITATION
SERVICES, INC., as Lessee and
Structural Guarantor
By
---------------------------------
Name:
Title:
XXXXXXX ENTERPRISES - WASHINGTON,
INC., as Lessee and Structural
Guarantor
By
---------------------------------
Name:
Title:
SCHEDULE III
[SUBJECT TO REVISIONS BY THE COMPANY]
EXISTING Indebtedness
BALANCE
TYPE MARCH 31, 2001
---- --------------
NOTES & MORTGAGES $146,468,123
TAX EXEMPT BONDS 130,705,000
FIRST MORTGAGE BONDS 31,912,000
MIFA TAXABLE BONDS 18,000,000
9% SENIOR NOTES 180,000,000
REVOLVER OUTSTANDING 182,000,000
AIG LOAN 32,500,000
BANK UNITED 17,930,633
AMSOUTH BANK 16,050,360
CAPITAL LEASES 14,736,608
TOTAL $770,302,724
SCHEDULE IV
TO PARTICIPATION AGREEMENT
PRICING CATEGORY
For purposes of this Pricing Schedule, the following terms have the following
meanings:
"LESSOR MARGIN" means, with respect to the Lessor Amounts on any day,
the percentage set forth below opposite the Pricing Category in effect for such
date for the applicable type of Lessor Amount:
Pricing Category LIBO Margin Base Rate Margin
---------------- ----------- ----------------
I 3.125% 2.125%
II 3.375% 2.375%
III 3.625% 2.625%
IV 3.875% 2.875%
"LOAN MARGIN" means, with respect to the Loans on any day, the
percentage set forth below opposite the Pricing Category in effect for such day
for the applicable type of Loan:
Pricing Category LIBO Margin Base Rate Margin
---------------- ----------- ----------------
I 2.625% 1.625%
II 2.875% 1.875%
III 3.125% 2.125%
IV 3.375% 2.375%
"PRICING RATIO" means, on any day, the ratio of Adjusted Consolidated
Indebtedness on such day to Consolidated EBITDAR for the four consecutive fiscal
quarters most recently ended on or prior to such day.
"CATEGORY I PRICING" applies on any day if, as of the last day of the
fiscal quarter of the Representative most recently ended on or prior to such day
and as to which the Representative shall have delivered, or been required to
deliver, o n or prior to such day a certificate pursuant to Section
10.01(d)(iii), the Pricing Ratio is less than 4.0 to 1.0.
"CATEGORY II PRICING" applies on any day if, as of the last day of the
fiscal quarter of the Representative most recently ended on or prior to such day
and as to which the Representative shall have delivered, or been required to
deliver, o n or prior to such day a certificate pursuant to Section
10.01(d)(iii), (i) the Pricing Ratio is less than 4.5 to 1.0 and (ii) Category I
Pricing does not apply.
"CATEGORY III PRICING" applies on any day if, as of the last day of the
fiscal quarter of the Representative most recently ended on or prior to such day
and as to which the Representative shall have delivered, or been required to
deliver, o n or prior to such day a certificate pursuant to Section
10.01(d)(iii), (i) the Pricing Ratio is less than 5.0 to 1.0 and (ii) neither
Category I Pricing nor Category II Pricing applies.
"CATEGORY IV PRICING" applies on any day if, on such day, no other
Pricing Category applies.
EXHIBIT I
TO PARTICIPATION AGREEMENT
EXHIBIT I
(a) VALLEY NURSING AND REHAB - FACILITY NO. 208 ST. MARY'S, OHIO
Open-End Mortgage Deed, Assignment of Leases and Rents, Security Agreement
and Financing Statement dated as of October 29, 1999 from Columbia-Valley
Nursing Home, Inc. ("Columbia-Valley"), as mortgagor, to Xxxxxx Guaranty
Trust Company of
New York ("Xxxxxx"), as agent, as mortgagee, recorded in
Auglaize County, Ohio on November 2, 1999 in Vol 381, Page 313
(b) COMMUNITY NURSING HOME - FACILITY NO. 209 BOWLING GREEN, OHIO
Open-End Mortgage Deed, Assignment of Leases and Rents, Security Agreement
and Financing Statement dated as of October 29, 1999 from Nursing Home
Operators, Inc. ("Nursing"), as mortgagor, to Xxxxxx, as mortgagee,
recorded in Wood County, Ohio on November 2, 1999 in Vol 1279, Page 150
(c) NORTHEAST NURSING HOME - FACILITY NO. 210 NAPOLEON, OHIO
Open-End Mortgage Deed, Assignment of Leases and Rents, Security Agreement
and Financing Statement dated as of October 29, 1999 from Nursing, as
mortgagor, to Xxxxxx, as agent, as mortgagee, recorded in Xxxxx County,
Ohio on November 2, 1999 in Vol 60, Page 484
(d) XXXXXXX HEALTH & REHAB - PASCO - FACILITY NO. 261 PASCO, WASHINGTON
Deed of Trust, Assignment of Leases and Rents, Security Agreement and
Fixture Filing dated as of October 29, 1999 from Xxxxxxx Enterprises
-Washington, Inc. ("Xxxxxxx"), as grantor, to Fidelity National Title
Company of Washington ("Fidelity-Washington"), as trustee, for the benefit
of Xxxxxx, as agent, as grantee, recorded in Franklin County, Washington
on November 2, 1999, as Instrument No. 1571747
(e) XXXX'X HARBOR - FACILITY NO. 2554 ABERDEEN, WASHINGTON
Deed of Trust, Assignment of Leases and Rents, Security Agreement and
Fixture Filing dated as of October 29, 1999 from Xxxxxxx, as grantor, to
Fidelity-Washington, as trustee, for the benefit of Xxxxxx, as agent, as
grantee, recorded in Grays Harbor County, Washington on November 2, 1999,
as Instrument No. 1999-11020041
(f) XXXXXX HEIGHTS REHAB - FACILITY NO. 2132 KENT, WASHINGTON
Deed of Trust, Assignment of Leases and Rents, Security Agreement and
Fixture Filing dated as of October 29, 1999 from Xxxxxxx, as grantor, to
Fidelity-Washington, as trustee, for the benefit of Xxxxxx, as agent, as
grantee, recorded in King County, Washington on November 2, 1999, as
Document No. 19991102001006
(g) XXXXXXX HEALTH - FRANKFORT - FACILITY NO. 984 FRANKFORT, KENTUCKY
Open-End Mortgage Deed, Assignment of Leases and Rents, Security Agreement
and Financing Statement dated as of October 29, 1999 from Xxxxxxx Health
and Rehabilitation Services, Inc. ("Xxxxxxx Health"), as mortgagor, to
Xxxxxx, as agent, as mortgagee, recorded in Franklin County, Kentucky on
November 3, 1999 in Book 652, Page 87
(h) GREEN HILL MANOR NURSING FACILITY - FACILITY XX. 00 XXXXXXXXX, XXXXXXXX
Open-End Mortgage Deed, Assignment of Leases and Rents, Security Agreement
and Financing Statement dated as of November 30, 1999 from Xxxxxxx Health,
as mortgagor, to Xxxxxx, as agent, as mortgagee, recorded in Green County,
Kentucky on December 1, 1999 in Book 151, Page 688
(i) XXXXXXXXXXX XXXXXXXXXXXX XXX - XXXXXXXX XX. 0000 XXXXXXXXXXX, MICHIGAN
Mortgage dated as of November 30, 1999 from Xxxxxxx Enterprises -Michigan,
Inc., as mortgagor, to Xxxxxx, as agent, as mortgagee, recorded in Saginaw
County, Michigan on December 1, 1999 in Liber 2154, Page 2247
