1
EXHIBIT 10.11
KEY CORPORATE CAPITAL INC.
00 XXXXX XXXXX XXXXXX
XXXXXX, XXX XXXX 00000
March 30, 2000
Ithaca Xxxxx Road, LLC
Ithaca Trumansburg Road, LLC
Niagara SC Wheatfield, LLC
Niagara Xxxx Road, LLC
Clinton Brookside Drive, LLC
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxx, Xxx Xxxx 00000
RE: KEY CORPORATE CAPITAL INC. CREDIT FACILITIES
Ladies and Gentlemen:
Reference is made to that certain master loan commitment issued by Key
Corporate Capital Inc. (the "Lender") to ALS-Northeast, LLC dated May 5, 1998
and accepted by ALS-Northeast, LLC on May 6, 1998 (the "Master Commitment").
Pursuant to the Master Commitment and pursuant to project-specific commitments
between Lender and each of you (individually, a "Borrower" and collectively, the
"Borrowers"), the Lender has extended or is extending credit facilities to each
Borrower (individually, a "Credit Facility" and collectively, the "Credit
Facilities"). Each of the Credit Facilities is evidenced by a secured promissory
note (individually, a "Note" and collectively, the "Notes") and is secured by
various documents executed and delivered by each Borrower to the Lender
(collectively, the "Loan Documents") in respect to the specific project (the
"Project") owned by each Borrower. Capitalized terms used herein but not defined
shall have the meaning set forth in the Loan Documents.
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Pursuant to a letter agreement dated January 14, 2000, Lender and each
Borrower agreed that within sixty (60) days of the date of the letter agreement
they would: (1) exercise their best good faith efforts to negotiate revised
financial covenants to be maintained by Alterra and (2) execute amended Loan
Documents memorializing such revised financial covenants. This letter shall
constitute: (1) an amendment of the Master Commitment with respect to financial
covenants required to be maintained by Alterra and (2) an amendment of each of
the Notes and each of the Loan Documents with respect to the financial covenants
required to be maintained by Alterra.
Effective on this date hereof, any financial covenant required to be
maintained by Alterra and set forth in the Master Commitment, any of the Notes
or any of the Loan Documents shall be deleted in its entirety, and replaced with
the provisions set forth herein. Alterra shall maintain the following financial
convenants:
1. MINIMUM CONSOLIDATED NET WORTH. Alterra will not permit its
Consolidated Net Worth at any time to be less than $150,000,000, except that
a.) effective as of the end of Alterra's fiscal quarter ended June
30, 1999, the foregoing amount (as it may from time to time be
adjusted as herein provided), shall be increased by 50% of the
Consolidated Net Income of Alterra for the two fiscal quarters
ended on such date, if any (there being no reduction in the case
of any such Consolidated Net Income which reflects a deficit);
b.) effective as of the end of Alterra's fiscal quarter ended
September 30, 1999, and as of the end of each fiscal quarter
thereafter, the foregoing amount (as it may from time to time be
adjusted as herein provided), shall be increased by 50% of the
Consolidated Net Income of Alterra for the fiscal quarter ended
on such date, if any (there being no reduction in the case of
any such Consolidated Net Income which reflects a deficit);
c.) the foregoing amount (as it may from time to time be adjusted as
herein provided), shall be increased by an amount equal to 75%
of the cash proceeds (net of underwriting discounts and
commissions and other customary fees and costs associated
therewith) from any sale or issuance of equity by Alterra after
December 31, 1998 (other than any sale or issuance to any
Subsidiary or to management or employees pursuant to employee
benefit plans of general application), including, without
limitation, 75% of the net cash proceeds
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received by Alterra pursuant to the satisfaction of the New
Capital Funding Requirement;
d.) the foregoing amount (as it may from time to time be adjusted as
herein provided), shall be increased (to the extent not included
in paragraph c. above) by an amount equal to 75% of (x) the
principal amount of Indebtedness or (y) the higher of stated
value or liquidation value of Redeemable Stock, as the case may
be, which Indebtedness or Redeemable Stock is converted or
exchanged after December 31, 1998 into common stock of Alterra
or any of its Subsidiaries;
e.) the foregoing amount (as it may from time to time be adjusted as
herein provided), shall be increased by an amount equal to 75%
of the increase in Consolidated Net Worth attributable to the
issuance of common stock or other equity interests subsequent to
December 31, 1998 as consideration in any Acquisition; and
f.) effective as of the end of Alterra's fiscal quarter ended
December 31, 1999, the foregoing amount (as it may from time to
time be adjusted as herein provided), shall be decreased by the
lesser of (A) 75% of the aggregate non-cash charges taken during
such fiscal quarter, if any, and (B) $33,750,000.
2. LEASE AND DEBT SERVICE COVERAGE RATIO. Alterra will not permit the
ratio of (i) Consolidated EBITDAR for any Testing Period, to (ii) Consolidated
Lease and Debt Service Charges for such Testing Period to be less than the
amount indicated below for such Testing Period:
--------------------------------------------------- -------------
TESTING PERIOD RATIO
--------------------------------------------------- -------------
Each Testing Period ending on the last day of a 1.25 to 1.00
fiscal quarter on or before September 30, 1999
--------------------------------------------------- -------------
Testing Period ended December 31, 1999 No
Requirement
--------------------------------------------------- -------------
Testing Period consisting of the single fiscal .85 to 1.00
quarter ended March 31, 2000
--------------------------------------------------- -------------
Testing Period consisting of the two fiscal .87 to 1.00
quarters ended June 30, 2000
--------------------------------------------------- -------------
Testing Period consisting of the three fiscal .90 to 1.00
quarters ended September 30,
--------------------------------------------------- -------------
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--------------------------------------------------- -------------
2000
--------------------------------------------------- -------------
Testing Period ended December 31, 2000 .95 to 1.00
--------------------------------------------------- -------------
Testing Period ended March 31, 2001 1.00 to 1.00
--------------------------------------------------- -------------
Testing Period ended June 30, 2001 1.05 to 1.00
--------------------------------------------------- -------------
Testing Period ended September 30, 2001 1.15 to 1.00
--------------------------------------------------- -------------
Any Testing Period thereafter 1.25 to 1.00
--------------------------------------------------- -------------
3. MINIMUM CASH & CASH EQUIVALENTS.
a.) Alterra will not permit the aggregate of its unrestricted cash
and Cash Equivalents, at any time, to be less than $10,000,000,
provided, however, that the covenant contained in the section 3
shall be of no further force or effect upon the satisfaction of
the New Capital Funding Requirement; and
b.) Alterra will not permit the aggregate of its unrestricted cash
and Cash Equivalents, as of the end of its fiscal quarter ended
March 31, 2000, or as of the end of any fiscal quarter
thereafter, to be less than $20,000,000, provided, however, if,
pursuant to the terms and conditions of the $200,000,000 Master
Construction Line of Credit Agreement dated as of October 6,
1998 (the "Credit Agreement"), by and among Alterra, the
borrowers party thereto, the lenders party thereto (the
"Lenders"), the co-agents party thereto and Key Corporate
Capital, Inc. as the administrative agent (the "Administrative
Agent"), as amended (the "October Alterra Line"), the Closing
Date (as defined in the October Alterra Line) for any of the
proposed Projects (as defined in the October Alterra Line)
commonly known as Fresno I, Fresno II, Monroe I, Xxxxxx XX,
Lebanon I, Lebanon II, Bend and Glastonbury has not occurred on
or before March 31, 2000, then the measurement of unrestricted
cash and Cash Equivalents as of March 31, 2000 shall include the
actual net amount funded for each such Project which has closed
as of such date, if any, together with the net amount
anticipated to be funded for each such remaining Project, as
determined by the Administrative Agent in its reasonable
discretion, provided, further, that the covenant contained in
this section 3(b) shall be of no further force or effect upon
the satisfaction of both (i) satisfaction of the New Capital
Funding Requirement resulting in gross cash proceeds of at least
$150,000,000, (ii) the ratio of (A) Consolidated EBITDAR for any
fiscal quarter, to (B) Consolidated Lease and Debt Service
Charges for such fiscal quarter, exceeds 1.20 to 1.00 for two
consecutive
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fiscal quarters, with the first eligible fiscal quarter to be
measured hereunder being the fiscal quarter ending March 31,
2000.
4. ADDITIONAL CAPITAL REQUIREMENTS.
a.) Alterra will obtain and deliver to the Lender, on or before June
30, 2000, a written commitment, from one or more financially
responsible institutional or strategic investors, for the
purchase from Alterra of (i) shares of capital stock of Alterra
(other than Redeemable Stock), or (ii) subordinated debt
securities of Alterra, with a maturity of at least five years
and no sinking fund or similar requirements and no cash interest
payments, and providing for subordination of such subordinated
debt securities to the Obligations on terms satisfactory to the
Required Lenders, in either case for gross cash proceeds of at
least $100,000,000 (the "New Capital Commitment Requirement"),
which may include, without limitation, the net proceeds from a
commitment to convert the debt evidenced by the Amended and
Restated Loan Agreement dated as of February 3, 2000 between
Alterra and RDVEPCO, L.L.C., a Michigan limited liability
company, in the original principal amount of $15,000,000 as
thereafter increased to $35,000,000, to shares of capital stock
of Alterra (other than Redeemable Stock) or subordinated debt
securities of Alterra, with a maturity of at least five years
and no sinking fund or similar requirements and no cash
payments, and providing for subordination of such subordinated
debt securities to the Obligations on terms satisfactory to the
Required Lenders, all in an amount not to exceed $35,000,000
(the "Bridge Loan Conversion").
b.) Alterra shall have received, on or before June 30, 2000, gross
cash proceeds of at least $100,000,000, from the issuance by
Alterra of (A) shares of its capital stock (other than
Redeemable Stock), or (B) subordinated debt securities of
Alterra conforming to the requirements specified above, as
contemplated by the commitment obtained by Alterra which
satisfied the New Capital Commitment Requirement (the "New
Capital Funding Requirement"), which proceeds may be comprised
in part of the net proceeds of the Bridge Loan Conversion.
5. QUARTERLY MINIMUM CONSOLIDATED EBIT. Alterra will not permit its
Consolidated EBIT for any Testing Period to be less than the amount indicated
below for such Testing Period:
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-------------------------------------------------- -------------------
FISCAL QUARTER QUARTERLY
MINIMUM
CONSOLIDATED EBIT
-------------------------------------------------- -------------------
Testing Period consisting of the single fiscal $1,321,000
quarter ended March 31, 2000
-------------------------------------------------- -------------------
Testing Period consisting of the two fiscal $2,539,000
quarters ended June 30, 2000
-------------------------------------------------- -------------------
Testing Period consisting of the three fiscal $6,781,000
quarters ended September 30, 2000
-------------------------------------------------- -------------------
Testing Period ended December 31, 2000 $14,427,000
-------------------------------------------------- -------------------
Testing Period ended March 31, 2001 $26,524,000
-------------------------------------------------- -------------------
Testing Period ended June 30, 2001 $42,161,000
-------------------------------------------------- -------------------
Testing Period ended September 30, 2001 $57,702,000
-------------------------------------------------- -------------------
Testing Period ended December 31, 2001 $72,013,000
-------------------------------------------------- -------------------
6. DISTRIBUTIONS. Alterra will not make any distributions or other
payments to any of its shareholders, in their capacity as shareholders other
than dividends in stock or other equity securities of Alterra and non-cash
coupons on equity and debt securities issued pursuant to an acquisition or the
New Capital Commitment Requirement, from the date hereof until such time as the
ratio of (a) Consolidated EBITDAR for any Testing Period consisting of the
immediately preceding 4 fiscal quarters, to (b) Consolidated Lease and Debt
Service Charges for such Testing Period, shall exceed 1.25 to 1.00 for such
Testing Period, with the first eligible Testing Period to be measured hereunder
being the 4 fiscal quarters ending March 31, 2000, provided, however, no such
distributions shall be made prior to December 31, 2000.
7. MOST FAVORED COVENANT STATUS. Should Alterra at any time after the
date hereof, issue or guarantee or amend any Indebtedness denominated in U.S.
dollars for money borrowed or represented by bonds, notes, debentures, or
similar securities in an aggregate amount exceeding $10,000,000, to any lender
or group of lenders acting in concert with one another, or one or more
institutional investors, pursuant to a loan agreement, credit agreement, note
purchase agreement, indenture, guaranty or other similar instrument or amendment
thereto, which amendment, agreement, indenture, guaranty or instrument, includes
affirmative or negative business or financial covenants (or any events of
default or other type of restriction which would have the practical effect of
any affirmative or negative business or financial
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covenant, including, without limitation, any "put" or mandatory prepayment of
such Indebtedness upon the occurrence of a "change of control") which are
applicable to Alterra, other than those set forth herein or in any of the other
Credit Documents, Alterra shall promptly so notify the Administrative Agent and
the Lenders and if the Administrative Agent shall so request by written notice
to Alterra (after a determination has been made by the Required Lenders that any
of the above-referenced documents or instruments contain any such provisions,
which either individually or in the aggregate, are more favorable to the holders
of such other Indebtedness than any of the provisions set forth herein),
Alterra, the Administrative Agent and the Lenders shall promptly amend this
Agreement to incorporate some or all of such provisions, in the discretion of
the Administrative Agent and the Required Lenders, into this Agreement and, to
the extent necessary and reasonably desirable to the Administrative Agent and
the Required Lenders, into any of the other Credit Documents, all at the
election of the Administrative Agent and the Required Lenders.
Terms used herein and defined in the Credit Agreement (as herein
defined) still have the meanings set forth therein. For the purposes of this
letter, the following terms shall have the meanings herein specified unless the
context otherwise requires:
"ACQUISITION" shall mean and include (i) any acquisition on a going
concern basis (whether by purchase, lease or otherwise) of any facility and/or
business operated by any person who is not a Subsidiary of Alterra, and (ii)
acquisitions of a majority of the outstanding equity or other similar interests
in any such person (whether by merger, stock purchase or otherwise).
"CAPITALIZED LEASE OBLIGATIONS" shall mean all obligations under
Capital Leases of Alterra or any of its Subsidiaries in each case taken at the
amount thereof accounted for as liabilities identified as "capital lease
obligations" (or any similar words) on a consolidated balance sheet of Alterra
and its Subsidiaries prepared in accordance with GAAP.
"CONSOLIDATED AMORTIZATION EXPENSE" shall mean, for any period, all
amortization expenses of Alterra and its Subsidiaries, all as determined for
Alterra and its Subsidiaries on a consolidated basis in accordance with GAAP.
"CONSOLIDATED DEPRECIATION EXPENSE" shall mean, for any period, all
depreciation expenses of Alterra and its Subsidiaries, all as determined for
Alterra and its Subsidiaries on a consolidated basis in accordance with GAAP.
"CONSOLIDATED EBIT" shall mean, for any period, Consolidated Net Income
for such period, plus (A) the sum of the amounts for such period included in
determining such Consolidated Net Income of (i) Consolidated Interest Expense,
(ii) Consolidated Income Tax Expense, and (iii) extraordinary and other
non-recurring non-cash losses and charges, less (B)
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gains on sales of assets and other extraordinary gains and other non-recurring
non-cash gains, all as determined for Alterra and its Subsidiaries on a
consolidated basis in accordance with GAAP.
CONSOLIDATED EBITDAR" shall mean, for any period, Consolidated EBIT for
such period, plus the sum for such period of (i) Consolidated Depreciation
Expense, (ii) Consolidated Amortization Expense, and (iii) Consolidated Rental
Expense, all as determined for Alterra and its Subsidiaries on a consolidated
basis in accordance with GAAP.
"CONSOLIDATED INCOME TAX EXPENSE" shall mean, for any period, all
provisions for taxes based on the net income of Alterra or any of its
Subsidiaries (including, without limitation, any additions to such taxes, and
any penalties and interest with respect thereto), all as determined for Alterra
and its Subsidiaries on a consolidated basis in accordance with GAAP.
"CONSOLIDATED INTEREST EXPENSE" shall mean, for any period, total
interest expense (including that which is attributable to Capital Leases and
Synthetic Leases) of Alterra and its Subsidiaries on a consolidated basis with
respect to all outstanding Indebtedness of Alterra and its Subsidiaries, all as
determined in accordance with GAAP, but (i) including in any event net costs
under Hedge Agreements, and (ii) excluding in any event (x) any amortization or
write-off of deferred financing costs, and (y) any interest during construction
which is capitalized in accordance with GAAP. If Alterra uses the net interest
method of accounting, in which interest expense is determined net of interest
income in accordance with GAAP, then Consolidated Interest Expense may be
determined on such basis.
"CONSOLIDATED LEASE AND DEBT SERVICE CHARGES" shall mean, for any
period, the sum for such period of (1) Consolidated Interest Expense, (2)
Consolidated Rental Expense, (3) scheduled or mandatory repayments, prepayments
or redemptions of the principal of Indebtedness and the stated or liquidation
value of Redeemable Stock (including required reductions in committed credit
facilities), and (4) without duplication of any amount included under the
preceding clause (3) scheduled payments representing the principal portion of
Capitalized Leases and Synthetic Leases, all as determined for Alterra and its
Subsidiaries on a consolidated basis in accordance with GAAP.
"CONSOLIDATED NET INCOME" shall mean for any period, the net income (or
loss) of Alterra and its Subsidiaries on a consolidated basis for such period as
a single accounting period determined in conformity with GAAP.
"CONSOLIDATED NET WORTH" shall mean, at any time for the determination
thereof, the sum of (A) the net cash proceeds received by Alterra pursuant to
the satisfaction of the New Capital Funding Requirements and (B) to the extent
not included in the preceding clause (A), all amounts which, in conformity with
GAAP, would be included under the caption "total
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stockholders' equity" (or any like caption) on a consolidated balance sheet of
Alterra as at such provided that in no event shall Consolidated Net Worth
include any amounts in respect of Redeemable Stock.
"CONSOLIDATED RENTAL EXPENSE" shall mean, for any period, all basic
rental expenses of Alterra and its Subsidiaries (exclusive of any thereof
specifically intended to cover taxes, maintenance, insurance or similar
charges), all as determined for Alterra and its Subsidiaries on a consolidated
basis in accordance with GAAP, provided that Consolidated Rental Expense shall
be computed without duplication of any amounts in respect of any Capital Lease
or Synthetic Lease which is included in Consolidated Interest Expense.
"REDEEMABLE STOCK" shall mean with respect to any person which is a
corporation, any capital stock of such corporation, and with respect to any
person which is not a corporation, any equity interests of such person which are
similar to capital stock, in each case that (i) is by its terms subject to
mandatory redemption, in whole or in part pursuant to a sinking fund, scheduled
redemption or similar provisions, at any time prior to the latest date when any
Loans could mature under section 2.7 of the Credit Agreement; (ii) otherwise
required to be repurchased or retired on a scheduled date or upon the occurrence
of any event or circumstance, at the option of the holder or holders thereof, or
otherwise, at any time prior to the latest date when any Loans could mature
under section 2.7 of the Credit Agreement, other than any such repurchase or
retirement occasioned by a "change of control" or similar event.
"SUBSIDIARY" of any person shall mean and include (i) any corporation
more than 50% of whose stock of any class or classes having by the terms thereof
ordinary voting power to elect a majority of the directors of such corporation
(irrespective of whether or not at the time stock of any class or classes of
such corporation shall have or might have voting power by reason of the
happening of any contingency) is at the time owned by such person directly or
indirectly through Subsidiaries and (ii) any partnership, association, joint
venture or other entity in which such person directly or indirectly through
Subsidiaries, has more than a 50% equity interest at the time. Unless otherwise
expressly provided, all references herein to "Subsidiary" shall mean a
Subsidiary of Alterra.
"TESTING PERIOD" shall mean for any determination a single period
consisting of the four consecutive fiscal quarters of Alterra then last ended
(whether or not such quarters are all within the same fiscal year) except that
if a particular provision of this Agreement indicates that a Testing Period
shall be of a different specified duration, such Testing Period shall consist of
the particular fiscal quarter or quarters of Alterra then last ended which are
so indicated in such provision.
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Lender agrees that from October 1, 1999 through the period concluding
with the date hereof, the applicability of the financial convenants set forth
herein and in Section VI (e) of each of the Notes is suspended and revoked.
Would you please countersign this letter in the space provided therefor
below to indicate your agreement to the terms set forth herein.
Sincerely,
KEY CORPORATE CAPITAL, INC.
By: /s/ Xxxx X. Xxxxxxx
---------------------------------------
Xxxx X. Xxxxxxx, Vice President
Agreed and accepted to this 30th day of March, 2000
ALTERRA HEALTHCARE CORPORATION
By: /s/ Xxxxx X. Xxxxxxx
---------------------------------------
Name: Xxxxx X. Xxxxxxx
------------------------------------
Title: Senior Vice President
------------------------------------
ALS-NORTHEAST, LLC
By: Assisted Living Equities, LLC,
its member
By: /s/ Xxxx X. Xxxxxxxx
---------------------------------------
Name: Xxxx X. Xxxxxxxx
------------------------------------
Title: Authorized Member
------------------------------------
By: Alterra Healthcare Corporation,
its member
By: /s/ Xxxxx X. Xxxxxxx
---------------------------------------
Name: Xxxxx X. Xxxxxxx
------------------------------------
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Title: Senior Vice President
------------------------------------
ITHACA XXXXX ROAD, LLC
By: Assisted Living Equities, LLC,
its member
By: /s/ Xxxx X. Xxxxxxxx
---------------------------------------
Name: Xxxx X. Xxxxxxxx
------------------------------------
Title: Authorized Member
------------------------------------
By: Alterra Healthcare Corporation,
its member
By: /s/ Xxxxx X. Xxxxxxx
---------------------------------------
Name: Xxxxx X. Xxxxxxx
------------------------------------
Title: Senior Vice President
------------------------------------
ITHACA TRUMANSBURG ROAD, LLC
By: Assisted Living Equities, LLC,
its member
By: /s/ Xxxx X. Xxxxxxxx
---------------------------------------
Name: Xxxx X. Xxxxxxxx
------------------------------------
Title: Authorized Member
------------------------------------
By: Alterra Healthcare Corporation,
its member
By: /s/ Xxxxx X. Xxxxxxx
---------------------------------------
Name: Xxxxx X. Xxxxxxx
------------------------------------
Title: Senior Vice President
------------------------------------
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[SIGNATURES CONTINUED ON NEXT PAGE]
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NIAGARA SC WHEATFIELD, LLC
By: Assisted Living Equities, LLC,
its member
By: /s/ Xxxx X. Xxxxxxxx
---------------------------------------
Name: Xxxx X. Xxxxxxxx
------------------------------------
Title: Authorized Member
------------------------------------
By: Alterra Healthcare Corporation,
its member
By: /s/ Xxxxx X. Xxxxxxx
---------------------------------------
Name: Xxxxx X. Xxxxxxx
------------------------------------
Title: Senior Vice President
------------------------------------
NIAGARA XXXX ROAD, LLC
By: Assisted Living Equities, LLC,
its member
By: /s/ Xxxx X. Xxxxxxxx
---------------------------------------
Name: Xxxx X. Xxxxxxxx
------------------------------------
Title: Authorized Member
------------------------------------
By: Alterra Healthcare Corporation,
its member
By: /s/ Xxxxx X. Xxxxxxx
---------------------------------------
Name: Xxxxx X. Xxxxxxx
------------------------------------
Title: Senior Vice President
------------------------------------
[SIGNATURES CONTINUED ON NEXT PAGE]
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CLINTON BROOKSIDE DRIVE, LLC
By: Assisted Living Equities, LLC,
its member
By: /s/ Xxxx X. Xxxxxxxx
---------------------------------------
Name: Xxxx X. Xxxxxxxx
------------------------------------
Title: Authorized Member
------------------------------------
By: Alterra Healthcare Corporation,
its member
By: /s/ Xxxxx X. Xxxxxxx
---------------------------------------
Name: Xxxxx X. Xxxxxxx
------------------------------------
Title: Senior Vice President
------------------------------------
