-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, VLySsFhJxLuUzlvBPXaLYr3tzGIGp+DhKDtMaljs08I6pGpkFfF+Rfni5amLpaZz TJZWq0q07Erpyx8VoOt7cg== 0000911420-00-000122.txt : 20000425 0000911420-00-000122.hdr.sgml : 20000425 ACCESSION NUMBER: 0000911420-00-000122 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 3 CONFORMED PERIOD OF REPORT: 20000417 ITEM INFORMATION: ITEM INFORMATION: FILED AS OF DATE: 20000424 FILER: COMPANY DATA: COMPANY CONFORMED NAME: ILM II SENIOR LIVING INC /VA CENTRAL INDEX KEY: 0000861880 STANDARD INDUSTRIAL CLASSIFICATION: REAL ESTATE INVESTMENT TRUSTS [6798] IRS NUMBER: 061293758 STATE OF INCORPORATION: VA FISCAL YEAR END: 0831 FILING VALUES: FORM TYPE: 8-K SEC ACT: SEC FILE NUMBER: 000-18942 FILM NUMBER: 607205 BUSINESS ADDRESS: STREET 1: 8180 GREENSBORO DRIVE STREET 2: STE 850 CITY: MCLEAN STATE: VA ZIP: 22102 BUSINESS PHONE: 8883573550 MAIL ADDRESS: STREET 1: 1300 CONNECTICUT AVE NW STREET 2: STE 1000 CITY: WASHINGTON STATE: DC ZIP: 20036 FORMER COMPANY: FORMER CONFORMED NAME: PAINE WEBBER INDEPENDENT LIVING MORTGAGE INC II DATE OF NAME CHANGE: 19971103 FORMER COMPANY: FORMER CONFORMED NAME: ILM II SENIOR LIVING INC DATE OF NAME CHANGE: 19970905 FORMER COMPANY: FORMER CONFORMED NAME: PAINEWEBBER INDEPENDENT LIVING MORTGAGE INC II DATE OF NAME CHANGE: 19930511 8-K 1 CURRENT REPORT - -------------------------------------------------------------------------------- SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM 8-K CURRENT REPORT Pursuant to Section 13 or 15(d) of THE SECURITIES EXCHANGE ACT OF 1934 Date of Report (Date of earliest event reported): April 18, 2000 Commission File Number: 0-18942 ILM II SENIOR LIVING, INC. -------------------------- (Exact name of registrant as specified in its charter) Virginia 06-1293758 - ---------------------------- -------------------- (State of organization) (I.R.S. Employer Identification No.) 1750 Tysons Boulevard, Suite 1200, Tysons Corner, Virginia 22102 - ----------------------------------------------------------- ---------------- (Address of principal executive office) (Zip Code) Registrant's telephone number, including area code: (888) 357-3550 -------------------- (Page 1 of 5 pages) Exhibit Index Appears on Page 5 ITEM 5. OTHER EVENTS On April 18, 2000, ILM II Senior Living, Inc., a Virginia finite-life corporation (the "Company")entered into a First Amendment to the Amended and Restated Agreement and Plan of Merger dated October 19, 1999 (as so amended) (the "Amended Merger Agreement") with Capital Senior Living Corporation, a Delaware corporation ("CSLC") and Capital Senior Living Acquisition, LLC, a Delaware limited liability company and wholly owned subsidiary of CSLC ("Merger Sub"). The Company was advised by CSLC that, due to deteriorating conditions in the senior living industry and a decline in the loan value of the Company's properties, CSLC was informed by its prospective lenders that they would not be able to raise sufficient financing to fund the $74,982,000 purchase price contemplated a the time of the original transaction. Upon the terms and subject to the conditions of the Amended Merger Agreement, the Company will be merged with and into Merger Sub, and Merger Sub will be the surviving corporation in the merger (the "Merger"). Pursuant to the Merger, among other things, each share of the Company's common stock, $.01 par value ("Company Common Stock"), outstanding immediately prior to the effective time of the Merger (the "Effective Time"), other than shares of Company Common Stock owned by the Company, CSLC or Merger Sub (or any other subsidiary of the Company or CSLC), automatically will be converted into the right to receive approximately $13.04 in cash. The previous merger consideration announced in October 1999 was $14.47 per share in cash. Holders of Company Common Stock will have no dissenters' rights in the Merger. The Merger is intended to be reported as a fully taxable acquisition by CSLC of the Company and will be recorded by CSLC as a purchase for accounting purposes. In connection with entering into the amended Merger Agreement, the Company required CSLC to agree to pay the Company increased termination fees in certain circumstances. In addition, the Company required CSLC to agree to reduce the amount of fees and expenses it would receive upon termination of the Merger in certain circumstances. In connection with the merger, CSLC reported to the Company that it has obtained the signed commitment of GMAC Commercial Mortgage Corporation to provide CSLC with substantially all of the cash funds necessary to pay the merger consideration. The GMAC financing commitment contains customary funding and termination conditions and market "outs," and expires by its terms on July 31, 2000. The Company has agreed that immediately prior to the Effective Time it will cause its direct subsidiary and record owner of the Company's senior living facilities, ILM II Holding, Inc. ("ILM II Holding"), to exercise its right to terminate the Facilities Lease Agreement (the "Lease Agreement") dated September 1, 1995, between ILM II Holding and ILM II Lease Corporation, an affiliate of the Company ("ILM II LeaseCo"). The Lease Agreement provides, among other things, for the lease by ILM II LeaseCo of the senior housing facilities from ILM II Holding and the payment to ILM II Holding of certain rents and fees in respect of such lease. The Lease Agreement presently expires by its terms on December 31, 2000, subject to earlier termination by (Page 2 of 5 pages) ILM II Holding in connection with the sale of the senior housing facilities to an unaffiliated purchaser. Consummation of the Merger is subject to certain conditions, including, without limitation, (i) approval and adoption of the Amended Merger Agreement and the Merger by the holders of not less than 66-2/3% of the outstanding Company Common Stock, (ii) the receipt of all requisite consents and approvals by public and governmental authorities, (iii) the transfer to the Company of the senior housing facilities owned by ILM II Holding (together with cancellation of the intercompany mortgage indebtedness thereon) and the liquidation of ILM II Holding pursuant to Section 332 of the Internal Revenue Code of 1986, as amended, (iv) the absence or nonoccurrence of certain material conditions and events, and (v) certain other conditions to consummation customary in transactions such as the Merger. Simultaneously with entering into the Amended Merger Agreement, ILM Senior Living, Inc., a Virginia finite-life corporation and an affiliate of the Company ("ILM I"), entered into a first amendment to the amended and restated agreement and plan of merger with CSLC and Merger Sub providing for the merger of ILM I with and into Merger Sub, (the "ILM I Merger Agreement") for aggregate cash consideration of approximately $11.63 per outstanding share of ILM I common stock, $.01 par value (the "ILM I Merger"). Consummation of the ILM I Merger is not a condition to consummation of the Merger. If, however, the ILM I Merger is consummated but the Merger is not consummated, the Company has agreed to cause ILM II Holding to transfer its 75% fee simple interest in a certain California senior housing facility to ILM I (or one of its wholly owned subsidiaries) at the fair market value of such property. ILM I has made the reciprocal agreement (with respect to its 25% fee simple interest in such property) in the ILM I Merger Agreement. There can be no assurance whether the Merger (or any of the transactions contemplated thereby) will be consummated or, if consummated, as to the timing thereof. Item. 7 Financial Statements, Pro Forma Financial Information and Exhibits. (a) Not Applicable (b) Not Applicable (c) The following Exhibits are filed as part of this Current Report on Form 8-K: 2. First Amendment to the Amended and Restated Agreement and Plan of Merger, dated April 18, 2000, among the Company, CSLC, and Merger Sub (including all exhibits and schedules thereto). 99.1. Press Release of the Company dated April 18, 2000. (Page 3 of 5 pages) SIGNATURES Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized. ILM II SENIOR LIVING, INC. By: /s/J. William Sharman, Jr. ------------------------- J. William Sharman, Jr. Chairman of the Board of Directors, President and Chief Executive Officer Dated: April 24, 2000 (Page 4 of 5 pages) EXHIBIT INDEX No. Page No. 2. First Amendment to the Amended and Restated Agreement and Plan of Merger dated April 18, 2000, among the Company, CSLC and Merger Sub (including schedules and exhibits thereto). 99.1 Press Release of the Company dated April 18, 2000 (Page 5 of 5 pages) EX-2 2 FIRST AMENDMENT TO AMENDED AND RESTATED AGREEMENT FIRST AMENDMENT TO AMENDED AND RESTATED AGREEMENT AND PLAN OF MERGER FIRST AMENDMENT TO AMENDED AND RESTATED AGREEMENT AND PLAN OF MERGER dated April 18, 2000 (this "Amendment"), among CAPITAL SENIOR LIVING CORPORATION, a Delaware corporation ("CSLC"); CAPITAL SENIOR LIVING ACQUISITION, LLC, a Delaware limited liability company, all of the outstanding membership interests in which are wholly-owned by CSLC ("Sub"); and ILM II SENIOR LIVING, INC., a Virginia finite-life corporation (the "Company"). W I T N E S S E T H : --------------------- WHEREAS, CSLC, Sub and the Company entered into an Amended and Restated Agreement and Plan of Merger dated October 19, 1999 (the "Original Agreement"); WHEREAS, the parties to the Original Agreement desire to amend certain terms of the Original Agreement as hereinafter set forth; WHEREAS, the respective Boards of Directors of CSLC and the Company have determined that it is fair to and in the best interests of their respective stockholders to consummate the acquisition of the Company by CSLC, by means of a cash out merger of the Company with and into Sub, upon the terms and subject to the conditions set forth in the Original Agreement as amended by this Amendment (the "Merger"); WHEREAS, the respective Boards of Directors of CSLC and the Company, and CSLC as sole member of Sub, have approved the Merger and the Original Agreement as amended by this Amendment and the transactions contemplated hereby and thereby; NOW, THEREFORE, in consideration of the mutual premises and the representations, warranties, agreements and covenants herein contained, the parties hereto, intending to be legally bound, hereby agree as follows: 1. The Original Agreement is hereby amended as follows: (a) The Merger Consideration set forth in Section 2.1(c) of the Original Agreement is hereby amended by deleting the number "$14.471836" and inserting in its place $13.041483"; (b) The termination fee (to CSLC) set forth in both the second and third paragraphs of Section 5.6(b) of the Original Agreement is hereby amended by deleting the number "$2,964,400" in each of such second and third paragraphs and inserting in its place "$1,858,200"; (c) The tern4nation fee (to the Company) set forth in Section 5.6(e) of The Original Agreement is hereby amended by deleting the number "$850,000" and inserting in its place "$1,540,000"; (d) Section 3.1(m) of the Original Agreement is hereby amended by deleting therefrom the words "October 6, 1999" and inserting is their place "April 17, 2000." (e) Section 3.2(j) of the Original Agreement is hereby amended by deleting the provisions thereof in their entirety and inserting in their place; "(j) Receipt of Financing Commitment. CSLC has paid for and obtained, and heretofore has provided the Company with true and complete executed copies of that certain commitment letter of GMAC Commercial Mortgage Corporation ("GMAC") dated April 14, 2000 and addressed to CSLC, pursuant to which GMAC has committed, upon the terms and subject to the conditions specified therein, to provide to CSLC an aggregate sum in cash which, together with funds segregated by CSLC, will be sufficient in amount to pay, in full at the Effective Time, but not later than July 31, 2000, to the holders of Company Common Stock, the Exchange Funds (the "Financing Commitment")." (f) Section 5.6(c) of the Original Agreement is hereby amended by deleting the second sentence thereof in its entirety. (g) Section 5.17 of the Original Agreement is hereby amended by deleting the provisions thereof in their entirety. (h) Section 6.3(d) of the Original Agreement is hereby amended by deleting the provisions thereof in their entirety and inserting in their place, (d) payment of Exchange Funds. CSLC shall have received the proceeds of the Financing Commitment, or otherwise shall have obtained and segregated for payment to the Company sufficient cash funds, to pay in full at the Effective Time to the holders of the Company Common Stock, the Exchange Funds." (i) All references to the Original Agreement shall hereafter refer to the Original Agreement as amended by this Amendment. 2. Except as amended is this Amendment, the Original Agreement remains in full force and effect. All capitalized terms used in this Amendment which are not otherwise defined in this Amendment shall be as defined in the Original Agreement. 3. This Amendment may be executed in one or more counterparts (including by facsimile transmission), all of which shall be considered one and the same agreement and shall become effective when one or more counterparts have been signed by all of the parties hereto and delivered to the other parties; it being hereby understood that all parties need not sign the same counterpart. IN WITNESS WHEREOF, CSLC, Sub, and the Company have caused this Agreement to be executed and delivered by their respective officers thereunto duly authorized, all on this 18th day of April 2000. CAPITAL SENIOR LIVING CORPORATION By: /s/JAMES A. STROUD -------------------------------------- Name: JAMES A. STROUD Title: Chairman of the Company CAPITAL SENIOR LIVING ACQUISITION, LLC By: /s/LAWRENCE A. COHEN --------------------------------------- Name: LAWRENCE A. COHEN Title: Chief Executive Officer ILM II SENIOR LIVING, INC. By: /s/J. WILLIAM SHARMAN, JR. ------------------------------------- Name: J. WILLIAM SHARMAN, JR. Title: Chairman of the Board of Directors, President and Chief Executive Officer EX-99.1 3 PRESS LEASE ILM II SENIOR LIVING, INC. AND CAPITAL SENIOR LIVING CORPORATION AMEND PENDING MERGER AGREEMENT FOR IMMEDIATE RELEASE: April 18, 2000, Tysons Corner, Virginia: ILM II Senior Living, Inc. ("ILM II") announced today that it has entered into an amendment to the existing merger agreement with Capital Senior Living Corporation (NYSE: SCU) whereby ILM II and Capital have agreed that ILM II will be acquired by Capital for $67,571,000 (or $13.04 per ILM II share) in cash, pursuant to a merger of ILM II into a wholly owned subsidiary of Capital. The previous merger consideration announced in October 1999 was $74,982,000 (or $14.47 per ILM II share) in cash. Capital reported to ILM II that it has obtained the signed commitment of GMAC Commercial Mortgage Corporation and its affiliates to provide Capital with substantially all of the cash funds necessary to pay the merger consideration. The GMAC financing commitment contains customary funding and termination conditions and market "outs", and expires by its terms on July 31, 2000. The ILM II reported that it recently had been advised by Capital that, due to deteriorating conditions in the senior living industry and decline in the combined loan value of ILM II properties, Capital was informed by its prospective lenders that they would not be able to raise sufficient financing to fund the original $74,982,000 purchase price. In connection with the amendment, Capital has agreed to pay ILM II certain increased termination fees in certain circumstances. In addition, Capital has agreed to reduce the amount of fees and expenses it would receive upon termination of the merger in certain circumstances. Consummation of the merger is subject to a variety of conditions, including: (i) approval by the holders of not less than 66-2/3% of the outstanding ILM II common stock; (ii) the receipt of requisite approvals from all public and governmental authorities; (iii) the transfer to ILM II of certain assets owned by ILM II 's wholly owned subsidiary together with the cancelation of related mortgage indebtedness, and the tax liquidation of such subsidiary; (iv) the closing having occurred not later than September 30, 2000; and (v) certain additional conditions to closing customary in transactions of this nature. There is no assurance that consummation of the merger will occur. Simultaneously with entering into the amended ILM II merger agreement, ILM I Senior Living, Inc. ("ILM I") entered into an amended merger agreement with Capital providing for the merger of ILM I into a wholly owned subsidiary of Capital for $87,429,000 in cash (or $11.63 per ILM I share). The previous ILM I merger consideration was $97,018,000 in cash (or $12.90 per ILM I share). Consummation of the ILM I Merger is not a condition to consummation of ILM II Merger. ILM Senior Living Inc., together with ILM II Senior Living, Inc. and their affiliates, own 13 senior living communities in nine states with a capacity for approximately 2,100 residents. Capital is one of the largest providers of senior living services in the United States in terms of resident capacity. Capital has served as the manager of ILM II's senior living communities for three years. THIS PRESS RELEASE CONTAINS "FORWARD-LOOKING STATEMENTS" BASED ON OUR CURRENT EXPECTATIONS AND PROJECTIONS AND FUTURE EVENTS. THESE FORWARD-LOOKING STATEMENTS ARE SUBJECT TO A NUMBER OF RISKS AND UNCERTAINTIES WHICH COULD CAUSE OUR ACTUAL RESULTS TO DIFFER MATERIALLY FROM HISTORICAL RESULTS OR THOSE ANTICIPATED AND CERTAIN OF WHICH ARE BEYOND OUR CONTROL. THE WORDS "BELIEVE," "EXPECT," "ANTICIPATE" AND SIMILAR EXPRESSIONS IDENTIFY FORWARD-LOOKING STATEMENTS. WE UNDERTAKE NO OBLIGATION TO PUBLICLY UPDATE OR REVISE ANY FORWARD-LOOKING STATEMENTS, WHETHER AS A RESULT OF NEW INFORMATION, FUTURE EVENTS OR OTHERWISE. -----END PRIVACY-ENHANCED MESSAGE-----