EXHIBIT 10.73
BIPC DRAFT - 12/22/98
AMENDED AND RESTATED PLEDGE AGREEMENT
(TRI-STATE PLEDGING PARTNERSHIP INTERESTS)
THIS AMENDED AND RESTATED PLEDGE AGREEMENT (the "Agreement"), dated as of
December 23, 1998, is made and entered into by and between TRI-STATE HEALTH
CARE, INC., a West Virginia corporation (the "Debtor"), and PNC BANK, NATIONAL
ASSOCIATION, a national banking association, in its capacity as Collateral Agent
(as hereinafter defined) for the benefit of the Facility Parties (as hereinafter
defined) (the "Secured Party").
WITNESSETH THAT:
WHEREAS, Mariner Health Group, Inc., a Delaware corporation (the
"Borrower"), as borrower, PNC Bank, National Association, as administrative
agent, First Union National Bank, as syndication agent, and the lenders party
thereto (the "Banks"), are parties to that certain Credit Agreement dated as of
May 18, 1994, as amended (as it may hereafter from time to time be amended,
restated, modified or supplemented, the "Revolving Credit Agreement"), pursuant
to which the Banks have agreed to make certain revolving credit loans to the
Borrower upon the terms and subject to the conditions set forth therein;
WHEREAS, Mariner Health Group, Inc., a Delaware corporation (the "Term Loan
Borrower"), as borrower, PNC Bank, National Association, as administrative
agent, First Union National Bank, as syndication agent, and the lenders party
thereto (the "Term Loan Banks") are parties to that certain Term Loan Agreement
dated of even date herewith (as it may hereafter from time to time be amended,
restated, modified or supplemented, the "Term Loan Agreement"; the Revolving
Credit Agreement and the Term Loan Agreement are hereinafter collectively
referred to as the "Credit Agreements"), pursuant to which the Term Loan Banks
have agreed to make certain term loans to the Term Loan Borrower upon the terms
and subject to the conditions set forth therein;
WHEREAS, pursuant to that certain Collateral Agency and Sharing Agreement
dated of even date herewith (as it may hereafter from time to time be amended,
restated, modified or supplemented, the "Collateral Sharing Agreement"), among
the Borrower, the Term Loan Borrower, the other Loan Parties (as defined
therein), the Revolving Credit Agent and the Term Loan Agent (as such terms are
defined in the Collateral Sharing Agreement), and PNC Bank, National
Association, as Collateral Agent (together with its successors and assigns, the
"Collateral Agent"), the Facility Parties (as defined in the Collateral Sharing
Agreement), in order to secure the Obligations (as defined in the Collateral
Sharing Agreement), have agreed to share certain collateral as provided in the
Collateral Sharing Agreement;
WHEREAS, the Debtor and the Administrative Agent (as defined in the
Revolving Credit Agreement) are currently parties to that certain Pledge
Agreement (Subsidiaries Pledging Partnership Interests) (Tri-State Health Care,
Inc.) dated May 18, 1994, as amended (the
"Original Pledge Agreement"), pursuant to which certain collateral is pledged to
secure the Revolving Credit Obligations (as defined in the Collateral Sharing
Agreement);
WHEREAS, Debtor owns the outstanding partnership interests of its
Subsidiary as set forth on Schedule A attached hereto and made a part hereof;
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and
WHEREAS, the parties to the Original Pledge Agreement now wish to amend and
restate the Original Pledge Agreement as provided herein, and as so amended,
this Agreement shall be a Shared Security Document (as defined in the Collateral
Sharing Agreement).
NOW, THEREFORE, intending to be legally bound hereby, the parties hereto
hereby agree as follows:
1. Amendment and Restatement; No Novation.
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The Original Pledge Agreement is hereby amended and restated as provided
herein. No novation, suspension of continuity, satisfaction, discharge of prior
duties, or termination of the Obligations, or the collateral therefore
(including, without limitation, the Pledged Collateral), is intended or
consented to by the parties hereto. The Debtor and the Secured Party
acknowledge and agree that the Original Pledge Agreement has continued to secure
the Revolving Credit Obligations since the day of the execution of the Original
Pledge Agreement; that this Agreement is entitled to all rights and benefits
originally pertaining to the Original Pledge Agreement; and that in the event a
court or other authority shall determine that a novation has occurred as a
result of the execution of this Agreement or any other Loan Documents (as
defined in the Collateral Sharing Agreement), or otherwise, and the Secured
Party's security interest in the Pledged Collateral created under the Original
Pledge Agreement is avoided or the Secured Party's priority with respect thereto
is materially and adversely affected, then the rights, privileges, obligations
and remedies of the parities hereto shall be governed as if this Agreement had
not been executed by any party hereto, and the parties hereto agree to negotiate
in good faith to achieve the objectives of this Agreement.
2. Defined Terms.
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(a) Except as otherwise expressly provided herein, capitalized terms used
in this Agreement shall have the respective meanings assigned to them in the
Credit Agreements. Where applicable and except as otherwise expressly provided
herein, terms used herein (whether or not capitalized) shall have the respective
meanings assigned to them in the Uniform Commercial Code as enacted in each
applicable jurisdiction and as may be amended from time to time (the "Code").
(b) "Pledged Collateral" shall mean and include the following: (i) all of
the partnership interests owned by Debtor listed on Schedule A attached hereto
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and made a part hereof, together with all related rights, including without
limitation, all partnership interests and additional partnership interests
receivable in respect of or in exchange for any such partnership interests, all
rights to subscribe for partnership interests incident to or arising from
ownership of any such partnership interests, all cash, interest, and other cash
and non-cash distributions paid or
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payable on any such partnership interests, and all books, records, and documents
concerning any of the items described above, both that which Debtor now owns and
that which Debtor acquires hereafter; (ii) any and all other partnership
interests hereafter pledged to the Secured Party to secure the Secured
Obligations (as hereinafter defined) of Debtor or Debtor's Subsidiaries, and all
rights and privileges pertaining thereto, including, without limitation, all
partnership interests and additional partnership interests receivable in respect
of or in exchange for any such partnership interests, all rights to subscribe
for partnership interests incident to or arising from ownership of any such
partnership interests, all cash, interest, and other cash and non-cash
distributions paid or payable on such partnership interests and all books and
records pertaining to the foregoing, and (iii) all substitutions therefor,
additions thereto, and proceeds thereof with respect to any of the foregoing.
3. Grant of Security Interests.
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Debtor, as security for the payment and performance of Debtor's Obligations
and of all other indebtedness and obligations of every nature it owes under the
Loan Documents (as defined in the Collateral Sharing Agreement) (all of the
foregoing indebtedness and obligations being referred to herein as the "Secured
Obligations"), hereby grants to the Secured Party a first priority security
interest in all of Debtor's now existing and hereafter acquired and/or arising
right, title and interest in, to and under the Pledged Collateral owned by
Debtor, whether now existing or hereafter acquired and wherever located, subject
only to Permitted Liens.
4. Further Assurances.
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Prior to or concurrently with the execution of this Agreement, and
thereafter at any time and from time to time upon reasonable request of the
Secured Party, Debtor shall (a) execute and deliver to the Secured Party all
financing statements, continuation or amendment financing statements,
termination statements, assignments, certificates and documents of title,
affidavits, reports, notices, schedules of account, letters of authority,
further pledges, powers of attorney and all other documents (collectively, the
"Security Documents") which the Secured Party may reasonably request, in form
reasonably satisfactory to the Secured Party, (b) provide each partnership that
has issued or shall issue Pledged Collateral with a copy of this Agreement and
direct the Custodian of the books and records of each such partnership to
register the pledge of the applicable Pledged Collateral on such partnership's
books and records, (c) cause each partnership that has issued or shall issue
Pledged Collateral to execute and deliver to the Secured Party an Agreement and
Acknowledgment, in form and substance acceptable to the Secured Party (which
shall, among other things, provide that the Custodian of the books and records
of the partnership represents, acknowledges, warrants and confirms that it is
holding of record the partnership interests of the Debtor which constitute part
of the Pledged Collateral in its capacity as authorized custodial agent, bailee,
representative and nominee for the Secured Party, it has noted this fact by
means of appropriate entries made on the books and records of the partnership,
and except as contemplated by this Agreement, the Custodian will not cause or
permit to occur any change, alteration or modification of any kind in the form
of the Pledged Collateral, including, without limitation, any conversion of the
Pledged Collateral or any part thereof to certificated, bearer or any other
form, without the prior written consent of the Secured Party), and
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(d) take such other action which the Secured Party may request, to perfect and
continue perfected and to create and maintain the first priority status (subject
only to Permitted Liens) of the Secured Party's security interest in the Pledged
Collateral and to fully consummate the transactions contemplated under the
Credit Agreements, the other Loan Documents and this Agreement. Debtor hereby
irrevocably makes, constitutes and appoints the Secured Party (and any of the
Secured Party's officers or employees or agents designated by the Secured Party)
as Debtor's true and lawful attorney with power to sign the name of Debtor on
all or any of the Security Documents which the Secured Party reasonably
determines must be executed, filed, recorded or sent in order to perfect or
continue perfected the Secured Party's security interest in the Pledged
Collateral. Such power, being coupled with an interest, is irrevocable until all
of the Secured Obligations have been indefeasibly paid in full and the
Commitments have terminated.
5. Representations, Warranties and Certain Covenants.
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In addition to the representations and warranties of Debtor set forth in
the Loan Documents (which representations and warranties are hereby incorporated
herein by reference), Debtor hereby represents, warrants and covenants to the
Secured Party as follows:
(a) Debtor has, and will continue to have (or, in the case of after-
acquired Pledged Collateral, at the time Debtor acquires rights in such Pledged
Collateral, will have), title to the Pledged Collateral, free and clear of all
Liens other than Permitted Liens.
(b) The partnership interests constituting the Pledged Collateral have been
duly authorized and validly issued to the Debtor, are fully paid and
nonassessable, have no outstanding assessments, and constitute all of the issued
and outstanding partnership interests of the issuer thereof owned by Debtor.
(c) Except for Permitted Liens the security interests in the Pledged
Collateral granted hereunder are valid, perfected and of first priority.
(d) There are no restrictions upon the transfer of the Pledged Collateral
and Debtor has the power and authority and right to transfer the Pledged
Collateral free of any encumbrances and without obtaining the consent of any
other Person except to the extent that a transfer upon the exercise of Secured
Party's rights and remedies under this Agreement and the other Loan Documents
would result in or constitute an assignment of any license relating to a health
care facility or a change of control with respect to the ownership of a health
care facility which is subject to the prior approval of health care regulatory
authorities issuing such license or regulating such health care facility. It is
acknowledged that a transfer of the Pledged Collateral by Secured Party
following foreclosure may require compliance with federal and state securities
laws.
(e) Debtor has all necessary power to execute, deliver and perform this
Agreement and all necessary action to authorize the execution, delivery and
performance of this Agreement has been properly taken.
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(f) There are no actions, suits, or proceedings pending or, to Debtor's
best knowledge after due inquiry, threatened against or affecting Debtor with
respect to the Pledged Collateral, at law or in equity or before or by any
commissions, board, bureau, agency, department or instrumentality, and Debtor is
not in default with respect to any judgment, writ, injunction, decree, rule or
regulation which would adversely affect Debtor's performance hereunder.
(g) This Agreement has been duly executed and delivered and constitutes the
valid and legally binding obligation of Debtor, enforceable in accordance with
its terms, except to the extent that (i) enforceability of this Agreement may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium or
other similar Laws affecting the enforceability of creditors' rights generally
or limiting the right of specific performance or by general equitable
principles; and (ii) the exercise by Secured Party of its rights and remedies in
respect of the Pledged Collateral which would result in or constitute any
assignment of any license relating to a health care facility or any change of
control with respect to the ownership of a health care facility is subject to
the prior approval of health care regulatory authorities issuing such license or
regulating such health care facility.
(h) Neither the execution and delivery by the Debtor of this Agreement, nor
the compliance with the terms and provisions hereof, will violate any provision
of the Articles of Incorporation or Bylaws of the Debtor or any Law or conflict
with or result in a breach of any of the terms, conditions or provisions of any
judgment, order, injunction, decree or ruling of any court or arbitration
tribunal or any governmental authority to which Debtor is subject or any
provision of any material agreement, understanding or arrangement to which
Debtor is a party or by which Debtor is bound.
(i) The Debtor's principal place of business and chief executive office is
as set forth on the signature page hereto.
(j) No certificate has been or, during the term hereof shall be issued, to
evidence the Pledged Collateral, and no partnership interest which is Pledged
Collateral constitutes a "certificated security" (as such term is defined in
Section 8-102 of the Code).
6. General Covenants.
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In addition to any covenants and agreements of the Debtor set forth in the
other Loan Documents, which are incorporated herein by this reference, Debtor
hereby covenants and agrees as follows:
(a) Debtor shall do all reasonable acts that may be necessary and
appropriate to maintain, preserve and protect the Pledged Collateral; Debtor
shall be responsible for the risk of loss of, damage to, or destruction of the
Pledged Collateral owned by Debtor, unless such loss is the result of the gross
negligence or willful misconduct of the Secured Party. Debtor shall notify the
Secured Party in writing ten (10) Business Days prior to any change in the
Debtor's name, the address and location of Debtor's chief executive office or
the address and location of Debtor's principal place of business.
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(b) Debtor shall pay promptly when due all taxes, assessments, charges and
obligations secured by encumbrances and liens now or hereafter imposed upon or
affecting any of the Pledged Collateral, except as otherwise expressly permitted
under the Credit Agreements.
(c) Debtor shall appear in and defend any action or proceeding of which
Debtor is aware which could reasonably be expected to affect Debtor's title to,
or the Secured Party's interest in, the Pledged Collateral owned by Debtor and
the proceeds thereof; provided, however, that Debtor may settle such actions or
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proceedings with respect to the Pledged Collateral Debtor owns with the consent
of the Secured Party, which consent shall not be unreasonably withheld or
delayed.
(d) Debtor shall keep separate, accurate and complete records of the
Pledged Collateral owned by Debtor, disclosing the Secured Party's security
interest hereunder.
(e) Debtor shall permit the Secured Party, its officers, employees and
agents at reasonable times and on reasonable prior notice to inspect all books
and records related to the Pledged Collateral.
(f) To the extent, following the date hereof, Debtor acquires a partnership
interest in Debtor's Subsidiaries or any of the interests, rights, property or
securities described in the definition of Pledged Collateral with respect to
Debtor's Subsidiaries, such interests stocks, rights, property or securities
shall be, upon such acquisition, pledged to the Secured Party, and Debtor shall
deliver an updated Schedule A hereto to the Secured Party. To the extent,
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following the date hereof, any of the Pledged Collateral constitutes a
"certificated security," Debtor shall immediately upon receipt of any original
certificates for such Pledged Collateral deliver such original certificates to
the Secured Party.
(g) During the term of this Agreement, Debtor shall not sell, assign,
transfer, pledge, grant a security interest in, place a lien on or otherwise
dispose of the Pledged Collateral except as permitted under the Credit
Agreements.
7. Other Rights With Respect to Pledged Collateral.
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In addition to the other rights with respect to the Pledged Collateral
granted to the Secured Party hereunder, at any time and from time to time, after
and during the continuation of an Event of Default, the Secured Party, at its
option and at the expense of the Debtor, may (a) transfer into its own name, or
into the name of its nominee, all or any part of the Pledged Collateral,
thereafter receiving all income or other distributions upon the Pledged
Collateral; (b) take control of and manage all or any of the Pledged Collateral;
(c) apply to the payment of any of the Secured Obligations, whether any be due
and payable or not, any moneys, including cash distributions and income from any
Pledged Collateral, now or hereafter in the hands of the Secured Party or any
Affiliate of the Secured Party, on deposit or otherwise, belonging to Debtor, as
the Secured Party, in its sole discretion, shall determine; and (d) do anything
which Debtor is required but fails to do hereunder. The exercise by the Secured
Party of its rights and remedies with respect to the Pledged Collateral is
subject to the licensing power of health care regulatory authorities. The
proceeds of any collection, sale or other disposition of the Pledged Collateral
of
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Debtor, or any part thereof, shall, after the Secured Party has made all
deductions of expenses, including but not limited to reasonable attorneys' fees
and other expenses incurred in connection with repossession, collection, sale or
disposition of such Pledged Collateral or in connection with the enforcement of
the Secured Party's rights with respect to the Pledged Collateral in any
insolvency, bankruptcy or reorganization proceedings, be applied against the
Secured Obligations, whether or not all the same be then due and payable, in
such manner and order as set forth in the Collateral Sharing Agreement.
8. Additional Remedies Upon Event of Default.
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Upon the occurrence of any Event of Default and while such Event of Default
shall be continuing, the Secured Party shall have, in addition to all rights and
remedies of a secured party under the Code or other applicable Law, and in
addition to its rights under Section 7 above and under the other Loan Documents,
the following rights and remedies:
(a) The Secured Party may, after ten (10) days' advance notice to the
Debtor, sell, assign, give an option or options to purchase or otherwise dispose
of the Pledged Collateral or any part thereof at public or private sale, at any
of the Secured Party's offices or elsewhere, for cash, on credit or for future
delivery, and upon such other terms as the Secured Party may deem commercially
reasonable. Debtor agrees that ten (10) days' advance notice of the time and
place of any public sale or the time after which any private sale is to be made
shall constitute reasonable notification. The Secured Party shall not be
obligated to make any sale of Pledged Collateral regardless of notice of sale
having been given. The Secured Party may adjourn any public or private sale from
time to time by announcement at the time and place fixed therefor, and such sale
may, without further notice, be made at the time and place to which it was so
adjourned. Debtor recognizes that the Secured Party may be compelled to resort
to one or more private sales of the Pledged Collateral to a restricted group of
purchasers who will be obliged to agree, among other things, to acquire such
securities for its own account for investment and not with a view to the
distribution or resale thereof. Debtor acknowledges and agrees that any such
private sale may result in prices and other terms less favorable than if such
sale were a public sale and, notwithstanding such circumstances, agrees that any
such private sale shall be deemed to have been made in a commercially reasonable
manner. The Secured Party shall be under no obligation to delay sale of any of
the Pledged Collateral for the period of time necessary to permit Debtor to
register such securities for public sale under the Securities Act of 1933, as
amended, or under applicable state securities laws, even if Debtor would agree
to do so.
(b) The proceeds of any collection, sale or other disposition of the
Pledged Collateral of Debtor, or any part thereof, shall, after the Secured
Party has made all deductions of expenses, including but not limited to
reasonable attorneys' fees and other expenses incurred in connection with
repossession, collection, sale or disposition of such Pledged Collateral or in
connection with the enforcement of the Secured Party's rights with respect to
the Pledged Collateral in any insolvency, bankruptcy or reorganization
proceedings, be applied against the Secured Obligations, whether or not all the
same be then due and payable, in such manner and order as set forth in the
Collateral Sharing Agreement.
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9. Secured Party's Duties.
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The powers conferred on the Secured Party hereunder are solely to protect
its interest in the Pledged Collateral and shall not impose any duty upon it to
exercise any such powers. Except for the safe custody of any Pledged Collateral
in its possession and the accounting for moneys actually received by it
hereunder, the Secured Party shall have no duty as to any Pledged Collateral or
as to the taking of any necessary steps to preserve rights against prior parties
or any other rights pertaining to any Pledged Collateral. Further, the exercise
by the Secured Party of its rights and remedies with respect to the Pledged
Collateral or as otherwise provided under this Agreement shall only be an
exercise of rights with respect to the Pledged Collateral and shall not in any
manner constitute an assumption of any liabilities with respect to the Pledged
Collateral.
10. No Waiver; Cumulative Remedies.
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No failure to exercise, and no delay in exercising, on the part of the
Secured Party, any right, power or privilege hereunder shall operate as a waiver
thereof; nor shall any single or partial exercise of any right, power or
privilege hereunder preclude any further exercise thereof or the exercise of any
other right, power or privilege. The remedies herein provided are cumulative
and not exclusive of any remedies provided under the other Loan Documents or by
Law. Debtor waives any right to require the Secured Party to proceed against any
other Person or to exhaust any of the Pledged Collateral or other security for
the Secured Obligations or to pursue any remedy in the Secured Party's power.
11. Assignment.
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All rights of the Secured Party under this Agreement shall inure to the
benefit of its successors and assigns. All obligations of Debtor shall bind its
successors and assigns; provided, however, Debtor may not assign or transfer any
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of its rights and obligations hereunder or any interest herein.
12. Severability.
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Any provision of this Agreement which shall be held invalid or
unenforceable shall be ineffective without invalidating the remaining provisions
hereof.
13. Governing Law.
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This Agreement shall be construed in accordance with and governed by the
internal laws of the Commonwealth of Pennsylvania without regard to its
conflicts of law principles, except to the extent the validity or perfection of
the security interests or the remedies hereunder in respect of any Pledged
Collateral are governed by the law of a jurisdiction other than the Commonwealth
of Pennsylvania.
14. Notices.
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Debtor agrees that all notices, statements, requests, demands and other
communications under this Agreement shall be given in the manner provided in
Section 11.06 of the Credit Agreements, and shall be addressed (a) to the Debtor
at the address set forth below the Debtor's name on the signature page of this
Agreement, and (b) to the Secured Party at the address set forth below the
Secured Party's name on the signature page of this Agreement.
15. Specific Performance.
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Debtor acknowledges and agrees that, in addition to the other rights of the
Secured Party hereunder and under the other Loan Documents, because the Secured
Party's remedies at law for failure of the Debtor to comply with the provisions
hereof relating to the Secured Party's rights (i) to inspect the books and
records related to the Pledged Collateral, (ii) to receive the various
notifications the Debtor is required to deliver hereunder, (iii) to obtain
copies of agreements and documents as provided herein with respect to the
Pledged Collateral, (iv) to enforce the provisions hereof pursuant to which the
Debtor has appointed the Secured Party its attorney-in-fact, and (v) to enforce
the Secured Party's remedies hereunder, would be inadequate and that any such
failure would not be adequately compensable in damages, Debtor agrees that each
such provision hereof may be specifically enforced.
16. Voting Rights in Respect of the Pledged Collateral.
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So long as no Event of Default shall occur and be continuing under any of
the Loan Documents, Debtor may exercise any and all voting and other consensual
rights pertaining to the Pledged Collateral owned by Debtor or any part thereof
for any purpose not inconsistent with the terms of this Agreement or the other
Loan Documents; provided, however, that Debtor will not exercise or will
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refrain from exercising any such right, as the case may be, if such action would
be inconsistent with the covenants and obligations of Debtor under the Credit
Agreements and the other Loan Documents or would have a material adverse effect
on the value of any Pledged Collateral. So long as no Event of Default has
occurred and is continuing, any lawful distributions paid in cash to Debtor in
respect of the Pledged Collateral may be used or applied by Debtor for any
purpose permitted by the Credit Agreements.
17. Entire Agreement; Amendments.
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This Agreement constitutes the entire agreement between the parties with
respect to the subject matter hereof and supersedes all prior agreements
relating to a grant of a security interest in the Pledged Collateral by the
Debtor. This Agreement may not be amended or supplemented except by a writing
signed by the Secured Party and the Debtor.
18. Counterparts.
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This Agreement may be executed in any number of counterparts, and by
different parties hereto in separate counterparts, each of which when so
executed shall be deemed an original and all of which taken together shall
constitute but one and the same agreement.
19. Descriptive Headings.
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The descriptive headings which are used in this Agreement are for the
convenience of the parties only and shall not affect the meaning of any
provision of this Agreement.
INTENTIONALLY LEFT BLANK
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[SIGNATURE PAGE 1 OF 1 TO THE PLEDGE AGREEMENT
- TRI-STATE PLEDGING PARTNERSHIP INTERESTS]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
SECURED PARTY:
PNC BANK, NATIONAL ASSOCIATION,
as Collateral Agent
By: ___________________________________
Title: ________________________________
Address for Notices for Secured Party:
One PNC Plaza
000 Xxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000-0000
DEBTOR:
TRI-STATE HEALTH CARE, INC., a West Virginia
corporation
By: ________________________________
Title: _____________________________
Address for Notices for Debtor:
c/o Mariner Health Group, Inc.
Xxx Xxxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
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SCHEDULE A
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PLEDGE AGREEMENT
(TRI-STATE PLEDGING PARTNERSHIP INTERESTS)
DESCRIPTION OF PARTNERSHIP INTERESTS OWNED BY DEBTOR
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