EXHIBIT 10.8
AGREEMENT REGARDING CERTAIN XXXXXXX ISSUES
This Agreement made this 19th day of June, 1998, by and among (i) MARINER
HEALTH GROUP, INC., a Delaware corporation ("Mariner"); (ii) MARINER HEALTH CARE
OF NASHVILLE, INC., a Delaware corporation and a wholly owned subsidiary of
Mariner ("Mariner-Nashville") as successor in interest by merger to Convalescent
Services, Inc., a Georgia corporation ("CSI"); (iii) XXXXXX X. XXXXXXX, XX.,
individually; (iv) XXXXXX X. XXXXXXX, individually and as the Stockholders Agent
under the Participation Agreement (as defined below); (v) HOUSTON-NORTHWEST
MEDICAL INVESTORS, LTD. (L.P.), a Georgia limited partnership; DALLAS MEDICAL
INVESTORS, LTD. (L.P.), a Georgia limited partnership; FT. BEND MEDICAL
INVESTORS, LTD. (L.P.), a Georgia limited partnership; NORTHWEST HEALTHCARE,
L.P., a Georgia limited partnership; BELLEAIR EAST MEDICAL INVESTORS, LTD.
(L.P.), a Georgia limited partnership; DENVER MEDICAL INVESTORS, LTD. (L.P.), a
Georgia limited partnership; TALLAHASSEE HEALTHCARE ASSOCIATES, LTD. (L.P.), a
Georgia limited partnership; PORT CHARLOTTE HEALTHCARE ASSOCIATES, LTD. (L.P.),
a Georgia limited partnership; SOUTH DENVER HEALTHCARE ASSOCIATES, LTD. (L.P.),
a Georgia limited partnership; MELBOURNE HEALTHCARE ASSOCIATES, LTD. (L.P.), a
Georgia limited partnership; PINELLAS III HEALTHCARE, LTD. (L.P.), a Georgia
limited partnership; POLK HEALTHCARE, LTD. (L.P.), a Georgia limited
partnership; ORANGE HEALTHCARE, LTD. (L.P.), a Georgia limited partnership; and
CREEK FOREST, LIMITED, a Georgia limited partnership (each, a "Lessor" and,
collectively, the "Lessors"); and (vi) PARAGON HEALTH NETWORK, INC., a Delaware
corporation ("Paragon").
WITNESSETH:
WHEREAS, Xxxxxx X. Xxxxxxx, Xx., individually and as general partner of
Xxxxxxx Partners (L.P.), a Georgia limited partnership, and Xxxxxx X. Xxxxxxx,
individually, are shareholders of Mariner (Xxxxxx X. Xxxxxxx, Xx. and Xxxxxx X.
Xxxxxxx are hereinafter referred to collectively as the "Kelletts"); and
WHEREAS, on January 2, 1996 Mariner and the Kelletts completed the merger
of CSI (CSI then being wholly owned by the Kelletts) and a wholly owned
subsidiary of Mariner, with CSI being the surviving corporation (said merger
transaction being hereinafter referred to as the "CSI-Mariner Merger"); and
WHEREAS, in connection with the CSI-Mariner Merger, Mariner, CSI (now
Mariner-Nashville), the Kelletts, and certain related entities entered into a
number of agreements setting forth the rights and obligations of the respective
parties thereto, such agreements including among others, the Participation
Agreement dated as of January 9, 1995 (the "Original Participation Agreement");
the Option and Lease Amendment Agreement dated as of January 9, 1995 (the
"Option Agreement"); the Stockholders Agreement dated as of January 9, 1995 (the
"Stockholders Agreement"); the Amendment Agreement dated as of May 24, 1995 (the
"Amendment Agreement"); the Amended and Restated Stockholders Agreement dated as
of May 24, 1995 (the "Amended and Restated Stockholders Agreement"); the Amended
and Restated Option Agreement dated as of May 24, 1995 (the "Amended and
Restated Option Agreement"); and the Second Amendment Agreement dated as of
December 29, 1995 (the "Second Amendment Agreement"); and
WHEREAS, subsequent to the CSI-Mariner Merger, Mariner, the Kelletts, and
certain related parties entered into the Second Amended and Restated
Stockholders Agreement dated as of May 30, 1997 (the "Second Amended and
Restated Stockholders Agreement"); and
WHEREAS, prior to the CSI-Mariner Merger, CSI leased certain health care
facilities (the "Facilities") from the Lessors; and
WHEREAS, at the time of the CSI-Mariner Merger, the leases between CSI and
the Lessors relating to the Facilities were amended and restated (each a "Lease"
and collectively, the "Leases");
WHEREAS, subsequent to the CSI-Mariner Merger, CSI was merged with and into
Mariner-Nashville, with Mariner-Nashville continuing in existence as the
surviving corporation in such merger, and as such became the Lessee under the
Leases; and
WHEREAS, Mariner, Paragon and a subsidiary of Paragon have entered into an
Agreement and Plan of Merger dated as of April 13, 1998, (the "Mariner-Paragon
Merger Agreement") whereby a subsidiary of Paragon would be merged into Mariner
(the "Mariner-Paragon Merger"); and
WHEREAS, on April 13, 1998, Paragon and the Kelletts, among others, entered
into the Company Voting Agreement dated as of April 13, 1998 (the "Voting
Agreement"), pursuant to which the Kelletts agreed to vote their shares of
Mariner Common Stock in favor of the Mariner-Paragon Merger; and
WHEREAS, in connection with entering into the Voting Agreement, the
Kelletts requested that Mariner and Paragon, and Mariner and Paragon agreed to,
use their commercially reasonable best efforts to address certain issues that
had been raised by the Kelletts with respect to the Operative Agreements (as
defined in the Second Amendment Agreement) and certain matters arising
thereunder; and
WHEREAS, Mariner, Paragon and the Kelletts desire to set forth in this
Agreement their resolution of those issues;
NOW, THEREFORE, for and in consideration of the premises and the rights and
obligations herein expressed, the receipt and sufficiency of which is hereby
acknowledged, the parties hereby agree as follows:
1. Termination of Stockholders Agreement. Effective as of the Effective
-------------------------------------
Time (as defined in the Mariner-Paragon Merger Agreement) of the Mariner-Paragon
Merger, the Second Amended and Restated Stockholders Agreement (as well as the
Amended and Restated Stockholders Agreement and the Stockholders Agreement)
shall be deemed terminated and void and of no further effect.
2. Resolution of Arbitration Issues. As of the Effective Time of the
--------------------------------
Mariner-Paragon Merger, for purposes of clause (iv), as modified by clause
(vii), of the first sentence of Section 11.2 of the Participation Agreement (as
amended by the Amendment Agreement and the Second Amendment Agreement), Mariner,
Mariner-Nashville, MSSI and MHC Rehab (a) shall be deemed not to have incurred
any Losses (as defined in the Participation Agreement) unless and until such
Losses shall have exceeded the entire amount, up to but not exceeding
$2,000,000, of the accrued liabilities relating to CSI's self-insured retention
program for general and professional liability insurance carried on the books of
CSI as of May 24, 1995; and (b) shall not be permitted to make claims for
indemnification for any Losses arising out of third party claims against CSI
arising out of events occurring prior to the CSI-Mariner Merger and settled
between May 24, 1995 and January 2, 1996, which settlements are final, binding
and nonappealable. As of the Effective Time of the Mariner-Paragon Merger, the
issues raised in that certain arbitration proceeding currently in process
between the Kelletts and Mariner shall be deemed to be decided in accordance
with the immediately preceding sentence. The Kelletts, Mariner and Paragon agree
that such decision shall be a final decision, fully enforceable in a court of
law or equity, and agree to promptly act in accordance with such decision.
3. Amendment to Option Agreement. As of the Effective Time of the
-----------------------------
Mariner-Paragon Merger, the Amended and Restated Option Agreement shall be
amended as follows:
A. Schedule 2 attached to the Amended and Restated Option Agreement
(entitled "Revised Schedule 2") shall be amended by revising the dates (years)
set forth under the column entitled "Exercise Year" and the values set forth
under the column entitled "Fair Market Value", so that said dates and values
shall read as set forth on the "Second Revised Schedule 2" attached hereto as
Exhibit "A" and made a part hereof. Further, the term "Purchase Option Date" as
-----------
used in the Amended and Restated Option Agreement shall refer to the date (year)
set forth under the "Exercise Year" column on the Second Revised Schedule 2.
Each reference in the Amended and Restated Option Agreement to "Schedule 2"
shall be deemed to refer to "Second Revised Schedule 2".
B. Each reference in the Amended and Restated Option Agreement to
"Lease" or "Leases" shall be deemed to refer to a Lease or the Leases (in each
case as defined in the Amended and Restated Option Agreement) as such Lease or
3
the Leases shall have been or are amended through the date hereof (including as
amended as contemplated by this Agreement).
C. Article II of the Amended and Restated Option Agreement shall be
amended by adding a new section 2.10, which shall read as follows:
"2.10. Termination of Option. Notwithstanding anything to the
---------------------
contrary in this Agreement or any other Operative Agreement, the Option
granted in this Article II with respect to a Facility shall terminate with
respect to that Facility in the event (i) the Lessee under the Lease for
such Facility shall fail or refuse to pay any rent, additional rent or
other charges due under such Lease (within the meaning thereof contained in
Section 23a. of such Lease), (ii) such failure or refusal shall continue
for ten (10) days after written notice from the Lessor under such Lease to
such Lessee (within the meaning thereof contained in Section 23a. of such
Lease) and (iii) the Lessor under such Lease shall have terminated such
Lease in accordance with Section 23a.(1) of such Lease. Furthermore, in the
event an Option is so terminated, the Lessee shall forfeit the right to
receive the Option Deposit (as defined in Section 2.3 hereof and as set
forth on Revised Schedule 2 attached hereto, as the same may be revised
from time to time) with respect to such Facility; and such Option Deposit
shall be retained by the applicable Lessor as full and final damages
arising from any and all defaults of the Lessee under such Lease and any
other claims the applicable Lessor may have against the Lessee or any of
its affiliates under such Lease, and upon such termination of such Option,
the applicable Lessor, the Kelletts and their respective affiliates shall
be deemed to have waived any and all claims they or any of them may have
against the Lessee or any of its affiliates for any act or omission, or
with respect to any event, occurring at or prior to such termination or
arising under the Lease. If an Option is terminated in accordance with this
Section 2.10, the Lessee shall, at the request of the Lessor, execute and
deliver to such Lessor any agreements, instruments, notices or memoranda
that such Lessor may reasonably request to properly reflect the termination
of such Option. Notwithstanding anything to the contrary in this Section
2.10, the termination of any such Lease and any such Option shall not
effect in any way any rights or obligations of Lessee and the Lessors under
any other Lease or any other Option granted pursuant to this Agreement with
respect to any other Facility and any term contained in any of the Leases
as now existing or hereafter amended providing for a cross default in the
event of the termination of any of the other Leases shall be deemed null
and void for purposes of this Section 2.10.
4. Amendment to Amendment Agreement. Effective as of the later of (i) the
--------------------------------
Effective Time of the Mariner-Paragon Merger, or (ii) the date on which the
credit facility that Mariner has with a group of lenders for which PNC Bank,
National Association acts as agent (as such credit facility has been, and may in
4
the future be, amended, extended, increased or otherwise changed, the "Mariner
Credit Facility") is terminated and the indebtedness thereunder has been repaid
in full, Section 2.6(d)(i) of the Amendment Agreement shall be amended in its
entirety to read as follows: "(i) an intercreditor agreement with Mariner's
lenders on as favorable terms to Mariner's lenders as such holder of a Lien
shall reasonably agree to,".
5. Amendments to Leases. As of the Effective Time of the Mariner-Paragon
--------------------
Merger, amendments to the Leases between Mariner-Nashville and Denver Medical
Investors, Ltd. (L.P.), Port Charlotte Healthcare Associates, Ltd. (L.P.) and
Belleair East Medical Investors, Ltd. (L.P.) in the forms attached hereto as
Exhibits 1, 2 and 3, which have been executed contemporaneously herewith, shall
become effective (the "Lease Amendments"). Mariner, as guarantor of Lessee's
obligations under such Leases, hereby consents to such amendments. Mariner-
Nashville and each of the Lessors mentioned above shall enter into and record an
amendment to the Memorandum of Lease, Right of First Refusal, and Option to
Purchase which is currently recorded in the public records with respect to each
affected Facility to reflect the changes effected by the Lease Amendments. Each
Lease Amendment shall be subject to the approval of the holder of any mortgage
encumbering the affected Facility, if such approval is required by the mortgage
or related documents.
6. Assumption of Lease Guaranties by Paragon. Effective as of the later
-----------------------------------------
of (i) the Effective Time of the Mariner-Paragon Merger, or (ii) the date on
which the Mariner Credit Facility is terminated and the indebtedness thereunder
has been repaid in full, Paragon shall (a) assume the guaranty obligation of
Mariner under each existing Lease Guaranty previously delivered by Mariner
pursuant to Section 2.6(c)(iii) of the Amendment Agreement, and (b) if requested
by any Person (as defined in the Amendment Agreement) making a loan for money
borrowed to a Lessor that is secured by a mortgage on a Facility leased by
Lessee, provide a guaranty of Lessee's obligations to pay rent under the
applicable Lease (as defined in the Amendment Agreement), which guaranty shall
be in substantially the form of Exhibit J to the Amendment Agreement.
---------
7. Common Definitions. Unless otherwise defined in this Agreement,
------------------
capitalized terms used in this Agreement that are defined in the Original
Participation Agreement as amended by the Amendment Agreement and the Second
Amendment Agreement (the "Participation Agreement") shall have the meanings
assigned to them in the Participation Agreement, and the rules of construction
and documentary conventions set forth in the Participation Agreement shall apply
to this Agreement. From and after the Effective Time of the Mariner-Paragon
Merger, all notices and other communications under or with respect to the
Operative Agreements (as defined in the Second Amendment Agreement), as amended
from time to time, and the Leases should be sent to Mariner, Mariner-Nashville
or any of their affiliates, c/o Mariner Post-Acute Network, Inc., Xxx Xxxxxxx
Xxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxx 00000.
5
8. Entire Agreement. This Agreement, together with the Operative
----------------
Agreements (as defined in the Second Amendment Agreement) and the Exhibits and
Schedules hereto and thereto, supersede any other agreement, whether written or
oral, that may have been made or entered into by the parties relating to the
matters contemplated hereby and thereby. This Agreement, together with the
Operative Agreements (as defined in the Second Amendment Agreement) and the
Exhibits and Schedules hereto and thereto, constitute the entire agreement of
the parties with respect to the matters covered hereby and thereby.
9. Amendment or Modification. This Agreement may be amended only with the
-------------------------
written consent of the parties hereto.
10. Waiver. Any party to this Agreement or any of the Operative Agreements
------
may, by written notice to the other parties to this Agreement or such Operative
Agreement, (a) extend the time for the performance of any of the obligations or
other actions of the other parties for its benefit under this Agreement or such
Operative Agreement; (b) waive any inaccuracies in the representations or
warranties of the other parties made to it contained in this Agreement or such
Operative Agreement or in any document delivered pursuant hereto or thereto; (c)
waive compliance with any of the conditions or covenants of the other parties
for its benefit contained in this Agreement or such Operative Agreement; or (d)
waive or modify performance of any of the obligations of the other parties for
its benefit under this Agreement or such Operative Agreement. Except as provided
in the preceding sentence, no action taken pursuant to this Agreement or any of
the Operative Agreements, including any investigation by or on behalf of any
party, shall be deemed to constitute a waiver by the party taking such action of
compliance with any representations, warranties, covenants, conditions or
agreements contained in this Agreement or any of the Operative Agreements. The
failure of any party hereto to enforce at any time any of the provisions of this
Agreement or any of the Operative Agreements shall in no way be construed to be
a waiver of any such provision, nor in any way to affect the validity of this
Agreement or any of the Operative Agreements or any part hereof or thereof or
the right of such party thereafter to enforce each and every such provision. No
waiver of any breach of or non-compliance with this Agreement or any of the
Operative Agreements shall be held to be a waiver of any other or subsequent
breach or non-compliance.
11. Law Governing. This Agreement shall be governed by and construed and
-------------
enforced in accordance with the laws of the State of Georgia, without giving
effect to the principles of conflicts of law thereof.
6
12. Counterparts. This Agreement may be executed simultaneously in one or
------------
more counterparts, each of which shall be deemed to be an original but all of
which together shall constitute one and the same instrument.
IN WITNESS WHEREOF, this Agreement has been duly executed and delivered by
the parties on the date first above written.
MARINER HEALTH GROUP, INC.,
a Delaware corporation
By: /s/ Xxxxxx X. Xxxxxxxx, Xx.
--------------------------------------
Xxxxxx X. Xxxxxxxx, Xx., M.D.
President and Chief Executive Officer
MARINER HEALTH CARE OF NASHVILLE,
INC., a Delaware corporation
By: /s/ Xxxxxx X. Xxxxxxxx, Xx.
--------------------------------------
Xxxxxx X. Xxxxxxxx, Xx., M.D.
President
/s/ Xxxxxx X. Xxxxxxx, Xx.
--------------------------------------
Xxxxxx X. Xxxxxxx, Xx.
/s/ Xxxxxx X. Xxxxxxx
--------------------------------------
Xxxxxx X. Xxxxxxx, both individually and as
the Stockholders Agent under the Participation
Agreement
DENVER MEDICAL INVESTORS, LTD.
(L.P.), a Georgia limited partnership
By: /s/ Xxxxxx X. Xxxxxxx
--------------------------------------
Xxxxxx X. Xxxxxxx
General Partner
7
MELBOURNE HEALTHCARE ASSOCIATES,
LTD. (L.P.), a Georgia limited partnership
By: /s/ Xxxxxx X. Xxxxxxx
---------------------------------------
General Partner
DALLAS MEDICAL INVESTORS, LTD. (L.P.),
a Georgia limited partnership
By: /s/ Xxxxxx X. Xxxxxxx
---------------------------------------
General Partner
NORTHWEST HEALTHCARE, L.P.,
a Georgia limited partnership
By: /s/ Xxxxxx X. Xxxxxxx
---------------------------------------
General Partner
HOUSTON-NORTHWEST MEDICAL INVESTORS,
LTD. (L.P.), a Georgia limited partnership
By: /s/ Xxxxxx X. Xxxxxxx
---------------------------------------
General Partner
FT. BEND MEDICAL INVESTORS, LTD. (L.P.),
a Georgia limited partnership
By: /s/ Xxxxxx X. Xxxxxxx
---------------------------------------
General Partner
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BELLEAIR EAST MEDICAL INVESTORS, LTD.
(L.P.), a Georgia limited partnership
By: /s/ Xxxxxx X. Xxxxxxx
-------------------------------------
General Partner
PORT CHARLOTTE HEALTHCARE
ASSOCIATES, LTD. (L.P.), a Georgia
limited partnership
By: /s/ Xxxxxx X. Xxxxxxx
-------------------------------------
General Partner
TALLAHASSEE HEALTHCARE ASSOCIATES,
LTD., (L.P.), a Georgia limited partnership
By: /s/ Xxxxxx X. Xxxxxxx
-------------------------------------
General Partner
SOUTH DENVER HEALTHCARE ASSOCIATES,
LTD. (L.P.), a Georgia limited partnership
By: /s/ Xxxxxx X. Xxxxxxx
-------------------------------------
General Partner
PINELLAS III HEALTHCARE, LTD. (L.P.),
a Georgia limited partnership
By: /s/ Xxxxxx X. Xxxxxxx
-------------------------------------
General Partner
9
POLK HEALTHCARE, LTD. (L.P.), a Georgia
limited partnership
By: /s/ Xxxxxx X. Xxxxxxx
---------------------------------------
General Partner
ORANGE HEALTHCARE, LTD. (L.P.), a
Georgia limited partnership
By: /s/ Xxxxxx X. Xxxxxxx
---------------------------------------
General Partner
CREEK FOREST, LIMITED, a Georgia
limited partnership
By: /s/ Xxxxxx X. Xxxxxxx
---------------------------------------
General Partner
PARAGON HEALTH NETWORK, INC.,
a Delaware corporation
By: /s/ Xxxxxxx Xxxxx
---------------------------------------
Title: Vice President and Associate
General Counsel
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SECOND REVISED SCHEDULE 2
Exercise Option Fair Market
Facility Year Deposit Value
------------------------ -------- ------------ -----------
Colony House 2005 (1,025,000) $4,400,000
Xxxxxxxxx Xxxxxxx 0000 ( 860,000) 5,200,000
Villa Northwest 2004 (1,010,000) 4,300,000
Belleair East 2006 (1,215,000) 3,545,000
South Monaco* 2008 ( 780,000) 2,280,000
Centerville 2006 ( 975,000) 4,300,000
Palmview 2006 (1,330,000) 2,330,000
Heritage Park 2005 (1,130,000) 5,900,000
Xxxx Xxx 0000 (1,205,000) 4,900,000
Spring Lake 2010 (1,250,000) 5,500,000
Xxxxxx Lakes 2010 (1,155,000) 5,100,000
Woodwind Lakes 2003 (1,220,000) 5,300,000
Meadowgreen
Xxxxxxx
____________
*Exercise year shall begin on December 1, 2008 (all others begin on May 24
of each exercise year)
Exhibit "A"
FIRST AMENDMENT OF
AMENDED AND RESTATED
OPERATING LEASE
STATE OF COLORADO
COUNTY OF DENVER
THIS FIRST AMENDMENT OF AMENDED AND RESTATED OPERATING LEASE (this "First
Amendment") is entered into this 19th day of June, 1998, but made effective as
of the Effective Time as defined in that certain Agreement and Plan of Merger
dated as of April 13, 1998, among Paragon Health Network, Inc., Paragon
Acquisition Sub, Inc. and Mariner Health Group, Inc. (the "Effective Time") by
and between DENVER MEDICAL INVESTORS, LTD. (L.P.). a Georgia limited partnership
(hereinafter called "Landlord"), and MARINER HEALTH CARE OF NASHVILLE, INC., a
Delaware corporation, successor by merger to Convalescent Services, Inc., a
Georgia corporation (hereinafter called "Tenant").
W I T N E S S E T H :
WHEREAS, Landlord owns a nursing center located in Denver, Colorado,
formerly known as South Monoco Care Center, but now known as Mariner Health of
Denver (the "Facility"); and
WHEREAS, Landlord and Tenant entered into that certain Amended and Restated
Operating Lease dated May 24, 1995, but made effective the 2nd day of January,
1996 (the "Amended and Restated Operating Lease"), pursuant to which the parties
amended and restated the original lease between the parties dated April 1, 1994
(and amended on January 1, 1995), wherein the Landlord leased the Facility to
the Tenant; and
WHEREAS, Landlord and Tenant desire to amend the Amended and Restated
Operating Lease as set forth hereinafter, with such amendment to become
effective at the Effective Time.
THEREFORE, for and in consideration of the mutual benefits to be gained by
the performance hereof, Landlord and Tenant do hereby amend the Amended and
Restated Operating Lease as follows:
1. The first sentence of Section 2 of the Amended and Restated Operating
Lease is hereby amended to read as follows: "The Term of this Lease shall begin
at 12 o'clock A.M. on January 2, 1996, and shall continue for a period of
Exhibit 1
eighteen (18) years and four (4) months from January 2, 1996, unless sooner
terminated as provided hereinafter."
2. The first sentence of Subsection 37b.(1) of the Amended and Restated
Operating Lease is hereby amended to read as follows: "Tenant may exercise its
Option granted in this Section 37(b)(1) at any time during the 365-day period
commencing on December 1, 2008 (the "Purchase Option Date").
3. Subject to the amendments set forth herein, the remaining terms and
conditions of the Amended and Restated Operating Lease (as previously amended)
shall remain in full force and effect and are hereby reaffirmed and ratified.
4. This First Amendment shall become effective at, and shall only be
effective from and after, the Effective Time. Prior to the Effective Time, this
First Amendment shall be of no force or effect. In the event the Effective Time
(as defined above) has not occurred by June 30, 1999, this First Amendment shall
be null and void.
IN WITNESS WHEREOF, the parties have duly executed this First Amendment as
of the date hereinabove set forth.
LANDLORD:
DENVER MEDICAL INVESTORS,
LTD. (L.P.)
By:___________________________________
General Partner
TENANT:
MARINER HEALTH CARE OF
NASHVILLE, INC.
By:___________________________________
Title:_____________________________
ACKNOWLEDGMENTS
STATE OF GEORGIA
COUNTY OF ___________________
On this the _____ day of _________, 1998, before me, the undersigned
officer, personally appeared ______________________________, known to me to be
the general partner of the aforesaid limited partnership and the person whose
name is subscribed to the within instrument and acknowledged that he executed
the same as general partner of said partnership for the purposes therein
contained.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
_______________________________________
Notary Public
[NOTARIAL SEAL]
My Commission expires:_______________
STATE/COMMONWEALTH OF _______________________
COUNTY OF ______________________
On this the _____ day of __________, 1998, before me, the undersigned
officer, personally appeared _______________________________________________,
known to me to be the _________________________________________ of the
aforesaid corporation and the person whose name is subscribed to the within
instrument as such officer of the aforesaid corporation, and acknowledged that
he executed the same in such capacity on behalf of the corporation for the
purposes therein contained.
_______________________________________
Notary Public
[NOTARIAL SEAL]
My Commission expires:_______________
3
SECOND AMENDMENT OF
AMENDED AND RESTATED
OPERATING LEASE
STATE OF FLORIDA
COUNTY OF CHARLOTTE
THIS SECOND AMENDMENT OF AMENDED AND RESTATED OPERATING LEASE (this "Second
Amendment") entered into this 19th day of June, 1998, but made effective as of
the Effective Time as defined in that certain Agreement and Plan of Merger dated
as of April 13, 1998, among Paragon Health Network, Inc., Paragon Acquisition
Sub, Inc. and Mariner Health Group, Inc. (the "Effective Time"), by and between
PORT CHARLOTTE HEALTHCARE ASSOCIATES, LTD. (L.P.), a Georgia limited partnership
(hereinafter called "Landlord"), and MARINER HEALTH CARE OF NASHVILLE, INC., a
Delaware corporation, successor by merger to Convalescent Services, Inc., a
Georgia corporation (hereinafter called "Tenant").
W I T N E S S E T H :
WHEREAS, Landlord owns a nursing center located in Port Charlotte, Florida,
formerly known as Palmview but now known as Mariner Health of Port Charlotte
(the "Facility"); and
WHEREAS, Landlord and Tenant entered into that certain Amended and Restated
Operating Lease dated May 24, 1995, but made effective the 2nd day of January,
1996 (the "Amended and Restated Operating Lease"), pursuant to which the parties
amended and restated the original lease between the parties dated July 1, 1994,
wherein the Landlord leased the Facility to the Tenant; and
WHEREAS, Landlord and Tenant entered into a First Amendment of the Amended
and Restated Operating Lease, made effective January 2, 1996, making certain
amendments thereto; and
WHEREAS, Landlord and Tenant desire to further amend the Amended and
Restated Operating Lease as set forth hereinafter, with such amendment to become
effective at the Effective Time.
THEREFORE, for and in consideration of the mutual benefits to be gained by
the performance hereof, Landlord and Tenant do hereby amend the Amended and
Restated Operating Lease as follows:
Exhibit 2
1. The first sentence of Section 2 of the Amended and Restated Operating
Lease is hereby amended to read as follows: "The Term of this Lease shall begin
at 12 o'clock A.M. on January 2, 1996, and shall continue for a period of
thirteen (13) years and four (4) months from January 2, 1996, unless sooner
terminated as provided hereinafter."
2. The first sentence of Subsection 37b.(1) of the Amended and Restated
Operating Lease is hereby amended to read as follows: "Tenant may exercise its
Option granted in this Section 37(b)(1) at any time during the 365-day period
commencing on the anniversary of the Lease Date in the year 2006 (the "Purchase
Option Date").
3. Subject to the amendments set forth herein, the remaining terms and
conditions of the Amended and Restated Operating Lease (as previously amended)
shall remain in full force and effect and are hereby reaffirmed and ratified.
4. This Second Amendment shall become effective at, and shall only be
effective from and after, the Effective Time. Prior to the Effective Time, this
Second Amendment shall be of no force or effect. In the event the Effective Time
(as defined above) has not occurred by June 30, 1999, this Second Amendment
shall be null and void.
IN WITNESS WHEREOF, the parties have duly executed this First Amendment as
of the date hereinabove set forth.
LANDLORD:
PORT CHARLOTTE HEALTHCARE
ASSOCIATES, LTD. (L.P.)
By:___________________________________
General Partner
TENANT:
MARINER HEALTH CARE OF
NASHVILLE, INC.
By:___________________________________
Title:_____________________________
2
ACKNOWLEDGMENTS
STATE OF GEORGIA
COUNTY OF __________________
On this the _____ day of ____________, 1998, before me, the undersigned
officer, personally appeared ______________________________, known to me to be
the general partner of the aforesaid limited partnership and the person whose
name is subscribed to the within instrument and acknowledged that he executed
the same as general partner of said partnership for the purposes therein
contained.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
_______________________________________
Notary Public
[NOTARIAL SEAL]
My Commission expires:_______________
STATE/COMMONWEALTH OF _____________________
COUNTY OF _____________________
On this the _____ day of ___________, 1998, before me, the undersigned
officer, personally appeared _______________________________________________,
known to me to be the _________________________________________ of the
aforesaid corporation and the person whose name is subscribed to the within
instrument as such officer of the aforesaid corporation, and acknowledged that
he executed the same in such capacity on behalf of the corporation for the
purposes therein contained.
_______________________________________
Notary Public
[NOTARIAL SEAL]
My Commission expires:_______________
3
SECOND AMENDMENT OF
AMENDED AND RESTATED
OPERATING LEASE
STATE OF FLORIDA
COUNTY OF PINELLAS
THIS SECOND AMENDMENT OF AMENDED AND RESTATED OPERATING LEASE (this "Second
Amendment") entered into this 19th day of June, 1998, but made effective as of
the Effective Time as defined in that certain Agreement and Plan of Merger dated
as of April 13, 1998, among Paragon Health Network, Inc., Paragon Acquisition
Sub, Inc. and Mariner Health Group, Inc. (the "Effective Time"), by and between
BELLEAIR EAST MEDICAL INVESTORS, LTD. (L.P.). a Georgia limited partnership
(hereinafter called "Landlord"), and MARINER HEALTH CARE OF NASHVILLE, INC., a
Delaware corporation, successor by merger to Convalescent Services, Inc., a
Georgia corporation (hereinafter called "Tenant").
W I T N E S S E T H :
WHEREAS, Landlord owns a nursing center located in Clearwater, Florida,
formerly known as Belleair East Health Care Center, but now known as Mariner
Health of Clearwater (the "Facility"); and
WHEREAS, Landlord and Tenant entered into that certain Amended and Restated
Operating Lease dated May 24, 1995, but made effective the 2nd day of January,
1996 (the "Amended and Restated Operating Lease"), pursuant to which the parties
amended and restated the original lease between the parties dated July 1, 1994,
wherein the Landlord leased the Facility to the Tenant; and
WHEREAS, Landlord and Tenant entered into a First Amendment of the Amended
and Restated Operating Lease, made effective May 30,1997, making certain
amendments thereto; and
WHEREAS, Landlord and Tenant desire to further amend the Amended and
Restated Operating Lease as set forth hereinafter, with such amendment to become
effective at the Effective Time.
THEREFORE, for and in consideration of the mutual benefits to be gained by
the performance hereof, Landlord and Tenant do hereby amend the Amended and
Restated Operating Lease as follows:
Exhibit 3
1. The first sentence of Section 2 of the Amended and Restated Operating
Lease is hereby amended to read as follows: "The Term of this Lease shall begin
at 12 o'clock A.M. on January 2, 1996, and shall continue for a period of
thirteen (13) years and four (4) months from January 2, 1996, unless sooner
terminated as provided hereinafter."
2. The first sentence of Subsection 37b.(1) of the Amended and Restated
Operating Lease is hereby amended to read as follows: "Tenant may exercise its
Option granted in this Section 37(b)(1) at any time during the 365-day period
commencing on the anniversary of the Lease Date in the year 2006 (the "Purchase
Option Date").
3. Subject to the amendments set forth herein, the remaining terms and
conditions of the Amended and Restated Operating Lease (as previously amended)
shall remain in full force and effect and are hereby reaffirmed and ratified.
4. This Second Amendment shall become effective at, and shall only be
effective from and after, the Effective Time. Prior to the Effective Time, this
Second Amendment shall be of no force or effect. In the event the Effective Time
(as defined above) has not occurred by June 30, 1999, this Second Amendment
shall be null and void.
IN WITNESS WHEREOF, the parties have duly executed this First Amendment as
of the date hereinabove set forth.
LANDLORD:
BELLEAIR EAST MEDICAL INVESTORS,
LTD. (L.P.)
By:___________________________________
General Partner
TENANT:
MARINER HEALTH CARE OF
NASHVILLE, INC.
By:___________________________________
Title:_____________________________
ACKNOWLEDGMENTS
STATE OF GEORGIA
COUNTY OF _____________________
On this the _____ day of _________, 1998, before me, the undersigned
officer, personally appeared ______________________________, known to me to be
the general partner of the aforesaid limited partnership and the person whose
name is subscribed to the within instrument and acknowledged that he executed
the same as general partner of said partnership for the purposes therein
contained.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
_______________________________________
Notary Public
[NOTARIAL SEAL]
My Commission expires:_______________
STATE/COMMONWEALTH OF _____________________
COUNTY OF ___________________
On this the _____ day of _____________, 1998, before me, the undersigned
officer, personally appeared _______________________________________________,
known to me to be the _________________________________________ of the
aforesaid corporation and the person whose name is subscribed to the within
instrument as such officer of the aforesaid corporation, and acknowledged that
he executed the same in such capacity on behalf of the corporation for the
purposes therein contained.
_______________________________________
Notary Public
[NOTARIAL SEAL]
My Commission expires:_______________
2
ACKNOWLEDGMENTS
STATE OF GEORGIA
COUNTY OF ___________________
On this the _____ day of _________, 1998, before me, the undersigned
officer, personally appeared ______________________________, known to me to be
the general partner of the aforesaid limited partnership and the person whose
name is subscribed to the within instrument and acknowledged that he executed
the same as general partner of said partnership for the purposes therein
contained.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
_______________________________________
Notary Public
[NOTARIAL SEAL]
My Commission expires:_______________
STATE/COMMONWEALTH OF _______________________
COUNTY OF ______________________
On this the _____ day of __________, 1998, before me, the undersigned
officer, personally appeared _______________________________________________,
known to me to be the _________________________________________ of the
aforesaid corporation and the person whose name is subscribed to the within
instrument as such officer of the aforesaid corporation, and acknowledged that
he executed the same in such capacity on behalf of the corporation for the
purposes therein contained.
_______________________________________
Notary Public
[NOTARIAL SEAL]
My Commission expires:_______________
4
