Exhibit 10.1
THIRD AMENDMENT TO
CREDIT AND GUARANTY AGREEMENT
This THIRD AMENDMENT TO CREDIT AND GUARANTY AGREEMENT, dated as of
October 1, 2003 (this "THIRD AMENDMENT") is entered into by and among MARINER
HEALTH CARE, INC. (f/k/a MARINER POST-ACUTE NETWORK, INC.), a Delaware
corporation ("COMPANY"), and the parties signatory hereto.
WHEREAS, Company has entered into that certain Credit and Guaranty
Agreement, dated as of May 13, 2002, as amended from time to time, including,
without limitation, by the First Amendment (the "FIRST AMENDMENT") to the Credit
and Guaranty Agreement, dated as of August 9, 2002 and by the Second Amendment
(the "SECOND AMENDMENT") to the Credit and Guaranty Agreement, dated March 31,
2003 (the "CREDIT AGREEMENT"), by and among Company, CERTAIN SUBSIDIARIES OF
COMPANY, as Guarantors, the Lenders party thereto from time to time, XXXXXXX
XXXXX CREDIT PARTNERS L.P. ("GSCP"), as a Joint Lead Arranger (in such capacity,
a "JOINT LEAD ARRANGER"), and as Sole Syndication Agent (in such capacity,
"SYNDICATION AGENT"), UBS WARBURG LLC ("UBSW"), as a Joint Lead Arranger (in
such capacity, a "JOINT LEAD ARRANGER", and together with GSCP, the "JOINT LEAD
ARRANGERS"), UBS AG, STAMFORD BRANCH ("UBS") as Administrative Agent and as
Swing Line Lender (together with its permitted successors in such capacities,
"ADMINISTRATIVE AGENT" or "SWING LINE LENDER", respectively), GENERAL ELECTRIC
CAPITAL CORPORATION ("GECC"), as Collateral Monitoring Agent (together with its
permitted successors in such capacity, "COLLATERAL MONITORING AGENT"), and as
Documentation Agent (in such capacity, "DOCUMENTATION AGENT"), and for the
limited purposes of Sections 9.1, 9.6(b) and 10.3 thereof, RESIDENTIAL FUNDING
CORPORATION dba GMAC-RFC HEALTH CAPITAL ("GMAC"), as Joint Collateral Agent
(together with its permitted successors in such capacity, "JOINT COLLATERAL
AGENT");
WHEREAS, the terms used herein, including in the preamble and recitals
hereto, not otherwise defined herein or otherwise amended hereby shall have the
meanings ascribed thereto in the Credit Agreement;
WHEREAS, the Company and certain of its subsidiaries have entered into
an asset purchase agreement with Formation Properties III, LLC ("FORMATION") to
divest up to 20 of its Florida skilled nursing facilities listed on Annex II
hereto (the "FORMATION TRANSACTION");
WHEREAS, in partial consideration for the Formation Transaction the
Company will receive the "FORMATION PROMISSORY NOTE" (as defined herein), and
such note together with the collateral support thereof shall be pledged to UBS
AG, as sub-collateral agent (in such capacity, the "SUB-COLLATERAL AGENT")
pursuant to the Sub-Collateral Agent Pledge and Security Agreement (as defined
herein);
WHEREAS, the Company and certain of its subsidiaries are contemplating
the sale or other divestitures of certain other Florida skilled nursing
facilities listed on Annex II hereto;
WHEREAS, in connection with these divestitures, the Credit Parties have
requested certain amendments to the Credit Agreement, and the Agents and
Requisite Lenders signatory hereto are willing to agree to such amendments, on
the terms and conditions hereinafter set forth; and
NOW, THEREFORE, in consideration of the premises and the agreements,
provisions and covenants herein contained, Company, the Guarantors, the
Requisite Lenders and Agents party hereto agree as follows:
SECTION 1. AMENDMENTS
1.1 AMENDMENTS TO SECTION 1.1: DEFINITIONS. Section 1.1 is
hereby amended as follows:
(a) The following definitions of "ADMINISTRATIVE SERVICES
AGREEMENT", "ASSET PURCHASE AGREEMENT", "DELAYED FORMATION
DIVESTITURE", "DELAYED FORMATION FACILITIES", "DIVESTITURE Agreements",
"ESCROW AGREEMENT", "FLORIDA DIVESTITURES", "FORMATION COLLATERAL",
"FORMATION DIVESTITURES", "FORMATION DIVESTITURE ASSETS", "FORMATION
DIVESTITURE PROCEEDS", "FORMATION INTERCREDITOR AGREEMENT", "FORMATION
PLEDGE AND SECURITY AGREEMENT", "FORMATION PROMISSORY NOTE", "FORMATION
PROMISSORY NOTE INTEREST PROCEEDS", "FORMATION TRANSACTION COST
RESERVE", "INITIAL FORMATION DIVESTITURE", "IT REINVESTMENT PROPERTY",
"XXXXXXX DIVESTITURE", "XXXXXXX FLORIDA FACILITIES", "XXXXXXX FLORIDA
LANDLORDS", "XXXXXXX FLORIDA LEASES", "XXXXXXX FLORIDA TENANT",
"NONCOMPETITION AGREEMENT", "OPERATIONS TRANSFER AGREEMENT",
"SUB-COLLATERAL AGENT", "TAMPA MORTGAGE LOAN", "THIRD AMENDMENT",
"THIRD AMENDMENT PRIMARY EFFECTIVE DATE", "THIRD AMENDMENT SECONDARY
EFFECTIVE DATE", "SUB-COLLATERAL AGENT PLEDGE AND SECURITY AGREEMENT",
"WESTCHESTER MORTGAGE", "WESTCHESTER PREPAYMENT", "WESTCHESTER
PREPAYMENT RESERVE" and "WESTCHESTER PROPERTY" are inserted in the
proper alphabetical order:
"ADMINISTRATIVE SERVICES AGREEMENT" means that
certain Administrative Services Agreement, in the form
delivered to the Lenders on or prior to the Third Amendment
Primary Effective Date and reasonably satisfactory to
Requisite Lenders, dated as of the Third Amendment Secondary
Effective Date by and between Mariner Health Care Management
Company, a Delaware corporation, Sovereign Healthcare, LLC, a
Delaware limited liability company, Sovereign Healthcare
Holdings, LLC, a Delaware limited liability company, and
Southern Healthcare Management, LLC, a Delaware limited
liability company, as amended from time to time in accordance
with Section 6.19.
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"ASSET PURCHASE AGREEMENT" means that certain Asset
Purchase Agreement dated as of August 19, 2003 by and between
Formation Properties III, LLC, a Delaware limited liability
company, the Company, Mariner Health Care Management Company,
certain subsidiaries of the Company and FC Properties III,
LLC, a Delaware limited liability company, as amended from
time to time in accordance with Section 6.19.
"DELAYED FORMATION DIVESTITURE" means the sale on or
prior to December 31, 2003 (or on such later date on or prior
to March 31, 2004 as the Administrative Agent may agree to in
writing, or on such later date satisfactory to Requisite
Lenders) of any or all of the Delayed Formation Facilities for
aggregate consideration equal to the portion of the
$92,000,000 gross purchase price respectively allocated to
such Delayed Formation Facilities under the Asset Purchase
Agreement, a portion of which consideration shall be payable
in cash at closing and a portion of which shall be evidenced
by a promissory note, through the amendment and restatement of
the Formation Promissory Note, all as provided in Section 4.21
of the Asset Purchase Agreement. The terms of each Delayed
Formation Divestiture shall be substantially similar to those
described on Schedule 6.9(i)(b), or as otherwise reasonably
satisfactory to the Administrative Agent; provided, however,
that any material change to the economic or financial terms of
a Delayed Formation Divestiture shall be subject to approval
by Requisite Lenders.
"DELAYED FORMATION FACILITIES" means those skilled
nursing facilities listed on Schedule 6.9(i)(a) which are not
sold to Formation Properties III, LLC on the Third Amendment
Secondary Effective Date.
"DIVESTITURE AGREEMENTS" means, collectively, (a) the
Escrow Agreement and the Noncompetition Agreement executed in
connection with the Formation Divestitures, as amended from
time to time, and (b) as the Asset Purchase Agreement, the
Administrative Services Agreement, the Formation Intercreditor
Agreement, the Formation Promissory Note, the Formation Pledge
and Security Agreement and the Operations Transfer Agreement
executed in connection with the Formation Divestitures,
amended from time to time in accordance with Section 6.19.
"ESCROW AGREEMENT" means that certain Escrow
Agreement dated as of August 19, 2003 by and between Formation
Properties III, LLC, the Company, certain subsidiaries of the
Company, and LandAmerica National Commercial Services, a
division of LandAmerica Financial Group, Inc.
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"FLORIDA DIVESTITURES" means each of the Initial
Formation Divestiture, each Delayed Formation Divestiture and
the Xxxxxxx Divestiture.
"FORMATION COLLATERAL" means, collectively, the
Formation Promissory note and the collateral support thereto.
"FORMATION DIVESTITURES" means, collectively, the
Initial Formation Divestiture and any Delayed Formation
Divestitures.
"FORMATION DIVESTITURE ASSETS" means the Facilities
identified on Schedule 6.9(i)(a), and all associated personal
property being transferred by the sellers under the terms of
the Asset Purchase Agreement.
"FORMATION DIVESTITURE PROCEEDS" means an amount
equal to (a) Net Asset Sale Proceeds received in connection
with the Initial Formation Divestiture and any Delayed
Formation Divestitures less (b) up to $3,250,000, in the
aggregate, of consent fees paid in connection with the Delayed
Formation Divestitures.
"FORMATION INTERCREDITOR AGREEMENT" means that
certain Intercreditor Agreement, in the form delivered to the
Lenders on or prior to the Third Amendment Primary Effective
Date and reasonably satisfactory to Requisite Lenders, dated
as of the Third Amendment Secondary Effective Date by and
between the Company and Citigroup Global Markets Reality
Corp., a New York corporation, as amended from time to time in
accordance with Section 6.19.
"FORMATION PLEDGE AND SECURITY AGREEMENT" means that
certain Pledge and Security Agreement, in the form delivered
to the Lenders on or prior to the Third Amendment Primary
Effective Date and reasonably satisfactory to Requisite
Lenders, dated as of the Third Amendment Secondary Effective
Date from FC Properties III, LLC pursuant to which Company is
granted a first priority security interest in all of FC
Properties III, LLC's ownership interests in Formation
Properties III, LLC and its managing member.
"FORMATION PROMISSORY NOTE" means that certain
Promissory Note dated as of the Third Amendment Secondary
Effective Date in the principal sum of $14,000,000.00 (or,
initially, such lesser principal amount provided for in
Section 2.8 of the Asset Purchase Agreement, if fewer than all
of the Formation Divestiture Assets are sold on the Third
Amendment Secondary Effective Date, and subject to increases
as provided in Section 4.21 of the Asset Purchase Agreement)
made by FC Properties III, LLC on such date in favor of the
Company as agent for the Sellers named therein, as amended
from time to time in accordance with Section 6.19.
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"FORMATION PROMISSORY NOTE INTEREST PROCEEDS" means
all interest on the outstanding principal balance of the
Formation Promissory Note received by the Company pursuant to
the terms thereof.
"FORMATION TRANSACTION COST RESERVE" means the total
amount held in reserve by the Company as set forth on Schedule
2.14.
"INITIAL FORMATION DIVESTITURE" means the sale, on
the Third Amendment Secondary Effective Date, of any or all
those skilled nursing facilities listed on Schedule 6.9(i)(a)
to Formation Properties III, LLC, and related transactions
consummated on such date, for aggregate gross consideration of
$92,000,000, including a Cash amount of $78,000,000 and a
$14,000,000 promissory note; provided that if fewer than all
of the skilled nursing facilities identified on such Schedule
are sold on the Third Amendment Secondary Effective Date, the
gross consideration, and the portions thereof payable in Cash
and in the form of a promissory note, shall be ratably reduced
as provided in the Asset Purchase Agreement.
"IT REINVESTMENT PROPERTY" means information
technology equipment and software necessary in the ordinary
course of Company's business conducted in accordance with
Section 6.13 of the Credit Agreement.
"XXXXXXX DIVESTITURE" means the divestiture of those
facilities listed on the Xxxxxxx Florida Facilities to the
respective Xxxxxxx Florida Landlords on or prior to March 31,
2004, (or such later date on or prior to June 30, 2004 as the
Administrative Agent may agree to in writing, or on such later
date satisfactory to Requisite Lenders) including without
limitation the assignment of net working capital associated
with such facilities, in an amount not to exceed $5,000,000,
the consideration for which shall consist of the termination
of capital lease obligations associated with the Xxxxxxx
Florida Facilities, and otherwise on substantially the same
terms as those set forth on Schedule 6.9(i)(c)(ii), or as
otherwise may be reasonably satisfactory to the Administrative
Agent; provided, however, that any material change to the
economic or financial terms of any Xxxxxxx Divestiture shall
be subject to approval by Requisite Lenders.
"XXXXXXX FLORIDA FACILITIES" means those skilled
nursing facilities identified on Schedule 6.9(i)(c)(i).
"XXXXXXX FLORIDA LANDLORDS" means the landlords
identified opposite the names of the Xxxxxxx Florida
Facilities on Schedule 6.9(i)(c)(i), from whom the Xxxxxxx
Florida Tenant leases such facilities pursuant to the Xxxxxxx
Leases
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pertaining to such Xxxxxxx Florida Facilities, which landlords
are controlled by Xxx Xxxxxxx, Xxxxxx Xxxxxxx or their
affiliates.
"XXXXXXX FLORIDA LEASES" means the lease agreements,
as amended and extended to date, pursuant to which the Xxxxxxx
Florida Tenant leases the Xxxxxxx Florida Facilities.
"XXXXXXX FLORIDA TENANT" means MHC/CSI Florida, Inc.,
a Delaware corporation and a wholly owned Subsidiary of the
Company, as tenant or lessee under the Xxxxxxx Florida Leases.
"NONCOMPETITION AGREEMENT" means that certain
Noncompetition Agreement, in form delivered to the Lenders on
or prior to the Third Amendment Primary Effective Date and
reasonably satisfactory to Requisite Lenders, dated as of the
Third Amendment Secondary Effective Date by and between
Formation Properties III, LLC, the Company, and certain
Subsidiaries of the Company, as amended from time to time in
accordance with Section 6.19.
"OPERATIONS TRANSFER AGREEMENT" means that certain
Operations Transfer Agreement, in the form delivered to the
Lenders on or prior to the Third Amendment Primary Effective
Date and reasonably satisfactory to Requisite Lenders, dated
as of the Third Amendment Secondary Effective Date by and
between Formation Properties III, LLC, Sovereign Healthcare,
LLC, the Company, and certain subsidiaries of the Company, as
amended from time to time in accordance with Section 6.19.
"SUB-COLLATERAL AGENT" means a sub-collateral agent
appointed by the Joint Collateral Agent pursuant to Section 9
of the Intercreditor Agreement, including without limitation
UBS AG, Stamford Branch in its capacity as sub-collateral
agent under the Sub-Collateral Agent Pledge and Security
Agreement.
"SUB-COLLATERAL AGENT PLEDGE AND SECURITY AGREEMENT"
means that certain Pledge and Security Agreement, in the form
delivered to the Lenders on or prior to the Third Amendment
Primary Effective Date and reasonably satisfactory to
Requisite Lenders, dated as of the date Third Amendment
Secondary Effective Date by and between the Company and the
Sub-Collateral Agent, as it may be amended, supplemented or
otherwise modified from time to time.
"TAMPA MORTGAGE LOAN" means the approximately
$5,200,000 loan to Tampa Health Properties, Ltd. held by the
Company and secured by a mortgage on the Facility known as
Mariner Health of Tampa.
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"THIRD AMENDMENT" means that certain Third Amendment
to Credit and Guaranty Agreement dated as of October 1, 2003
by and among the Company, the Guarantors signatory thereto and
the Agents and Lenders signatory thereto.
"THIRD AMENDMENT PRIMARY EFFECTIVE DATE" means the
date on or prior to 5:00 p.m. Eastern time on October [ ],
2003 upon which all the conditions precedent set forth in
Section 3.1 of the Third Amendment were satisfied or waived in
writing by Requisite Lenders.
"THIRD AMENDMENT SECONDARY EFFECTIVE DATE" means the
date on or prior to 5:00 p.m. Eastern time on December 1, 2003
(or such later date on or before December 31, 2003 as the
Administrative Agent may agree to in writing) upon which all
the conditions precedent set forth in Sections 3.2 of the
Third Amendment were satisfied or waived in writing by
Requisite Lenders.
"WESTCHESTER MORTGAGE" means that certain Mortgage
and Security Agreement dated as of May 24, 1995, in favor of
Deutsche Bank national Trust Company, as Trustee, and assignee
of SouthTrust Bank, National Association, on the Westchester
Property.
"WESTCHESTER PREPAYMENT" means the prepayment on in
full of the Mortgage Loan secured by the Westchester Mortgage
on or before the 65th day after the Third Amendment Secondary
Effective Date.
"WESTCHESTER PREPAYMENT RESERVE" means the amount, if
any, specified on Schedule 2.14 being reserved from the
Formation Divestiture Proceeds by Company or Mariner Health
Care of Nashville, Inc. for the purpose of making the
Westchester Prepayment.
"WESTCHESTER PROPERTY" means the Facility known as
Mariner Health of Westchester, located at 0000 X. Xxxx Xxxx,
Xxxxxxxxxxx, Xxxxxxxx 00000.
(b) The following definition of "CONSOLIDATED
ADJUSTED EBITDA" is hereby deleted in its entirety and the following
new definition thereof substituted in its place:
"CONSOLIDATED ADJUSTED EBITDA" means, for any period,
an amount determined for Company and the Guarantor
Subsidiaries on a consolidated basis equal to (i) the sum,
without duplication, of the amounts for such period of (a)
Consolidated Net Income, (b) Consolidated Interest Expense,
(c) provisions for taxes based on income, (d) total
depreciation expense, (e) total amortization expense, (f) (for
any period ending on or prior to December 31, 2002 only) to
the extent deducted in determining Consolidated Net Income,
any non-recurring
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charge or restructuring charge in connection with the
implementation of the Plan of Reorganization, (g) other
non-Cash items reducing Consolidated Net Income (excluding any
such non-Cash item to the extent that it represents an accrual
or reserve for potential Cash items in any future period or
amortization of a prepaid Cash item that was paid in a prior
period) and (h) the amount, if any, by which the current
insurance accounting accruals for general liability and
professional liability claims for each of the trailing four
Fiscal Quarter calculation periods ending in Fiscal Year 2003
and Fiscal Year 2004 exceeds actual cash paid in respect of
general liability and professional liability claims during the
same period minus (ii) other non-Cash items increasing
Consolidated Net Income for such period (excluding any such
non-Cash item to the extent it represents the reversal of an
accrual or reserve for potential Cash item in any prior
period), all as may be adjusted pursuant to the terms of
Schedule 1.1(iv); provided, however, that the amount
added-back to Consolidated Adjusted EBITDA pursuant to clause
(h) above shall not exceed $30,000,000 for each of the
trailing four Fiscal Quarter calculation periods ending in
Fiscal Year 2003, and $27,000,000 in the first trailing four
Fiscal Quarter calculation period ending in Fiscal Year 2004,
$24,000,000 in the second trailing four Fiscal Quarter
calculation period ending in Fiscal Year 2004, $19,000,000 in
the third trailing four Fiscal Quarter calculation period
ending in Fiscal Year 2004, and $15,000,000 for the fourth
trailing four Fiscal Quarter calculation period ending in
Fiscal Year 2004.
(c) The following definition of "COLLATERAL DOCUMENTS" is
hereby deleted in its entirety and the following new definition thereof
substituted in its place:
"COLLATERAL DOCUMENTS" means the Pledge and Security
Agreement, the Sub-Collateral Agent Pledge and Security Agreement, the
Mortgages, the Landlord Consent and Estoppel Agreements, if any, and
all other instruments, documents and agreements delivered by any Credit
Party pursuant to this Agreement or any of the other Credit Documents
in order to grant to Joint Collateral Agent or Sub-Collateral Agent,
for the benefit of Lenders, a Lien on any real, personal or mixed
property of that Credit Party as security for the Obligations.
1.2 AMENDMENT TO SECTION 2.14: MANDATORY
PREPAYMENTS/COMMITMENT REDUCTIONS. Section 2.14(a) is hereby amended by deleting
it in its entirety and substituting the following new clause 2.14(a):
(a) Asset Sales. (I) No later than the first Business Day
following the date of receipt by Company or any of its
Subsidiaries of any Net Asset Sale Proceeds (other than
Formation Divestiture Proceeds), Company shall prepay the
Loans and/or the Revolving Commitments shall be permanently
reduced as set forth in Section 2.15(b) in an aggregate amount
equal to such Net Asset Sale Proceeds;
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provided, (i) so long as no Default or Event of Default shall
have occurred and be continuing, and (ii) to the extent that
aggregate Net Asset Sale Proceeds allocated for investment
pursuant to this clause (ii) but not yet so reinvested do not
exceed $5,000,000, Company shall have the option, directly or
through one or more of its Guarantor Subsidiaries, to invest
Net Asset Sale Proceeds (other than Formation Divestiture
Proceeds) within one hundred eighty (180) days of receipt
thereof in long-term useful assets of the general type used in
the business of Company and its Guarantor Subsidiaries
(provided that "long-term" assets for such purpose shall mean
any property having a remaining useful life of at least 5
years) or in IT Reinvestment Property (provided that the
aggregate amount of all such investments in IT Reinvestment
Property shall not exceed $10,000,000); provided further, that
pending any such investment all such Net Asset Sale Proceeds
shall be applied to prepay Revolving Loans to the extent
outstanding on the date of such Asset Sale (without a
reduction in Revolving Commitments); (II) no later than the
first Business Day following the date of receipt by the
Company or any of its Subsidiaries of any Formation
Divestiture Proceeds, Company shall prepay the Loans and/or
the Revolving Commitments shall be permanently reduced as set
forth in Section 2.15(b) in an aggregate amount equal to such
Formation Divestiture Proceeds (or, in the case of any
Formation Divestiture Proceeds received on or prior to the
Third Amendment Primary Effective Date, an amount equal to
such proceeds less the sum of the Formation Transaction Cost
Reserve and the Westchester Prepayment Reserve); provided,
however, that (i) so long as no Default or Event of Default
shall have occurred and be continuing and (ii)
contemporaneously with the Westchester Prepayment, Mariner
Health Care of Nashville, Inc. executes a Mortgage on the
Westchester Property pursuant to Section 5.11, Company may
apply up to $5,100,000 of Formation Divestiture Proceeds to
make the Westchester Prepayment; provided further, that to the
extent such Formation Divestiture Proceeds constitute
Formation Promissory Note Interest Proceeds, commencing on
April 1, 2004 and continuing thereafter on each October 1 and
April 1 until the Formation Promissory Note has been paid in
full, Company shall prepay the Loans and/or the Revolving
Commitments shall be reduced as set forth in Section 2.15(b)
in an amount equal to all such Formation Promissory Note
Interest Proceeds received during the immediately preceding
six-month period; and (III) no later than 65 days following
the Third Amendment Secondary Effective Date, the Company
shall prepay the Loans and/or the Revolving Commitments shall
be reduced as set forth in Section 2.15(b) in an amount equal
to, without duplication, the sum of (1) the excess, if any, of
the Formation Transaction Cost Reserve over the bona fide
direct costs incurred in connection with the Formation
Divestitures (which bona fide direct costs may include,
without duplication, the Company's reasonable projection of
such costs to be incurred in connection with any Delayed
Formation Divestiture that has not theretofore occurred
provided that such projection is reasonably satisfactory to
the Administrative Agent), and (2) the excess, if any, of the
Westchester Prepayment
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Reserve over the amount actually paid by the Company or
Mariner Health Care of Nashville, Inc. to or for the account
of the holder of the Westchester Mortgage to effectuate the
Westchester Prepayment.
1.3 AMENDMENTS TO SECTION 5.12: INTEREST RATE PROTECTION.
Section 5.12 is hereby amended by deleting it in its entirety by substituting
the following new Section 5.12 in its place:
5.12 INTEREST RATE PROTECTION. Upon the earlier of
(i) the tenth Business Day following the receipt by Company of
notice from the Administrative Agent that three month
Eurodollar Rate equals or exceeds 3% per annum or (ii) March
31st, 2004, Company shall enter into and cause to be
maintained in effect one or more Interest Rate Agreements
having terms, conditions and tenures, and being otherwise in
form and substance reasonably satisfactory to Administrative
Agent and Syndication Agent, to the extent necessary so that,
until the Term Loan Maturity Date, interest on Indebtedness in
a principal amount equal to at least 50.0 percent of the total
outstanding funded Indebtedness of the Company and its
consolidated Subsidiaries is effectively fixed or capped at
rates which are reasonably acceptable to the Administrative
Agent.
1.4 AMENDMENTS TO SECTION 5: AFFIRMATIVE COVENANTS. Section 5
is hereby amended by adding the following new Section 5.19:
5.19 DELAYED FORMATION DIVESTITURES. Upon the
occurrence of any Delayed Formation Divestiture, Company will
deliver to the Lenders an supplement to Schedule 6.9(i)(a)
identifying each Delayed Formation Facility divested in
connection with such Delayed Formation Divestiture.
1.5 AMENDMENT TO SECTION 6.2: LIENS. Section 6.2(a) is hereby
amended by deleting it in its entirety and substituting the following new clause
6.2(a):
(a) Liens in favor of Joint Collateral Agent or the
Sub-Collateral Agent, in each case for the benefit of Secured Parties, or the
Administrative Agent for the benefit of Beneficiaries, in each case granted
pursuant to any Credit Document;
1.6 AMENDMENT TO SECTION 6.7: INVESTMENTS. Section 6.7(i) is
hereby amended by deleting it its entirety and substituting the following new
clause 6.7(i):
(i) Investments made as a result of the receipt of
non-cash consideration from an asset sale made in compliance
with Section 6.9 hereof;
1.7 AMENDMENTS TO SECTION 6.8: FINANCIAL COVENANTS. Section
6.8(d), Maximum Consolidated Capital Expenditures, is hereby amended by (i)
changing the maximum
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amount of Consolidated Capital Expenditures permitted for Fiscal Year 2003 from
"$65.00 million" to "$70.00 million" and (ii) (i) changing the maximum amount of
Consolidated Capital Expenditures permitted for Fiscal Year 2004 from "$40.00
million" to "$55.00 million".
1.8 AMENDMENTS TO SECTION 6.9: FUNDAMENTAL CHANGES;
DISPOSITIONS OF ASSETS; ACQUISITIONS.
(a) Section 6.9 is hereby amended by deleting clause (c) in its
entirety and substituting the following new clause 6.9(c):
(c) Asset Sales (other than the Florida Divestitures and any
disposition of the Tampa Mortgage Loan permitted pursuant to
Section 6.9(k)), the proceeds of which (valued at the
principal amount thereof in the case of non-Cash proceeds
consisting of notes or other debt Securities and valued at
fair market value in the case of other non-Cash proceeds) (i)
when aggregated with the proceeds of all other Asset Sales
(other than the Florida Divestitures and any disposition of
the Tampa Mortgage Loan permitted pursuant to Section 6.9(k))
made within the same Fiscal Year, are less than $50,000,000;
provided (i) the consideration received for such assets shall
be in an amount equal to the fair market value thereof,
determined in good faith by the Board of Directors (or similar
governing body) of the Company or the applicable Credit Party,
(ii) no less than 75% thereof shall be paid in Cash, (iii) for
any single Asset Sale or series of related Asset Sales in an
aggregate amount in excess of $10,000,000, the Company shall
deliver to the Administrative Agent a Compliance Certificate
at least five (5) Business Days prior to the date of sale (or
such shorter period as Administrative Agent may agree to from
time to time), verifying that immediately after giving pro
forma effect to such Asset Sale, the Company will be in
compliance with its financial covenants set forth in Section
6.8, and (iv) the Net Asset Sale Proceeds thereof shall be
applied as required by Section 2.14(a);
(b) Section 6.9 is hereby amended by deleting the "and" at the end of
clause (g), by substituting ";" for "." at the end of clause (h) and by
adding the following new clauses (i), (j) and (k):
(i) Asset Sales made pursuant to the Florida Divestitures of
the properties listed on Schedule 6.9(i)(a) and Schedule
6.9(i)(c)(i) provided that the Net Asset Sale Proceeds thereof
shall be applied as required by Section 2.14(a) hereto;
(j) at the Company's option, either (i) the acquisition of
joint venture interests in Tampa Health Properties, Ltd. (the
owner of the Facility known as Mariner Health of Tampa) from
the 99% limited partner in that equity, in connection with the
sale of the Mariner Health of Tampa Facility, or (ii) the
assignment by Tampa Medical Associates, Inc. of the lease for
that Facility to Formation Properties III, LLC or
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another operator, whether as part of a Delayed Formation
Divestiture or otherwise, which transaction may (but need not)
include the transfer of the 1% general partnership interest in
Tampa Health Properties, Ltd., in either case on or before
December 31, 2003 and on terms reasonably satisfactory to the
Administrative Agent; and
(k) the sale, assignment, payoff or other disposition of the
Tampa Mortgage Loan for Net Asset Sale Proceeds of at least
$3,000,000, provided that such Net Asset Sale Proceeds shall
be applied as prepayment of the Term Loans pursuant to Section
2.14(a) hereto, without giving effect to any provision for
reinvestment of such proceeds.
1.9 ADDITION OF NEW SECTION 6.19. The Credit Agreement is
hereby amended by adding the following provision as a new Section 6.19:
6.19 DIVESTITURE AGREEMENTS.
(a) The Company shall provide copies of the
final, executed Divestiture Agreements relating to the
Formation Divestitures upon the consummation of the Formation
Divestitures. No Credit Party shall nor shall permit any of
its Subsidiaries, without obtaining the prior written consent
of the Administrative Agent, to agree to any material
amendment, restatement, supplement or other modification to,
or waiver of, any of its material rights, interests or
obligations or materially increase the obligations of a Credit
Party or any Credit Party's Subsidiaries under any of the
Administrative Services Agreement, the Asset Purchase
Agreement, the Formation Intercreditor Agreement, the
Operations Transfer Agreement, the Formation Pledge and
Security Agreement or the Formation Promissory Note if such an
amendment, restatement, supplement, modification or waiver
would be materially adverse to any Lenders or materially
increase the obligations of any Credit Party.
(b) Without limiting the foregoing clause
(a), no Credit Party shall nor shall it permit any of its
Subsidiaries, without the prior written consent of the
Requisite Lenders, to agree to any amendment, restatement,
supplement or other modification to, or waiver of the Asset
Purchase Agreement, the Formation Promissory Note or the
Formation Pledge and Security Agreement which would (a) reduce
the aggregate purchase price of the Formation Divestiture
Assets, (b) increase the principal amount of the Formation
Promissory Note above $14,000,000, (c) reduce the principal
amount of the Formation Promissory Note below $14,000,000
(subject to the provisions of the Asset Purchase Agreement
12
specifically providing for the initial amount of the
Promissory Note to be less than $14,000,000 if the sale of
less than fewer than all of the Formation Divestiture Assets
shall have been consummated), (d) change any dates upon which
payments of principal or interest are due thereon, (e) make
materially less strict any event of default (or amend, modify
or supplement the definition thereof) or condition to an event
of default with respect thereto, (f) change the redemption,
prepayment or defeasance provisions thereof in a manner
materially adverse to Lenders, (g) change the manner of
payment (other than the account to which such payments are
made), (h) increase the relative proportion of the purchase
price of any Formation Divestiture Assets in connection with
any Formation Divestiture payable in the form of purchase
money debt rather than cash, (i) materially decrease the
obligations of purchaser with respect to the Asset Purchase
Agreement or the obligor with respect to the Formation
Promissory Note or the grantor with respect to the Formation
Pledge and Security Agreement, (j) release all or any material
portion of the collateral support for the Formation Promissory
Note granted under the Formation Pledge and Security Agreement
or (k) increase the maximum aggregate indemnification limits
or alter the terms of indemnification specified in the Asset
Purchase Agreement.
1.10 AMENDMENT TO SECTION 9.6: RIGHT TO INDEMNITY. The Credit
Agreement is hereby amended by deleting Section 9.6(b) in its entirety and
substituting the following new clause (b):
(b) Each Lender, in proportion to its Pro Rata Share,
severally agrees to indemnify each of the Joint Collateral
Agent and the Sub-Collateral Agent, to the extent that the
Joint Collateral Agent or the Sub-Collateral Agent, as the
case may be, shall not have been reimbursed by any Credit
Party within fifteen (15) Business Days after demand (or
incurrence if the Joint Collateral Agent or the Sub-Collateral
Agent, as the case may be, is stayed from making any demand),
for and against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses
(including counsel fees and disbursements) or disbursements of
any kind or nature whatsoever which may be imposed on,
incurred by or asserted against the Joint Collateral Agent or
the Sub-Collateral Agent, as the case may be, in exercising
its powers, rights and remedies or performing its duties under
the Collateral Documents in accordance with the direction of
the Administrative Agent or otherwise pursuant to the terms of
the Intercreditor Agreement; provided, no Lender shall be
liable for any portion of such liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements resulting from the Joint Collateral
Agent's or the Sub-Collateral Agent's, as the case may be,
gross negligence or willful misconduct. Without limitation to
the generality of the foregoing, each Lender, in proportion to
its Pro Rata Share, severally agrees to indemnify the Joint
Collateral Agent and the Sub-Collateral Agent, to the extent
that the Joint Collateral Agent
13
or the Sub-Collateral Agent, as the case may be, shall not
have been reimbursed by any Credit Party within fifteen (15)
Business Days after demand (or incurrence if the Joint
Collateral Agent or the Sub-Collateral Agent, as the case may
be, is stayed from making any demand), for and against any and
all liabilities to any depositary bank in respect of
reimbursement or payment obligations or indemnity obligations
under any control agreement entered into by the Joint
Collateral Agent on the Closing Date or otherwise at the
direction of the Administrative Agent, or entered into by the
Sub-Collateral Agent at the direction of the Administrative
Agent, if and to the extent that at the time that the Joint
Collateral Agent or the Sub-Collateral Agent, as the case may
be, is obligated to reimburse, pay or indemnify a depositary
bank, the Joint Collateral Agent or the Sub-Collateral Agent,
as the case may be, is prohibited by operation of law or
otherwise from discharging such reimbursement, payment or
indemnity obligations from the proceeds of Collateral held by
it or the same are inadequate.
1.11 AMENDMENT TO SECTION 9.8: COLLATERAL DOCUMENTS AND
GUARANTY. The Credit Agreement is hereby amended by deleting Section 9.8(b) in
its entirety and substituting the following new clause (b):
(b) Right to Realize on Collateral and Enforce
Guaranty. Anything contained in any of the Credit Documents to the
contrary notwithstanding, Company, Administrative Agent, Collateral
Monitoring Agent and each Lender hereby agree that (i) no Lender shall
have any right individually to realize upon any of the Collateral or to
enforce the Guaranty, it being understood and agreed that all powers,
rights and remedies hereunder may be exercised solely by Administrative
Agent, on behalf of Lenders in accordance with the terms hereof and all
powers, rights and remedies under the Collateral Documents may be
exercised solely by Joint Collateral Agent or the Sub-Collateral Agent
at the direction of the Administrative Agent in accordance with the
terms of the Intercreditor Credit, and (ii) in the event of a
foreclosure by Joint Collateral Agent or the Sub-Collateral Agent on
any of the Collateral pursuant to a public or private sale, Joint
Collateral Agent, Administrative Agent, Collateral Monitoring Agent,
Sub-Collateral Agent or any Lender may be the purchaser of any or all
of such Collateral at any such sale and Administrative Agent, as agent
for and representative of Beneficiaries (but not any Lender or Lenders
in its or their respective individual capacities unless Requisite
Lenders shall otherwise agree in writing) shall be entitled, for the
purpose of bidding and making settlement or payment of the purchase
price for all or any portion of the Collateral sold at any such public
sale, to use and apply any of the Obligations as a credit on account of
the purchase price for any collateral payable by Joint Collateral Agent
or the Sub-Collateral Agent at such sale.
1.12 AMENDMENT TO SECTION 10.3: INDEMNITY. The Credit
Agreement is hereby amended incorporating the Sub-Collateral Agent into the
definition of "Indemnitee" contained in Section 10.3(a).
14
1.13 ADDITION OF SCHEDULES. The Credit Agreement is hereby
amended by the addition of Schedule 2.14, Formation Transaction Cost Reserve and
Westchester Prepayment Reserve, Schedule 6.9(i)(a), Formation Divesture Assets,
Schedule 6.9(i)(b), Terms of Delayed Formation Divestitures, Schedule
6.9(i)(c)(i), Xxxxxxx Divesture Assets, and Schedule 6.9(i)(c)(ii), Terms of
Xxxxxxx Divestiture. Schedule 2.14 is attached hereto as Annex I. Schedules
6.9(i)(a) through 6.9(i)(c)(ii) are attached hereto as Annex II.
SECTION 2. LIMITATION OF AMENDMENTS
2.1 Without limiting the generality of the provisions of
Section 10.5 of the Credit Agreement, the amendments set forth above shall be
limited precisely as written and relate solely to the amendments of the
provisions of the Credit Agreement in the manner and to the extent described
above, and nothing in this Third Amendment shall be deemed to:
(a) constitute a waiver of compliance by the Company or any
Guarantor with respect to (1) Section 10.5 of the Credit Agreement in
any other instance or (2) any other term, provision or condition of the
Credit Agreement or any other instrument or agreement referred to
therein; or
(b) prejudice any right or remedy that any Lender may now have
(except to the extent such right or remedy was based upon existing
defaults that will not exist after giving effect to this Third
Amendment) or may have in the future under or in connection with the
Credit Agreement or any other instrument or agreement referred to
therein.
SECTION 3. CONDITIONS PRECEDENT TO EFFECTIVENESS
3.1 THIRD AMENDMENT PRIMARY EFFECTIVE DATE. The effectiveness
of the amendments set forth at Section 1.1(b) and Section 1.3 hereof is subject
to the satisfaction, or waiver, of the following conditions on the date on or
prior to October [ ], 2003 (the "THIRD AMENDMENT PRIMARY EFFECTIVE DATE"):
(a) The Company, the Guarantors, the Requisite Lenders and the
Syndication Agent shall have indicated their consent by the execution
and delivery of the signature pages to the Administrative Agent.
(b) As of the Third Amendment Primary Effective Date (and after giving
effect to this Third Amendment), the representations and warranties
contained herein and in the other Credit Documents shall be true,
correct and complete in all material respects on and as of the Third
Amendment Primary Effective Date to the same extent as though made on
and as of that date, except to the extent such representations and
warranties specifically relate to an earlier date, in which case such
representations and warranties shall have been true, correct and
complete in all material respects on and as of such earlier date.
15
(c) As of the Third Amendment Primary Effective Date, after giving
effect to this Third Amendment, no event shall have occurred and be
continuing that would constitute an Event of Default or a Default.
(d) The Company shall have reimbursed or paid to the Collateral
Monitoring Agent and its outside counsel, Xxxxxxxxxx Xxxxxxxx LLP, all
reasonable and documented costs, fees, and expenses (including, without
limitation, legal fees and expenses) incurred by the Collateral
Monitoring Agent and its outside counsel in connection with the
preparation, review and negotiation of this Third Amendment and the
transactions contemplated hereby, to the extent invoiced to the
Company.
(e) The Company shall have paid all fees, costs and expenses owing to
the Administrative Agent, the Syndication Agent and its counsel,
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, invoiced to the Company on or
before the date hereof and reimbursable by the Company under the terms
of the Credit Agreement.
3.2 THIRD AMENDMENT SECONDARY EFFECTIVE DATE. The
effectiveness of the amendments set forth at Sections 1.1(a), 1.1(c), 1.2, 1.4,
1.5, 1.6, 1.7, 1.8, 1.9. 1.10, 1.11, 1.12 and 1.13 hereof is subject to the
Administrative Agent's confirmation in writing to Lenders of the satisfaction,
or waiver, of the following conditions on the date on or prior to December 1,
2003, or such later date on or before December 31, 2003 as the Administrative
Agent may agree to in writing (the "THIRD AMENDMENT SECONDARY EFFECTIVE DATE"):
(a) The Third Amendment Primary Effective Date shall have occurred.
(b) Prior to or substantially simultaneously with the effectiveness of
the amendments set forth herein, the Company shall have consummated the
Initial Formation Divestiture on terms pursuant to the Divestiture
Agreements and Company shall have delivered to the Lenders a supplement
to Schedule 6.9(i)(a) the facilities divested in connection the Initial
Formation Divestiture.
(c) As of the Third Amendment Secondary Effective Date (and after
giving effect to this Third Amendment), the representations and
warranties contained herein and in the other Credit Documents shall be
true, correct and complete in all material respects on and as of the
Third Amendment Secondary Effective Date to the same extent as though
made on and as of that date, except to the extent such representations
and warranties specifically relate to an earlier date, in which case
such representations and warranties shall have been true, correct and
complete in all material respects on and as of such earlier date.
16
(e) As of the Third Amendment Secondary Effective Date, after giving
effect to this Third Amendment, no event shall have occurred and be
continuing that would constitute an Event of Default or a Default.
(f) The Administrative Agent shall have received the Sub-Collateral
Agent Pledge and Security Agreement originally executed and delivered
by the Company, and provision for receipt by the Administrative Agent
of sufficient copies of the Sub-Collateral Agent Pledge and Security
Agreement for each Lender shall have been made to the satisfaction of
the Administrative Agent.
(g) In order to create in favor of the Sub-Collateral Agent, for the
benefit of Secured Parties, a valid perfect First Priority security
interest in the Formation Collateral, the Administrative Agent and the
Collateral Monitoring Agent shall have received evidence satisfactory
to the Administrative Agent and the Collateral Monitoring Agent of
compliance by the Company with its obligations under the Sub-Collateral
Agent Pledge and Security Agreement
(h) The Company shall have reimbursed or paid to the Collateral
Monitoring Agent and its outside counsel, Xxxxxxxxxx Xxxxxxxx LLP, all
reasonable and documented costs, fees, and expenses (including, without
limitation, legal fees and expenses) incurred by the Collateral
Monitoring Agent and its outside counsel in connection with the
preparation, review and negotiation of this Third Amendment and the
transactions contemplated hereby, to the extent invoiced to the
Company.
(i) The Company shall have paid all fees, costs and expenses owing to
the Administrative Agent, the Syndication Agent and its counsel,
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, invoiced to the Company on or
before the Third Amendment Secondary Effective Date and reimbursable by
the Company under the terms of the Credit Agreement.
SECTION 4. REPRESENTATIONS AND WARRANTIES
4.1 In order to induce the Agents and Requisite Lenders to
enter into this Third Amendment, the Company and each Guarantor hereby
represents and warrants that after giving effect to this Third Amendment:
(a) as of the date hereof, after giving effect to this Third Amendment,
there exists no Default or Event of Default;
(b) all representations and warranties contained in the Credit
Agreement and the other Credit Documents are true, correct and complete
in all material respects on and as of the date hereof, except to the
extent such representations and warranties specifically relate to
17
an earlier date, in which case they were true, correct and complete in
all material respects on and as of such earlier date;
(c) the execution, delivery and performance of this Third Amendment
have been duly authorized by all necessary action on the part of the
Company and each Guarantor. The execution, delivery and performance by
the Company and each Guarantor of this Third Amendment and the
consummation of the transactions contemplated hereby do not and will
not (i) violate any provision of any law or governmental rule or
regulation applicable to such Credit Party, the Organizational
Documents of such Credit Party, or any order, judgment or decree of any
court or other agency of government binding on any Credit Party, (ii)
conflict with, result in a breach of or constitute (with due notice or
the lapse of time or both) a default under any Contractual Obligation
of any Credit Party or any of its Subsidiaries, (iii) result in or
require the creation or imposition of any Lien upon any of the
properties or assets of any Credit Party or any of its Subsidiaries, or
(iv) require the approval of members of any Credit Party or any
approval or consent of any Person under any Contractual Obligation
which shall not have been obtained on or before the effective date of
this Third Amendment; and
(d) this Third Amendment and each Credit Document has been duly
executed and delivered by each Credit Party and is the legally valid
and binding obligation of such Credit Party, enforceable in accordance
with its respective terms, except as may be limited by bankruptcy,
insolvency, reorganization or moratorium.
SECTION 5. ACKNOWLEDGMENT AND CONSENT
5.1 Each of the Company and the Guarantors hereby acknowledges
that it has reviewed the terms and provisions of the Credit Agreement and this
Third Amendment and consents to the amendments effected pursuant to this Third
Amendment. Each of the Company and the Guarantors hereby: (i) confirms that each
Credit Document to which it is a party or otherwise bound and all Collateral
encumbered thereby will continue to guarantee or secure, as the case may be, to
the fullest extent possible in accordance with the Credit Documents, the payment
and performance of all Guaranteed Obligations under the Credit Agreement and
Secured Obligations (as such term is defined in the Pledge and Security
Agreement) under the Pledge and Security Agreement now or hereafter existing
under or in respect of the Credit Agreement, and confirms its grants to the
Joint Collateral Agent of a continuing lien on and security interest in and to
all Collateral as collateral security for the prompt payment and performance in
full when due of the Guaranteed Obligations under the Credit Agreement and the
Secured Obligations (as such term is defined in the Pledge and Security
Agreement) under the Pledge and Security Agreement (whether at stated maturity,
by acceleration or otherwise) and (ii) acknowledges and agrees that any of the
Credit Documents to which it is a party or otherwise bound shall continue in
full force and effect and that all of its obligations thereunder shall be valid
and enforceable (subject to the qualifications set forth in Section 4.6 of the
Credit
18
Agreement) and shall not be impaired or limited by the execution or
effectiveness of this Third Amendment.
5.2 Each Guarantor acknowledges and agrees that (i)
notwithstanding the conditions to effectiveness set forth in this Third
Amendment, such Guarantor is not required by the terms of the Credit Agreement
or any other Credit Document to consent to the amendments effected pursuant to
this Third Amendment, and (ii) nothing in the Credit Agreement, this Third
Amendment or any other Credit Document shall be deemed to require the consent of
such Guarantor to any future waivers or amendments to the Credit Agreement.
5.3 The Administrative Agent and each Lender, by delivering
its signature page to this Third Amendment shall be deemed to have acknowledged
receipt of, and consented to and approved, each document required to be approved
by any Agent, Requisite Lenders or Lenders, as applicable.
5.4 Each of the Company, the Guarantors, the Administrative
Agent and each Lender, by delivering its signature page to this Third Amendment
hereby appoint the Sub-Collateral Agent and acknowledge, consent to, approve,
the delegation to the Sub-Collateral Agent by the Joint Collateral Agent of such
duties and powers such that delegee may act as sub-collateral agent with respect
to the Formation Collateral. With respect to the Formation Collateral, the
Sub-Collateral Agent shall be entitled to perform all such duties and powers and
exercise all rights of the Joint Collateral Agent, and all references in the
Credit Documents to sums payable to the Joint Collateral Agent shall be deemed
to include sums payable to the Sub-Collateral Agent.
SECTION 6. MISCELLANEOUS
6.1 This Third Amendment shall be binding upon the parties
hereto and their respective successors and assigns and shall inure to the
benefit of the parties hereto and the successors and assigns of Lenders. No
Credit Party's rights or obligations hereunder or any interest therein may be
assigned or delegated by any Credit Party without the prior written consent of
all Lenders.
6.2 In case any provision in or obligation hereunder shall be
invalid, illegal or unenforceable in any jurisdiction, the validity, legality
and enforceability of the remaining provisions or obligations, or of such
provision or obligation in any other jurisdiction, shall not in any way be
affected or impaired thereby.
6.3 On and after the Third Amendment Primary Effective Date
and the Third Amendment Secondary Effective Date, as appropriate each reference
in the Credit Agreement to "this Agreement," "hereunder," "hereof", "herein" or
words of like import referring to the Credit Agreement, and each reference in
the other Credit Documents to the "Credit Agreement",
19
"thereunder," "thereof", or words of like import referring to the Credit
Agreement, shall mean and be a reference to the Credit Agreement as amended by
this Third Amendment.
6.4 Except as specifically waived by this Third Amendment, the
Credit Agreement and the other Credit Documents shall remain in full force and
effect and are hereby ratified and confirmed.
6.5 The execution, delivery and performance of this Third
Amendment shall not, except as expressly provided herein, constitute a waiver of
any provision of, or operate as a waiver of any right, power or remedy of any
Agent or Lender under, the Credit Agreement or any of the other Credit
Documents.
6.6 Section headings herein are included herein for
convenience of reference only and shall not constitute a part hereof for any
other purpose or be given any substantive effect.
6.7 THIS THIRD AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
6.8 This Third Amendment may be executed in any number of
counterparts, each of which when so executed and delivered shall be deemed an
original, but all such counterparts together shall constitute but one and the
same instrument. As set forth herein, this Third Amendment shall become
effective upon the execution of a counterpart hereof by each of the parties
hereto and receipt by Company and Agents of written or telephonic notification
of such execution and authorization of delivery thereof.
[The remainder of this page is intentionally left blank.]
20
COMPANY: MARINER HEALTH CARE, INC.
By: /s/ Xxxx X. Xxxxxx
Name: Xxxx X. Xxxxxx
Title: Senior Vice President
S-1
GUARANTORS:
AID & ASSISTANCE, INC.
AMERICAN MEDICAL INSURANCE BILLING SERVICES, INC.
AMERICAN PHARMACEUTICAL SERVICES, INC.
AMERICAN REHABILITY SERVICES, INC.
AMERRA PROPERTIES, INC.
APS HOLDING COMPANY, INC.
APS PHARMACY MANAGEMENT, INC.
BEECHWOOD HERITAGE RETIREMENT COMMUNITY, INC.
XXXXX CENTER HEALTH & REHABILITATION/TAMPA, INC.
XXXXX CENTER HEALTH & RETIREMENT/ALLEGHANY, INC.
XXXXX CENTER HEALTH & RETIREMENT/XXXXXXX, INC.
XXXXX CENTER MANAGEMENT CORPORATION
XXXXX CENTER NURSING CARE/AUSTELL, INC.
XXXXX CENTER NURSING CARE/FINCASTLE, INC.
BRIDE BROOK NURSING & REHABILITATION CENTER, INC.
COMPASS PHARMACY SERVICES OF MARYLAND, INC.
COMPASS PHARMACY SERVICES OF TEXAS, INC.
COMPASS PHARMACY SERVICES, INC.
CORNERSTONE HEALTH MANAGEMENT COMPANY
DEVCON HOLDING COMPANY
EH ACQUISITION CORP. III
GCI HEALTH CARE CENTERS, INC.
GCI REHAB, INC.
GCI THERAPIES, INC.
GCI-CAL THERAPIES COMPANY
GCI-WISCONSIN PROPERTIES, INC.
GRANCARE HOME HEALTH SERVICES, INC.
GRANCARE OF MICHIGAN, INC.
GRANCARE OF NORTH CAROLINA, INC.
GRANCARE SOUTH CAROLINA, INC.
GRANCARE, LLC
HERITAGE OF LOUISIANA, INC.
HOSPICE ASSOCIATES OF AMERICA, INC.
IHS REHAB PARTNERSHIP, LTD.
LCR, INC.
LIVING CENTERS DEVELOPMENT COMPANYLIVING
S-2
CENTERS LTCP DEVELOPMENT COMPANY
LIVING CENTERS OF TEXAS, INC.
LIVING CENTERS-EAST, INC.
LIVING CENTERS-ROCKY MOUNTAIN, INC.
LIVING CENTERS-SOUTHEAST DEVELOPMENT CORPORATION
LIVING CENTERS-SOUTHEAST, INC.
LONG RIDGE NURSING AND REHABILITATION CENTER, INC.
LONGWOOD REHABILITATION CENTER, INC.
MARINER HEALTH AT BONIFAY, INC.
MARINER HEALTH CARE MANAGEMENT COMPANY
MARINER HEALTH CARE OF ATLANTIC SHORES, INC.
MARINER HEALTH CARE OF DELAND, INC.
MARINER HEALTH CARE OF FORT XXXXX, INC.
MARINER HEALTH CARE OF GREATER LAUREL, INC.
MARINER HEALTH CARE OF INVERNESS, INC.
MARINER HEALTH CARE OF LAKE WORTH, INC.
MARINER HEALTH CARE OF MACCLENNY, INC.
MARINER HEALTH CARE OF METROWEST, INC.
MARINER HEALTH CARE OF NASHVILLE, INC.
MARINER HEALTH CARE OF NORTH HILLS, INC.
MARINER HEALTH CARE OF ORANGE CITY, INC.
MARINER HEALTH CARE OF PALM CITY, INC.
MARINER HEALTH CARE OF PINELLAS POINT, INC.
MARINER HEALTH CARE OF PORT ORANGE, INC.
MARINER HEALTH CARE OF SOUTHERN CONNECTICUT, INC.
MARINER HEALTH CARE OF TOLEDO, INC.
MARINER HEALTH CARE OF TUSKAWILLA, INC.
MARINER HEALTH CARE OF WEST HILLS, INC.
MARINER HEALTH CENTRAL, INC.
MARINER HEALTH HOME CARE, INC.
MARINER HEALTH MASSACHUSETTS SHELF CORPORATION
MARINER HEALTH OF FLORIDA, INC.
MARINER HEALTH OF JACKSONVILLE, INC.
MARINER HEALTH OF MARYLAND, INC.
MARINER HEALTH OF ORLANDO, INC.
MARINER HEALTH OF PALMETTO, INC.
MARINER HEALTH OF SEMINOLE COUNTY, INC.
MARINER HEALTH OF TAMPA, INC.
MARINER HEALTH PROPERTIES IV, LTD. MARINER HEALTH RESOURCES, INC.
MARINER PHYSICIAN SERVICES, INC.
MARINER PRACTICE CORPORATION
MARINER SUPPLY SERVICES, INC.
MARINER-REGENCY HEALTH PARTNERS, INC.
MARINERSELECT STAFFING SOLUTIONS, INC.
S-3
MEDREHAB OF INDIANA, INC.
MEDREHAB OF LOUISIANA, INC.
MEDREHAB OF MISSOURI, INC.
MEDREHAB, INC.
MED-THERAPY REHABILITATION SERVICES, INC.
MERRIMACK VALLEY NURSING & REHABILITATION CENTER, INC.
METHUEN NURSING & REHABILITATION CENTER, INC.
MHC CONSOLIDATING CORPORATION
MHC FLORIDA HOLDING COMPANY
MHC GULF COAST HOLDING COMPANY
MHC HOLDING COMPANY
MHC ILLINOIS, INC.
MHC MIDAMERICA HOLDING COMPANY
MHC MIDATLANTIC HOLDING COMPANY
MHC NORTHEAST HOLDING COMPANY
MHC RECRUITING COMPANY
MHC REHAB CORP.
MHC ROCKY MOUNTAIN HOLDING COMPANY
MHC TEXAS HOLDING COMPANY, LLC
MHC TRANSPORTATION, INC.
MHC WEST HOLDING COMPANY
MHC/CSI FLORIDA, INC.
MHC/LCA FLORIDA, INC.
MYSTIC NURSING & REHABILITATION CENTER, INC.
XXX-XXX CORP.
NATIONAL HEALTH STRATEGIES, INC.
NATIONAL HERITAGE REALTY, INC.
THE OCEAN PHARMACY, INC.
PARK TERRACE NURSING & REHABILITATION CENTER, INC.
XXXXXXXXX NURSING & REHABILITATION CENTER, INC.
PHCMI HOLDING COMPANY, LLC
PINNACLE CARE CORPORATION OF HUNTINGTON
PINNACLE CARE CORPORATION OF NASHVILLE
PINNACLE CARE CORPORATION OF XXXXXXXX BAY
PINNACLE CARE CORPORATION OF WILMINGTON
PINNACLE CARE MANAGEMENT CORPORATION
PINNACLE PHARMACEUTICAL SERVICES, INC.
PINNACLE REHABILITATION OF MISSOURI, INC.
PINNACLE REHABILITATION, INC.
PRISM CARE CENTERS, INC.
PRISM HEALTH GROUP, INC.
PRISM HOME CARE COMPANY, INC.
PRISM HOME CARE, INC.
S-4
PRISM HOME HEALTH SERVICES, INC.
PRISM HOSPITAL VENTURES, INC.
PRISM REHAB SYSTEMS, INC.
PROFESSIONAL RX SYSTEMS, INC.
REGENCY HEALTH CARE CENTER OF SEMINOLE COUNTY, INC.
REHABILITY HEALTH SERVICES, INC.
RENAISSANCE MENTAL HEALTH CENTER, INC.
SASSAQUIN NURSING & REHABILITATION CENTER, INC.
SEVENTEENTH STREET ASSOCIATES LIMITED PARTNERSHIP
SUMMIT HOSPITAL OF SOUTHEAST ARIZONA, INC.
SUMMIT HOSPITAL OF SOUTHWEST LOUISIANA, INC.
SUMMIT INSTITUTE FOR PULMONARY MEDICINE AND REHABILITATION, INC.
SUMMIT INSTITUTE OF AUSTIN, INC.
SUMMIT MEDICAL HOLDINGS, LTD.
SUMMIT MEDICAL MANAGEMENT, INC.
TAMPA MEDICAL ASSOCIATES, INC.
TRI-STATE HEALTH CARE, INC.
WINDWARD HEALTH CARE, INC.
By: /s/ Xxxx X. Xxxxxx
Name: Xxxx X. Xxxxxx
Title: Vice President
S-5
LENDERS:
[LENDER'S NAME],
as a Lender
By: _________________________________
Name:
Title:
S-6
