FORM OF
AMENDMENT TO WORKING CAPITAL LOAN AND SECURITY AGREEMENT
This AMENDMENT TO WORKING CAPITAL LOAN AND SECURITY AGREEMENT
(this "Amendment") is made and entered into as of this ___ day of January 1998,
by and among AGE INSTITUTE OF FLORIDA, INC., a Florida non-profit corporation
(together with its successors in interest and assigns, "Borrower"), GENESIS
HEALTH VENTURES, INC., a Pennsylvania business corporation (together with its
successors in interest and assigns, "Genesis"), and ET CAPITAL CORP., a Delaware
corporation (together with its successors in interest and assigns, "ET Capital";
Genesis and ET Capital are sometimes collectively referred to herein as
"Lenders").
BACKGROUND
A. On August 31, 1996, Borrower acquired from Edgemont
Partners, L.P. eleven (11) health care facilities located in the State of
Florida (the "Facilities").
B. Borrower and Genesis entered into that certain Working
Capital Loan and Security Agreement, dated as of August 31, 1996 (the
"Agreement"), whereby Genesis agreed to provide Borrower with a loan in the
maximum principal amount of $10,000,000 (the "Loan") for the working capital
needs of the Facilities.
C. The Loan was evidenced by a Promissory Note, dated as of
August 31, 1995 (the "Note"), payable to the order of Genesis in the maximum
principal amount of $10,000,000.
D. Pursuant to that certain Assignment and Assumption
Agreement, dated as of the date hereof (the "Assignment"), among Genesis, ET
Capital and Borrower, Genesis sold and ET Capital purchased a portion of the
principal amount of the Note equal to $7,500,000, and ET Capital assumed the
rights and obligations of a lender under the Agreement.
E. Contemporaneously with the execution and delivery hereof,
Borrower is executing and delivering (i) the Amended and Restated Promissory
Note, dated the date hereof, payable to the order of ET Capital in the principal
amount of $7,500,000 (the "ET Capital Note") and (ii) the Amended and Restated
Promissory Note, dated the date hereof, payable to the order of Genesis in the
principal amount of $2,500,000 (the "Genesis Note").
F. Borrower and Lenders have agreed to amend certain
provisions of the Agreement as set forth herein.
G. As security for Borrower's obligations to Lenders, Borrower
has agreed to execute and deliver a Second Mortgage, Assignment of Rents and
Security Agreement in favor of Genesis, as agent on behalf of the Lenders.
TERMS
NOW, THEREFORE, in consideration of the terms and conditions
set forth herein, and of any loans, advances, or extensions of credit
heretofore, now or hereafter made to or for the benefit of Borrower by Lenders,
and intending to be legally bound hereby, the parties hereto agree as follows:
1. Definitions.
1.1 All capitalized terms used and not otherwise defined
herein shall have the meanings set forth in the Agreement.
1.2 The Agreement is hereby amended such that all references
in the Agreement to "Lender" shall be deemed to be references to "Lenders", as
such term is defined in this Amendment.
1.3 The Agreement is hereby amended such that all references
in the Agreement to "Note" shall be deemed to refer collectively to the ET
Capital Note and the Genesis Note.
2. Amendment to Expiration Date.
Section 1.1 of the Agreement is hereby amended by deleting in
the first sentence thereof "August 31, 2001" as the Expiration Date, and
replacing it with "August 31, 2007."
3. Elimination of Revolving Nature of the Loan.
Section 1.1 of the Agreement is further amended by deleting
the last sentence of such Section in its entirety and replacing it with the
following sentence:
"Borrower shall be permitted to repay amounts drawn hereunder,
but shall not be permitted to draw again upon such amounts repaid."
4. Amendment to Security Interest Provisions.
4.1 The parties hereto acknowledge that, pursuant to the
Assignment, Lenders have appointed Genesis to act as their agent under the
Agreement, including, without limitation, with respect to the security interests
granted thereunder.
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4.2 Section 1.5(a) of the Agreement is hereby amended by
deleting the first sentence of such sentence in its entirety and replacing it
with the following:
"Borrower hereby grants to Genesis, as agent on behalf of
Lenders, a second priority lien and security interest on all of Borrower's Gross
Patient Accounts Receivable and other personal property utilized in the
Facilities or in connection with the operation thereof, tangible or intangible,
whether now owned or hereafter acquired, documents, contracts, guarantees, books
and records, processing cards, tapes, tabulating runs, programs and similar
material related thereto, together with all products and replacements thereof
and all proceeds of any of the foregoing (collectively, "Personal Property" and
the "Collateral"). Such lien and security interest shall be held by Genesis for
the benefit of the Lenders in accordance with the provisions of the Assignment."
5. Amendment to Notice Provision.
Section 9.1 of the Agreement is amended by adding the following to the
end of subsection (B) of such Section:
"and a copy to:
ET Capital Corp.
Attention:___________"
6. Successors and Assigns.
This Amendment shall be binding upon and inure to the benefit
of Borrower and Lenders and their respective successors and assigns, except that
Borrower shall not have the right to assign its rights hereunder or any interest
herein without the prior written consent of Lenders.
7. Ratification of Agreement.
Other than as specifically amended hereby and pursuant to the
Assignment, the Agreement is and shall continue to be in full force and effect
and is hereby ratified and confirmed in all respects.
8. Counterparts.
This Amendment may be executed in two or more counterparts,
each of which shall be deemed an original, but all of which taken together shall
constitute one and the same instrument.
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9. Governing Law.
This Amendment and the rights and obligation of the parties
hereunder shall be governed by, and construed and interpreted in accordance
with, the laws of the State of Florida.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective officers thereunto duly authorized,
as of the date first above written.
ATTEST: AGE INSTITUTE OF FLORIDA, INC.
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Name: Name:
Title: Title:
ATTEST: GENESIS HEALTH VENTURES, INC.
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Secretary Name:
Title:
ATTEST: ET CAPITAL CORP.
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Secretary Name:
Title:
