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EXHIBIT 10.32
AMENDMENT NO. 2 TO PARTICIPATION AGREEMENT
This AMENDMENT NO. 2 TO PARTICIPATION AGREEMENT (this
"Amendment"), is entered into as of August 20, 1997, among XXXXXXX ENTERPRISES,
INC., a Delaware corporation ("BEI"), as the Representative, Construction Agent
and Parent Guarantor (in its capacity as Representative, the "Representative";
in its capacity as Construction Agent, the "Construction Agent"; and, in its
capacity as Parent Guarantor, the "Parent Guarantor" and together with the
Guarantors listed on the signature page to the Guaranty (each a "Guarantor")
and the Structural Guarantors, the "Guarantors"); BMO LEASING (U.S.), INC., a
Delaware corporation, as a Lessor (together with any permitted successors and
assigns thereto, each a "Lessor" and collectively the "Lessors"); BMO LEASING
(U.S.), INC., as Agent Lessor for the Lessors (in such capacity, the "Agent
Lessor"); THE LONG-TERM CREDIT BANK OF JAPAN, LTD., LOS ANGELES AGENCY
("LTCB"), BANK OF MONTREAL, a Canadian banking organization ("BMO"), and the
other various financial institutions as are or may from time to time become
lenders (the "Lenders") under the Loan Agreement; LTCB as Administrative Agent
(in such capacity, the "Administrative Agent") for the Lenders and as Arranger
(in such capacity, the "Arranger"); and BMO, as Co-Arranger and Syndication
Agent (collectively, the "Parties").
R E C I T A L S:
A. The Parties entered into a Participation Agreement
dated as of March 21, 1997, as amended as of May 27, 1997 (the "Participation
Agreement").
B. BEI desires to increase the Aggregate Commitment
Amount available to the Lessees from $50,000,000 to an amount sufficient to
fund the aggregate Property Cost of (x) the Properties listed in Schedule A
attached hereto (such Properties, the "Additional Properties") and (y) the
other Properties subject to the Master Lease as of the Amendment Effective
Date.
C. BEI intends to consummate a series of transactions
pursuant to which (i) BEI will form a new Subsidiary (together with its
successors, "New BEI") that will be a Delaware corporation wholly-owned by BEI,
such corporation to be renamed, upon the consummation of the Pharmacy
Divestiture Transaction and the Merger (each as defined below), Xxxxxxx
Enterprises, Inc., (ii) Pharmacy and its Subsidiaries will repay in cash to BEI
not less than $250,000,000 of intercompany advances outstanding from BEI to
Pharmacy and its Subsidiaries, (iii) BEI will contribute all of its assets and
liabilities (other than the capital stock of Pharmacy and its Subsidiaries) to
New BEI and New BEI will assume all of such liabilities, (iv) BEI will
distribute pro rata to the holders of its common stock all of the capital stock
of New BEI, and (v) BEI will be merged with and into Capstone Pharmacy
Services, Inc.
D. Subject to the terms and conditions set forth herein,
BEI may increase the Aggregate Commitment Amount and consummate the
transactions in connection with the Pharmacy Divestiture Transaction and the
Merger.
E. The Parties desire to amend the Participation
Agreement as set forth herein.
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A G R E E M E N T:
NOW, THEREFORE, in consideration of the premises made
hereunder, and for good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the Parties hereto, intending to be legally
bound, hereby agree as follows:
1. Defined Terms; References. Unless otherwise
expressly defined herein, all capitalized terms used herein and defined in
Appendix A to the Participation Agreement shall be used herein as so defined.
Unless otherwise expressly stated herein, all Section and Article references
herein shall refer to Sections and Articles of the Participation Agreement.
2. Additional Defined Terms. Appendix A to the
Participation Agreement is hereby amended by adding the new definitions in the
appropriate alphabetical order:
"Additional Property" shall mean any of the Properties listed in
Schedule V to the Participation Agreement, in each case as previously
disclosed to and approved by the Participants.
"Amendment Effective Date" means the date upon which the Amended and
Restated Credit Agreement dated as of August 20, 1997 becomes
effective in accordance with its terms.
"Commitment Increase" has the meaning provided in Section 3.7 of the
Participation Agreement.
"Existing Properties" means all of the Properties subject to the
Master Lease as of the Amendment Effective Date, as described in their
respective Lease Supplements.
"Merger" means the merger of the Representative into Capstone Pharmacy
Services, Inc.
"New Aggregate Commitment Amount" means an amount sufficient to fund
the Property Cost of (i) the Additional Properties and (ii) the
Existing Properties.
"New BEI" means New Xxxxxxx Holdings, Inc., a Delaware corporation and
Wholly-Owned Subsidiary of the Representative to be renamed Xxxxxxx
Enterprises, Inc. following the consummation of the Pharmacy
Divestiture Transaction and Merger.
"New BEI Spin-Off" means the distribution by the Representative, pro
rata to the holders of the Representative's common stock, of all of
the capital stock of New BEI.
"Non-Pharmacy Asset Contribution" means the contribution by the
Representative of all of its assets and liabilities (other than the
capital stock of Pharmacy and its Subsidiaries) to New BEI and the
assumption by New BEI of all such liabilities.
"Pharmacy Divestiture Transaction" means the Pharmacy Intercompany
Repayment, the Non-Pharmacy Asset Contribution and the New BEI
Spin-Off.
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"Pharmacy Intercompany Repayment" means the repayment in cash by
Pharmacy and its Subsidiaries to the Representative of not less than
$250,000,000 of intercompany advances outstanding from the
Representative to Pharmacy and its Subsidiaries.
"Release Date" means the date upon which (i) all of the conditions set
forth in Section 3.03 of the Xxxxxx Credit Agreement shall be
satisfied (or waived in accordance with Section 9.05 of the Xxxxxx
Credit Agreement) and (ii) all of the following conditions shall have
been satisfied to the satisfaction of the Agent Lessor, the
Administrative Agent and each Participant:
(a) The Administrative Agent, the Agent Lessor
and the Participants shall have received an executed counterpart of
the Assumption Agreement attached hereto as Exhibit I duly executed by
New BEI;
(b) New BEI shall have paid the Transaction
Expenses invoiced to New BEI and incurred in connection with the
transactions contemplated with the Pharmacy Divestiture Transaction
and the Merger, and any other costs and fees invoiced to New BEI and
incurred by the Administrative Agent, the Agent Lessor and each
Participant in accordance with the terms of the Operative Documents;
(c) All of the Xxxxxxx Entities' covenants,
representations and warranties contained in the Operative Documents
(except as expressly modified by Section 15.18 of the Participation
Agreement) shall remain true and correct and enforceable in all
respects after giving effect to the transactions contemplated by the
Pharmacy Divestiture and the Merger;
(d) No Default, Event of Default, breach or
failure of condition exists, or would exist with notice or lapse of
time or both, under any of the Operative Documents before or after
giving effect to the transactions contemplated by the Pharmacy
Divestiture Transaction and the Merger;
(e) Each of the Participants shall have received
evidence reasonably satisfactory to it that each Lien granted by the
Representative under the Operative Documents has been amended in a
manner sufficient to properly perfect each of their interests therein
(including, without limitation, the filing of appropriately completed
and duly executed Uniform Commercial Code financing statements);
(f) The Administrative Agent, the Agent Lessor
and the Participants shall have received true, correct and complete
copies of the Agreement and Plan of Merger dated as of April 15, 1997
between the Representative and Capstone Pharmacy Services, Inc. and
such other documents, certificates and instruments delivered in
connection with the Pharmacy Divestiture Transaction and the Merger as
any of the Administrative Agent, Agent Lessor or Participants shall
reasonably request;
(g) The Administrative Agent, the Agent Lessor
and the Participants shall have received evidence satisfactory to them
that the Pharmacy Divestiture Transaction shall have been consummated
and New BEI shall be the owner of all the assets theretofore owned by
the Representative other than the capital stock of Pharmacy and its
Subsidiaries;
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(h) No legal proceeding shall be pending which in
any manner draws into question the validity of any of the Operative
Documents;
(i) The Administrative Agent, the Agent Lessor
and the Participants shall have received opinions of Weil, Gotshal &
Xxxxxx LLP, special New York counsel to New BEI, and the Vice
President and Deputy General Counsel of New BEI, covering those
matters relating to the Assumption Agreement, the Pharmacy Divestiture
Transaction and the Merger as the Administrative Agent, the Agent
Lessor and the Participants may reasonably request;
(j) The Administrative Agent, the Agent Lessor
and the Participants shall have received a certificate signed by the
chief financial officer or treasurer of New BEI to the effect set
forth in clauses (c) and (d) above;
(k) The Administrative Agent, the Agent Lessor
and the Participants shall have received all documents as they may
reasonably request relating to the existence of New BEI and each of
its Subsidiaries party to any Operative Document, the corporate
authority for and the validity of the Operative Documents, and any
other matters relevant thereto, all in form and substance satisfactory
to the Administrative Agent, the Agent Lessor and the Participants;
and
(l) The Administrative Agent, the Agent Lessor
and the Participants shall have received evidence satisfactory to them
that all filings with, and consents and approvals of, any third party
or any governmental body, agency or official necessary or desirable to
permit the Pharmacy Divestiture Transaction or the Merger have been
made or obtained and all waiting periods in respect thereof have
expired or been terminated."
3. Amended Defined Terms. The following defined terms
in Appendix A to the Participation Agreement are hereby amended in their
entirety to read as follows:
"Company" means (i) prior to the Release Date, Xxxxxxx Enterprises,
Inc., a Delaware Corporation and (ii) as of and after the Release
Date, New BEI.
"Xxxxxx Credit Agreement" means the Amended and Restated Credit
Agreement dated as of August 20, 1997 amending and restating the
$375,000,000 Amended and Restated Credit Agreement dated as of
December 20, 1996 among the Representative, the Banks listed on the
signature pages thereof, Xxxxxx Guaranty Trust Company of New York, as
Issuing Bank, and Xxxxxx Guaranty Trust Company of New York, as Agent.
"Pledged Stock" means the stock held as collateral from time to time
under the Pledge Agreement.
4. Additional Properties. Schedule A attached hereto is
hereby added as Schedule V to the Participation Agreement.
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5. Assumption Agreement. Exhibit I attached hereto is
hereby added as Exhibit I to the Participation Agreement.
6. Increase in Commitment. The Participation Agreement
is hereby amended by adding as a new Section 3.7 of the Participation
Agreement.
"Section 3.7. Increase in Commitment. (a) The
Xxxxxxx Entities may, prior to October 31, 1997, arrange an increase
in the Aggregate Commitment Amount to the New Aggregate Commitment
Amount (such increase, the "Commitment Increase") in accordance with
this Section 3.7 by either arranging for (i) an existing Participant
to increase its respective Commitment or (ii) one or more Persons not
a party to the Operative Documents to assume Commitment(s) by becoming
a party to the Operative Documents as Participants; provided that the
aggregate Lender Commitment and aggregate Lessor Commitment shall be
increased pro rata in connection with any Commitment Increase.
Neither the Administrative Agent, the Agent Lessor nor any Participant
is hereby committed to assume any additional Commitment and are not
obligated to do so without their prior written consent.
(b) In the event that either (i) the Xxxxxxx Entities
have not obtained written commitments to increase the Aggregate
Commitment Amount to the New Aggregate Commitment Amount by October
31, 1997 pursuant to Section 3.7(a) or (ii) Schedule I to the
Participation Agreement and the other relevant provisions of the
Operative Documents have not been amended to reflect an increase in
the Aggregate Commitment Amount to the New Aggregate Commitment Amount
by November 14, 1997, the Administrative Agent and Agent Lessor may
instruct the Representative to cause any Lessee to purchase any or all
of such Lessee's Additional Properties at a price equal to the
Property Balance with respect thereto, including any accrued and
unpaid Rent and any other amounts payable under the Operative
Documents with respect to such Additional Properties. Within 30 days
after receipt of instructions from the Administrative Agent and Agent
Lessor specifying the Additional Property or Properties to be
purchased, the Representative shall cause each applicable Lessee to
purchase its respective Additional Properties, as specified by the
Administrative Agent and Agent Lessor, in accordance with the previous
sentence. Upon receipt of the Property Balance with respect to each
applicable Additional Property, the Agent Lessor shall transfer to the
applicable Lessee all of Agent Lessor's right, title and interest in
and to each such Additional Property in accordance with the procedures
set forth in Section 21.1(a) of the Master Lease.
(c) The failure of the Representative or any Lessee
of an Applicable Property to satisfy any of their respective
obligations pursuant to Section 3.7(b) shall constitute a Lease Event
of Default as defined under the Master Lease."
7. Amendment of Investments. Subsection 10.2(e)(i) of
the Participation Agreement is hereby deleted in its entirety and replaced with
the following:
"(i) Investments in the Representative or in
Persons that are Subsidiaries of the Representative (including any
other Xxxxxxx Entity) on the date hereof (other than, after the
Release Date, Pharmacy and the Subsidiaries of Pharmacy);"
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8. Amendment of Restricted Payments on Stock. Section
10.2(f) of the Participation Agreement is hereby amended by deleting the word
"and" at the end of clause (iv) thereof and replacing clause (v) thereof with
the following provisions:
"(v) the Representative may consummate the New BEI
Spin-Off as part of the Pharmacy Divestiture Transaction on the
Release Date, and
(vi) the Representative may make any such payment
or distribution if, after giving effect thereto, the aggregate amount
of all such payments or distributions made after the Amendment
Effective Date (including, without limitation, any such payments or
distributions permitted under subclause (ii)(A) or clause (iv) above)
does not exceed the sum of $75,000,000 plus 50% of Consolidated Net
Income for the period after June 30, 1997 through the date of such
declaration, payment or distribution."
9. Amendment of Negative Pledge. (a) Clauses
10.2(g)(13) and 10.2(g)(15) of the Participation Agreement are hereby amended
to read in their entirety as follows:
"(13) Liens on nursing homes and related real
estate improvements and equipment ("Mortgage Assets") given in
substitution for Liens on Mortgage Assets existing on the date hereof
or for Liens on Mortgage Assets incurred pursuant to this clause (13)
or clause (15) below, provided that the sum of (A) the excess of the
Appraised Value of all Mortgage Assets subjected to Liens pursuant to
this clause (13) on or after the Amendment Effective Date over the
Appraised Value of all such Mortgage Assets released from Liens on or
after the Amendment Effective Date and (B) all Indebtedness incurred
after the Amendment Effective Date and secured by Liens permitted
under clause (15) below shall not at any time exceed $50,000,000;"
"(15) Liens not otherwise permitted under clauses
(1) through (14) of this Section, provided that the sum of the amounts
set forth in subclause (A) of clause (13) above and the aggregate
principal amount of all indebtedness incurred after the date hereof
and secured by Liens permitted under this clause (15) shall not at any
time exceed $50,000,000."
(b) Section 10.2(g) of the Participation
Agreement is hereby amended by adding the following new subsection (iii)
immediately following Subsection 10.2(g)(ii).
"(iii) The Representative will not permit any issuer
of Pledged Stock or any of their respective Subsidiaries to create,
assume or suffer to exist any Lien on any asset now owned or hereafter
acquired by it except (A) Liens permitted by clauses (1) through (11)
of Subsection 10.2(g)(i) above, (B) Liens granted prior to the
Amendment Effective Date and permitted by clauses (13) and (15) of
Section 10.2(g)(i) above, (C) Liens on nursing homes and related real
estate improvements and equipment of issuers of Pledged Stock and
their Subsidiaries ("Pledged Subsidiary Mortgage Assets") given in
substitution for Liens on Pledged Subsidiary Mortgage Assets incurred
pursuant to this clause (C) or clause (D) below, provided that the sum
of (x) the excess of the Appraised Value of all Pledged Subsidiary
Mortgage Assets subjected to Liens pursuant to this clause (C) on or
after the Amendment Effective Date over the Appraised Value of all
such Pledged Subsidiary Mortgage Assets released from Liens on or
after the Amendment
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Effective Date and (y) all Indebtedness incurred after the date hereof
and permitted under clause (D) below shall not at any time exceed
$50,000,000 and (D) Liens not otherwise permitted under clauses (A),
(B) and (C) of this Subsection (iii), provided that the sum of the
amounts set forth in subclause (x) of clause (C) above and the
aggregate principal amount of all Indebtedness incurred after the
Amendment Effective Date and secured by Liens permitted under this
clause (D) shall not exceed $50,000,000."
10. Amendment of Consolidations, Mergers and Sales of
Assets Provisions. Section 10.2(h) of the Participation Agreement is hereby
amended by replacing the word "and" that occurs immediately prior to clause
(II) thereof with a comma and inserting the following immediately before the
period which ends such Section:
"and (III) this Section shall not prohibit the consummation of the
Pharmacy Divestiture Transaction or the Merger on the Release Date."
11. Amendment of Incurrence of Debt Provisions. (a)
Subsection 10.2(i)(i)(14) of the Participation Agreement is hereby amended to
read in its entirety as follows:
"(14) Indebtedness not otherwise permitted under
clauses (1) through (13) of this Section, provided that the aggregate
principal amount of all Indebtedness permitted under this clause (14)
that is incurred on or after the Amendment Effective Date shall not at
any time exceed $75,000,000."
(b) Subsection 10.2(i) of the Participation Agreement
is hereby amended by adding the following as a new Subsection "(iii)"
immediately following Subsection 10.2(i)(ii):
"(iii) The Representative will not permit any issuer
of Pledged Stock or any of their respective Subsidiaries to incur,
assume or suffer to exist Indebtedness other than (A) Indebtedness
permitted under clauses (1), (2) (but only to the extent that the
Lease Cancellation Payments relate to a facility operated by any such
issuer or Subsidiary), (3), (4), (5) (to the extent the Refinanced
Debt referred to therein is Indebtedness referred to in clauses (1),
(2) (but only to the extent that the Lease Cancellation Payments
relate to a facility operated by any such issuer or Subsidiary), (3)
and (4)), (6), (7), (8), (9), (10), (11) (but only to the extent that
the assets acquired, constructed or approved with the proceeds of such
Indebtedness are assets of such issuer or such Subsidiary) and (14) of
subsection 10.2(i)(i) above; provided that the aggregate principal
amount of Indebtedness of such issuers and Subsidiaries permitted
under clauses (8) (other than guarantees by an issuer of Pledged Stock
or any of its Subsidiaries of Indebtedness of an issuer of Pledged
Stock or any of its Subsidiaries) and (14) shall not exceed in the
aggregate $50,000,000 and (B) unsecured guarantees of obligations of
Subsidiaries of the Representative, which obligations are permitted
under clause (11) of Section 10.2(i)(i) above and arise under the
Operative Documents, and refinancings, extensions, replacements and
increases thereof, provided that the aggregate principal amount of
indebtedness permitted under this clause (B) may not exceed
$150,000,000."
12. Amendment of Assignment by Xxxxxxx. Section 15.18 of
the Participation Agreement is hereby amended to read in its entirety as
follows:
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Section 15.18 Assignment by Xxxxxxx Enterprises,
Inc. Subject to the conditions set forth in the definition of Release
Date, notwithstanding any other provision herein each party hereto
agrees that Xxxxxxx Enterprises, Inc. may transfer all of its assets
(other than the stock of Pharmacy and the Subsidiaries of Pharmacy) to
New BEI, and Xxxxxxx Enterprises, Inc. shall cause New BEI to execute
the Assumption Agreement. On the Release Date the terms "Company",
"Representative", "Construction Agent" and "Parent Guarantor" shall
mean New BEI and shall cease to mean Xxxxxxx Enterprises, Inc. and
thereupon Xxxxxxx Enterprises, Inc. and Pharmacy and its Subsidiaries,
without any further action on behalf of any party hereto, shall be
released from all covenants, liabilities and obligations under the
Operative Documents. Any transfer of assets by Xxxxxxx Enterprises,
Inc. as aforesaid to New BEI and any distribution of the stock of New
BEI to shareholders of Xxxxxxx Enterprises, Inc. shall not constitute
a Change of Control.
13. Effective Date. Subject to Section 15 below, this
Amendment shall be effective and the Participation Agreement amended as of
August 20, 1997 (the "Effective Date"), as if entered into on such date.
14. Representations and Warranties. To induce the
Administrative Agent, the Agent Lessor and the Participants to execute and
deliver this Amendment (which representations shall survive the execution and
delivery of this Amendment), each of the Xxxxxxx Entities that is a party
hereto represents and warrants to each of the Administrative Agent, the Agent
Lessor and the Participants that:
(a) this Amendment has been duly authorized,
executed and delivered by it and this Amendment constitutes the legal,
valid and binding obligation, contract and agreement of such Xxxxxxx
Entity enforceable against it in accordance with its terms, except as
enforcement may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws or equitable principles relating to or
limiting creditors' rights generally;
(b) the Participation Agreement, as amended by
this Amendment, constitutes the legal, valid and binding obligation,
contract and agreement of such Xxxxxxx Entity enforceable against it
in accordance with their respective terms, except as enforcement may
be limited by bankruptcy, insolvency, reorganization, moratorium or
similar laws or equitable principles relating to or limiting
creditors' rights generally;
(c) the execution, delivery and performance by
such Xxxxxxx Entity of this Amendment (i) has been duly authorized by
all requisite corporate action and, if required, shareholder action,
(ii) does not require the consent or approval of any governmental or
regulatory body or agency, and (iii) will not (A) violate (l) any
provision of law, statute, rule or regulation or its certificate of
incorporation or bylaws, (2) any order of any court or any rule,
regulation or order of any other agency or government binding upon it,
or (3) any provision of any material indenture, agreement or other
instrument to which it is a party or by which its properties or assets
are or may be bound, including, without limitation, the Xxxxxx Credit
Agreement, or (B) result in a breach or constitute (alone or with due
notice or lapse of time or both) a default under any indenture,
agreement or other instrument referred to in clause (iii)(A)(3) of
this Section 14(c);
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(d) as of the date hereof and after giving effect
to this Amendment, no Default or Event of Default has occurred which
is continuing; and
(e) all the representations and warranties
contained in Section 8.2 of the Participation Agreement are true and
correct in all material respects with the same force and effect as if
made by such Xxxxxxx Entity on and as of the date hereof.
15. Conditions to Effectiveness of this Amendment. This
Amendment shall not become effective until, and shall become effective when,
each and every one of the following conditions shall have been satisfied to the
satisfaction of the Agent Lessor, the Administrative Agent and each Participant
(the conditions precedent are for the benefit of the Agent Lessor, the
Administrative Agent and each Participant only):
(a) The Agent Lessor, the Administrative Agent
and the Participants shall have received executed counterparts of this
Amendment, duly executed by the Xxxxxxx Entities party hereto;
(b) The Agent Lessor, the Administrative Agent
and the Participants shall have received evidence satisfactory to them
that the Xxxxxx Credit Agreement has been amended and restated in form
and substance satisfactory to the Administrative Agent, the Agent
Lessor and the Participants;
(c) The representations and warranties of the
Xxxxxxx Entities set forth in Section 14 hereof are true and correct
on and with respect to the date hereof; and
(d) The Administrative Agent shall have received
(i) a fee in connection with the Participants' agreement to the terms
of this Amendment equal to $25,000 for the account of the Participants
and (ii) an administrative fee equal to $25,000 for the benefit of the
Agent Lessor.
Upon receipt of all of the foregoing, this Amendment shall become
effective.
16. Payment of Fees and Expenses. The Representative
agrees to pay upon demand, the reasonable fees and expenses of (i) Skadden,
Arps, Slate, Xxxxxxx & Xxxx LLP, counsel to the Lenders, and (ii) Xxxxx, Xxxxx
& Xxxxx, counsel to the Lessors, in connection with the negotiation,
preparation, approval, execution and delivery of this Amendment.
17. Effect of Amendment. The Parties agree that upon the
effectiveness of this Amendment as provided in Section 15 (a) except as amended
hereby or hereafter, the Participation Agreement and any and all other
agreements, documents, certificates and other instruments executed in
connection therewith shall remain in full force and effect in accordance with
their terms, and (b) any reference to the Participation Agreement shall be
deemed to be a reference to the Participation Agreement as amended by this
Amendment.
18. Counterparts. This Amendment may be executed in
counterparts, each of which shall constitute an original, but all of which when
taken together shall constitute but one instrument.
19. Governing Law. This Amendment shall be governed by
and construed in accordance with the laws of the State of New York.
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IN WITNESS WHEREOF, the Parties have caused this Amendment to
be duly executed by their respective authorized officers as of the day and year
first above written.
XXXXXXX ENTERPRISES, INC., as
Representative, Construction Agent and
Parent Guarantor
By
------------------------------------
Name:
Title:
THE LONG-TERM CREDIT BANK OF
JAPAN, LTD., LOS ANGELES AGENCY, as
Arranger, Administrative Agent and
as a Lender
By
------------------------------------
Name:
Title:
BMO LEASING (U.S.),
INC., as Agent Lessor and as a Lessor
By
------------------------------------
Name:
Title:
BANK OF MONTREAL, as Co-Arranger and
as a Lender
By
------------------------------------
Name:
Title:
S - 1
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VANTAGE HEALTHCARE CORPORATION,
as Lessee and Structural Guarantor
By
---------------------------------
Name:
Title:
XXXXXXXX HEALTH CARE, INC., as
Lessee and Structural Guarantor
By
---------------------------------
Name:
Title:
XXXXXXX SAVANA CAY MANOR, INC., as
Lessee and Structural Guarantor
By
---------------------------------
Name:
Title:
XXXXXXX ENTERPRISES - GEORGIA, INC.,
as Lessee and Structural Guarantor
By
---------------------------------
Name:
Title:
XXXXXXX ENTERPRISES - CALIFORNIA,
INC., as Lessee and Structural Guarantor
By
---------------------------------
Name:
Title:
S - 2
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Schedule A
Additional Properties
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EXHIBIT I
ASSUMPTION AGREEMENT
AGREEMENT dated as of [Release Date], 1997 by NEW XXXXXXX HOLDINGS,
INC., a Delaware corporation (with its successors, "New Xxxxxxx") for the
benefit of the Administrative Agent, the Agent Lessor and the Participants
under the Participation Agreement and the other Operative Documents (as defined
below).
WITNESSETH
WHEREAS, this Assumption Agreement (the "Agreement") relates to the
Participation Agreement dated as of March 21, 1997 and as amended as of May 27,
1997 and as of August 20, 1997, among XXXXXXX ENTERPRISES, INC., a Delaware
corporation ("BEI"), as the Representative, Construction Agent and Parent
Guarantor (in its capacity as Representative, the "Representative"; in its
capacity as Construction Agent, the "Construction Agent"; and, in its capacity
as Parent Guarantor, the "Parent Guarantor") and together with the Guarantors
listed on the signature page to the Guaranty (each a "Guarantor") and the
Structural Guarantors, the "Guarantors"); BMO LEASING (U.S.), INC., a Delaware
corporation, as a Lessor (together with any permitted successors and assigns
thereto, each a "Lessor" and collectively the "Lessors"); BMO LEASING (U.S.),
INC., as Agent Lessor for the Lessors (in such capacity, the "Agent Lessor");
THE LONG-TERM CREDIT BANK OF JAPAN, LTD., LOS ANGELES AGENCY ("LTCB"), BANK OF
MONTREAL, a Canadian banking organization ("BMO"), and the other various
financial institutions as are or may from time to time become lenders (the
"Lenders") under the Loan Agreement; LTCB as Administrative Agent (in such
capacity, the "Administrative Agent") for the Lenders and as Arranger (in such
capacity, the "Arranger"); and BMO, as Co-Arranger and Syndication Agent
(collectively, the "Parties") and the other Operative Documents executed in
connection therewith.
WHEREAS, in order to (i) permit BEI to transfer all of its assets,
other than the stock of Pharmacy Corporation of America, a California
corporation ("Pharmacy") and its Subsidiaries, to New Xxxxxxx and (ii) induce
the Administrative Agent, the Agent Lessor and the Participants to release BEI
from its obligations under the Operative Documents (as defined in the
Participation Agreement), New Xxxxxxx is willing to enter into this Agreement;
WHEREAS, New Xxxxxxx proposes to assume all of the rights and
obligations of BEI under the Operative Documents;
NOW, THEREFORE, in consideration of the foregoing, New Xxxxxxx hereby
agrees as follows;
Section 1. Definitions. All capitalized terms not otherwise defined
herein shall have the respective meanings set forth in Appendix X to the
Participation Agreement.
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Section 2. Assumption. New Xxxxxxx hereby assumes and agrees to
perform, pay and discharge all of the liabilities and obligations of BEI as
Construction Agent, Parent Guarantor and Representative under and pursuant to
the Operative Documents.
Section 3. Representations and Warranties. New Xxxxxxx hereby makes,
on and as of the date hereof, each representation and warranty made by BEI as
Construction Agent, Parent Guarantor and Representative in any Operative
Document.
Section 4. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
Section 5. Further Assurances. New Xxxxxxx hereby agrees to take such
further action and to execute and deliver such further agreements and
undertakings as the Administrative Agent, the Agent Lessor or any Participant
may from time to time request to further carry out the intent of the parties
hereunder.
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IN WITNESS WHEREOF, the undersigned has caused this Agreement to be
executed and delivered by its duly authorized officer as of the date first
above written.
NEW XXXXXXX HOLDINGS, INC.
By:
-----------------------------
Name:
Title:
Agreed and accepted as of the
date first written above:
THE LONG-TERM CREDIT BANK OF JAPAN, LTD.,
LOS ANGELES AGENCY, as Arranger, Administrative
Agent and as a Lender
By
-------------------------------
Name:
Title:
BMO LEASING (U.S.),
INC., as Agent Lessor and as a Lessor
By
-------------------------------
Name:
Title:
BANK OF MONTREAL, as Co-Arranger and as a Lender
By
-------------------------------
Name:
Title:
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