EXHIBIT 10.84
FIFTH AMENDMENT
TO REVOLVING CREDIT AND
GUARANTY AGREEMENT
FIFTH AMENDMENT, dated as of November 16, 2001 (the
"Amendment"), to the REVOLVING CREDIT AND GUARANTY AGREEMENT, dated as of
January 18, 2000, among MARINER POST-ACUTE NETWORK, INC., a Delaware
corporation (the "Borrower"), a debtor and debtor-in-possession under Chapter
11 of the Bankruptcy Code, the Guarantors named therein (the "Guarantors"),
FOOTHILL CAPITAL CORPORATION ("Foothill"), each of the financial institutions
party hereto (the "Banks") and FOOTHILL CAPITAL CORPORATION, as successor agent
for the Banks (in such capacity, the "Agent"):
WITNESSETH:
WHEREAS, the Borrower, the Guarantors, the Banks and the
Agent are parties to that certain Revolving Credit and Guaranty Agreement,
dated as of January 18, 2000, as amended by the First Amendment to Revolving
Credit and Guaranty Agreement dated as of February 16, 2000, the Second
Amendment to Revolving Credit and Guaranty Agreement dated as of March 20,
2000, the Third Amendment to Revolving Credit and Guaranty Agreement dated as
of January 11, 2001 and the Fourth Amendment to Revolving Credit and Guaranty
Agreement, dated as of June 26, 2001 (as the same may be further amended,
modified or supplemented from time to time, the "Credit Agreement"); and
WHEREAS, the Borrower and the Guarantors have requested that
from and after the Effective Date (as hereinafter defined) of this Amendment,
the Credit Agreement be amended subject to and upon the terms and conditions
set forth herein;
NOW, THEREFORE, in consideration of the foregoing premises,
the mutual covenants hereinafter set forth and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, it
is agreed by the parties as follows:
1. As used herein all terms that are defined in the
Credit Agreement shall have the same meanings herein.
2. The Preamble of the Credit Agreement is hereby
amended in its entirety to read as follows:
"Revolving Credit and Guaranty Agreement dated as of
January 18, 2000, among MARINER POST-ACUTE NETWORK, INC., a
Delaware corporation (the "Borrower"), a debtor and
debtor-in-possession in a case pending under Chapter 11 of
the Bankruptcy Code, the GUARANTORS named therein (the
"Guarantors"), each of which is a debtor and
debtor-in-possession in a case pending under Chapter 11 of
the Bankruptcy Code, FOOTHILL CAPITAL
CORPORATION ("Foothill"), each of the financial institutions
party hereto (collectively, the "Banks") and FOOTHILL CAPITAL
CORPORATION, as successor agent for the Banks (in such
capacity, the "Agent").
3. Section 1.01 of the Credit Agreement is hereby
amended by inserting the following new definitions in appropriate alphabetical
order:
"Fifth Amendment" shall mean the Fifth Amendment to Revolving
Credit and Guaranty Agreement, dated as of November 16, 2001.
"MHG Entities" shall have the meaning set forth in paragraph
12 of the Fifth Amendment.
"Overhead Payment" shall have the meaning set forth in
paragraph 12 of the Fifth Amendment.
"Reduction Period" shall have the meaning set forth in
paragraph 12 of the Fifth Amendment.
"Third Amending Order" shall have the meaning set forth in
paragraph 12 of the Fifth Amendment.
"Year 2002 MHG Operating Budget " shall have the meaning set
forth in paragraph 12 of the Fifth Amendment.
4. Section 1.01 of the Credit Agreement is hereby
amended by amending the following definitions in their entirety to read as
follows:
"Chase" shall mean The Chase Manhattan Bank, a New York
banking corporation.
"Commitment Letter" shall mean that certain Commitment Letter
dated December 22, 1999 among Chase, Chase Securities, Inc.
and the Borrower.
"Maturity Date" shall mean April 1, 2002.
5. Section 2.16 of the Credit Agreement is hereby
amended by deleting the words "the Agent", appearing in the last line of such
Section and inserting in lieu thereof the word "Chase".
6. Section 5.01(a) of the Credit Agreement is hereby
amended by (a) deleting the date "January 25, 2001" and inserting the date
"January 4, 2002" in lieu thereof and (b) deleting the date "September 30,
2000" and inserting the date "September 30, 2001" in lieu thereof.
7. Section 6.04 of the Credit Agreement is hereby
amended by deleting paragraphs (a) and (b) in their entirety and inserting in
lieu thereof the following:
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"(a) Make Capital Expenditures (other than Special
Capital Expenditures) in excess of $11,500,000 during the
period beginning October 1, 2001 and ending March 31, 2002.
(b) Make Special Capital Expenditures in excess of
$1,500,000 during the period beginning October 1, 2001 and
ending March 31, 2002."
8. Section 6.05 of the Credit Agreement is hereby
amended by inserting the following dates and the following amounts at the end
of the table set forth therein:
"January 31, 2002 $76,959,000
February 28, 2002 $83,047,000
March 31, 2002 $91,662,000"
9. Section 6.14 of the Credit Agreement is hereby
amended by inserting the following dates and the following percentages at the
end of the table set forth therein:
"January 31, 2002 85.5%
February 28, 2002 85.5%
March 31, 2002 85.5%"
10. Section 7.01 of the Credit Agreement is hereby
amended by deleting the parenthetical phrase "(other than pursuant to the First
Amending Order and the Second Amending Order)" contained in paragraph (j) and
inserting in lieu thereof the parenthetical phrase "(other than pursuant to the
First Amending Order, the Second Amending Order and the Third Amending Order)".
11. Section 8.07 of the Credit Agreement is hereby
amended by deleting the name "Chase" appearing therein and inserting in lieu
thereof the name "Foothill."
12. The Agent and the Banks hereby agree and acknowledge
that, notwithstanding anything to the contrary contained in the Credit
Agreement or the Orders (as amended through the Third Amending Order), the
overhead fees payable by MHG to the Borrower as contemplated in Section 4.02(j)
of the Credit Agreement shall be permitted to be modified to provide that,
beginning as of November 1, 2001, and continuing through and including August
31, 2002 (the "Reduction Period"), recognizing that the Maturity Date is April
1, 2002, the weekly overhead fees payable by MHG to the Borrower shall be equal
to 1.25% of "Revenues" projected in the fiscal year 2002 operating budget (the
"Year 2002 MHG Operating Budget") for MHG and its consolidated debtor
Subsidiaries (collectively, the "MHG Entities"), for the month in which such
week occurs, less $250,000, such that the total amount of weekly payments made
in any calendar month during the Reduction Period shall be equivalent to 5% of
"Revenues" projected for such month in the Year 2002 MHG Operating Budget less
$1,000,000 (the amount so payable in each such week being the "Overhead
Payment" payable for such week); provided, however, that (a) in the event 5% of
"net inpatient revenues" of the MHG Entities for any month exceeds the
aggregate amount of Overhead Payments (prior to giving effect to the reduction
to be made during the Reduction Period) payable during such month, MHG shall
pay the amount of such excess to the Borrower at the time of the next Overhead
Payment, and (b) in the event 5% of "net inpatient revenues" of the MHG
Entities for any month is less than the aggregate amount of Overhead Payments
(prior to giving effect to the reduction to be made during the Reduction
Period) paid during such month, MHG shall deduct the amount of the difference
from the payments of the next succeeding
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Overhead Payment or Overhead Payments payable to the full extent thereof. A
copy of the Year 2002 MHG Operating Budget has been provided to the Agent and
the Banks.
13. Except as set forth in the following sentence, this
Amendment shall not become effective until the date (the "Effective Date") on
which (i) this Amendment shall have been executed by the Borrower, the
Guarantors, the Banks and the Agent, and the Agent shall have received evidence
satisfactory to it of such execution, (ii) the Borrower shall have paid to the
Agent, for the respective account of the Banks, an amendment fee in an
aggregate amount equal to $250,000 and (iii) the Bankruptcy Court shall have
entered an order satisfactory in form and substance to the Agent (the "Third
Amending Order") authorizing the terms of this Amendment (including the payment
of the fees provided for in clause (ii) of this paragraph).
14. Except to the extent hereby amended, the Credit
Agreement and each of the Loan Documents remain in full force and effect and
are hereby ratified and affirmed.
15. The Borrower agrees that its obligations set forth
in Section 10.05 of the Credit Agreement shall extend to the preparation,
execution and delivery of this Amendment, including the reasonable fees and
disbursements of special counsel to the Agent.
16. This Amendment shall be limited precisely as written
and shall not be deemed (a) to be a consent granted pursuant to, or a waiver or
modification of, any other term or condition of the Credit Agreement or any of
the instruments or agreements referred to therein or (b) to prejudice any right
or rights which the Agent or the Banks may now have or have in the future under
or in connection with the Credit Agreement or any of the instruments or
agreements referred to therein. Whenever the Credit Agreement is referred to in
the Credit Agreement or any of the instruments, agreements or other documents
or papers executed or delivered in connection therewith, such reference shall
be deemed to mean the Credit Agreement as modified by this Amendment.
17. This Amendment may be executed in any number of
counterparts and by the different parties hereto in separate counterparts, each
of which when so executed and delivered shall be deemed to be an original and
all of which taken together shall constitute but one and the same instrument.
18. 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 hereto have caused this
Agreement to be duly executed as of the day and the year first written.
BORROWER:
MARINER POST-ACUTE NETWORK, INC.
By: /s/ Xxxx X. Xxxxxx
-------------------------------------------------
Title: Senior Vice President and Treasurer
Name: Xxxx X. Xxxxxx
GUARANTORS:
AMERICAN MEDICAL INSURANCE
BILLING SERVICES, INC.
AMERICAN PHARMACEUTICAL SERVICES, INC.
AMERICAN REHABILITY SERVICES, INC.
AMERICAN-CAL MEDICAL SERVICES, INC.
AMERRA PROPERTIES, INC.
AMS GREEN TREE, INC.
AMS PROPERTIES, INC.
APS HOLDING COMPANY, INC.
APS PHARMACY MANAGEMENT, INC.
XXXXX CENTER HEALTH & RETIREMENT/ALLEGHANY, INC.
XXXXX CENTER HEALTH & RETIREMENT/XXXXXXX, INC.
XXXXX CENTER HEALTH & RETIREMENT/TAMPA, INC.
XXXXX CENTER HEALTH & RETIREMENT/XXXXXXX, INC.
XXXXX CENTER MANAGEMENT CORPORATION
XXXXX CENTER NURSING CARE/AUSTELL, INC.
XXXXX CENTER NURSING CARE/FINCASTLE, INC.
XXXXX CENTER NURSING
CARE/HICKORY, INC.
XXXXX CENTER OF ASHEBORO, INC.
XXXXX CENTER OF CENTRAL COLUMBIA, INC.
CAMBRIDGE BEDFORD, INC.
CAMBRIDGE EAST, INC.
CAMBRIDGE NORTH, INC.
CAMBRIDGE SOUTH, INC.
CLINTONAIRE NURSING HOME, INC.
CONNERWOOD HEALTHCARE, INC.
CORNERSTONE HEALTH MANAGEMENT COMPANY
CRESTMONT HEALTH CENTER, INC.
DEVCON HOLDING COMPANY
EH ACQUISITION CORP.
EH ACQUISITION CORP. II
EH ACQUISITION CORP. III
EVERGREEN HEALTHCARE LTD., L.P.
EVERGREEN HEALTHCARE, INC.
FRENCHTOWN NURSING HOME, INC.
GC SERVICES, INC.
GCI BELLA VITA, INC.
GCI CAMELLIA CARE CENTER, INC.
GCI XXXXXX VILLAGE, INC.
GCI EAST VALLEY MEDICAL & REHABILITATION CENTER,
INC.
GCI FAITH NURSING HOME, INC.
GCI HEALTH CARE CENTERS, INC.
GCI XXXXXX ACRES, INC.
GCI PALM COURT, INC.
GCI PRINCE XXXXXX, INC.
GCI REHAB, INC.
GCI SPRINGDALE VILLAGE, INC.
GCI THERAPIES, INC.
GCI VILLAGE GREEN, INC.
GCI-CAL THERAPIES COMPANY
GCI-WISCONSIN PROPERTIES, INC.
GRANCARE HOME HEALTH SERVICES, INC.
GRANCARE OF MICHIGAN, INC.
GRANCARE OF NORTH CAROLINA, INC.
GRANCARE OF NORTHERN CALIFORNIA, INC.
GRANCARE SOUTH CAROLINA, INC.
GRANCARE, INC.
HAWK'S-PERIMETER, INC.
HERITAGE NURSING HOME, INC.
HERITAGE OF LOUISIANA, INC.
HMI CONVALESCENT CARE, INC.
HOSPICE ASSOCIATES OF AMERICA, INC.
HOSTMASTERS, INC.
INTERNATIONAL HEALTH CARE MANAGEMENT, INC.
INTERNATIONAL X-RAY, INC.
LC MANAGEMENT COMPANY
LCA OPERATIONAL HOLDING COMPANY
LCR, INC.
LIVING CENTERS - EAST, INC.
LIVING CENTERS - PHCM, INC.
LIVING CENTERS - ROCKY MOUNTAIN, INC.
LIVING CENTERS - SOUTHEAST DEVELOPMENT CORPORATION
LIVING CENTERS - SOUTHEAST, INC.
LIVING CENTERS DEVELOPMENT COMPANY
LIVING CENTERS HOLDING COMPANY
LIVING CENTERS LTCP DEVELOPMENT COMPANY
LIVING CENTERS OF TEXAS, INC.
XXXXXXX NURSING CENTER, INC.
MED-THERAPY REHABILITATION SERVICES, INC.
MIDDLEBELT NURSING HOME, INC.
MIDDLEBELT-HOPE NURSING HOME, INC.
XXX-XXX CORP.
NATIONAL HERITAGE REALTY, INC.
NIGHTINGALE EAST NURSING CENTER, INC.
OMEGA/INDIANA CARE CORP.
PROFESSIONAL HEALTH CARE MANAGEMENT, INC.
PROFESSIONAL RX SYSTEMS, INC.
REHABILITY HEALTH SERVICES, INC.
RENAISSANCE MENTAL HEALTH CENTER, INC.
ST. XXXXXXX NURSING HOME, INC.
SUMMIT HOSPITAL HOLDINGS, INC.
SUMMIT HOSPITAL OF EAST GEORGIA, INC.
SUMMIT HOSPITAL OF SOUTHEAST ARIZONA, INC.
SUMMIT HOSPITAL OF SOUTHEAST TEXAS, INC.
SUMMIT HOSPITAL OF SOUTHWEST LOUISIANA, INC.
SUMMIT HOSPITAL OF WEST GEORGIA, INC.
SUMMIT INSTITUTE FOR PULMONARY MEDICINE AND
REHABILITATION, INC.
SUMMIT INSTITUTE OF AUSTIN, INC.
SUMMIT INSTITUTE OF WEST MONROE, INC.
SUMMIT MEDICAL HOLDINGS, LTD.
SUMMIT MEDICAL MANAGEMENT, INC.
By: /s/ Xxxx X. Xxxxxx
-------------------------------------------------
Name: Xxxx X. Xxxxxx
Title: Senior VP and Treasurer
FOOTHILL CAPITAL CORPORATION,
INDIVIDUALLY AND AS AGENT
By: /s/ M.A. Sterrns
-------------------------------------------------
Name: M. A. Xxxxxx
Title: Senior Vice President
GENERAL ELECTRIC CAPITAL CORPORATION
By: /s/ Xxxxxxx X. Xxxxx
-------------------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Duly Authorized Signatory
THE CHASE MANHATTAN BANK
By: /s/ Xxxxxxx Lancia
-------------------------------------------------
Name: Xxxxxxx Lancia
Title: Vice President
XXXXXXX XXXXX CREDIT PARTNERS L.P.
By: signed
-------------------------------------------------
Name:
Title:
BDC FINANCE L.L.C.
By: /s/ Xxxxx X. Xxxxx, Xx.
-------------------------------------------------
Name: Xxxxx X. Xxxxx, Jr.
Title: Director
XXXXXX HEALTHCARE FINANCE, INC.
By: /s/ Xxxxx Xxxxxxxx
-------------------------------------------------
Name: Xxxxx Xxxxxxxx
Title: Vice President
MUIRFIELD TRADING LLC
By: /s/ Xxx X. Xxxxxx
-------------------------------------------------
Name: Xxx X. Xxxxxx
Title: Assistant Vice President
TORONTO DOMINION (NEW YORK), INC.
By: /s/ Xxxxx Xxxxxx
-------------------------------------------------
Name: Xxxxx Xxxxxx
Title: Vice President
