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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington D.C. 20549
FORM 10-Q/A
(Mark One)
[X] QUARTERLY REPORT UNDER SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934
For the quarterly period ended June 30, 1999
OR
[ ] TRANSITION REPORT UNDER SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934
For the transition period from ______ to ______
Commission File Number: 1-11666
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GENESIS HEALTH VENTURES, INC.
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(Exact name of registrant as specified in its charter)
Pennsylvania 06-1132947
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
101 East State Street
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Kennett Square, Pennsylvania 19348
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(Address of principal executive offices)
(Zip Code)
(610) 444-6350
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(Registrant's telephone number, including area code)
Indicate by check mark whether the registrant (1) filed all reports required to
be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or for such shorter period that the registrant was
required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days.
Yes X No
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Indicate the number of shares outstanding of each of the issuer's classes of
common stock, as of September 14, 1999: 36,145,678 shares of common stock
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Item 1 of Part II is hereby amended as follows:
On August 27, 1999 Manor Care Inc., a wholly owned subsidiary of HCR Manor Care
Inc., filed a lawsuit against Genesis Health Venture, Inc. ("Genesis") in the
United States District Court for the District of Delaware based upon Section 11
and Section 12 of the Securities Act of 1933, as amended. The plaintiffs allege
that in connection with the sale of Genesis' Series G Cumulative Convertible
Preferred Stock, par value $0.01 per share ("Series G Preferred Stock"), issued
as part of the purchase price to acquire Vitalink Pharmacy Services Inc.,
Genesis failed to disclose or made misrepresentations related to the effects of
the conversion to the prospective pay system, the restructuring of the Multicare
Companies, Inc. ("Multicare") joint venture, the impact of the acquisition of
Multicare, the status of Genesis labor relations, Genesis' ability to declare
dividends on the Series G Preferred Stock and information relating to the ratio
of combined fixed charges and preference dividends to earnings. Manor Care Inc.
seeks, among other things, compensatory damages and recission of the purchase of
the Series G Preferred Stock.
Item 6 of Part II is hereby amended as follows:
(a) Exhibits
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Number Description
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99.1 Fourth Amended and Restated Credit Agreement dated as
of August 20, 1999 by and among Genesis Health
Ventures, Inc. (together with its successors,
"Genesis"), the Subsidiaries of Genesis referred to
on the signature pages thereto (and such other
Subsidiaries of Genesis which may from time to time
become Borrowers thereunder in accordance with the
provisions thereof) (collectively with Genesis, the
"Borrowers"), the Lenders referred to on the
signature pages thereto (together with other lenders
parties thereto from time to time, and their
successors and assigns, the "Lenders"), Mellon Bank,
N.A., a national banking association as issuer of
Letters of Credit thereunder (in such capacity,
together with its successors and assigns in such
capacity, the "Administrative Agent"), Citicorp USA,
Inc. as Syndication Agent, First Union National Bank,
a national banking association as Documentation
Agent, and Bank of America, N.A. (as successor to
NationsBank, N.A. and Bank of America, NT&SA), a
national banking association as Syndication Agent.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
GENESIS HEALTH VENTURES, INC.
/s/ George V. Hager, Jr
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George V. Hager, Jr.
Executive Vice President and
Chief Financial Officer
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FOURTH AMENDED AND RESTATED CREDIT AGREEMENT
dated as of August 20, 1999
by and among
GENESIS HEALTH VENTURES, INC. and
CERTAIN OF ITS SUBSIDIARIES, AS BORROWERS,
THE FINANCIAL INSTITUTIONS IDENTIFIED HEREIN AS LENDERS,
MELLON BANK, N.A. AS ISSUER OF LETTERS OF CREDIT,
MELLON BANK, N.A. AS ADMINISTRATIVE AGENT
CITICORP USA, INC. AS SYNDICATION AGENT
FIRST UNION NATIONAL BANK AS DOCUMENTATION AGENT and
BANK OF AMERICA, N.A. (as successor to NATIONSBANK, N.A.
and BANK OF AMERICA NT&SA)
AS SYNDICATION AGENT
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Article 1 CREDIT FACILITY................................................... 2
1.1 COMMITMENT TO LEND................................................ 2
1.2 JOINT AND SEVERAL OBLIGATIONS..................................... 3
1.3 MANNER OF BORROWING............................................... 4
1.4 SCHEDULED REPAYMENTS.............................................. 5
1.5 VOLUNTARY PREPAYMENTS AND UNSCHEDULED,
MANDATORY PREPAYMENTS........................................... 7
1.6 PAYMENTS BY THE BORROWERS IN GENERAL.............................. 12
1.7 REDUCTIONS OF RC COMMITMENT....................................... 14
1.8 INTEREST.......................................................... 15
1.9 FEES.............................................................. 17
1.10 COMPUTATION OF INTEREST AND FEES.................................. 18
1.11 PROMISSORY NOTES; RECORDS OF ACCOUNT.............................. 18
1.12 PRO RATA TREATMENT................................................ 18
1.13 TAXES ON PAYMENTS................................................. 19
1.14 REGISTERED NOTES AND LOANS........................................ 21
Article 2 YIELD PROTECTION AND BREAKAGE INDEMNITY........................... 22
2.1 MANDATORY SUSPENSION AND CONVERSION OF LIBO RATE
LOANS........................................................... 22
2.2 REGULATORY CHANGES................................................ 23
2.3 CAPITAL AND RESERVE REQUIREMENTS.................................. 24
2.4 BREAKAGE.......................................................... 24
2.5 DETERMINATIONS.................................................... 25
2.6 REPLACEMENT OF LENDERS............................................ 25
2.7 CHANGE OF LENDING OFFICE.......................................... 26
Article 3 LETTERS OF CREDIT................................................. 26
3.1 ISSUANCE OF LETTERS OF CREDIT..................................... 26
Article 4 CONDITIONS TO EFFECTIVENESS OF THIS FOURTH AMENDED
AND RESTATED CREDIT AGREEMENT AND FUNDINGS..................... 31
4.1 CONDITIONS TO EFFECTIVENESS OF THIS FOURTH AMENDED
AND RESTATED CREDIT AGREEMENT................................... 31
4.2 CONDITIONS TO EACH LOAN AND ISSUANCE OF EACH LETTER
OF CREDIT....................................................... 34
4.3 RELATIONSHIP WITH EXISTING CREDIT AGREEMENT....................... 35
4.4 CERTAIN WAIVERS................................................... 35
Article 5 REPRESENTATIONS AND WARRANTIES.................................... 35
5.1 REPRESENTATIONS................................................... 35
5.2 REPRESENTATIONS AND WARRANTIES WITH RESPECT TO
MORTGAGED PROPERTY.............................................. 45
5.3 REPRESENTATIONS AND WARRANTIES ABSOLUTE........................... 45
Article 6 AFFIRMATIVE COVENANTS............................................. 46
6.1 REPORTING REQUIREMENTS............................................ 46
6.2 MAINTENANCE OF EXISTENCE.......................................... 51
6.3 CONDUCT OF BUSINESS AND MAINTENANCE OF LICENSES
AND OTHER PROPERTY.............................................. 52
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6.4 MAINTENANCE OF RECORDS; FISCAL YEAR.............................. 53
6.5 COMPLIANCE WITH LAWS............................................. 53
6.6 ERISA............................................................ 53
6.7 RIGHT OF INSPECTION.............................................. 54
6.8 INSURANCE........................................................ 54
6.9 PAYMENT OF TAXES AND OTHER CHARGES............................... 55
6.10 SUBSIDIARIES TO BE BORROWERS..................................... 55
6.11 PRESERVATION OF STATUS AS SENIOR INDEBTEDNESS.................... 56
6.12 INTEREST RATE HEDGING AGREEMENTS................................. 56
6.13 CORPORATE SEPARATENESS........................................... 56
6.14 TRANSACTIONS WITH AFFILIATES..................................... 57
6.15 MORTGAGED PREMISES AND OTHER ADDITIONAL SECURITY................. 57
6.16 FURTHER ASSURANCES............................................... 59
6.17 USE OF PROCEEDS.................................................. 59
6.18 ASSET SALES...................................................... 59
Article 7 FINANCIAL COVENANTS.............................................. 60
7.1 CERTAIN FINANCIAL COVENANTS...................................... 60
7.2 CALCULATION OF FINANCIAL COVENANTS............................... 63
Article 8 NEGATIVE COVENANTS............................................... 64
8.1 INDEBTEDNESS..................................................... 65
8.2 LIENS............................................................ 67
8.3 LOANS, ADVANCES AND INVESTMENTS.................................. 68
8.4 ACQUISITIONS, ETC................................................ 70
8.5 DISPOSITIONS..................................................... 71
8.6 ISSUANCE OF SUBSIDIARY STOCK OR OTHER OWNERSHIP
INTERESTS...................................................... 74
8.7 LEASES........................................................... 75
8.8 DIVIDENDS AND RELATED DISTRIBUTIONS.............................. 75
8.9 CONSOLIDATED TAX RETURN.......................................... 76
8.10 LIMITATION ON PAYMENTS, PREPAYMENTS, DEFEASEMENT
AND OTHER ACTION WITH RESPECT TO CERTAIN DEBT
OBLIGATIONS.................................................... 76
8.11 LIMITATIONS ON MODIFICATION OF CERTAIN DOCUMENTS;
EXERCISE OF PUT/CALL AND UNDERTAKINGS RESPECTING
PUT/CALL....................................................... 77
8.12 LIMITATION ON CERTAIN RESTRICTIVE PROVISIONS..................... 77
8.13 LIMITATIONS ON MERGERS, ETC...................................... 78
8.14 AVOIDANCE OF OTHER CONFLICTS..................................... 78
8.15 CAPITAL EXPENDITURES............................................. 78
Article 9 DEFAULTS......................................................... 79
9.1 EVENTS OF DEFAULT................................................ 79
9.2 CONSEQUENCES OF AN EVENT OF DEFAULT.............................. 83
9.3 APPLICATION OF PROCEEDS.......................................... 84
Article 10 THE ADMINISTRATIVE AGENT......................................... 85
10.1 APPOINTMENT...................................................... 85
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10.2 GENERAL NATURE OF ADMINISTRATIVE AGENT'S DUTIES................ 86
10.3 EXERCISE OF POWERS............................................. 87
10.4 GENERAL EXCULPATORY PROVISIONS................................. 87
10.5 ADMINISTRATION BY THE ADMINISTRATIVE AGENT..................... 88
10.6 LENDER PARTIES NOT RELYING ON ADMINISTRATIVE AGENT
OR OTHER LENDERS...........................89
10.7 INDEMNIFICATION................................................ 89
10.8 REGISTER....................................................... 89
10.9 SUCCESSOR ADMINISTRATIVE AGENT................................. 90
10.10 ADDITIONAL ADMINISTRATIVE AGENTS; COLLATERAL
AGENT........................................................ 90
10.11 CALCULATIONS................................................... 91
10.12 OTHER AGENTS................................................... 91
10.13 JOINDER OF CERTAIN SWAP PARTIES; APPOINTMENT OF AGENT.......... 91
ARTICLE 10A SPECIAL INTERCREDITOR PROVISIONS............................... 92
10A.1 SPECIAL PROVISIONS APPLICABLE TO LENDER PARTIES AS
PARTIES TO THE MULTICARE CREDIT AGREEMENT.................... 92
ARTICLE 10B SPECIAL INTER-BORROWER PROVISIONS.............................. 93
10B.1 CERTAIN BORROWER ACKNOWLEDGEMENTS.............................. 93
10B.2 CERTAIN INTER-BORROWER AGREEMENTS.............................. 94
10B.3 RECORDS........................................................ 94
Article 11 DEFINITIONS; CONSTRUCTION...................................... 94
11.1 CERTAIN DEFINITIONS............................................ 94
11.2 CONSTRUCTION................................................... 123
11.3 ACCOUNTING PRINCIPLES.......................................... 124
Article 12 MISCELLANEOUS.................................................. 124
12.1 NOTICES........................................................ 124
12.2 PRIOR UNDERSTANDINGS; ENTIRE AGREEMENT......................... 125
12.3 SEVERABILITY................................................... 125
12.4 DESCRIPTIVE HEADINGS........................................... 126
12.5 GOVERNING LAW.................................................. 126
12.6 NON-MERGER OF REMEDIES......................................... 126
12.7 NO IMPLIED WAIVER; CUMULATIVE REMEDIES......................... 126
12.8 AMENDMENTS; WAIVERS............................................ 126
12.9 SUCCESSORS AND ASSIGNS......................................... 128
12.10 COUNTERPARTS; PHOTOCOPIED OR TELECOPIED SIGNATURE
PAGES........................................................ 131
12.11 MAXIMUM LAWFUL INTEREST RATE................................... 131
12.12 INDEMNIFICATION................................................ 131
12.13 EXPENSES....................................................... 133
12.14 MAXIMUM AMOUNT OF JOINT AND SEVERAL LIABILITY.................. 134
12.15 AUTHORIZATION OF GENESIS BY OTHER BORROWERS.................... 134
12.16 ADMINISTRATIVE AGENT IN ITS INDIVIDUAL CAPACITY................ 134
12.17 CERTAIN WAIVERS BY BORROWERS................................... 135
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12.18 SET-OFF........................................................ 135
12.19 SHARING OF COLLECTIONS......................................... 135
12.20 OTHER LOAN DOCUMENTS........................................... 136
12.21 CERTAIN BORROWER ACKNOWLEDGEMENTS.............................. 136
12.22 CERTAIN LENDER PARTY ACKNOWLEDGEMENTS.......................... 136
12.23 CONSENTS AND APPROVALS OF SIGNING PARTIES...................... 136
12.24 CONSENT TO JURISDICTION, SERVICE AND VENUE; WAIVER OF
JURY TRIAL................................................... 136
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FOURTH AMENDED AND RESTATED CREDIT AGREEMENT
THIS FOURTH AMENDED AND RESTATED CREDIT AGREEMENT, dated as of August
20, 1999, by and among GENESIS HEALTH VENTURES, INC., a Pennsylvania corporation
(together with its successors, "Genesis"), the Subsidiaries of Genesis referred
to on the signature pages hereto (and such other Subsidiaries of Genesis which
may from time to time become Borrowers hereunder in accordance with the
provisions hereof) (collectively with Genesis, the "Borrowers"), the Lenders
referred to on the signature pages hereto (together with other lenders parties
hereto from time to time, and their successors and assigns, the "Lenders"),
MELLON BANK, N.A., a national banking association, as issuer of Letters of
Credit hereunder (in such capacity, together with its successors and assigns in
such capacity, the "Issuer"), MELLON BANK, N.A., a national banking association,
as Administrative Agent for itself and for the other Agents, the Lenders and the
Issuer hereunder (in such capacity, together with its successors and assigns in
such capacity, the "Administrative Agent"), CITICORP USA, INC., a Delaware
corporation, as Syndication Agent, FIRST UNION NATIONAL BANK, a national banking
association, as Documentation Agent, and BANK OF AMERICA, N.A. (as successor to
NATIONSBANK, N.A. and BANK OF AMERICA NT&SA), a national banking association, as
Syndication Agent. Certain terms used herein are defined in Article 11 below.
W I T N E S S E T H T H A T
WHEREAS, certain Borrowers, certain Lenders, the Issuer and the
Administrative Agent are parties to that certain Credit Agreement, dated as of
November 22, 1993, as amended pursuant to that certain First Amendment and
Waiver to Loan Documents, dated as of July 15, 1994, as further amended pursuant
to that certain Second Amendment to Credit Agreement, dated as of September 23,
1994, as further amended pursuant to that certain Third Amendment to Credit
Agreement, dated as of February 10, 1995, as further amended pursuant to that
certain Fourth Amendment and Modification to Loan Documents and Consent dated as
of June 15, 1995, as further amended pursuant to that certain Amended and
Restated Credit Agreement, dated as of September 29, 1995, as further amended
pursuant to that certain First Amendment to Credit Documents, dated as of April
12, 1996, as further amended pursuant to that Second Amendment and Waiver to
Loan Documents, dated as of July 19, 1996, as further amended pursuant to that
certain Second Amended and Restated Credit Agreement, dated as of October 7,
1996, as further amended pursuant to that certain Amendment No. 1 to Second
Amended and Restated Credit Agreement, dated as of March 7, 1997, as further
amended pursuant to that certain Amendment No. 2 to Second Amended and Restated
Credit Agreement, dated as of June 20, 1997, as further amended pursuant to that
certain Third Amended and Restated Credit Agreement, as further amended pursuant
to that certain Amendment No. 1 to Third Amended and Restated Credit Agreement,
dated as of March 5, 1998, and as further amended pursuant to that certain
Amendment No. 2 to Third Amended and Restated Credit Agreement, dated as of
August 28, 1998, as further amended pursuant to that certain Amendment No. 3 to
Third Amended and Restated Credit Agreement, dated as of December 15, 1998 and
as further amended pursuant to that certain letter agreement, dated as of April
30, 1999 (as so amended, the "Existing Credit Agreement");
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WHEREAS, for the ease of reference the parties wish to incorporate such
amendments and all prior amendments into this Fourth Amended and Restated Credit
Agreement;
WHEREAS, Genesis and its Subsidiaries, from time to time, other than
Excluded Subsidiaries, are joint and several "Borrowers" hereunder;
WHEREAS, as more particularly set forth in the Pledge Agreement, the
Security Agreement and the Collateral Agency Agreement, certain collateral
securing the obligations hereunder is to be shared (on the basis of the priority
in proceeds set forth in the Collateral Agency Agreement and Section 9.3
(Application of Proceeds) below) with certain creditors party to the Synthetic
Lease Facility and certain creditors party to the Qualifying Interest Rate
Hedging Agreements (as each such term is defined in Article 11 below); and
WHEREAS, ALL OBLIGATIONS HEREUNDER AND UNDER EACH AGREEMENT AND
INSTRUMENT DELIVERED IN CONNECTION HEREWITH FROM TIME TO TIME ARE "SENIOR
INDEBTEDNESS" AND ARE HEREBY DESIGNATED BY GENESIS AS "DESIGNATED SENIOR
INDEBTEDNESS" WITHIN THE MEANING OF THE 1995 SUBORDINATED NOTE INDENTURE AND THE
1996 SUBORDINATED NOTE INDENTURE AND THE 1998 SUBORDINATED NOTE INDENTURE AND,
WHEN ISSUED, THE ADDITIONAL SUBORDINATED NOTE INDENTURE;
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants herein contained and intending to be legally bound hereby, the parties
hereto hereby agree as follows.
Article 1
CREDIT FACILITY
1.1 COMMITMENT TO LEND
(a) Term Loans.
(i) Tranche A Term Loans. Upon the terms and subject to the
conditions of this Agreement, each Tranche A Lender agreed to make and did make,
on the Closing Date, a Loan (a "Tranche A Term Loan") to the Borrowers in the
amount of such Lender's Tranche A Commitment. The total amount of the Tranche A
Commitment of all Tranche A Lenders on the Closing Date was $200,000,000.00.
(Due to amortization and/or prepayments, the total outstanding principal amount
of the Tranche A Term Loan is, as of the date of this Fourth Amended and
Restated Credit Agreement, $121, 397, 731.)
(ii) Tranche B Term Loans. Upon the terms and subject to the
conditions of this Agreement, each Tranche B Lender agreed to make and did make,
on the
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Closing Date, a Loan (a "Tranche B Term Loan") to the Borrowers in the amount of
such Lender's Tranche B Commitment. The total amount of the Tranche B Commitment
of all Tranche B Lenders on the Closing Date was $200,000,000.00. (Due to
amortization and/or prepayments, the total outstanding principal amount of the
Tranche B Term Loan is, as of the date of this Fourth Amended and Restated
Credit Agreement, $152,908,954.)
(iii) Tranche C Term Loans. Upon the terms and subject to the
conditions of this Agreement, each Tranche C Lender agreed to make and did make,
on the Closing Date, a Loan (a "Tranche C Term Loan") to the Borrowers in the
amount of such Lender's Tranche C Commitment. The total amount of the Tranche C
Commitment of all Tranche C Lenders on the Closing Date was $200,000,000.00.
(Due to amortization and/or prepayments, the total outstanding principal amount
of the Tranche C Term Loans is, as of the date of this Fourth Amended and
Restated Credit Agreement, $152,545,308.)
(b) Revolving Credit Loans. Upon the terms and subject to the
conditions of this Agreement, each RC Lender agreed (and continues to agree) to
make, from time to time, during the period from and including the Closing Date
to but excluding the RC Maturity Date, one or more Loans ("RC Loans") to the
Borrowers in an aggregate unpaid principal amount not exceeding at any time such
Lender's RC Commitment at such time; provided, however, that the Borrowers shall
not request, and the Lenders shall have no obligation to make, any RC Loans at
any time in excess of the Available RC Commitment. The total amount of the RC
Commitment of all RC Lenders as of the date of this Fourth Amended and Restated
Credit Agreement is $650,000,000.
(c) Tranche II Revolver Loans. Upon the terms and subject to the
conditions of this Agreement that are not inconsistent with those referred to in
this paragraph (c) (or agreements entered into pursuant to this paragraph (c)),
Tranche II Revolver Lenders may, from time to time, make one or more Tranche II
Revolver Loans ("Tranche II Revolver Loans") (i) in such amounts (but in an
aggregate principal amount not to exceed at any time outstanding the Tranche II
Revolver Commitment), (ii) at such times, (iii) on such conditions, (iv) at such
rates of interest, (v) with such fees, and (vi) with such maturities and
amortization as the Borrowers, the Administrative Agent and the Tranche II
Revolver Lenders may, in their sole discretion, agree upon, provided however
that, Borrowers shall not request a Tranche II Revolver Loan and the Tranche II
Revolver Lenders shall not be required to make a Tranche II Revolver Loan if
there is any unused RC Commitment. The terms of any such agreement entered into
pursuant to this Section 1.1(c) is incorporated herein by reference. Immediately
upon the agreement of the Tranche II Revolver Lenders, the Administrative Agent
and the Borrowers as to the terms of the Tranche II Revolver Loans or any
modification of such terms, the Administrative Agent shall give notice to the
Lenders of (i) the amount of the commitment for the Tranche II Revolver Loans
and (ii) the final maturity date thereof.
1.2 JOINT AND SEVERAL OBLIGATIONS.
WHETHER OR NOT EXPRESSLY STATED HEREIN OR IN ANY OTHER LOAN DOCUMENT,
ALL OBLIGATIONS OF THE BORROWERS (OR OF ANY BORROWER) HEREUNDER AND UNDER EACH
OTHER LOAN DOCUMENT
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(WHETHER IN CONNECTION WITH LOANS, LETTERS OF CREDIT OR OTHER OBLIGATIONS) ARE
JOINT AND SEVERAL OBLIGATIONS OF ALL BORROWERS.
1.3 MANNER OF BORROWING.
(a) Notice of Borrowing. (i) Genesis (on behalf of the Borrowers) shall
give the Administrative Agent notice (which shall be irrevocable), in the case
of Prime Rate Loans, no later than 11:00 a.m. (Philadelphia, Pennsylvania time)
one Business Day prior to the requested date for the making of such Loans and,
in the case of LIBO Rate Loans, 11:00 a.m. (Philadelphia, Pennsylvania time)
three Business Days before the requested date for the making of such Loans. Each
such notice shall be in the form of Exhibit B hereto and shall specify (ii) the
requested date for the making of such Loans, which date shall be a Business Day,
(iii) the Type or Types of Loans requested and (iv) the amount of each such Type
of Loan, which amount shall be $2,000,000.00 or any integral multiple of
$1,000,000.00 in excess thereof (except that in the case of RC Loans, the amount
of the requested Loan may be less if the amount requested is equal to the total
Available RC Commitment). Upon receipt of any such notice, the Administrative
Agent shall promptly notify each applicable Lender of the contents thereof and
of the amount and Type of each Loan to be made by such Lender on the requested
date specified therein.
(b) Funding by Lenders. Not later than 12:00 noon (Philadelphia,
Pennsylvania time) on each requested date for the making of Loans, each Lender
shall make available to the Administrative Agent, in Dollars in funds
immediately available to the Administrative Agent at the office designated by
the Administrative Agent, the Loans to be made by such Lender on such date,
provided, however, that if a Lender does not receive timely notice from the
Administrative Agent as set forth in paragraph (a) (i) above, such Lender shall
fund the required amount promptly upon receipt of such notice. The obligations
of the Lenders hereunder are several; accordingly, any Lender's failure to make
any Loan to be made by it on the requested date therefor shall not relieve any
other Lender of its obligation to make any Loan to be made by it on such date,
but the latter shall not be liable for the former's failure.
(c) Permitted Assumption as to Funding. Unless the Administrative Agent
shall have received notice from a Lender prior to 11:00 a.m. (Philadelphia,
Pennsylvania time) on the requested date for the making of any Loan that such
Lender will not make available to the Administrative Agent the Loan requested to
be made by it on such date, the Administrative Agent may assume that such Lender
has made such Loan available. The Administrative Agent in its sole discretion
and in reliance upon such assumption, may make available to the Borrowers on the
requested date a corresponding amount on behalf of such Lender. If and to the
extent such Lender shall not have made available to the Administrative Agent the
Loans requested to be made by such Lender on such date and the Administrative
Agent shall have so made available to the Borrowers a corresponding amount on
behalf of such Lender, (i) such Lender shall, on demand, pay to the
Administrative Agent such corresponding amount together with interest thereon,
for each day from the date such amount shall have been so made available by the
Administrative Agent to the Borrowers until the date such amount shall have been
paid in full to the Administrative Agent, at the Federal Funds Rate until (and
including) the third Business Day after demand is made and thereafter at the
Prime Rate and (ii) the Administrative Agent shall be
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entitled to all interest payable by the Borrowers on such amount for the period
commencing on the date such amount was advanced by the Administrative Agent to
but not including the date on which such amount is received by the
Administrative Agent from such Lender. Moreover, any Lender that shall have
failed to make available the required amount shall not be entitled to vote on
such matters as the Lenders or Required Lenders are otherwise entitled to vote
on or consent to or approve under this Agreement and the other Loan Documents
until such amount with interest is paid in full to the Administrative Agent by
such Lender. Without limiting any obligations of any Lender pursuant to this
paragraph (c), if such Lender does not pay such corresponding amount promptly
upon the Administrative Agent's demand therefor, the Administrative Agent shall
notify Genesis (on behalf of the Borrowers) and the Borrowers shall promptly
repay such corresponding amount to the Administrative Agent together with
accrued interest thereon at the applicable rate or rates on such Loans.
(d) Disbursements of Funds to Borrowers. All amounts made available to
the Administrative Agent in accordance with paragraph (b) above shall be
disbursed by the Administrative Agent promptly but in any event not later than
4:00 p.m. (Philadelphia, Pennsylvania time) on the requested date therefor in
Dollars in funds immediately available to the Borrowers by crediting such amount
to an account of Genesis at the Administrative Agent's Domestic Lending Office
or in such other manner as may be agreed to by Genesis and the Administrative
Agent.
1.4 SCHEDULED REPAYMENTS.
(a) Tranche A Term Loans. The remaining Tranche A Term Loans shall
mature and become due and payable and shall be repaid by the Borrowers in
quarterly installments, payable on successive Quarterly Payment Dates commencing
on 9/30/99 and ending on the Tranche A Maturity Date (whether or not such date
would otherwise be a Quarterly Payment Date). Each such installment shall be in
an amount equal to one quarter of the amount set forth below for the applicable
year (except that for the year ending 9/30/99, the entire amount set forth below
shall be paid in one installment on 9/30/99), provided that the final
installment shall be in an amount equal to the aggregate amount of the Tranche A
Term Loans then outstanding.
Amount
Year Ending (Assuming No Prepayments)
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9/30/99 $4,563,824.00
9/30/00 $25,557,416.00
9/30/01 $25,557,416.00
9/30/02 $32,859,536.00
9/30/03 $32,859,536.00
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If any Tranche A Term Loans are prepaid, the amounts referred to above may be
further reduced pursuant to Section 1.5 below.
(b) Tranche B Term Loans. The remaining Tranche B Term Loans shall
mature and become due and payable and shall be repaid by the Borrowers in
quarterly installments, payable on successive Quarterly Payment Dates commencing
on 9/30/99 and ending with the Tranche B Maturity Date (whether or not such date
would otherwise be a Quarterly Payment Date). Each such installment shall be in
an amount equal to one quarter of the amount set forth below for the applicable
year (except that for the year ending 9/30/99, the entire amount set forth below
shall be paid in one installment on 9/30/99), provided that the final
installment shall be in an amount equal to the aggregate amount of Tranche B
Term Loans then outstanding.
Amount
Year Ending (Assuming No Prepayments)
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9/30/99 $389,081.00
9/30/00 $1,556,324.00
9/30/01 $1,556,324.00
9/30/02 $1,556,324.00
9/30/03 $1,556,324.00
9/30/04 $146,294,572.00
If any Tranche B Term Loans are prepaid, the amounts referred to above may be
further reduced pursuant to Section 1.5 below.
(c) Tranche C Term Loans. The remaining Tranche C Term Loans shall
mature and become due and payable and shall be repaid by the Borrowers in
quarterly installments, payable on each successive March 1, June 1, September 1
and December 1 commencing on 9/1/99 and ending with the Tranche C Maturity Date
(whether or not such date would otherwise be a Quarterly Payment Date). Each
such installment shall be in an amount equal to one quarter of the amount set
forth below for the applicable year, provided that the final installment shall
be in an amount equal to the aggregate amount of Tranche C Term Loans then
outstanding.
Amount
Year Ending (Assuming No Prepayments)
------------ -------------------------
6/1/00 $1,556,584.00
6/1/01 $1,556,584.00
6/1/02 $1,556,584.00
6/1/03 $1,556,584.00
6/1/04 $1,556,584.00
6/1/05 $144,762,383.00
If any Tranche C Term Loans are prepaid, the amounts referred to above may be
further reduced pursuant to Section 1.5 below.
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(d) RC Loans. The aggregate outstanding principal amount of the RC
Loans shall mature and become due and payable, and shall be repaid by the
Borrowers, on the RC Maturity Date.
(e) Tranche II Revolver Loans. The aggregate outstanding principal
amount of the Tranche II Revolver Loans shall mature and become due and payable,
and shall be repaid by the Borrowers, at the times determined in accordance with
paragraph (c) of Section 1.1 above (Tranche II Revolver Loans).
(f) Letters of Credit. The Borrowers shall reimburse the Issuer,
through the Administrative Agent, for each Drawing under a Letter of Credit on
the date determined with respect to such Drawing in the manner set forth in
Article 3 below. In addition, the Borrowers shall fund the cash collateral
account securing Letter of Credit obligations in the manner set forth in Article
3 below.
1.5 VOLUNTARY PREPAYMENTS AND UNSCHEDULED, MANDATORY PREPAYMENTS.
(a) Optional Prepayments. The Borrowers may, at any time and from time
to time, prepay the Loans in whole or in part, without premium or penalty (but
with any payment required under Section 2.4 (Breakage)), except that any
optional partial prepayment (other than a prepayment of all outstanding RC Loans
or a prepayment of Tranche II Revolver Loans which shall be governed by
paragraph (c) of Section 1.1 above) shall be in an aggregate principal amount of
$2,000,000.00 or any integral multiple of $1,000,000.00 in excess thereof.
Amounts to be so prepaid shall irrevocably be due and payable on the date
specified in the applicable notice of prepayment delivered pursuant to paragraph
(c) of this Section 1.5 together with interest thereon as provided in Section
1.8 (Interest) and together with any payment required under Section 2.4
(Breakage).
(b) Mandatory Prepayments.
(i) Excess Cash Flow. For each fiscal year of the Borrowers, upon
the earlier of (x) the date on which the Administrative Agent receives the
annual financial statements specified in Section 6.1 hereof and (y) the date by
which the Borrowers are required to provide such financial statements, the
Borrowers shall prepay a portion of the Loans in an amount equal to fifty
percent (50%) of the Excess Cash Flow for such fiscal year.
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(ii) Net Proceeds of Dispositions. (1) In General. At least five
(5) Business Days prior to the date of any sale, assignment, transfer or other
disposition by any Borrower of any assets (other than pursuant to paragraphs
(a), (b), (c), (d) or (f) of Section 8.5 (Dispositions) below) whether now owned
or hereafter acquired (collectively, a "disposition of assets"), Genesis, on
behalf of the Borrowers, shall give to the Administrative Agent written notice
that such disposition of assets is to occur, the proposed date of such event and
the anticipated amount of the Net Cash Proceeds, to be received in connection
therewith. The Administrative Agent shall promptly forward a copy of such notice
to each Lender Party.
(2) Prepayments During Period That There is a Tranche II Revolver
Commitment. Until the date that the Tranche II Revolver Commitment is reduced to
zero, 100 % of the Net Cash Proceeds of asset sales (other than the Salisbury
Transaction) will be immediately applied to prepay the Loans and reduce the
Commitment in the manner set forth in paragraph (c) below.
(3) Proceeds of Salisbury Transaction. The Net Cash Proceeds of
the Salisbury Transaction may be retained by the Borrowers to, at the option of
the Borrowers, prepay the Loans (and, if applicable, reduce the Commitment) or
invest the proceeds in properties and assets that (as determined by the Board of
Directors) replace the properties and assets that were the subject of the asset
sale or in properties and assets that will be used in the business of the
Borrowers (but if such proceeds are not so used within one year, then the
balance of such proceeds not so used shall be used to repay the Loans
immediately at the end of such one year period).
(4) Prepayments After Tranche II Revolver Commitment Terminates.
After the period specified in paragraph (2) above, seventy-five percent (75%) of
the Net Cash Proceeds of asset sales will be immediately applied to prepay the
Loans and reduce the Commitment in the manner set forth in paragraph (c) below
and the remainder of the proceeds may be retained by the Borrowers to, at the
option of the Borrowers, prepay the Loans or invest the proceeds in properties
and assets that (as determined by the Board of Directors) replace the properties
and assets that were the subject of the asset sale or in properties and assets
that will be used in the business of the Borrowers (but if such proceeds are not
so used within one year, then the balance of such proceeds not so used shall be
used to repay the Loans immediately at the end of such one year period).
(5) Certain Limitations. Notwithstanding anything to the contrary
contained in this Agreement, in the event there occurs a disposition of assets
which would otherwise result in a mandatory prepayment under the 1995
Subordinated Note Indenture, the 1996 Subordinated Note Indenture, the 1998
Subordinated Note Indenture or, if issued, any Additional Subordinated Note
Indenture, to the extent the Borrowers are not otherwise required to make a
mandatory prepayment hereunder, the Borrowers shall be obligated to make a
mandatory prepayment hereunder in an amount not less than the amount, and at a
time not later than such time, necessary to avoid any required prepayment under
the 1995 Subordinated Note Indenture, the 1996 Subordinated Note Indenture, the
1998 Subordinated Note Indenture or Additional Subordinated Note Indenture, as
the case may be.
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(iii) Net Proceeds of Sales of Capital Stock or Issuance of Debt
Securities. Within five (5) days of the sale or issuance of any capital stock or
debt securities of any Borrower, other than:
(1) A sale to a Borrower;
(2) A sale or issuance of capital stock of Genesis
which is not Mandatorily Redeemable Stock used to finance
the purchase of capital stock of Genesis Eldercare
Acquisition Corp. pursuant to the Put/Call Agreement;
(3) a sale or issuance of Series H Preferred Stock to
TPG, Cypress and/or Nazem (which shares have no mandatory
redemption features which could be applicable prior to the
year 2011) on substantially the terms set forth in the
Sponsor Letter of Intent and the issuance of the Series I
Preferred Stock (which have substantially the same rights as
the Series H Preferred Stock other than the voting rights);
(4) a refinancing of Indebtedness, which refinancing is
permitted by Section 8.1 (Indebtedness) below to the extent
that (a) the refinancing is in an aggregate principal amount
no greater than the principal amount of the debt so
refinanced immediately prior to the refinancing and (b) the
proceeds of the refinancing are used exclusively to repay
the predecessor debt; or
(5) the sale of common stock of Genesis (or warrants
therefor) for an aggregate amount equal to Fifty Million
Dollars ($50,000,000) on substantially the terms set forth
in the Sponsor Letter of Intent.
The Borrowers shall prepay a portion of the Loans in an amount equal to the
amount of the Net Cash Proceeds of such sale of stock or debt securities.
(iv) Proceeds of Refinancings. Within five (5) Business Days after
the consummation of (1) any refinancing resulting in Milford/Dover Proceeds, the
proceeds of such refinancing shall be applied to prepay the RC Loans (but
without any reduction of the RC Commitment) and (2) any refinancing of any loans
or advances made by any Borrower to any Affiliate other than another Borrower,
the proceeds (other than Milford/Dover Proceeds) of such refinancings (such
other proceeds herein referred to as "General Refinancing Proceeds") shall be
applied to prepay the Loans and reduce the Commitment in the manner specified in
paragraph (c) below.
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(c) Application and Timing of Prepayments.
(i) Notice. Subject to the provisions of the last sentence of this
paragraph (i), the Borrowers shall give the Administrative Agent notice of each
prepayment of Loans, which notice, in the case of a prepayment of Prime Rate
Loans, shall be given no later than 11:00 a.m. (Philadelphia, Pennsylvania time)
three (3) Business Days before and, in the case of a prepayment of LIBO Rate
Loans, no later than 11:00 A.M. (Philadelphia, Pennsylvania time) five (5)
Business Days before the date of such prepayment provided, however, that for any
prepayment of RC Loans (which is not part of a concurrent prepayment of Term
Loans), the Borrower shall give the Administrative Agent notice, in the case of
a prepayment of Prime Rate Loans, no later than 11:00 A.M. (Philadelphia time)
one (1) Business Day before the date of such prepayment and, in the case of a
prepayment of LIBO Rate Loans, no later than 11:00 A.M. (Philadelphia time)
three (3) Business Days before the date of such prepayment. Each such notice of
prepayment shall be in the form of Exhibit C hereto and shall specify (i) the
date such prepayment is to be made and (ii) whether the Loans to be prepaid are
Tranche A Term Loans, Tranche B Term Loans, Tranche C Term Loans, RC Loans or
Tranche II Revolver Loans, (iii) the amount and Type and, in the case of any
LIBO Rate Loan, the last day of the applicable Interest Period for the Loan to
be prepaid, (iv) whether the prepayment is a voluntary prepayment pursuant to
paragraph (a) of this Section 1.5 or a mandatory prepayment pursuant to
paragraph (b) of this Section 1.5 and (v) if a mandatory prepayment, the reason
therefor. The Borrowers shall concurrently notify the Administrative Agent of
any reduction of Commitment. Upon receipt of any such notice, the Administrative
Agent shall promptly notify each applicable Lender of the contents thereof.
(ii) Certain Prepayments to be Applied First Against the Revolving
Credit Loans. The amount of any voluntary prepayments pursuant to paragraph (a)
of this Section 1.5 as well as any mandatory prepayment relating to the
Milford/Dover Proceeds and the Salisbury Transaction, shall be applied in the
following order:
(1) First, prepayments shall be applied against the
Tranche II Revolver Loans (but with no corresponding
reduction in the amount of a Tranche II Revolver Commitment
unless otherwise specified by Genesis (on behalf of the
Borrower)) and shall be applied among the Tranche II
Revolver Loans at the time outstanding on a pro rata basis
in accordance with the relative aggregate principal amounts
thereof held by each Tranche II Revolver Lender.
(2) Second, prepayments shall be applied against the RC
Loans (but with no corresponding reduction in the amount of
the RC Commitment unless otherwise specified by Genesis (on
behalf of the Borrowers)) and shall be applied among the RC
Loans at the time outstanding on a pro rata basis in
accordance with the relative aggregate principal amounts
thereof held by each applicable Lender.
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(3) Third, subject to the terms of paragraph (d) below
(Tranche B/Tranche C Opt-Out) prepayments shall be applied
against the Term Loans and shall be applied among the
Tranche A Term Loans, the Tranche B Term Loans and the
Tranche C Term Loans at the time outstanding on a pro rata
basis in accordance with the relative aggregate principal
amounts thereof held by each applicable Lender. Prepayments
of the various Term Loans shall be applied to each of the
respective remaining installments thereof set forth in
Section 1.4 on a pro rata basis in accordance with the
relative amounts thereof.
Any excess shall be applied to any other amounts owing in respect of the Loan
Obligations or deposited in the Letter of Credit cash collateral account if
required under Article 3 below and, if all such Loan Obligations have been then
paid in full and the amount of outstanding Letters of Credit is less than the
sum of the amount in the cash collateral account (as required) and the Available
RC Commitment, then any excess amount shall be returned to Genesis (on behalf of
the Borrowers) or as otherwise required by applicable Law.
(iii) Timing and Application of Mandatory Prepayments. Except as
set forth in the preceding paragraph (ii), any mandatory prepayments pursuant to
paragraph (b) of this Section 1.5 shall be applied in the following order:
First, the Tranche II Revolver Commitment, if any, will
be permanently reduced by an amount equal to the amount of
the prepayment. Concurrently, there will be a prepayment of
a like amount of the Tranche II Revolver Loans, if any.
However, if the amount of outstanding Tranche II Revolver
Loans is less than the amount of the reduction in the
Tranche II Revolver Commitment, the prepayment will first be
applied to prepay the outstanding Tranche II Revolver Loans
(if any) and any excess (up to an amount equal to the
reduction in the Tranche II Revolver Commitment) will be
applied against the RC Loans with no reduction of the RC
Commitment.
Second, (subject to the terms of paragraph (d) below
(Tranche B/Tranche C Opt-Out)) prepayments shall be applied
against the Term Loans and shall be applied among the
Tranche A Term Loans, the Tranche B Term Loans and the
Tranche C Term Loans at the time outstanding on a pro rata
basis in accordance with the relative aggregate principal
amounts thereof held by each applicable Lender. Prepayments
of the various Term Loans shall be applied to each of the
respective remaining installments thereof set forth in
Section 1.4 on a pro rata basis in accordance with the
relative amounts thereof.
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Third, prepayments shall be applied against the RC Loans
with a corresponding reduction in the amount of the RC
Commitment and shall be applied among the RC Loans at the
time outstanding on a pro rata basis in accordance with the
relative aggregate principal amount thereof held by each
applicable Lender provided, however, the Borrowers need not
prepay the RC Loans to the extent that there would be, after
giving effect to the reduction in the amount of the RC
Commitment (which commitment reduction is unaffected by the
terms of this proviso), sufficient Available RC Commitment
to reborrow such amounts. The preceding proviso shall not
apply to prepayments in respect of Net Cash Proceeds of
dispositions.
Any excess shall be applied to any other amounts owing in respect of the Loan
Obligations or deposited in the Letter of Credit cash collateral account and, if
all such Loan Obligations have been paid in full and the amount of outstanding
Letters of Credit is less than the sum of the amount in the cash collateral
account and the Available RC Commitment, then any excess amount shall be
returned to Genesis (on behalf of the Borrowers) or as otherwise required by
applicable Law.
(d) Tranche B/Tranche C Opt-Out. With respect to any prepayment of the
Tranche B Term Loans or Tranche C Term Loans, the Administrative Agent shall
ratably pay the Tranche B Lenders or Tranche C Lenders, as the case may be, as
required under paragraph (c) of this Section 1.5, unless the Administrative
Agent shall have received written notice from any Tranche B Lender or Tranche C
Lender, as the case may be, not later than 11:00 a.m. two (2) Business Days
prior to the date of such prepayment, that such Tranche B Lender or Tranche C
Lender, as the case may be, elects not to receive any prepayment under this
paragraph (d) (a "Tranche B Opt-Out Lender" or "Tranche C Opt-Out Lender", as
applicable). Any prepayment which would have been remitted to a Tranche B
Opt-Out Lender or Tranche C Opt-Out Lender but for its election to not receive
such prepayment, shall be paid ratably to the remaining Lender Parties in the
order and as provided in paragraph (c) of this Section 1.5; provided, however,
that notwithstanding the foregoing provisions of this paragraph (d), Tranche B
Lenders and Tranche C Lenders must accept any prepayment made pursuant to this
Section 1.5 on any date on which the Tranche A Term Loans have been paid in full
(or are to be concurrently paid in full).
(e) Certain Provisions Respecting Prepayments Generally. Prepayments
shall be subject to the interest payment provisions, as applicable, set forth in
Section 1.8 below and the breakage indemnity provisions, as applicable, set
forth in Section 2.4 below.
1.6 PAYMENTS BY THE BORROWERS IN GENERAL
(a) Time, Place and Manner. All payments due to the Administrative
Agent under the Loan Documents shall be made to the Administrative Agent at the
office designated by the Administrative Agent on the signature pages hereto or
to such other Person or at such other address as the Administrative Agent may
designate by written notice to Genesis (on behalf of the
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Borrowers). All payments due to any Lender under the Loan Documents, whether
made to the Administrative Agent or directly to a Lender or the Issuer, shall be
made for the account of, in the case of payments in respect of LIBO Rate Loans,
such Lender's or Issuer's Eurodollar Lending Office and, in the case of all
other payments, such Lender's or Issuer's Domestic Lending Office. Except as
otherwise set forth in this Agreement, a payment shall not be deemed to have
been made on any day unless such payment has been received by the required
Person, at the required place of payment, in Dollars in funds immediately
available to such Person, no later than 1:00 p.m. (Philadelphia, Pennsylvania
time) on such day; provided, however, that the failure of the Borrowers to make
any such payment by such time shall not constitute a Default hereunder so long
as such payment is received no later than 3:00 p.m. (Philadelphia, Pennsylvania
time) on such day, but any such payment received later than 1:00 p.m.
(Philadelphia, Pennsylvania time) on such day shall be deemed to have been made
on the next Business Day for the purpose of calculating interest on the amount
paid, provided further, that any such payment made with the proceeds of Loans
shall be deemed to have been made on the date of the making of such Loans, so
long as such proceeds are immediately so applied and are not otherwise disbursed
to the Borrowers.
(b) No Reductions. All payments due to the Administrative Agent, the
Issuer or any Lender under this Agreement and the other Loan Documents shall be
made by the Borrowers without any reduction or deduction whatsoever, including
any reduction or deduction for any charge, set-off, holdback, recoupment or
counterclaim (whether sounding in tort, contract or otherwise).
(c) Authorization to Charge Accounts. The Borrowers hereby authorize
each Lender Party, each participant and each Affiliate of each Lender Party, if
and to the extent any amount payable by the Borrowers under the Loan Documents
(whether payable to such Person or to any other Lender Party) is not otherwise
paid when due, to charge such amount against any or all of the demand deposit or
other accounts of any Borrower with such Person (whether maintained at a branch
or office located within or without the United States), with the Borrowers
remaining jointly and severally liable for any deficiency. The Person so
charging any such account shall give the relevant Borrower prompt notice
thereof, but any failure to give or delay in giving such notice shall not affect
such Person's right to effect such charge. Such charging of accounts shall be
subject to the provisions of Section 12.19 (Sharing of Collections) hereof.
(d) Extension of Payment Dates if Not a Business Day. Whenever any
payment to the Administrative Agent, the Issuer or any Lender under the Loan
Documents would otherwise be due (except by reason of acceleration) on a day
that is not a Business Day, such payment shall instead be due on the next
succeeding Business Day unless, in the case of a payment of the principal of
LIBO Rate Loans, such extension would cause payment to be due in the next
succeeding calendar month, in which case such due date shall be advanced to the
next preceding Eurodollar Business Day. If the due date for any payment under
the Loan Documents is extended (whether by operation of any Loan Document,
applicable Law or otherwise), such payment shall bear interest for such extended
time at the rate of interest applicable hereunder.
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(e) Disbursement of Payments to Lenders and Issuer. The Administrative
Agent shall promptly distribute to each applicable Lender Party its ratable
share of each payment received by the Administrative Agent under the Loan
Documents for the account of such Lender Party by crediting an account of such
Lender Party at the Administrative Agent's office or by wire transfer to an
account of the Lender Party at an office of any other commercial bank located in
the United States or at any Federal Reserve Bank designated by such Person.
Unless the Administrative Agent shall have received notice from Genesis (on
behalf of the Borrowers) prior to the date on which any payment is due to any
Lender Parties under the Loan Documents that the Borrowers will not make such
payment in full, the Administrative Agent may assume that the Borrowers have
made such payment in full to the Administrative Agent on such date and the
Administrative Agent, in its sole discretion may, in reliance upon such
assumption, cause to be distributed to each applicable Lender Party on such due
date, a corresponding amount with respect to the amount then due to such Person.
If and to the extent that the Borrowers shall not have so made such payment in
full to the Administrative Agent, and the Administrative Agent shall have so
distributed to such Lender or Lenders or the Issuer a corresponding amount, such
Lender Parties shall, on demand, repay to the Administrative Agent the amount so
distributed, together with interest thereon, for each day from the date such
amount is distributed to such Lender Party until the date the such Person repays
such amount to the Administrative Agent, at the Federal Funds Rate until (and
including) the third Business Day after demand is made and thereafter at the
Prime Rate. Moreover, any Lender Party that shall have failed to make available
the required amount shall not be entitled to vote on such matters as Lenders or
Required Lenders are otherwise entitled to vote on or consent to or approve
under this Agreement and the other Loan Documents until such amount with
interest is paid in full to the Administrative Agent by such Lender. Nothing in
this Section 1.6 shall relieve the Borrowers from any payment obligations.
(f) Breakage Costs on LIBO Rate Loans. Any repayment or prepayment of a
LIBO Rate Loan made on a day other than the last day of the applicable Interest
Period therefor shall be subject to payments in respect of breakage costs as
required to be paid in respect thereof pursuant to Section 2.4 below.
1.7 REDUCTIONS OF RC COMMITMENT
(a) Optional Reductions. The Borrowers may reduce the RC Commitment by
giving the Administrative Agent notice (which shall be irrevocable) thereof no
later than 11:00 a.m. (Philadelphia, Pennsylvania time) on the third Business
Day before the requested date of such reduction, provided, that each partial
reduction thereof shall be in an amount equal to $10,000,000.00 or any integral
multiple of $5,000,000.00 in excess thereof and, provided, further, that no
reduction shall reduce the RC Commitment to an amount less than the sum of (i)
the aggregate of the principal amount of all RC Loans outstanding on such date
(after giving effect to any repayment or prepayment of RC Loans made on or prior
to such date), (ii) the aggregate amount of the Contingent Reimbursement
Obligations and (iii) the aggregate amount of all unreimbursed Drawings and
provided, further, that the RC Commitment may only be reduced when there is no
Tranche II Revolver Commitment. Upon receipt of any such notice, the
Administrative Agent shall promptly notify each RC Lender of the contents
thereof and the
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amount (based on a pro rata reduction to each RC Lender's Commitment) to which
such RC Lender's RC Commitment is to be reduced.
(b) Mandatory Reductions. At the time of any mandatory prepayment of RC
Loans pursuant to Section 1.5, the RC Commitment shall be reduced to the extent
required by said Section 1.5. In addition, the RC Commitment shall be reduced at
the time and to the extent required by paragraph (i) of Section 8.1 (Permitted
Other Indebtedness) below.
(c) No Reinstatement of RC Commitment. All reductions of the RC
Commitment are permanent and the RC Commitment cannot be restored without the
written consent of all RC Lenders.
1.8 INTEREST.
(a) Interest Rates in General. Except for Tranche II Revolver Loans
which shall bear interest in accordance with Section 1.1(c) above (Tranche II
Revolver Loans), subject to the terms and conditions of this Agreement, each
Loan shall, at the option of the Borrowers, bear interest on the outstanding
principal amount thereof until paid in full at a rate per annum equal to (i) the
Prime Rate as in effect from time to time or (ii) the applicable LIBO Rate for a
specified Interest Period plus in the case of both (i) and (ii) the Applicable
Margin, if any.
(b) Election of LIBO Rate. Unless otherwise designated by the Borrowers
as a LIBO Rate Loan in accordance with this paragraph (b), each Loan shall be
deemed to be a Prime Rate Loan as more fully set forth below.
(i) Prime Rate Unless Otherwise Designated. Prime Rate Loans shall
continue as Prime Rate Loans unless and until such Loans are converted into
Loans of another Type. LIBO Rate Loans for any Interest Period shall continue as
Loans of such Type until the end of the then current Interest Period therefor,
at which time they shall be automatically converted into Prime Rate Loans unless
Genesis (on behalf of the Borrowers) shall have given the Administrative Agent
notice in accordance with clause (ii) below requesting that such Loans continue
as LIBO Rate Loans for another Interest Period of a specified duration.
(ii) Election of LIBO Rate. To elect a LIBO Rate, Genesis (on
behalf of the Borrowers) shall give the Administrative Agent notice (which shall
be irrevocable) no later than 11:00 a.m. (Philadelphia, Pennsylvania time) three
(3) Eurodollar Business Days before the requested date of the funding,
conversion or continuation which date shall be a Eurodollar Business Day. Each
such notice shall be in the form of Exhibit D hereto and shall specify (A) the
requested date of such funding, conversion or continuation, (B) whether the
subject Loan is a new advance or an existing Loan that is to be converted or
continued, (C) in the case of any LIBO Rate Loan being continued, the last day
of the current Interest Period, (D) whether such Loan is to be a Tranche A Term
Loan, Tranche B Term Loan, Tranche C Term Loan, a Tranche II Revolver Loan or an
RC Loan and (E) the amount of, and the desired Interest Period for, the Loan
subject to such LIBO Rate election provided that the Borrowers shall not be
entitled to select an Interest Period for any Loan which shall end on a date
later than the Maturity Date
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applicable to such Loan. Upon receipt of any such notice, the Administrative
Agent shall promptly notify each applicable Lender of the contents thereof.
(iii) LIBO Rate Suspended During Event of Default. Notwithstanding
anything to the contrary contained in clauses (i) or (ii) of this paragraph (b),
so long as an Event of Default shall have occurred and be continuing, the
Administrative Agent may (and, at the request of the Required Lenders, shall)
notify Genesis (on behalf of the Borrowers) that Loans may only be converted
into or continued upon the expiration of the applicable current Interest Period
therefor as Prime Rate Loans or Loans of such specified Types as shall be
acceptable to the Required Lenders. Thereafter, until no Event of Default shall
continue to exist, Loans may not be converted into or continued as Loans of any
Type other than Prime Rate Loans or one or more of such specified Types.
(iv) Limitation on Types of Loans. Notwithstanding anything to the
contrary contained in this Agreement, the Borrowers shall borrow, prepay,
convert and continue Loans in a manner such that (A) unless otherwise agreed to
by the Administrative Agent, the aggregate principal amount of LIBO Rate Loans
of the same Type shall, at all times, be not less than $10,000,000.00 and (B)
there shall be, at any one time, no more than the number of Interest Periods
specified below in effect for each Tranche:
Maximum No. of Interest Periods Tranche
------------------------------- --------
five (5) RC Loans
three (3) Tranche A
three (3) Tranche B
three (3) Tranche C
(v) Flexibility as to Source. Each Lender may fund LIBO Rate Loans
from any source that such Lender deems (in its sole discretion) appropriate
without loss of any rights hereunder.
(c) Interest Payment Dates. Interest shall be payable (i) in the case
of Prime Rate Loans, quarterly in arrears on each Quarterly Payment Date, (ii)
in the case of LIBO Rate Loans, on the last day of each applicable Interest
Period (and, in the case of any LIBO Rate Loan having an Interest Period longer
than three months, on each three-month anniversary of the first day of such
Interest Period) and (iii) in the case of any Loan (including Tranche II
Revolver Loans), when such Loan shall be due (whether at maturity, upon
mandatory prepayment, by reason of notice of prepayment or acceleration, or
otherwise) or converted, but only to the extent then accrued on the amount then
so due or converted.
(d) Default Rate. At any time that an Event of Default shall have
occurred and shall be continuing, any amount payable hereunder and under each
other Loan Document
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shall bear interest (whether before or after judgment), payable on demand, at a
rate per annum equal to the applicable Default Rate.
1.9 FEES.
(a) Commitment Fees. The Borrowers shall pay to the Administrative
Agent, for the account of each RC Lender, a commitment fee on the daily unused
amount of such RC Lender's RC Commitment for each day from and including the
Closing Date to but excluding the RC Maturity Date. The rate per annum shall
initially be equal to .50% of such unused amount but shall be adjusted five (5)
Business Days following delivery of the annual Officer's Compliance Certificate
for the year ending September 30, 1999 pursuant to Section 6.1 below and
thereafter shall be readjusted on the fifth (5th) Business Day following
delivery of such quarterly or annual Officer's Compliance Certificates. At any
time that such annual or quarterly Officer's Compliance Certificate is required
to be delivered pursuant to said Section 6.1 and is not so delivered, then the
Commitment Fee shall be based on the highest percentage set forth below in this
Section 1.9(a). The adjustments in the rate shall be based on the Adjusted Total
Debt/Cash Flow Ratio as set forth in the chart below. The commitment fee shall
be payable in arrears (i) on successive Quarterly Payment Dates beginning with
the first Quarterly Payment Date after the Closing Date, (ii) on the date of any
reduction of the RC Commitment (to the extent accrued and unpaid on the amount
of such reduction) and (iii) on the RC Maturity Date.
Adjusted Total Commitment
Debt/Cash Flow Ratio Fee
-------------------- -----------
less than 3.5 .25%
greater than or equal
to 3.5 but less than 4.5 .3125%
greater than or equal
to 4.5 but less than 5.0 .375%
greater than or equal
to 5.0 .50%
(b) Letter of Credit Fees. The Borrowers shall pay to the
Administrative Agent, for the respective accounts of the RC Lenders, a letter of
credit commission on the daily aggregate amount of the Contingent Reimbursement
Obligations under each Letter of Credit at a rate per annum equal to the
Applicable Margin that would be applicable to RC Loans that are LIBO Rate Loans
at such time. In addition, the Borrowers shall pay to the Administrative Agent,
for the sole account of the Issuer, a Letter of Credit fronting fee on the daily
aggregate amount of the Contingent Reimbursement Obligations under each Letter
of Credit at a rate per annum equal to .10%. Such fees shall be payable in
arrears on successive Quarterly Payment Dates and at the expiration or other
termination of each Letter of Credit. In addition, the Borrowers shall pay to
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the Administrative Agent, for the benefit of the Issuer, the Issuer's standard
posted charges for such matters as opening, negotiation and transfer.
(c) Other Fees. The Borrowers shall pay to the Administrative Agent,
for the respective accounts of the Administrative Agent, the Issuer, the Lenders
and/or the other Agents, as the case may be, such other fees as have been or may
be agreed to in writing by the Borrowers or by Genesis in connection with the
commitment to enter into this Agreement (including any facility fees referred to
in any commitment letters) and the transactions contemplated by this Agreement.
1.10 COMPUTATION OF INTEREST AND FEES. Interest calculated on the basis of
the LIBO Rate or the Federal Funds Rate shall be computed on the basis of a year
of 360 days and paid for the actual number of days elapsed. Commitment fees,
letter of credit fees and interest calculated on the basis of the Prime Rate
shall be computed on the basis of a year of 365 or 366 days, as applicable, and
paid for the actual number of days elapsed. Interest, commitment fees and letter
of credit fees for any period shall be calculated from and including the first
day thereof to but excluding the last day thereof.
1.11 PROMISSORY NOTES; RECORDS OF ACCOUNT. Each Lender's Loans and the
Borrowers' joint and several obligations to repay such Loans with interest in
accordance with the terms of this Agreement shall be evidenced by this
Agreement, the Register and other records of the Administrative Agent and such
Lender and, in the case of Tranche A Term Loans made to a Lender who requests a
Note, a single Tranche A Term Note payable to the order of such Lender and in
the case of RC Loans made to a Lender who requests a Note, a single RC Note
payable to the order of such Lender. The records of each Lender shall be prima
facie evidence of such Lender's Loans and, in each case, of accrued interest
thereon and all payments made in respect thereto. Each Lender's participation in
Letters of Credit shall be evidenced by this Agreement, the records of such
Lender and the Issuer and the Letters of Credit. In the event that there is any
dispute concerning the amount of any such obligations, the amount of each
Lender's Commitment with respect to RC Loans, Tranche A Term Loans, Tranche B
Term Loans and Tranche C Term Loans and the amount of outstanding Loan
Obligations of each and every Type shall at all times be ascertained from the
records of the Administrative Agent, including, without limitation, the
Register, all of which shall be conclusive absent manifest error except that the
outstanding face amount of any Letters of Credit, the amount of any unpaid
Drawings, the amount of unpaid interest accrued thereon and fees relating to
Letters of Credit shall at all times be ascertained from the records of the
Issuer, which shall be conclusive absent manifest error.
1.12 PRO RATA TREATMENT. Except to the extent otherwise provided herein, (a)
Tranche A Term Loans shall be made by, and principal interest and fees in
respect thereof shall be paid or repaid to, the Tranche A Lenders pro rata in
accordance with their respective Tranche A Commitments and interest in Tranche A
Loans; (b) Tranche B Term Loans shall be made by, and principal, interest and
fees in respect thereof shall be paid or repaid to, the Tranche B Lenders pro
rata in accordance with their respective Tranche B Commitments and interest in
Tranche B Loans; (c) Tranche C Term Loans shall be made by, and principal,
interest and fees in respect thereof shall be paid or repaid to, the Tranche C
Lenders pro rata in accordance with their respective Tranche C Commitments and
interest in Tranche C Loans; (d) RC Loans shall be
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made by, and principal, interest and fees in respect thereof shall be paid or
repaid to, the RC Lenders pro rata in accordance with their respective RC
Commitments and interest in RC Loans and (e) Tranche II Revolver Loans shall be
made by, and principal, interest and fees in respect thereof shall be paid or
repaid to the Tranche II Revolver Lenders pro rata in accordance with their
respective Tranche II Revolver Commitments and interest in Tranche II Revolver
Loans. Each participation of obligations in respect of Letters of Credit shall
be allocated among, and each reimbursement of Drawings under Letters of Credit
or letter of credit commissions shall be made for the account of, the RC Lenders
pro rata in accordance with their respective amounts of RC Commitments.
1.13 TAXES ON PAYMENTS.
(a) Taxes Payable by the Borrowers. If any Tax is required to be
withheld or deducted from, or is otherwise payable by the Borrowers in
connection with, any payment due to the Administrative Agent, the Issuer or any
Lender that is not a "United States Person" (as such term is defined in Section
7701(a)(30) of the Code), the Borrowers (i) shall, if required, withhold or
deduct the amount of such Tax from such payment and, in any case, pay such Tax
to the appropriate taxing authority in accordance with applicable Law and (ii)
except in the case of any Bank Tax, shall pay to the Issuer, such Lender or the
Administrative Agent such additional amounts as may be necessary so that the net
amount received by such Person with respect to such payment, after withholding
or deducting all Taxes required to be withheld or deducted, is equal to the full
amount payable hereunder. If any Tax is withheld or deducted from, or is
otherwise payable by the Borrowers in connection with, any payment due to the
Issuer, any Lender or the Administrative Agent hereunder, the Borrowers shall
furnish to such Person the original or a certified copy of a receipt (if any)
for such Tax from the applicable taxing authority or other evidence of payment
thereof satisfactory to such Person within 30 days after the date of such
payment (or, if such receipt shall not have been made available by such taxing
authority within such time, the Borrowers shall use reasonable efforts to
promptly obtain and furnish such receipt). If the Borrowers fail to pay any such
Taxes when due to the appropriate taxing authority or fail to remit to the
Issuer, any Lender or the Administrative Agent the required receipts or other
evidence of payment thereof satisfactory to such Person, the Borrowers shall
indemnify such person for any Taxes, interest, penalties or additions to Tax
that may become payable by such Person as a result of any such failure.
(b) Taxes Payable by the Issuer, any Lender or the Administrative
Agent. The Borrowers shall, promptly upon request by the Issuer, any Lender or
the Administrative Agent that is not a United States Person, pay to such Person
an amount equal to (i) all Taxes (other than Bank Taxes and without duplication
of amounts paid pursuant to the preceding paragraph (a)) payable by such Person
with respect to any payment due to such Person hereunder and (ii) all Taxes
(other than Bank Taxes) payable by such Person as a result of payments made by
the Borrowers (whether made to a taxing authority or to such Person pursuant to
the preceding paragraph (a) or this paragraph (b)).
(c) Credits and Deductions. If the Issuer, any Lender or the
Administrative Agent is, in its sole opinion, able to apply for any refund,
offset, credit, deduction or other reduction in Taxes by reason of any payment
made by the Borrowers under the preceding
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paragraph (a) or (b), the Issuer, such Lender or the Administrative Agent, as
the case may be, shall use reasonable efforts to obtain such refund, offset,
credit, deduction or other reduction and, upon receipt thereof, will pay to the
Borrowers such amount, not exceeding the increased amount paid by the Borrowers,
as is equal to the net after-tax value to the Issuer, such Lender or the
Administrative Agent, in its sole opinion, of such part of such refund, offset,
credit, deduction or other reduction as it considers to be allocable to such
payment by the Borrowers, having regard to all of such Person's dealings giving
rise to similar refunds, offsets, credits, deductions or other reductions in
relation to the same tax period and to the cost of obtaining the same; provided,
however, that if such Person has made a payment to the Borrowers pursuant to
this paragraph (c) and the applicable refund, offset, credit, deduction or other
reduction in Tax is subsequently disallowed, the Borrowers shall, promptly upon
request by the Issuer, the Administrative Agent or such Lender refund to such
Person that portion of such payment determined by such Person, in its sole
opinion, relating to such disallowance; and provided, further that (i) the
Issuer, the Administrative Agent or such Lender, as the case may be, shall not
be obligated to disclose to the Borrowers any information regarding its Tax
affairs or computations and (ii) nothing in this paragraph (c) shall interfere
with the right of such Person to arrange its Tax affairs as it deems
appropriate.
(d) Exemption from U.S. Withholding Taxes. Each Lender that is not a
United States Person shall submit to the Borrowers and the Administrative Agent,
on or before the fifth day prior to the first Quarterly Payment Date occurring
after the Closing Date (or, in the case of a Person that is not a United States
Person and that became a Lender by assignment, promptly upon such assignment),
two duly completed and signed copies of either (A) Form 1001 of the United
States Internal Revenue Service entitling such Lender to a complete exemption
from withholding on all amounts to be received by such Lender pursuant to this
Agreement and the Loans, (B) Form 4224 of the United States Internal Revenue
Service relating to all amounts to be received by such Lender pursuant to this
Agreement and the Loans, or (C) in the case of a Lender Party that is claiming
an exemption from United States withholding tax under Section 871(h) or 881(c)
of the Internal Revenue Code with respect to payments of "portfolio interest",
two accurate and complete signed original Forms W-8 (or any successor form
prescribed by the Internal Revenue Service, certifying that such Lender Party is
exempt from or is entitled to a reduced rate of United States withholding tax on
payments under this Agreement or the Notes) and, if such Lender Party delivers
Forms W-8 (or successor form), two signed certificates certifying that such
Lender Party is not (1) a "bank" for purposes of Section 881(c) of the Internal
Revenue Code, (2) is not a 10% shareholder (within the meaning of Section
871(h)(3)(B) of the Internal Revenue Code) of any Borrower and (3) is not a
controlled foreign corporation related to any Borrower (within the meaning of
Section 864(d)(4) of the Internal Revenue Code), as appropriate. Each such
Lender shall, from time to time after submitting either such Form, submit to the
Borrowers and the Administrative Agent such additional duly completed and signed
copies of one or the other such Forms (or any successor forms as shall be
adopted from time to time by the relevant United States taxing authorities) as
may be (A) requested in writing by the Borrowers or the Administrative Agent and
(B) appropriate under the circumstances and under then current United States law
or regulations to avoid or reduce United States withholding taxes on payments in
respect of all amounts to be received by such Lender pursuant to this Agreement
or the Loans. Upon the request of the Borrowers or the Administrative Agent,
each Lender that
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is a United States Person shall submit to the Borrowers and the Administrative
Agent a certificate to the effect that it is a United States Person.
(e) Obligations under this Section 1.13 shall survive payment of the
Loans.
1.14 REGISTERED NOTES AND LOANS.
(a) Request for Registration. Any Lender may request the Borrowers
(through the Administrative Agent), and the Borrowers agree thereupon, to
register such Loans as provided in Section 1.14(c) and, if such Lender is
otherwise entitled to a Note hereunder, to issue such Lender's Note evidencing
such Loans, or to exchange such Note for a new Note, registered as provided in
Section 1.14(c) (a "Registered Note"). A Registered Note may not be exchanged
for a Note that is not in registered form. A Registered Note shall be deemed to
be and shall be a Note for all purposes of this Agreement and the other Loan
Documents.
(b) Delivery of Tax Forms. Each Non-U.S. Lender that requests or holds
a Registered Note pursuant to Section 1.14(a) or registers its Loans pursuant to
Section 1.14(a) (a "Registered Lender") (or, if such Registered Lender is not
the beneficial owner thereof, such beneficial owner) shall deliver to Genesis
(on behalf of the Borrowers) (with a copy to the Administrative Agent) prior to
or at the time such Non-U.S. Lender becomes a Registered Lender, the applicable
form described in Section 1.13(d) (or such successor and related forms as may
from time to time be adopted by the relevant taxing authorities of the United
States) together with an annual certificate stating that such Registered Lender
or beneficial owner, as the case may be, is not a "bank" within the meaning of
Section 881(c)(3)(A) of the Code and is not otherwise described in Section
881(c)(3) of the Code. Each Registered Lender or beneficial owner, as the case
may be, shall promptly notify Genesis (on behalf of the Borrowers) (with a copy
to the Administrative Agent) if at any time such Registered Lender or beneficial
owner, as the case may be, determines that it is no longer in a position to
provide such previously delivered certificate to the Borrowers (or any other
form of certification adopted by the relevant taxing authorities of the United
States for such purposes).
(c) Registration of Loans. The Administrative Agent, acting, for this
purpose, as agent of the Borrowers, shall, upon request of any Registered
Lender, enter in the Register the name, address and taxpayer identification
number (if provided) of the Registered Lender or beneficial owner as the case
may be. In addition to the requirements of Section 12.9 (Successors and
Assigns), a Registered Note and the Loans evidenced thereby (or such Loans
pending delivery of such Registered Note) or any other Loans registered pursuant
to Section 1.14 (a) above may be assigned or otherwise transferred in whole or
in part only by registration of such assignment or transfer of such Registered
Note and/or the Loans so registered on the Register (and each such Registered
Note shall expressly so provide). Any assignment or transfer of all or part of
such Loans and such Registered Note shall be registered on the Register only
upon compliance with the provisions of Section 12.9 and, in the case of
Registered Notes, surrender for registration of assignment or transfer of the
Registered Note evidencing such Loans, duly endorsed by (or accompanied by a
written instrument of assignment or transfer fully executed by) the Registered
Lender thereof, and thereupon one or more new Registered Notes in the same
aggregate principal amount shall be issued to the designated assignee(s) or
transferee(s)
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and, if less than all of such Registered Notes is thereby being assigned or
transferred, the assignor or transferor.
Article 2
YIELD PROTECTION AND BREAKAGE INDEMNITY
2.1 MANDATORY SUSPENSION AND CONVERSION OF LIBO RATE LOANS. Any Lender's
obligations to make, continue or convert into LIBO Rate Loans of any Type shall
be suspended, all such Lender's outstanding Loans of such Type shall be
converted into Prime Rate Loans on the last day of their applicable Interest
Periods (or, in the case of clause (c) below, on the last day such Lender may
lawfully continue to maintain Loans of such Type if earlier, or, in the case of
clause (d) below, on the day determined by such Lender to be the last Business
Day before the effective date of the applicable restriction), and all pending
requests for the making or continuation of or conversion into Loans of such Type
by such Lender shall be deemed requests for Prime Rate Loans, if:
(a) on or prior to the date required for the determination of a LIBO
Rate for any Interest Period, the Administrative Agent determines that for any
reason appropriate information is not available to it for purposes of
determining the LIBO Rate for such Interest Period;
(b) on or prior to the first day of any Interest Period for a LIBO Rate
Loan, the Required Lenders have informed the Administrative Agent of their
determination that the LIBO Rate as determined by the Administrative Agent for
such Interest Period would not accurately reflect the cost to such Lenders of
making, continuing or converting into a LIBO Rate Loan for such Interest Period;
(c) at any time such Lender determines that any Regulatory Change makes
it unlawful or impracticable for such Lender or its applicable Eurodollar
Lending Office to make, continue or convert into a LIBO Rate Loan of such Type,
or to comply with its obligations hereunder in respect thereof; or
(d) such Lender notifies the Administrative Agent of its determination
that (i) by reason of any Regulatory Change, such Lender or its applicable
Eurodollar Lending Office is restricted, directly or indirectly, in the amount
that it may hold of (A) a category of liabilities that includes deposits by
reference to which, or on the basis of which, the interest rate applicable to
LIBO Rate Loans of such Type is directly or indirectly determined or (B) the
category of assets that includes LIBO Rate Loans of such Type and (ii) in
connection therewith, such Lender has elected not to make available hereunder
LIBO Rate Loans of such Type.
If, as a result of this Section 2.1, any Loan of any Lender that would otherwise
be made or maintained as or converted into a LIBO Rate Loan for any Interest
Period is instead made or maintained as or converted into a Prime Rate Loan,
then, unless the corresponding Loan of each of the other Lenders is also to be
made or maintained as or converted into a Prime Rate Loan,
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such Loan shall be treated as being a LIBO Rate Loan of such Type for such
Interest Period for all purposes of this Agreement (including the timing,
application and proration among the Lenders of interest payments, conversions
and prepayments) except for the calculation of the interest rate borne by such
Loan. The Administrative Agent shall promptly notify Genesis (on behalf of the
Borrowers) and each Lender of the existence or occurrence of any condition or
circumstance specified in clause (a) or (b) above, and each Lender shall
promptly notify Genesis (on behalf of the Borrowers) and the Administrative
Agent of the existence, occurrence or termination of any condition or
circumstance specified in clause (c) or (d) above applicable to such Lender's
Loans, but the failure by the Administrative Agent or such Lender to give any
such notice shall not affect such Lender's rights hereunder.
2.2 REGULATORY CHANGES. If in the determination of any Lender or, in the
case of any Letter of Credit or Drawing, the Issuer, (a) any Regulatory Change
shall directly or indirectly.
(i) reduce the amount of any sum received or receivable
by (A) such Lender with respect to any LIBO Rate Loan or
Letter of Credit Participation or the return to be earned by
such Lender on any LIBO Rate Loan or Letter of Credit
Participation or (B) the Issuer with respect to any Letter
of Credit or Drawing,
(ii) impose a cost on (A) such Lender or any Affiliate
of such Lender that is attributable to the making or
maintaining of, or such Lender's commitment to make or
acquire, any LIBO Rate Loan or Letter of Credit
Participation or (B) the Issuer or any of its Affiliates
that is attributable to the issuance or maintaining of, or
the commitment to issue, any Letter of Credit or the making
or maintaining of any Drawing,
(iii) require (A) such Lender or any Affiliate of such
Lender to make any payment on or calculated by reference to
any amount received by such Lender in respect of its LIBO
Rate Loans or its obligations to make LIBO Rate Loans or (B)
the Issuer or any of its Affiliates to make any payment on
or calculated by reference to any amount received by the
Issuer or any of its Affiliates in respect of any Letter of
Credit or its commitment to issue any Letter of Credit or
Drawing, or
(iv) reduce, or have the effect of reducing, the rate of
return on any capital (A) such Lender or any Affiliate of
such Lender is required to maintain on account of any LIBO
Rate Loan or Letter of Credit Participation or such Lender's
commitment to make any LIBO Rate Loan or Letter of Credit
Participation or (B) the Issuer or any of its Affiliates is
required to maintain on account of any Letter of Credit or
Drawing or the Issuer's commitment to issue any Letter of
Credit,
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and (b) such reduction, increased cost or payment shall not be fully compensated
for by an adjustment in the applicable rates of interest payable under the Loan
Documents, then the Borrowers shall pay to such Lender or the Issuer such
additional amounts as such Lender or the Issuer, determines will fully
compensate it for such reduction, increased cost or payment. Such additional
amounts shall be payable, in the case of those applicable to prior periods,
within 15 Business Days after request for such payment by such Lender or the
Issuer, as the case may be, accompanied by the certificate described in Section
2.5 and, in the case of those applicable to future periods, on the dates
specified, or determined in accordance with a method specified, by such Lender
or the Issuer, as the case may be provided, that the Borrowers shall not be
liable for any amount payable with respect to any period more than 90 days
before the date of such request or certificate or, if earlier, the retroactive
effective date of the Regulatory Change if it occurred during such 90 day
period.
2.3 CAPITAL AND RESERVE REQUIREMENTS. If, in the determination of any Lender
or the Issuer, such Lender, the Issuer or any Affiliate thereof is required,
under applicable Law (including Regulation D), or interpretations, directives,
requests and governmental or regulatory guidelines (whether or not having the
force of law), to maintain capital or deposit any reserve on account of any
Loan, any Letter of Credit (whether drawn or undrawn) or any commitment to make
any Loan or issue any Letter of Credit, then, upon request by such Lender or the
Issuer, the Borrowers shall pay to such Lender or the Issuer, as the case may
be, such additional amounts as such Person determines will fully compensate it
for any reduction in the rate of return on the capital that such Lender, the
Issuer or such Affiliate thereof is so required to maintain. Such additional
amounts shall be payable, in the case of those applicable to prior periods,
within 15 Business Days after request by such Lender or the Issuer, as the case
may be, for such payment accompanied by the certificate described in Section 2.5
(provided, that the Borrowers shall not be liable for any amount payable with
respect to any period more than 90 days before the date of such request or
certificate or, if earlier, the retroactive effective date of the Regulatory
Change if it occurred during such 90-day period) and, in the case of those
relating to future periods, on the dates specified, or determined in accordance
with a method specified, by such Lender or the Issuer, as the case may be.
2.4 BREAKAGE. The Borrowers shall pay to each Lender, upon request, such
amount as such Lender reasonably determines is necessary to compensate it for
any loss, cost or expense (excluding loss of the Applicable Margin) incurred by
it as a result of (a) any payment, prepayment or conversion of a LIBO Rate Loan
on a date other than the last day of an Interest Period for such LIBO Rate Loan
or (b) a LIBO Rate Loan for any reason not being made or converted, or any
payment of principal thereof or interest thereon not being made, on the date
therefor determined in accordance with the applicable provisions of this
Agreement. At the election of such Lender, and without limiting the generality
of the foregoing, but without duplication, such compensation on account of
losses may include an amount equal to the excess of (i) the interest that would
have been received from the Borrowers under this Agreement (excluding the
Applicable Margin) during the remainder of the applicable Interest Period over
(ii) the interest component of the return that such Lender determines it could
have obtained had it placed such amount on deposit in the interbank Dollar
market for a period equal to such remaining portion of the Interest Period.
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2.5 DETERMINATIONS. In making the determinations contemplated by this
Article 2, each Lender and the Issuer shall make such estimates, assumptions,
allocations and the like that such Person in good faith determines to be
appropriate, and such Person's selection thereof in accordance with this Section
2.5, and the determinations made by such Person on the basis thereof, shall be
final, binding and conclusive upon the Borrowers, except, in the case of such
determinations, for manifest errors. Each Lender and the Issuer shall furnish to
the Borrowers, at the time of any request for compensation under Section 2.2 or
2.3, a certificate outlining in reasonable detail the computation of any amounts
claimed by it under this Article 2 and the assumptions underlying such
computations, which shall include a statement of an officer of such Person
certifying that such request for compensation is being made pursuant to a policy
adopted by such Person to seek such compensation generally from customers
similar to the Borrowers and having similar provisions in agreements with such
Person.
2.6 REPLACEMENT OF LENDERS. If any Lender requests compensation pursuant to
Sections 1.13 (Taxes on Payments), 2.2 (Regulatory Changes) or 2.3 (Capital and
Reserve Requirements), or such Lender's obligation to make or continue Loans as
LIBO Rate Loans shall be suspended pursuant to Section 2.1 (Mandatory Suspension
and Conversion of LIBO Rate Loans) or such Lender has defaulted on its
obligations to make or participate in Loans pursuant to Section 1.3 (Manner of
Borrowing), Genesis (on behalf of the Borrowers), upon three Business Days'
notice, may require that such Lender transfer all of its right, title and
interest under this Agreement, such Lender's Notes, if any, and the other Loan
Documents to any Eligible Institution identified by Genesis (on behalf of the
Borrowers) subject to
(a) the consent of the Administrative Agent (which consent shall not be
unreasonably withheld),
(b) satisfaction of the other conditions specified in Section 12.9
below (Successors and Assigns),
(c) the agreement of the proposed transferee to assume all of the
obligations of such Lender hereunder and under the other Loan Documents for
consideration equal to the outstanding principal amount of such Lender's Loans,
unreimbursed Drawings payable to the transferor, interest thereon to the date of
such transfer, and all other amounts payable hereunder to such Lender to the
date of transfer,
(d) such transferor Lender shall have been paid on or prior to the date
of such transfer all fees and other amounts payable to such transferor hereunder
including those amounts payable under said Sections 1.13, 2.2, or 2.3, as
applicable (and including any fees accrued hereunder and any amounts that would
be payable under Section 2.4 (Breakage) as if all of such Lender's Loans and
share of unreimbursed Drawings were being prepaid in full on such date) or
arrangements satisfactory to the transferor Lender shall have been made for such
payments, and
(e) satisfaction of the condition that if the Lender being replaced has
requested compensation pursuant to Sections 1.13, 2.2 or 2.3, the proposed
transferee's aggregate requested compensation, if any, pursuant to Sections
1.13, 2.2 or 2.3 with respect to such replaced Lender's Loans is lower than that
of the Lender replaced.
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Without prejudice to the survival of any other agreement of the Borrowers
hereunder, the agreements of the Borrowers contained in Sections 1.13 (Taxes on
Payments), 2.2 (Regulatory Changes), 2.3 (Capital and Reserve Requirements), 2.4
(Breakage), 12.12 (Indemnification) and 12.13 (Expenses) (without duplication of
any payments made to such Lender by the Borrowers or the proposed transferee)
shall survive for the benefit of any Lender replaced under this Section 2.6 with
respect to the time prior to such replacement.
2.7 CHANGE OF LENDING OFFICE. Each Lender agrees that, upon the occurrence
of any event giving rise to the operation of Sections 1.13 (Taxes on Payments),
2.1 (Mandatory Suspension and Conversion of LIBO Rate Loans), 2.2 (Regulatory
Changes) or 2.3 (Capital and Reserve Requirements) with respect to such Lender,
it will, if requested by the Borrowers, use reasonable efforts (subject to
overall policy considerations of such Lender) to designate another lending
officer for any Loans affected by such event, provided that such designation is
made on such terms that such Lender and its lending office suffer no material
economic, legal or regulatory disadvantage, with the object of avoiding the
consequence of the event giving rise to the operation of any such Section.
Nothing in this Section 2.7 shall affect or postpone any of the obligations of
the Borrowers or the right of any Lender provided in Sections 1.13 (Taxes on
Payments), 2.1 (Mandatory Suspension and Conversion of LIBO Rate Loans), 2.2
(Regulatory Changes) or 2.3 (Capital and Reserve Requirements).
Article 3
LETTERS OF CREDIT
3.1 ISSUANCE OF LETTERS OF CREDIT.
(a) In General. Upon the terms and subject to the conditions of this
Agreement, the Issuer shall, from time to time, from the Closing Date to the
date which is 90 days prior to the RC Maturity Date, issue one or more Letters
of Credit for the account of any Borrower, provided that (i) the sum of the
Contingent Reimbursement Obligations (after giving effect to the requested
Letter of Credit) plus the aggregate unpaid amount of all Drawings under Letters
of Credit shall not exceed $25,000,000.00 and provided, further, that the face
amount of the Letter of Credit so requested shall not exceed the Available RC
Commitment at such time. Each Letter of Credit shall be in a form and shall
contain such terms as shall be reasonably satisfactory to the Issuer. Letters of
Credit shall be issued only on a Business Day, and shall be used for the general
corporate purposes of the Borrowers or for such other purposes as shall be
acceptable to the Issuer in its sole discretion.
(b) Letters of Credit Issued Pursuant to the Existing Credit Agreement.
The letters of credit issued in connection with the Existing Credit Agreement
and outstanding on the effective date of this Agreement shall, from and after
the effective date of this Agreement, constitute Letters of Credit for all
purposes hereunder.
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(c) Terms. Each Letter of Credit shall be denominated only in Dollars
and shall expire on or before the first anniversary of the issuance thereof and
in any event not later than the fifth Business Day preceding the RC Maturity
Date. No Letter of Credit shall have an expiration date which is extendable
under an "evergreen" or similar provision unless the Issuer expressly agrees to
the same in its sole discretion in any particular case. All other extensions and
renewals are also at the sole discretion of the Issuer. Any extension of the
expiry date of a Letter of Credit to a date beyond the first anniversary of the
issuance thereof shall constitute an "issuance" of such Letter of Credit for all
purposes hereof.
(d) Form of Request. The Borrowers shall request the issuance of a
Letter of Credit by furnishing to the Administrative Agent and the Issuer, at
least five Business Days before the requested date of such issuance (or at such
later time as shall be acceptable to the Issuer), such notice thereof as shall
be reasonably satisfactory to the Issuer to which shall be attached a
certificate of the chief financial officer or other Responsible Officer of
Genesis representing that Genesis is, and after giving effect to the additional
Indebtedness will be, in compliance with Section 5.9 of the 1995 Subordinated
Note Indenture and the 1996 Subordinated Note Indenture and relevant financial
covenants under the 1998 Subordinated Note Indenture, if applicable, and that
the obligations with respect to such Letter of Credit constitute "Senior
Indebtedness" and "Designated Senior Indebtedness" as such terms are defined in
said indentures and such other matters as required by Section 4.2 below.
(e) Participation by RC Lenders. Upon the date of issuance of a Letter
of Credit (or, in the case of the Letters of Credit referred to in paragraph (b)
above, on the Closing Date), the Issuer shall be deemed to have granted to each
RC Lender (other than the Issuer), and each RC Lender (other than the Issuer)
shall be deemed to have acquired from the Issuer without further action by any
party hereto, a participation in such Letter of Credit and any Drawings that may
at any time be made thereunder, to the extent of such Lender's pro rata share of
the RC Commitment.
(f) Notice of Drawings. The Issuer shall promptly notify Genesis (on
behalf of the Borrowers) of its receipt of each Drawing request with respect to
a Letter of Credit, stating the date and amount of the Drawing requested thereby
and the date and amount of each Drawing disbursed pursuant to such request. The
failure of the Issuer to give, or delay in giving, any such notice shall not
release or diminish the obligations hereunder of the Borrowers in respect of
such Drawing.
(g) Reimbursement of Drawings by Borrowers. If at any time Genesis (on
the behalf of the Borrowers) receives notice of a Drawing, the Borrowers shall
reimburse such Drawing by paying to the Issuer in immediately available funds
the amount of the payment made by the Issuer with respect to such Drawing,
together with interest thereon at a rate per annum equal to the Prime Rate from
the day that the Drawing is made until the day such reimbursement is made if
such Drawing is not reimbursed on the day the Drawing is made. Such
reimbursement shall be made by the Borrowers to the Issuer no later than one (1)
Business Day following the date that Genesis (on behalf of Borrowers) receives
the relevant notice of Drawing if such notice is received on or prior to 10:00
a.m. (Philadelphia, Pennsylvania time) and no later than two (2) Business Days
following the date that Genesis receives the relevant notice of Drawing if such
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notice is received after 10:00 a.m. (Philadelphia, Pennsylvania time). If the
Borrowers shall fail to make any payment required by this paragraph (g) at the
time specified, and if at such time, there shall be any Available RC Commitment,
the Administrative Agent may (but is not obligated to) assume that the Borrowers
intend to use the proceeds of RC Loans to make such payment. In reliance on such
assumption, the Administrative Agent may (but is not obligated to) notify the RC
Lenders (and Genesis (on behalf of the Borrowers)) that notwithstanding the
Borrowers' failure to provide notice pursuant to Section 1.3 above, such notice
is deemed given pursuant to this paragraph (g) requesting an RC Loan bearing
interest at the Prime Rate in an amount sufficient to make the payments required
by this paragraph (g). Such notice from the Administrative Agent shall be
treated by the Lenders in the same manner as a notice from the Borrowers under
Section 1.3 above. The Administrative Agent may, at the direction of the Issuer,
apply the proceeds of such Loans to satisfy the requirements of this paragraph
(g).
(h) Obligations of RC Lenders to Issuer. In the event that the
Borrowers shall fail to make any payment when due pursuant to the preceding
paragraph (g) and for so long as such failure shall be continuing, the Issuer
may give notice of such failure to the Administrative Agent and each RC Lender,
which notice shall include, in the case of an RC Lender, the amount of such RC
Lender's interest in such Drawing, whereupon each such RC Lender (other than the
Issuer) shall promptly remit such amount to the Administrative Agent for the
account of the Issuer as provided in this paragraph (h). Each RC Lender (other
than the Issuer) shall, in the event it receives such notice from the Issuer at
or before 12:00 noon (Philadelphia, Pennsylvania time) on any Business Day, fund
its participation in any unreimbursed Drawing by remitting to the Administrative
Agent, no later than 2:00 p.m. (Philadelphia, Pennsylvania time) on such day, in
immediately available funds its share of the reimbursement obligations in
respect of each Drawing. In the event that the Administrative Agent receives
such funds from an RC Lender at or before 2:00 p.m. (Philadelphia, Pennsylvania
time) on any day, the Administrative Agent shall make available the amount
thereof to the Issuer, in immediately available funds no later than 4:00 p.m.
(Philadelphia, Pennsylvania time) on that same day. Any amount payable by an RC
Lender to the Administrative Agent for the account of the Issuer under this
paragraph (h), and any amount payable by the Administrative Agent to the Issuer
under this paragraph (h), shall bear interest for each day from the date due
(and including such day if paid after 2:00 p.m. (Philadelphia, Pennsylvania
time) in the case of any such payment by an RC Lender to the Administrative
Agent, or 4:00 p.m. (Philadelphia, Pennsylvania time), in the case of any such
payment by the Administrative Agent to the Issuer, on such day) until the date
it is received by the Issuer at a rate equal to the Federal Funds Rate until
(and including) the third Business Day after the date due and thereafter at the
Prime Rate. Moreover, any Lender that shall have failed to make available the
required amount shall not be entitled to vote on such matters as Lenders or
Required Lender are otherwise entitled to vote on or consent to or approve under
this Agreement and the other Loan Documents until such amount with interest is
paid in full to the Administrative Agent by such Lender. Each RC Lender shall,
upon the demand of the Issuer, reimburse the Issuer, through the Administrative
Agent to the extent that the Issuer has not been reimbursed by the Borrowers
after demand therefor, for the reasonable costs and expenses (including
reasonable legal fees) incurred by it (other than as a result of its willful
misconduct or gross negligence as finally determined by a court of competent
jurisdiction) in connection with the collection of amounts due under, the
administration of, and
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the preservation and enforcement of any rights conferred by, the Letters of
Credit or the performance of the Issuer's obligations under this Agreement in
respect thereof on a pro rata basis relative to such RC Lender's pro rata share
of the RC Commitment (as of the time such costs and expenses are incurred). The
Issuer shall refund through the Administrative Agent any costs and expenses
reimbursed by such RC Lender that are subsequently recovered from the Borrowers
in an amount equal to such RC Lender's ratable share thereof.
(i) Cash Collateral. It is intended that at all times that the
Borrowers shall have contingent or other obligations (including obligations in
respect of fees) relating to Letters of Credit, there shall be sufficient
availability under the RC Commitment to reimburse the Issuer (and the RC
Lenders) out of proceeds of RC Loans. Accordingly, in the event that there
shall, at any time, be insufficient availability under the RC Commitment (after
giving effect to all outstanding RC Loans) to do so (whether because the amount
of the RC Commitment is reduced pursuant to a mandatory reduction or is
terminated at maturity, upon acceleration or otherwise or because the amount of
outstanding RC Loans and such Letter of Credit obligations exceeds the amount of
the RC Commitment for any other reason), the Borrowers shall forthwith pay to
the Administrative Agent an amount equal to the aggregate face value of all
outstanding Letters of Credit plus the aggregate amount of all unreimbursed
Drawings plus the amount of all fees or other obligations in respect of Letters
of Credit to the extent of such excess. Such amount shall be maintained by the
Administrative Agent in an interest-bearing cash collateral account in the name
of and for the benefit of the Issuer and the RC Lenders to secure such payment
obligations of the Borrowers until such time as all outstanding Letters of
Credit have expired or been cancelled and all amounts in respect thereof have
been paid in full. Upon receipt of a notice from the Issuer that there are
unreimbursed Drawings or other amounts due in respect of such Letters of Credit
(which notice shall set forth the amount of such unreimbursed Drawings or other
obligations) the Administrative Agent shall promptly disburse from the cash
collateral account the amount specified in the notice and shall pay such amount
to the Issuer and RC Lenders ratably in accordance with the respective amounts
owing to each such Person, first, for fees and indemnities until the same are
paid in full and, second, for unreimbursed Drawings. The Administrative Agent
and the Issuer may rely on their records as to any amounts so owing and shall be
fully protected in doing so. Such records shall be conclusive, absent manifest
error. At any time that the RC Commitment again becomes available for
reimbursement of Drawings under outstanding Letters of Credit such that (i) the
sum of the RC Commitment at that time and the amount in the cash collateral
account exceeds (ii) the sum of all outstanding RC Loans, the face amount of all
outstanding Letters of Credit and the amount of all unreimbursed Drawings, then,
upon written request of Genesis (on behalf of the Borrowers) (which request
shall (A) represent that there exists no Default or Event of Default and (B)
specify the amount of such excess), the Administrative Agent shall release such
excess amount to the Borrowers from the cash collateral account. If all Loan
Obligations (other than Loan Obligations constituting contingent obligations
under indemnification provisions which survive indefinitely, so long as no
unsatisfied claim has been made under any such indemnification provision) have
been indefeasibly paid in full in cash, all Commitments have terminated and all
Letters of Credit have expired, promptly following demand by Genesis (on behalf
of the Borrowers) the Administrative Agent shall release to the Borrowers all
remaining funds in the Letter of Credit cash collateral account.
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(j) Obligations Absolute. The obligation of each Borrower and each RC
Lender to make available to the Issuer the amounts set forth in this Article 3
shall be absolute, unconditional and irrevocable under any and all circumstances
without reduction for any set-off or counterclaim of any nature whatsoever, and
may not be terminated, suspended or delayed for any reason whatsoever, shall not
be subject to any qualification or exception and shall be made in accordance
with the terms and conditions of this Agreement under all circumstances,
including any of the following circumstances:
(i) any lack of validity or enforceability of this Agreement or any
of the other Loan Documents;
(ii) the existence of any claim, setoff, defense or other right
which any Borrower may have at any time against a beneficiary named in a Letter
of Credit, any transferee of any Letter of Credit (or any Person for whom any
such transferee may be acting), the Administrative Agent, the Issuer, any RC
Lender or any other Person, whether in connection with this Agreement, any
Letter of Credit, the transactions contemplated herein or any unrelated
transactions (including any underlying transaction between such Borrower and the
beneficiary named in any such Letter of Credit);
(iii) any draft, certificate or any other document presented under
any Letter of Credit proving to be forged, fraudulent, invalid or insufficient
in any respect or any statement therein being untrue or inaccurate in any
respect;
(iv) the surrender or impairment of any security for the
performance or observance of any of the terms of any of the Loan Documents; or
(v) the occurrence of any Default or Event of Default.
(k) Limitations on Liability; Protection of Issuer, Administrative
Agent and Lenders.
(i) Limitation on Liability of Lender Parties. Without
affecting any rights any Lender Party may have under applicable Law, each of the
Borrowers agrees that none of the RC Lenders, the Issuer, the Administrative
Agent or their respective officers or directors shall be liable or responsible
for, and the obligations of the Borrowers to the RC Lenders, the Issuer and the
Administrative Agent hereunder shall not in any manner be affected by: (A) the
use that may be made of any Letter of Credit or the proceeds thereof by the
beneficiary thereof or any other Person or any acts or omissions of such
beneficiary or any other Person; (B) the validity, sufficiency or genuineness of
documents presented in connection with any Drawing, or of any endorsements
thereon, even if such documents should, in fact, prove to be in any or all
respects, invalid, insufficient, fraudulent or forged; or (C) any other
circumstances whatsoever in making or failing to make payment under any Letter
of Credit or any other action taken or omitted to be taken by any Person under
or in connection with any Letter of Credit, except that the Borrowers shall have
a claim against the Issuer and the Issuer shall be liable to the Borrowers, in
each case to the extent and only to the extent of any damages suffered by the
Borrowers that they prove are caused by the Issuer's willful misconduct or gross
negligence. In
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furtherance and not in limitation of the foregoing, in determining whether to
pay under any Letter of Credit, the Issuer shall not have any obligation
relative to the other Lenders other than to determine that any documents
required to be delivered under such Letter of Credit appear to have been
delivered and that they appear to comply on their face with the requirements of
such Letter of Credit, regardless of any notice or information to the contrary.
Any action taken or omitted to be taken by the Issuer under or in connection
with any Letter of Credit (if taken or omitted in the absence of gross
negligence or willful misconduct, as finally determined by a court of competent
jurisdiction) shall not create for the Issuer any resulting liability to any
Borrower or any Lender.
(ii) Indemnification and Expenses. In addition to any other
amounts payable under this Agreement, the Borrowers agree jointly and severally
to protect, indemnify, pay and hold the Issuer and each RC Lender harmless from
and against any and all claims, costs, charges and expenses (including
reasonable attorneys' fees) which the Issuer may incur or be subject to as a
consequence, direct or indirect, of (A) the issuance of, or payment of any
drawing under, any Letter of Credit, other than as a result of the gross
negligence or willful misconduct of the Issuer as finally determined by a court
of competent jurisdiction or (B) the failure of the Issuer to honor a Drawing
under any Letter of Credit as a result of any act or omission of any present or
future government or Governmental Authority.
(iii) Issuer Not Responsible. In furtherance of the foregoing
limitations on liability, the Issuer shall not be responsible for: (A) the form,
validity, sufficiency, accuracy, genuineness or legal effect of any document
submitted by any party in connection with the issuance of Letters of Credit; (B)
the validity or sufficiency of any instrument transferring or assigning or
purporting to transfer or assign a Letter of Credit or the rights or benefits
thereunder or proceeds thereof in whole or in part; (C) errors, omissions,
interruptions, or delays in transmissions or delivery of any messages, by mail,
cable, telecopy, telex or otherwise, whether or not in cipher; (D) the
misapplication by the beneficiary of any Letter of Credit or the proceeds of any
drawing under such Letter of Credit; or (E) any consequence arising from causes
beyond the control of the Issuer, including any governmental acts except for
damages proven to be caused by the Issuer's gross negligence or willful
misconduct.
Article 4
CONDITIONS TO EFFECTIVENESS OF THIS
FOURTH AMENDED AND RESTATED CREDIT
AGREEMENT AND FUNDINGS
4.1 CONDITIONS TO EFFECTIVENESS OF THIS FOURTH AMENDED AND RESTATED CREDIT
AGREEMENT. The effectiveness of this Fourth Amended and Restated Credit
Agreement, the obligation of the Lenders to make the Loans thereunder and the
obligation on the Issuer to issue Letters of Credit hereunder are subject to the
fulfillment of the following conditions on or prior to August 31, 1999.
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(a) Secretary's Certificates. The Borrowers shall have delivered, or
caused to be delivered, a certificate of the Secretary or an Assistant Secretary
(or general partner, as applicable) of each of the Borrowers, with specimen
signatures of the authorized signatories to the Loan Documents, and to which
shall be attached copies of the following, as applicable: articles or
certificates of incorporation, bylaws, partnership agreements, resolutions and
shareholder agreements provided, however, if any such articles, by-laws or
partnership agreements of Subsidiaries were delivered to the Administrative
Agent since October 1, 1996 and if there have been no changes to such documents,
additional copies need not be delivered pursuant to this paragraph (a) so long
as the certifying officer signs a statement to such effect in the applicable
Secretary's Certificate.
(b) Good Standing Certificates. The Borrowers shall have delivered, or
caused to be delivered, a good standing or subsistence certificate, as the case
may be, issued as of a recent date with respect to each Borrower (and corporate
general partner of Borrowers that are partnerships), issued by the Secretary of
State or other appropriate official of its jurisdiction of formation and also
each jurisdiction where it is required to qualify to do business and, if any
such certificate is dated more than sixty (60) days prior to the Closing Date, a
confirmation (which may be provided by a reputable corporate service) of the
information in such certificate.
(c) Lien Searches. The Borrowers shall have delivered to the
Administrative Agent Uniform Commercial Code, tax, and judgment lien searches of
the Borrowers, in such form, as of such date and with such content as are
acceptable to the Administrative Agent.
(d) Collateral Agency Agreement. The Borrowers shall have caused to be
delivered a Fourth Amended and Restated Collateral Agency Agreement, duly
executed by the Borrowers, the Administrative Agent and the agent for the
Synthetic Lease Facility (as so amended and restated and as the same may be
further amended, modified, restated or supplemented from time to time in
accordance with the terms hereof and thereof, the "Collateral Agency
Agreement"), which amendment will be in substantially the form annexed to this
Agreement as Exhibit F.
(e) Execution of Agreement and Consent of Required Secured Parties and
Required SLF Parties. The Required Lenders, the Borrowers and the Administrative
Agent shall have executed counterpart signature pages to this Fourth Amended and
Restated Credit Agreement. In addition, the Required Secured Parties and the
Required SLF Parties (as each such term is defined in the Collateral Agency
Agreement) shall have executed this Fourth Amended and Restated Credit Agreement
or a separate consent consenting to the amendments hereunder and the amendments
to the Collateral Agency Agreement.
(f) Opinions of Counsel.
(i) The Borrowers shall have delivered favorable opinions of
counsel, dated as of the Amendment Effective Date, from Blank Rome Comisky &
McCauley, counsel to the Borrowers, as to the absence of conflicts with other
financing agreements and other material agreements of the Borrowers, the
perfection of security interests under the security documents, the due
organization of the Borrowers, the due authorization of the transactions
referred to
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herein, the enforceability of the Loan Documents and such other matters as the
Administrative Agent may reasonably request, in form and substance satisfactory
to the Administrative Agent.
(ii) The Borrowers shall have delivered such local counsel opinions
as the Administrative Agent may request in form and substance satisfactory to
the Administrative Agent.
(g) Consents and Approvals. The Borrowers shall have delivered all
material corporate, governmental, judicial and third party consents and
approvals necessary in connection with this Agreement and the other Loan
Documents provided, however that the Borrowers shall only be required to use
commercially reasonable efforts to produce landlord consents and other third
party consents to specific items of Additional Security.
(h) Sponsor Letter of Intent and Related Matters. The Borrowers shall
have delivered a copy of the Sponsor Letter of Intent and a written
acknowledgement from Cypress and TPG stating that the terms of this Agreement
and the related documents are acceptable to them within the meaning of the
Letter of Intent and also confirming the terms of the Investors' Subordination
Agreement.
(i) Insurance. The Borrowers shall have delivered to the Administrative
Agent evidence of the insurance required by Section 6.8 below.
(j) Fees and Expenses. The Borrowers shall have paid the fees required
to be paid to the Agents and the Lenders on or before the Amendment Effective
Date and the fees and disbursements of counsel for the Administrative Agent in
connection with the negotiation, preparation, execution and delivery of this
Fourth Amended and Restated Credit Agreement and related transactions.
(k) Security Agreement. The Borrowers shall have executed and delivered
a Security Agreement (as such agreement is amended, restated, modified and/or
supplemented from time to time, the "Security Agreement") in substantially the
form of Exhibit E hereto, together with such UCC-1 financing statements and/or
UCC-3 statements of amendment as are required thereby.
(l) Mortgages. The Borrowers shall have executed and delivered
mortgages or other appropriate collateral conveyance documents for so much of
their real property (owned or leased) as they can provide using commercially
reasonable efforts but, in any event, for at least 12 properties, together with
such title reports and flood zone certifications as the Administrative Agent may
reasonably request.
(m) Truth of Representation and Absence of Defaults. The
representations and warranties set forth in this Agreement and the other Loan
Documents shall be true and correct in all material respects and there shall be
no Default or Event of Default after giving effect to the amendments and waivers
set forth hereunder.
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(n) Other Information. The Borrowers shall have delivered such other
information as the Agents may reasonably request.
4.2 CONDITIONS TO EACH LOAN AND ISSUANCE OF EACH LETTER OF CREDIT.
(a) Conditions. The obligation of the Lenders to make any Loans,
including the initial Loans, and the obligation of the Issuer to issue any
Letters of Credit are subject to fulfillment of each of the following
conditions, in each case, unless otherwise specified, to the satisfaction of the
Administrative Agent:
(i) Absence of Default. There shall not, either prior to or after
giving effect to each such Loan or Letter of Credit, as the case may be, exist
an Event of Default or a Default.
(ii) Borrowing Notice/L.C. Request. In connection with any request
for Loans, the Administrative Agent shall have received a borrowing notice as
required by Section 1.3 above; and in connection with any request for the
issuance of a Letter of Credit, the Issuer and the Administrative Agent shall
have received a Letter of Credit request as required by Section 3.1 above.
(iii) Truth of Representations. The representations and warranties
of the Borrowers and each other Loan Party made in this Agreement and each other
Loan Document and those of the subordinated creditors in the Investors'
Subordination Agreement shall be true and correct in all material respects as of
the date each such Loan is made or Letter of Credit issued (both immediately
prior to and after giving effect to said Loan or Letter of Credit) as if made on
and as of such date.
(iv) No Violations of Law. Neither the making of, nor use of
proceeds of, such Loans nor the issuance of, or use of the proceeds of, such
Letters of Credit shall conflict with, or cause any Borrower to violate any Law.
(v) Compliance with Indenture Covenants. Neither the making of such
Loans nor the issuance of such Letters of Credit shall violate the terms of the
1995 Subordinated Note Indenture or the 1996 Subordinated Note Indenture or the
1998 Subordinated Note Indenture or, if applicable, any Additional Subordinated
Note Indenture and both before and after giving effect to such additional
Indebtedness, and Genesis shall be in compliance with the incurrence test
covenants set forth in Section 5.9 or elsewhere in each such indenture and such
Loans or obligations under the Letters of Credit shall constitute "Senior
Indebtedness" and "Designated Senior Indebtedness" (as defined in each such
indenture).
(vi) Additional Information. The Lenders shall have received such
additional information and documentation as the Lenders may reasonably request.
(b) Deemed Representation and Warranty. The request for, and acceptance
of, any Loan or Letter of Credit by any Borrowers shall be deemed a
representation and warranty
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by the Borrowers that the conditions specified in clauses (i), (iii), (iv) and
(v) of the preceding paragraph (a) have been satisfied.
4.3 RELATIONSHIP WITH EXISTING CREDIT AGREEMENT. Upon satisfaction of the
conditions specified in Section 4.1 (Conditions and Effectiveness of this Fourth
Amended and Restated Credit Agreement), this Fourth Amended and Restated Credit
Agreement will be effective, the terms and conditions of, and the agreements,
representations and warranties set forth in, the Existing Credit Agreement shall
be, except as otherwise provided in this Agreement, hereby replaced and
superseded in their entirety by the terms, conditions, agreements,
representations and warranties set forth in this Agreement; provided, however,
that nothing contained herein or in any of the other Loan Documents shall (a)
impair, limit or affect the continuation of the liability of any Borrower for
indemnity obligations heretofore incurred under, or in connection with, the
Existing Credit Agreement or (b) impair, limit or affect the continuation of the
Liens heretofore granted, pledged and assigned to the Administrative Agent or
the Collateral Agent, for the benefit of the Secured Parties by the Borrowers or
(c) impair or limit the waivers set forth in any of the amendments or waivers to
the Third Amended and Restated Credit Agreement or (d) impair or limit any
obligation to pay principal, interest, fees and other amounts payable by the
Borrowers under the Existing Credit Agreement (or any amendment incorporated
therein). Until this Agreement shall become effective pursuant to Section 4.1
above, the Existing Credit Agreement shall remain in full force and effect.
Except as otherwise provided herein, each Loan Document, as amended on the date
hereof, is ratified and remains in full force and effect.
4.4 CERTAIN WAIVERS. Effective as of the Amendment Effective Date, the
Lenders hereby waive any Defaults or Events of Default that would have occurred
and would be existing under the Existing Credit Agreement to the extent (but
only to the extent) that such Defaults or Events of Default would not exist
under this Fourth Amended and Restated Credit Agreement. In addition, the
Lenders hereby waive any Default or Event of Default caused by the failure to
deliver financial statements and an Officer's Compliance Certificate by August
15, 1999 so long as such financial statements and Officer's Compliance
Certificate are delivered by August 23, 1999. The foregoing waivers are limited
to their express terms and do not imply any similar or future waivers.
Article 5
REPRESENTATIONS AND WARRANTIES
5.1 REPRESENTATIONS. The Borrowers hereby jointly and severally represent
and warrant to each Lender Party as follows:
(a) Status of Borrowers. Each Borrower is duly organized, validly
existing and in good standing under the laws of its jurisdiction of
organization. Each Borrower has the power and authority to own its property and
to transact the business in which it is engaged or presently proposes to engage.
Each Borrower is duly qualified to do business as a foreign
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corporation or foreign partnership and is in good standing in all jurisdictions
in which the ownership of its properties or the nature of its activities or both
makes such qualification necessary or advisable, except for any failures to
maintain such qualifications which, individually or in the aggregate, could not
have a Material Adverse Effect. Schedule 5.1(a) hereto sets forth for each
Borrower, as of the Amendment Effective Date, (i) whether it is a corporation,
limited partnership or general partnership, (ii) the jurisdiction of its
organization, and (iii) the jurisdictions in which it is qualified to do
business as a foreign corporation or a foreign partnership, as the case may be,
except where the failure to maintain such qualification could not, individually
or in the aggregate, have a Material Adverse Effect. Each direct and indirect
Subsidiary of Genesis, other than the Excluded Subsidiaries, is a Borrower
hereunder and is designated as such on the signature pages hereto (or, after the
Amendment Effective Date, on signature pages of a Joinder Supplement hereto).
(b) Capitalization of Borrowers. Schedule 5.1(b) hereto sets forth (i)
for each corporate Borrower (other than Genesis), (A) the authorized
capitalization, (B) the names of the owners (indicating whether they are
Borrowers) of the outstanding capital stock, (C) the number and class of shares
issued to each such owner and (D) the percentage of outstanding shares of each
class of capital stock owned by each such owner, and (ii) for each Borrower
which is a partnership, (A) the names of the owners (indicating whether they are
Borrowers) of the outstanding equity thereof and (B) the percentage ownership
interest of, and type of equity issued to, each such owner. The outstanding
equity of each Borrower has been duly authorized and validly issued. All capital
stock is fully paid and nonassessable. Each Borrower owns beneficially and of
record and has good title to all equity indicated as being owned by it on said
Schedule 5.1(b), free and clear of any Lien, except for Liens in favor of the
Collateral Agent, for the benefit of the Secured Parties, as contemplated by the
Loan Documents and other Permitted Liens. There are no options, warrants, calls,
or similar rights relating to equity of the Borrowers. No Excluded Subsidiary
has any equity interest in any Borrower.
(c) Authorization, Execution and Binding Effect of Loan Documents. Each
Borrower has the power and authority to execute, deliver, perform, and take all
actions contemplated by, each Loan Document to which it is a party, and all such
action has been duly and validly authorized by all necessary corporate or
partnership (as the case may be) proceedings on its part. This Agreement and
each other Loan Document has been duly and validly executed and delivered by
each Loan Party listed on the signature pages hereto or thereto, as the case may
be. This Agreement and each other Loan Document constitutes the legal, valid and
binding obligation of each Loan Party purporting to be a party hereto or
thereto, as the case may be, enforceable against such Person in accordance with
its terms, except as the enforceability hereof or thereof may be limited by
bankruptcy, insolvency or other similar laws of general application affecting
the enforcement of creditors' rights or by general principles of equity limiting
the availability of equitable remedies.
(d) Security. The Pledge Agreement creates in favor of the Collateral
Agent for the benefit of the Secured Parties a legal, valid and enforceable Lien
on all right, title and interest of each Borrower in the Collateral described
therein, and the Collateral Agent has, for the benefit of the Secured Parties, a
fully perfected and continuing first priority Lien on all of the
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right, title and interest of each Borrower in the Collateral described in the
Pledge Agreement, subject to no Liens other than Permitted Liens. The Security
Agreement creates in favor of the Collateral Agent for the benefit of the
Secured Parties a legal, valid and enforceable Lien on all right, title and
interest of each Borrower in the Additional Security described therein, and the
Collateral Agent has (or upon the filing of the UCC-1 financing statements and
UCC-3 statements of amendment delivered by the Borrowers pursuant to the
Security Agreement, will have) for the benefit of the Secured Parties, a fully
perfected and continuing first priority Lien on all of the right, title, and
interest of each Borrower in the Additional Security described in the Security
Agreement, subject to no Liens other than Permitted Liens.
(e) Governmental Approvals and Filings; Absence of Conflicts. No
approval, order, consent, authorization, exemption or other action by, or
filing, recording or registration with, or notice to, any Governmental Authority
or other Person is necessary in connection with, the execution and delivery of
any Loan Document by any Loan Party, or in connection with the performance of
the terms hereof or thereof by such Person, other than the filing of Uniform
Commercial Code financing and continuation statements as referred to in the
Pledge Agreement and Security Agreement and other than the recording of the
Mortgages which are being delivered and recorded pursuant to the terms of
Section 6.16 (Further Assurance) below and except for (i) certain landlord
waivers and other third party consents relating to specific items of Additional
Security which waivers and consents not so obtained, in the aggregate, are not
material and (ii) those consents and waivers which have been obtained and are in
full force and effect.
No Loan Party is subject to any Law which purports to restrict or
regulate its ability to borrow money, obtain credit or provide a guarantee or
security or other form of credit support as a consequence of the nature of the
business conducted by such Loan Party. Neither the execution and delivery of
this Agreement or any other Loan Document by any Loan Party, nor the performance
of or compliance with the terms and conditions hereof or thereof (including the
execution, delivery and performance of the Transaction Documents) by any Loan
Party does or will
(i) violate or conflict with any Law or any judgment, decree,
or order of a court or Governmental Authority or any settlement
agreement,
(ii) violate, conflict with or result in a breach of any term
or condition of, or constitute a default under, or cause an
acceleration of, or result in the creation or imposition of any
Lien upon any of property of any Loan Party (except for any Lien
in favor of the Collateral Agent pursuant to the Pledge Agreement,
the Security Agreement and the Mortgages) under or in connection
with,
(x) its articles or certificate of incorporation, bylaws,
partnership agreement or operating agreement (or other
constituent documents),
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(y) any agreement or instrument creating, evidencing or
securing any Indebtedness in the aggregate amount of
$250,000.00 or more to which any Loan Party is a party or by
which it or any of its properties (now owned or hereafter
acquired) may be subject or bound, or
(z) any other agreement or instrument or arrangement to
which it is a party or by which it or any of its properties
(now owned or hereafter acquired) may be subject or bound,
except, in the case of the foregoing clause (z), for matters that,
individually or in the aggregate, could not have a Material
Adverse Effect, or
(iii) result in a Limitation on any Licenses applicable to the
operations or properties of any Borrower, or adversely affect the
ability of any Borrower to participate in any Third Party Payor
Arrangement.
Except to the extent that the failure to obtain the same could not have a
Material Adverse Effect, no approval, order, consent of, authorization,
exemption or other action by, or filing, recording or registration with, or
notice to, any Governmental Authority or other Person is necessary in connection
with the Tender Offer and merger of Genesis ElderCare Acquisition Corp. into
Multicare except such consents and other actions as are listed on Schedule
5.1(e) hereto, all of which have been obtained and are in full force and effect.
(f) Financial Statements. Genesis has heretofore furnished to the
Administrative Agent, the Issuer and each Lender consolidated balance sheets of
Genesis and its consolidated Subsidiaries (excluding the Multicare Group,
whether or not the same are consolidated with Genesis) as of September 30, 1998
and September 30, 1997 and the related consolidated statements of income, cash
flows and changes in stockholders' equity for the fiscal years then ended, as
examined and reported on by KPMG Peat Marwick, independent certified public
accountants for Genesis, who delivered an unqualified opinion in respect
thereof. Such financial statements (including the notes thereto) present fairly
the financial condition of the specified Persons as of the end of each such
fiscal year and the results of their operations and their cash flows for the
fiscal years then ended, all in conformity with GAAP. Genesis has heretofore
furnished to the Administrative Agent, the Issuer and each Lender interim
consolidated balance sheets of (i) Genesis and its consolidated Subsidiaries
(excluding the Multicare Group, whether or not the same are consolidated with
Genesis) and (ii) Genesis and its consolidated Subsidiaries (excluding the
Multicare Group, whether or not the same are consolidated with Genesis), in each
case as of the first two fiscal quarters of the fiscal year beginning October 1,
1998, together with the related consolidated statements of income, cash flows
and changes in stockholders' equity for the applicable fiscal periods ending on
each such date. Such financial statements (including the notes thereto), as well
as those financial statements delivered pursuant to paragraph (n) of Section 4.1
above, present fairly the financial condition of the specified Persons as of the
date specified and the results of their operations and their cash flows for the
fiscal periods specified, all in conformity with GAAP, subject to normal and
recurring year-end audit adjustments, except that such financial statements do
not contain all
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of the footnote disclosures required by GAAP. There are no material liabilities
of the Borrowers except as disclosed on such financial statements. Schedule 8.1
hereto sets forth, as of the Amendment Effective Date, all Indebtedness (and
commitments for Indebtedness) of the Borrowers.
(g) Projections. The projections delivered on or about August 2, 1999
and the assumptions and estimates referred to therein are, as of the Amendment
Effective Date, reasonable, are made in good faith, are consistent with the Loan
Documents and represent the Borrowers' best judgment as to such matters. Nothing
has come to the attention of any Borrower which would lead such Borrower to
believe that such projections will not be attained or exceeded provided,
however, that nothing contained in this paragraph (g) shall constitute a
representation or warranty that such future financial performance or results of
operations will in fact be achieved.
(h) Absence of Material Adverse Change. Since September 30, 1998, there
has been no material adverse change in the business, operations, condition
(financial or otherwise), properties or prospects of the Borrowers taken as a
whole or the industry served by the Borrowers.
(i) Title to Property. Each Borrower has good and marketable title to
all property owned or purported to be owned by it, including but not limited to
all property reflected in the most recent balance sheets delivered to the
Lenders pursuant to this Agreement (except such property as was sold or
otherwise disposed of in accordance with Section 8.5 (Dispositions) below)
subject to no Liens except Permitted Liens. Schedule 8.2 hereto sets forth, as
of the Amendment Effective Date, all Liens on property of the Borrowers.
(j) Solvency. The present fair saleable value of the assets of the
Borrowers, taken as a whole, after giving effect to all the transactions
contemplated by the Loan Documents and the funding of the Loans and the issuance
of the Letters of Credit hereunder exceeds the amount that will be required to
be paid on or in respect of the existing debts and other liabilities (including
contingent liabilities) of Borrowers, taken as a whole, as they mature. Genesis
does not intend to, nor does Genesis believe that it will, incur debts beyond
its ability to pay such debts as they mature (taking into account the timing and
amounts of cash to be received by Genesis, and of amounts to be payable on or in
respect of debt of Genesis). The property of each Borrower does not constitute
unreasonably small capital for such Borrower to carry out its business as now
conducted and as proposed to be conducted including the capital needs of such
Borrower. The cash available to each Borrower after taking into account all
other anticipated uses of the cash of such Borrower, is anticipated to be
sufficient to pay all such amounts on or in respect of debt of such Borrower
when such amounts are required to be paid.
(k) Accurate and Complete Disclosure. The information heretofore,
contemporaneously or hereafter provided in writing by or on behalf of any
Borrower to any Lender Party pursuant to or in connection with this Agreement or
any other Loan Document is or will be (as the case may be) true and accurate in
all material respects on the date as of which such information is dated (or, if
not dated, when received by such Lender Party) and does not or will
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not (as the case may be) omit to state any material fact necessary to make such
information not misleading at such time in light of the circumstances in which
it was provided.
(l) Legal and Administrative Proceedings. There is no action, suit,
litigation or proceeding pending, or to the knowledge of the Borrowers,
threatened nor, to the knowledge of the Borrowers, is there any investigation
pending or threatened, in any court or before any arbitrator or Governmental
Authority or any payor appeals bodies respecting or relating to any Borrowers
(or any officer or director thereof) or any property of any Borrowers that,
individually or in the aggregate, (i) could have a material adverse effect on
the business, condition (financial or otherwise), operations, properties or
prospects of Genesis or the Borrowers taken as a whole or (ii) could materially
adversely affect the Lenders' rights and remedies hereunder or under the other
Loan Documents, this Agreement or other Loan Documents or the ability of the
Borrowers to perform their obligations hereunder or thereunder.
(m) Absence of Violations and Conflicts. No Borrower is in violation
of, in default under, or is subject to any contingent liability on account of
any violation of or conflict with: (i) any Law; (ii) its articles or certificate
of incorporation, bylaws, partnership agreement, operating agreement (or other
constituent documents); or (iii) any financing agreement or other instrument or
arrangement to which it is a party or by which it or any of its properties (now
owned or hereafter acquired) may be subject or bound, except, with respect to
clauses (i) or (iii) above for matters that, individually or in the aggregate,
could not have a Material Adverse Effect.
(n) Operation of Health Care Facilities.
(i) Except where the failure to possess the same, either
individually or in the aggregate, could not have a Material Adverse
Effect, each Borrower possesses all Licenses and Reimbursement
Approvals necessary to operate its Health Care Businesses substantially
as now operated and as presently proposed to be operated. No Borrower
is in material violation of the terms of its Licenses and Reimbursement
Approvals.
(ii) Except for Limitations which, individually or in the
aggregate, could not reasonably be expected to have a Material Adverse
Effect, there is no threatened or pending Limitation of any material
License or Reimbursement Approval relating to the operation of any of
Borrowers' Health Care Businesses.
(iii) Except where the failure to file the same, either
individually or in the aggregate, could not have a Material Adverse
Effect, each of the Borrowers has caused there to be accurately
prepared and filed (or obtained extensions for) all applicable cost
reports with respect to any and all Third Party Payor Arrangements that
are material to conduct its Health Care Businesses substantially as now
conducted.
(iv) No Borrower is subject to any claim (including any claim
for overpayment), litigation, proceeding or other action or, to any
Borrower's
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knowledge, investigation relating to a claim or action by any
Governmental Authority except matters that if adversely decided,
individually or in the aggregate, could not have a Material Adverse
Effect.
(v) Each of the Borrowers participates in an internal
comprehensive compliance program respecting compliance with all Laws
affecting the types of businesses carried on by the Borrowers
(including health care Laws) and has made such program available for
review by any Lender, upon request.
(vi) Each of the foregoing statements in this paragraph (n)
are also true as applied to Persons managed by any Borrower to the
extent that the failure of any such statement to be true (as applied to
any Person managed by a Borrower) could have a Material Adverse Effect.
(o) Management Agreements. Schedule 5.1(o) sets forth as of the
Amendment Effective Date, a complete and correct list of all Management
Agreements relating to (i) the operation and management by a Person that is not
a Borrower of each health care facility owned by a Borrower and (ii) the
operation and management by a Borrower of each health care facility owned by a
Person that is not a Borrower. As of the Amendment Effective Date, each such
Management Agreement is in full force and effect subject to no material default.
(p) Nursing Home and Assisted Living Facilities. Schedule 5.1(p) sets
forth, as of the Amendment Effective Date, a complete and correct list of all
nursing homes and assisted living facilities owned or operated by the Borrowers
and the locations thereof, indicating which such facilities are operated but not
owned.
(q) Leased Properties. Schedule 5.1(q) identifies all real properties
leased by any Borrower as of the Amendment Effective Date. As of the Amendment
Effective Date, all leases relating to such leased properties are in full force
and effect subject to no material default. Such leases comply with the
provisions of Section 8.7 below.
(r) Intellectual Property. Each Borrower owns, or is licensed or
otherwise has the right to use, all the patents, trademarks, service marks,
names (trade, service, fictitious or otherwise including "Genesis ElderCare"),
copyrights, technology (including computer programs and software), processes,
data bases and other rights (collectively "intellectual property"), free from
burdensome restrictions, necessary to own and operate its properties and to
carry on its business as presently conducted and presently planned to be
conducted without conflict with the rights of others. No Borrower is in material
violation of the rights of others with respect to any intellectual property.
(s) Employee Benefits/ERISA.
(i) The Borrowers and the members of their Controlled Groups
maintain only those Defined Contribution Plans and other Plans listed on
Schedule 5.1(s) attached hereto and contribute to only those Multiemployer Plans
listed on Schedule 5.1(s)
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attached hereto. No Borrower nor any member of its Controlled Group has ever
maintained or made contributions to, or has ever been required to make
contributions to any Defined Benefit Pension Plan.
(ii) Each Defined Contribution Plan, as most recently amended,
including amendments to any trust agreement, group annuity, or insurance
contracts, or other governing instrument, is the subject of a favorable
determination letter by the Internal Revenue Service with respect to its
qualification under ss.401(a) of the Code.
(iii) All Plans comply, both in form and in operation, with the
requirements of the Code and ERISA.
(iv) There is not now, and has not been, any material violation of
the Code or ERISA with respect to the filing of applicable reports, documents,
and notices regarding any Plan with the Secretary of Labor, the Secretary of the
Treasury, the PBGC or any other governmental entity or the furnishing of such
documents to the participants or beneficiaries of any Plan. Borrowers have
furnished to the Lenders copies of the most recent annual report, audited
financial statements, and other reports filed with the Secretary of Labor, the
Secretary of the Treasury, the PBGC or any other governmental entity with
respect to each Plan.
(v) All Pension Plans, as of the date hereof, meet the minimum
funding standards of ss.412 of the Code and ss.302 of ERISA without regard to
any funding waiver. Borrowers and the members of their Controlled Group have, as
of the date hereof, made all contributions or payments to or under Pension Plans
required by the terms of any such Plan or any contract or agreement.
(vi) No Prohibited Transaction has occurred with respect to any
Plan.
(vii) No Borrower or any member of its Controlled Group has any
unfunded liabilities of unfunded and uninsured "employee welfare benefit plans"
(as defined in ss.3(1) of ERISA).
(viii) There is not now, and has not been, any COBRA Violation with
respect to any Plan to which such continuation coverage requirements apply which
has a material adverse effect, directly or indirectly, on the financial
condition of any of the Borrowers.
(ix) Borrowers and the members of their Controlled Group have
established only those irrevocable trusts the assets of which remain subject to
the general creditors of Borrowers and/or members of their Controlled Group
(sometimes referred to as "rabbi trusts") listed on Schedule 5.1(s) attached
hereto and have furnished to the Lenders copies of each such "rabbi trust."
(x) If any Borrower or any member of its Controlled Group were
obligated to pay the entire potential Withdrawal Liabilities for which any of
them would be liable if each of them were to withdraw from the Multiemployer
Plans to which any of them makes contributions, such obligations would not be in
excess of $500,000.00.
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(xi) Borrowers and the members of their Controlled Group have
complied with the requirements of ss.515 of ERISA with respect to Multiemployer
Plans.
(t) Environmental Matters.
(i) Each Borrower and each of its respective Environmental
Affiliates is and has been, in full compliance with all applicable
Environmental Laws, except for matters which, individually or in the
aggregate, could not have a Material Adverse Effect. There are no
circumstances that may prevent or interfere with such full compliance
now or in the future.
(ii) Each Borrower and each of its respective Environmental
Affiliates have all Environmental Approvals necessary or desirable for
the ownership and operation of their respective properties, facilities
and businesses as presently owned and operated and as presently proposed
to be owned and operated in the future, except for matters which,
individually or in the aggregate, could not have a Material Adverse
Effect.
(iii) There is no Environmental Claim pending or to the
knowledge of any Borrower after due inquiry, threatened, and there are
no past or present acts, omissions, events or circumstances (including
but not limited to any dumping, leaching, deposition, removal,
abandonment, escape, emission, discharge or release of any Environmental
Concern Material at, on or under any facility or property now or
previously owned, operated or leased by any Borrower or any
Environmental Affiliates of Borrowers) that could form the basis of any
Environmental Claim against any Borrower or any such Environmental
Affiliates, except for matters which, if adversely decided, individually
or in the aggregate, could not have a Material Adverse Effect.
(iv) No facility or property now or previously owned, operated
or leased by any Borrower or any of their respective Environmental
Affiliates is an Environmental Cleanup Site. No Borrower and none of
their respective Environmental Affiliates has directly transported or
disposed of or arranged for the transportation or disposal of any
Environmental Concern Materials to any Environmental Cleanup Site. No
Lien exists, and, to the Borrowers' knowledge after due inquiry, no
condition exists which could result in the filing of a Lien, against any
property of any Borrower or any Subsidiary of any Borrower or any of
their respective Environmental Affiliates, under any Environmental Law.
(u) Margin Regulations. No proceeds of any Loan hereunder will be used
for the purpose of purchasing or carrying any "margin stock," as such term is
used in Regulations G and U of the Board of Governors of the Federal Reserve
System, as amended from time to time, or to extend credit to others for the
purpose of purchasing or carrying any "margin stock". Neither the making of any
Loan or issuance of any Letter of Credit nor any use of proceeds of the
foregoing will violate or conflict with the provisions of Regulation G, T, U or
X of the Board of Governors of the Federal Reserve System, as amended from time
to time.
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(v) Regulation O. No director, executive officer or principal
shareholder of any Borrower is a "director," "executive officer" or "principal
shareholder" of any Lender, as such terms are used in Regulation O of the Board
of Governors of the Federal Reserve System, as amended.
(w) Subordinated Notes. Genesis hereby confirms that the Loan
Obligations are "Senior Indebtedness" and hereby designates the Loan Obligations
as "Designated Senior Indebtedness" under the 1995 Subordinated Note Indenture,
the 1996 Subordinated Note Indenture and, the 1998 Subordinated Note Indenture
and, when issued, the Additional Subordinated Note Indenture. All of the Loan
Obligations constitute and will constitute "Senior Indebtedness" and "Designated
Senior Indebtedness" or words of like import within the meaning ascribed to such
terms in such indentures. The subordination provisions therein are enforceable
against Genesis and the holders, from time to time, of the 1995 Subordinated
Notes, the 1996 Subordinated Notes and the 1998 Subordinated Notes and, when
issued, the Additional Subordinated Notes. Genesis is not in default under any
such indenture.
(x) Certain Documents and Transactions. Each of the Transaction
Documents (including the Multicare Management Agreement), the Tax Sharing
Agreement, the agreements relating to the Synthetic Lease Facility, the
Certificate of Designation, the Vitalink Merger Agreement and (after the date
that the Deleveraging Transaction is consummated) the Newco Management Agreement
are in full force and effect and no amendments, modifications or supplements
have been made to any such documents as the same were delivered on the Closing
Date or in connection with Amendment No. 2 to the Third Amended and Restated
Credit Agreement except (i) such amendments, modifications or supplements to
Transaction Documents as could not reasonably be expected to have an adverse
effect on any Borrower (including the condition (financial or otherwise),
properties or prospects of such Borrower), the Loan Documents or any Lender
Parties, (ii) such amendments, modifications or supplements to the Certificate
of Designation, the Vitalink Merger Agreement and, if applicable, the Newco
Management Agreement as is permitted by Section 8.11(b) below, (iii) supplements
or amendments to the Tax Sharing Agreement necessary to join any other
Subsidiaries of Genesis which may hereafter be consolidated with Genesis for tax
purposes, (iv) amendments, modifications or supplements to the Synthetic Lease
Facility permitted by the Collateral Agency Agreement and (v) the Permitted
Put/Call Amendment. There exists no default under any such agreements except for
immaterial breaches.
(y) Labor Matters. There are no existing, or, to the best of Borrowers'
knowledge, threatened or contemplated, strikes, slowdowns, picketing or work
stoppages by any employees against any Borrower, any lockouts by any Borrower of
any of its employees or any labor trouble or other occurrence, event or
condition of a similar character which, individually or in the aggregate, could
have a Material Adverse Effect.
(z) Year 2000 Compliance. Each of the Borrowers has reviewed the areas
within its business and operations which could be adversely affected by a
computer failure to recognize and perform properly date sensitive functions
involving certain dates prior to, on or after January 1, 2000 ("Year 2000
Problem") and, if there are any such areas, the Borrowers have developed and
implemented plans to avoid any Material Adverse Effect as a consequence
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of a Year 2000 Problem. The Borrowers reasonably believe that all internal
computer operations that are material to their respective business operations
will be able to perform properly date sensitive functions for all dates before,
on and after January 1, 2000 except to the extent that a failure to do so could
not reasonably be expected to have a Material Adverse Effect.
5.2 REPRESENTATIONS AND WARRANTIES WITH RESPECT TO MORTGAGED PROPERTY
(a) Each Borrower represents and warrants to each Lender Party, with
respect to each Mortgaged Property owned or leased by such Borrower, as follows:
(i) With respect to any owned Mortgaged Property, each Borrower has
good and marketable title to the Mortgaged Property owned by such Borrower in
fee simple and has the absolute right to mortgage, grant and convey the
Mortgaged Property owned by such Borrower free of the interest of any other
Person except for any interest presently of record.
(ii) With respect to any leased Mortgaged Property of a Borrower,
such Borrower holds a valid leasehold estate in the Mortgaged Property pursuant
to a lease that is in full force and effect as of the Amendment Effective Date;
that as of the Amendment Effective Date there exists no default nor any event
which would, with the passage of time or the giving of notice or both,
constitute a default under the lease; and that it has the absolute right to
mortgage, grant and convey the Mortgaged Property free of the interest of any
other Person except for any interest presently of record;
(iii) No executive officer of any Borrower has been notified, or
has knowledge, of any notification having been filed with regard to, a Release
on, into, about or beneath the Mortgaged Property for which such Borrower may be
held liable; and
(iv) No Borrower has received any summons, citation, notice of
violation, administrative order, directive, letter or other written
communication from any judicial or administrative body or governmental or
quasi-governmental authority concerning any intentional or unintentional action
or omission related to the generation, storage, transportation, handling,
transfer, disposal or treatment of Environmental Concern Materials in violation
of any Environmental Law or related to any Release or threat of Release of
Environmental Concern Materials.
5.3 REPRESENTATIONS AND WARRANTIES ABSOLUTE. The representations and
warranties of the Borrowers set forth in this Article 5 are unaffected by any
prior or subsequent investigation by, or knowledge of, any Agent, the Issuer,
or any Lender.
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Article 6
AFFIRMATIVE COVENANTS
So long as any Loan Obligation shall remain unpaid or any
Lender or the Issuer shall have any Commitment under this Agreement, each of the
Borrowers shall comply with the following covenants.
6.1 REPORTING REQUIREMENTS.
(a) Annual Financial Statements. As soon as practicable, and
in any event within 90 days after the close of each fiscal year of Genesis,
Genesis (on behalf of the Borrowers) shall furnish to the Administrative Agent,
the Issuer and each Lender, audited
(i) consolidated statements of income, cash flows and
changes in stockholders' equity of Genesis and its consolidated Subsidiaries
(excluding the Multicare Group, whether or not the same are consolidated with
Genesis) for such fiscal year and a consolidated balance sheet of such Persons
as of the close of such fiscal year. If at any time that the Cash Flow of the
Excluded Subsidiaries in the aggregate (other than the Multicare Group) exceeds
5.0% of the Cash Flow of Genesis and its consolidated Subsidiaries (excluding
the Multicare Group, whether or not the same are consolidated with Genesis),
Genesis on behalf of the Borrowers shall furnish statements of income, cash
flows and changes in stockholders equity of the Borrowers, on a consolidated
basis, for such fiscal year and a balance sheet of such Persons, on a
consolidated basis, as of the close of such fiscal year, in lieu of the
requirements of preceding sentence;
(ii) statements of income, cash flows and changes in
stockholders' equity for the Multicare Group, on a consolidated basis, for such
fiscal year and a balance sheet of the Multicare Group, on a consolidated basis,
as of the close of such fiscal year provided, however, that at any time that
Genesis shall prepare its financial statements in accordance with GAAP on a
consolidated basis with the Multicare Group, Genesis shall also deliver the like
financial statements for Genesis and its consolidated Subsidiaries (which in
that event would include, for purposes of this clause (ii), the Multicare
Group);
and with respect to all of the foregoing financial statements referred to above,
setting forth the appropriate footnotes, all in reasonable detail, setting forth
in comparative form the corresponding figures for the preceding fiscal year.
Such financial statements shall be accompanied by an unqualified opinion in form
and substance satisfactory to the Administrative Agent of KPMG Peat Marwick or
other independent certified public accountants of recognized national standing
selected by the Borrowers and satisfactory to the Administrative Agent.
(b) Quarterly Financial Statements. As soon as practicable,
and in any event within 45 days after the close of each fiscal quarter of each
fiscal year of the Borrowers, Genesis (on behalf of the Borrowers) shall furnish
to the Administrative Agent, the Issuer and each Lender, the following unaudited
financial statements:
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(i) consolidated statements of income, cash flows and
changes in stockholders' equity of Genesis and its consolidated Subsidiaries
(excluding the Multicare Group, whether or not the same are consolidated with
Genesis) for such fiscal quarter and the applicable year to date period, and a
consolidated balance sheet of such Persons as of the close of such fiscal
quarter. If at any time that the Cash Flow of the Excluded Subsidiaries (other
than the Multicare Group) exceeds 5.0% of the Cash Flow of Genesis and its
consolidated Subsidiaries excluding the Multicare Group, whether or not the same
are consolidated with Genesis), Genesis on behalf of the Borrowers furnish
statements of income, cash flows and changes in stockholders of the Borrowers,
on a consolidated basis, for such fiscal quarter and applicable year-to-date
period and a balance sheet of such Persons, on a consolidated basis, as of the
close of such fiscal quarter, in lieu of the requirements of preceding sentence;
and
(ii) statements of income, cash flows and changes in
stockholders' equity for the Multicare Group, on a consolidated basis, for such
fiscal quarter, together with applicable year-to-date statements and a balance
sheet of such Persons, on a consolidated basis, as of the end of such fiscal
quarter provided, however, that at any time that Genesis shall prepare its
financial statements in accordance with GAAP on a consolidated basis with the
Multicare Group, Genesis shall also deliver like financial statements for
Genesis and its consolidated Subsidiaries (which in that event would include the
Multicare Group);
all in reasonable detail, setting forth in comparative form the corresponding
figures for the same periods or as of the same date during the preceding fiscal
year (except for the balance sheets, which shall set forth in comparative form
the corresponding balance sheets as of the prior fiscal year end). Such
financial statements shall be certified by the chief financial officer or other
Responsible Officer of Genesis as presenting fairly the financial position of
the subject entities as of the end of such fiscal quarter and year-to-date
period, and the results of their operations and their cash flows and changes in
stockholders' equity for such fiscal quarter and year-to-date period, in
conformity with GAAP, subject to normal and recurring year-end audit
adjustments.
(c) Quarterly Compliance Certificates. Genesis, on behalf of
the Borrowers, shall deliver to the Administrative Agent, the Issuer and each
Lender, an Officer's Compliance Certificate concurrently with the delivery of
the financial statements referred to in paragraph (a) of this Section 6.1 (with
respect to the fiscal year) and paragraph (b) of this Section 6.1 (with respect
to the first three fiscal quarters). Each such Officer's Compliance Certificate
shall include, among other things referred to thereon, the calculations
necessary to demonstrate compliance with the covenants set forth in Article 7
hereof, the calculations necessary to confirm compliance with the financial
covenants set forth in Section 5.9 of the 1995 Subordinated Note Indenture and
in Section 5.9 of the 1996 Subordinated Note Indenture and the applicable
sections of the 1998 Subordinated Note Indenture and, when issued, any
Additional Subordinated Note Indenture. The Officer's Compliance Certificate
delivered pursuant to this paragraph (c) shall include a reconciliation of the
financial information set forth thereon respecting Genesis and its Restricted
Subsidiaries and that set forth on the financial statements for Genesis and its
consolidated Subsidiaries (excluding the Multicare Group, whether or not the
same are consolidated with Genesis).
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(d) Other Information To Be Delivered Annually. Genesis (on
behalf of the Borrowers) shall deliver to the Administrative Agent, the Issuer
and each Lender, the following: (i) annually, within one hundred twenty (120)
days of the end of the fiscal year of the Borrowers, an accountants' management
letter respecting Genesis and its consolidated Subsidiaries (excluding the
Multicare Group, whether or not the same are consolidated with Genesis) provided
by KPMG Peat Marwick or other independent certified public accountants
satisfactory to the Administrative Agent, and (ii) annually no later than ninety
(90) days prior to the commencement of each fiscal year of the Borrowers, an
annual budget respecting Genesis and its consolidated Subsidiaries (excluding
the Multicare Group, whether or not the same are consolidated with Genesis),
setting forth in reasonable detail, expected sources and uses of funds, for the
fiscal year then beginning, in form and substance satisfactory to the
Administrative Agent.
(e) SEC Filings and Other Disclosure. Promptly upon their
becoming available to any Borrower but no later than ten Business Days after the
same are filed with the Securities Exchange Commission or any securities
exchange, Genesis (on behalf of the Borrowers) shall deliver to the
Administrative Agent, the Issuer and each Lender, a copy of (i) all regular or
special reports, registration statements and amendments to the foregoing which
any Borrower shall file with the Securities and Exchange Commission or any
securities exchange, (ii) all reports, proxy statements, financial statements
and other information distributed by any Borrower to its stockholders,
bondholders or the financial community generally, (iii) all accountants'
management letters (not otherwise delivered pursuant to the preceding paragraph
(d)) and all other reports submitted by accountants in connection with any audit
of any Borrower and (iv) copies of all compliance certificates or notices
delivered to or from the trustees under the 1995 Subordinated Note Indenture,
the 1996 Subordinated Note Indenture and the 1998 Subordinated Note Indenture.
(f) Notice of Certain Events. Promptly upon any Borrower
becoming aware of any of the following, such Borrower or Genesis (on behalf of
the Borrowers) shall give the Administrative Agent notice thereof, together with
a written statement setting forth the details thereof and any action with
respect thereto taken or proposed to be taken by any Borrower:
(i) Loss of Licenses or Reimbursement Approvals. Any
actual Limitation (other than in the ordinary course of
business) or any threatened Limitation (to the extent that it
individually or in the aggregate with all other actual or
threatened Limitations is material) of any License or
Reimbursement Approval relating to the operation of a Health
Care Business; or, if the same individually or in the
aggregate could have a Material Adverse Effect, any Limitation
of any License or Reimbursement Approval of any Person managed
by any Borrower;
(ii) Default. Any Event of Default or Default;
(iii) Material Adverse Change. Any material adverse
change in the business, operations or condition (financial or
otherwise) or prospects of any Borrower;
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(iv) Material Litigation. Any pending or threatened
action, suit, proceeding or investigation by or before any
Governmental Authority against or affecting any Borrower (or
any officer or director thereof) or any property of any
Borrower, except for matters that if adversely decided,
individually or in the aggregate, could not have a Material
Adverse Effect;
(v) Breach or Termination of Certain Agreements. Any
breach, claimed breach, termination or purported or threatened
termination (including a copy of any notice of termination) of
(A) the Multicare Management Agreement, (B) any other
Transaction Document (except a termination in accordance with
its terms), (C) any other Management Agreement except in the
ordinary course of business, (D) the 1995 Subordinated Note
Indenture, the 1996 Subordinated Note Indenture or the 1998
Subordinated Note Indenture (including a copy of any notice of
default delivered thereunder), (E) any agreement in respect of
the Synthetic Lease Facility, (F) the Newco Management
Agreement, (G) the Vitalink Merger Agreement, (H) any
provisions of the Certificate of Designation or (I) any other
agreement or instrument material to the business, operations,
condition (financial or otherwise) or prospects of Genesis and
its Restricted Subsidiaries taken as a whole;
(vi) ERISA.
(A) any taxes, penalties, interest charges and other
financial obligations in excess of $250,000.00 that have been
assessed or otherwise imposed, or which any Borrower has
reason to believe may be assessed or otherwise imposed in
excess of $250,000.00, against any Borrower or any member of
its Controlled Group by the Internal Revenue Service, the
PBGC, the Department of Labor or any other governmental entity
with respect to any Plan or Multiemployer Plan.
(B) any application for a waiver by a Borrower or any
member of its Controlled Group of the minimum funding standard
under ss.412 of the Code with respect to a Pension Plan.
(C) the adoption of any Plan, including but not
limited to a Defined Benefit Pension Plan, or any obligation
to contribute to any Multiemployer Plan by a Borrower or any
member of its Controlled Group.
(D) any Prohibited Transaction with respect to a
Plan.
(E) (1) that any Borrower has incurred Withdrawal
Liability from a Multiemployer Plan maintained by it or any
member of its Controlled Group, (2) that any Multiemployer
Plan to which any Borrower or any member of its Controlled
Group has made contributions is or will be in Reorganization,
or (3) that any other condition exists with respect to a
Multiemployer Plan which presents a material risk of
termination of any such Plan, Borrowers will furnish a
statement to the Lenders setting forth the details of such
Withdrawal Liability, Reorganization or condition, and the
action that Borrowers propose to take with respect thereto,
together with a copy of any notice of Withdrawal Liability or
Reorganization received by such Borrower or any member of its
Controlled Group.
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(F) any default by Borrower or any member of its
Controlled Group (as defined in ss.4219(c)(5) of ERISA) with
respect to payments to a Multiemployer Plan required by reason
of its withdrawal (as defined in ss.4203 or ss.4205 of ERISA).
(G) any action brought against Borrower or any member
of its Controlled Group under ss.502 of ERISA with respect to
its failure to comply with ss.519 of ERISA.
(vii) Environmental. Any Environmental Claim pending
or threatened against any Borrower or any of its Environmental
Affiliates, or any past or present acts, omissions, events or
circumstances (including but not limited to any dumping,
leaching, deposition, removal, abandonment, escape, emission,
discharge or release of any Environmental Concern Material at,
on or under any facility or property now or previously owned,
operated or leased by any Borrower or any of its Environmental
Affiliates) that could form the basis of such Environmental
Claim, which Environmental Claim, if adversely resolved,
individually or in the aggregate, could have a Material
Adverse Effect.
(g) Certain Actions Respecting Put/Call Agreement. Genesis (on
behalf of the Borrowers) shall deliver to the Administrative Agent prompt
written notice (but in any event within five (5) Business Days) of the receipt
or delivery of any notice pursuant to the Put/Call Agreement relating to the
exercise of the put or call provisions thereof. The Administrative Agent shall
promptly give each Lender a copy of any notice delivered pursuant to the
preceding sentence of this paragraph (g). In addition, Genesis shall deliver to
the Administrative Agent prior written notice at least ten (10) Business Days
prior to any amendment to the Put/Call Agreement.
(h) Notice of Non-Renewal of Management Agreement. Genesis (on
behalf of the Borrowers) shall give the Administrative Agent written notice
promptly upon the receipt or delivery of any notice of non-renewal or
termination delivered under or relating to the Multicare Management Agreement.
The Administrative Agent shall promptly give each Lender a copy of any notice
delivered pursuant to this paragraph (h).
(i) Other ERISA Information. The Borrowers shall deliver to
the Administrative Agent, copies of the following:
(A) Promptly after the filing thereof with the
Secretary of Labor, the Secretary of the Treasury, the PBGC or
any other governmental entity, copies of each annual report,
each audited financial statement and any other report so filed
with respect to each Plan.
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(B) Borrowers will furnish to the Lenders as soon as
possible after receipt thereof a copy of any notice that any
Borrower or any member of its Controlled Group receives from
the PBGC, the Internal Revenue Service, the Department of
Labor or any other governmental entity or the sponsor of any
Multiemployer Plan that sets forth or proposes any action to
be taken or determination made by the PBGC, the Internal
Revenue Service, the Department of Labor or any other
governmental entity or the sponsor of any Multiemployer Plan
with respect to any Plan.
(j) Amendments to Transaction Documents and Terms of Preferred
Stock. In addition to the notice requirements set forth in paragraph (g) above,
Genesis (on behalf of the Borrowers) shall furnish the Administrative Agent
copies or drafts of all proposed amendments, modifications or waivers to any
Transaction Documents (1) in the case of any amendments, modifications or
waivers requiring the consent of the Required Lenders at least 20 Business Days
prior to the effective date thereof and (2) in all other cases, at least 5
Business Days prior to the effective date thereof. As soon as the terms of the
Series H Preferred Stock or Series I Preferred Stock are final, Genesis shall
deliver to the Administrative Agent a copy of the Certificate of Designation
respecting such stock or similar document embodying the terms thereof.
(k) Notices under Indenture. Genesis (on behalf of the
Borrowers) shall furnish to the Administrative Agent copies of all notices,
reports, certificates or other material delivered to or by the trustee or any
other party under the 1995 Subordinated Note Indenture, the 1996 Subordinated
Note Indenture or the 1998 Subordinated Note Indenture or, if applicable, any
Additional Subordinated Note Indenture, promptly upon receipt thereof.
(l) Monthly Operating Report. As soon as practicable, and in
any event with 30 days after the end of each calendar month, Genesis, on behalf
of the Borrowers, shall deliver to the Administrative Agent, the Issuer and each
Lender, monthly reports setting forth the following financial data for the
Borrowers: census, census mix, total accounts payable and accounts receivable as
of the end of such month, and net free cash flow as of the end of such month all
of which shall be in form acceptable to the Administrative Agent.
(m) Other Information. In addition, the Borrowers will
promptly furnish to the Administrative Agent such other information as any
Lender Party (through the Administrative Agent) may reasonably request,
including information submitted by the Borrowers to any Governmental Authority
and the Administrative Agent will furnish such information to the requesting
Lender Party.
6.2 MAINTENANCE OF EXISTENCE. Each Borrower shall preserve and maintain
its corporate or partnership existence, as the case may be, and good standing in
the jurisdiction of its organization provided, however, upon giving written
notice to the Administrative Agent, the Borrowers may dissolve any Subsidiary if
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(a) such Subsidiary is not (either individually or in the aggregate with all
other entities dissolved pursuant to this proviso) a material Borrower (or
material Borrowers) and (b) Genesis determines that it is in the best interest
of the Borrowers, taken as a whole, that such Subsidiary be dissolved. Genesis
and (to the extent that any failure to qualify or remain qualified could have a
Material Adverse Effect) each Restricted Subsidiary, shall qualify and remain
qualified as a foreign corporation or partnership in each jurisdiction in which
such qualification is required, provided, however nothing in this Section 6.2
shall prohibit any sales or other dispositions permitted under Section 8.5 or
Section 8.13.
6.3 CONDUCT OF BUSINESS AND MAINTENANCE OF LICENSES AND OTHER PROPERTY.
(a) Type of Business. Each Borrower shall continue to engage
in the business of the same general type as conducted by the Borrowers on the
Closing Date and shall not engage in any other type of business without the
consent of the Required Lenders.
(b) Healthcare and Regulatory Rights. Except where the failure
to take any of the following actions, individually or in the aggregate, could
not have a Material Adverse Effect, each Borrower shall, (i) maintain in effect
all Licenses and Reimbursement Approvals necessary or appropriate to own and
operate all Health Care Businesses which it owns or operates and (ii) obtain all
Licenses and Reimbursement Approvals necessary or appropriate to own and operate
all Health Care Businesses which it acquires and (iii) continue its
participation in any and all Third Party Payor Arrangements. Except where such
failure to so comply (together with all other failures from time to time by the
same or other Borrowers), could not reasonably be expected to have a Material
Adverse Effect, each Borrower shall comply with any and all rules, regulations,
standard procedures and decrees necessary to maintain its participation in any
such Third Party Payor Arrangements and prepare and file all applicable cost
reports with respect to all Third Party Payors Arrangements to the extent
required. Each Borrower shall use its best efforts to cause each Person managed
by it to obtain and maintain its Licenses and Reimbursement Approvals necessary
for the conduct of its business and to continue its participation in Third Party
Payor Arrangements and comply with all rules, regulations, standard procedures
and decrees relating thereto to the extent that the failure to do so could have
a Material Adverse Effect.
(c) Maintenance of Property. Each Borrower shall maintain, keep and
preserve all of its property necessary or useful in the proper conduct of its
business in good working order and condition, ordinary wear and tear excepted
(except for sales and other dispositions of property permitted under Section 8.5
below (Dispositions)). Without limiting the generality of the foregoing, each
Borrower shall maintain in full force and effect each lease, Management
Agreement and other material agreement used or useful in its business, subject
to no material default except where the loss of, or default under, such lease,
Management Agreement or other agreement (i) could not individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect or (ii) is
not otherwise prohibited by the terms of this Agreement.
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6.4 MAINTENANCE OF RECORDS; FISCAL YEAR. Each Borrower shall keep
adequate records and books of account, in which complete entries will be made in
accordance with historical practice and GAAP, reflecting all financial
transactions of the Borrowers. Each Borrower shall maintain a fiscal year end of
September 30.
6.5 COMPLIANCE WITH LAWS. Each Borrower shall comply (and maintain
procedures to assure compliance) in all material respects with all applicable
Laws (including environmental and health care Laws) and all judgments, decrees
or orders of any court or Governmental Authority and all settlement agreements.
Without limiting the generality of the foregoing, each of the Borrowers shall
maintain in full force and effect an internal compliance program respecting
compliance with all Laws affecting the types of businesses carried on by the
Borrowers (including healthcare Laws) and make such program available for review
by any Lender, upon request.
6.6 ERISA.
(a) Each Borrower will, and will cause each member of its
Controlled Group, to comply in all material respects with the provisions of
ERISA and the Code with respect to any Plan both in form and in operation.
(b) Each Borrower will cause to be made all contributions
required to avoid any Accumulated Funding Deficiency, whether or not waived,
with respect to any Pension Plan.
(c) No Borrower will adopt or permit the adoption by any
member of its Controlled Group of any Defined Benefit Pension Plan which would
result in any Amount of Unfunded Benefit Liabilities in excess of $500,000.00.
(d) No Borrower will acquire, or permit the acquisition by any
member of its Controlled Group of, any trade or business which has incurred
either directly or indirectly any Amount of Unfunded Benefit Liabilities under
any Defined Benefit Pension Plan in excess of $500,000.00.
(e) The Borrowers will not permit with respect to any Plan,
any Prohibited Transaction or Prohibited Transactions under ERISA or the Code
resulting in liability of any Borrower or any member of its Controlled Group
which together with any other liabilities subject to this paragraph (e) would in
the aggregate be in excess of $500,000.00, unless such Borrower or any member of
its Controlled Group will be contesting in good faith and by appropriate
proceedings any such matter and measures are available and are being taken which
have the effect of preventing the seizure of property of such Borrower or any
member of its Controlled Group pending the outcome of such contest.
(f) No Borrower will withdraw, or permit any member of its
Controlled Group to withdraw, from any Multiemployer Plan to which any of them
may hereafter contribute if the Withdrawal Liability which would thereupon be
incurred would have a material adverse effect, directly or indirectly, on the
financial condition of any of the Borrowers.
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(g) No Borrower will permit any unfunded liabilities of
unfunded and uninsured "employee welfare benefit plans" (as defined in ss.3(1)
of ERISA) of any Borrower and of any member of its Controlled Group in excess of
$500,000.00 in the aggregate with all other liabilities subject to this
paragraph (g).
(h) No Borrower will, or will permit any member of its
Controlled Group to, cause or suffer to exist a COBRA Violation with respect to
any Plan to which such continuation coverage requirements apply if the
violation(s) could result in a liability in excess of $500,000.00 in the
aggregate.
6.7 RIGHT OF INSPECTION. Each Borrower shall, at any reasonable time
and from time to time, and upon reasonable advance notice (but no advance notice
shall be required if a Default or an Event of Default shall then exist), permit
the Administrative Agent, the Issuer or any Lender or any agent or
representative thereof, to examine and make copies and abstracts from the
records and books of account of, and visit and inspect the properties of, any
Borrower, and to discuss the affairs, finances and accounts of such Borrower
with any of its officers, directors and independent accountants.
6.8 INSURANCE.
(a) Each Borrower shall maintain with financially sound and
reputable insurers insurance with respect to its properties and business and
against such liabilities, casualties and contingencies and of such types and in
such amounts as are customary in the case of Persons engaged in the same or
similar businesses or having similar properties similarly situated, including
insurance covering its respective properties, buildings, machinery, equipment,
tools, furniture, fixtures and operations, and medical malpractice, professional
liability and public liability, as well as "stop loss" and business
interruption. The Borrowers shall (i) deliver to the Administrative Agent the
certificates evidencing such insurance annually and at least thirty days prior
to the anniversary date of such insurance policies and any other time requested
by the Administrative Agent and (ii) have the Collateral Agent named as
additional insured and lender loss payee, as appropriate, under each such
policy. Without limiting the generality of the foregoing, the Borrowers shall
keep all buildings and improvements now or hereafter erected upon the Mortgaged
Properties insured for the benefit of the Collateral Agent against loss by fire
and other casualties and hazards required by the Collateral Agent, upon terms
and with insurers and in such amounts as shall substantially cover any loss
related to such properties.
(b) So long as no Event of Default has occurred and is
continuing, the Borrowers may settle all casualty damage and other claims which
do not exceed (individually or combined with other related claims) $5,000,000
consistent with past practice and reasonable business judgment and may demand,
receive and receipt for all moneys becoming payable thereunder and under all
condemnation awards which do not exceed (individually or combined with other
related awards) $5,000,000. Borrowers shall promptly notify the Administrative
Agent upon the occurrence of any condemnation, or threatened condemnation,
affecting the Mortgaged Property, or any casualty damage or other claim, in each
case if the amount involved exceeds the $5,000,000 value referred to above or if
an Event of Default has occurred and is continuing (any such claim or
condemnation award being herein referred to as an "Agent-Involved Claim"). No
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Borrower shall settle with any insurance company or public entity or authority
for any Agent-Involved Claim without the Administrative Agent's prior written
approval thereof. The proceeds of any Agent-Involved Claim shall be paid
directly to the Collateral Agent, and the Administrative Agent in its sole
discretion may direct the Collateral Agent to apply the amount so collected, or
any part thereof, toward the payment of the Obligations (as defined in the
Collateral Agency Agreement), whether or not then due and payable, or toward the
alteration, reconstruction, repair or restoration of the damaged and/or untaken
portion, as the case may be, of the Mortgaged Property or other Additional
Security on such terms and conditions as the Administrative Agent shall in its
sole discretion require.
6.9 PAYMENT OF TAXES AND OTHER CHARGES. Each Borrower shall
(a) on or prior to the date on which penalties attach thereto,
pay all taxes, assessments and other governmental charges imposed upon it or any
of its properties; and
(b) on or prior to the date when due, pay all lawful claims of
materialmen, mechanics, carriers, warehousemen, landlords and other like Persons
and all other lawful claims which, in each case if unpaid, might result in the
creation of a Lien upon any of its properties,
provided that unless and until foreclosure, distraint, levy, sale or similar
proceedings shall have been commenced, such Borrower need not pay or discharge
any such tax, assessment, charge or claim so long as (x) the validity thereof is
being contested in good faith and by appropriate proceedings diligently
conducted and (y) such reserves or other appropriate provisions as may be
required by GAAP shall have been made therefor.
6.10 SUBSIDIARIES TO BE BORROWERS.
(a) Each Borrower shall (i) cause all of its Subsidiaries,
other than Excluded Subsidiaries, at all times to be Borrowers hereunder (by
signing Joinder Supplements hereto, executing Notes or allonges thereto and
taking such other action as the Administrative Agent may reasonably request),
(ii) cause all the capital stock or other equity interests in such Subsidiaries
owned by Borrowers, other than capital stock or other equity interests in
Excluded Subsidiaries, and all notes or other rights to receive payment from
another Borrower to be pledged to the Collateral Agent for the benefit of the
Secured Parties pursuant to the Pledge Agreement and (iii) cause all other
material assets and property (other than Excluded Assets) to be pledged or
mortgaged to the Collateral Agent for the benefit of the Secured Parties
pursuant to the Security Agreement and/or the Mortgages. Without limiting the
generality of the foregoing, when the Borrowers are required, in connection with
an Acquisition or otherwise, to cause one or more (direct or indirect)
Subsidiaries of Genesis (each, a "Joining Subsidiary") to become "Borrowers"
hereunder, then the Borrowers and each such Joining Subsidiary shall take the
actions set forth on Schedule 6.10 hereto, in the case of the formation of a new
Subsidiary, promptly upon such formation, and in the case of the acquisition of
an entity which shall become a Subsidiary, no later than the date of the
consummation of the relevant Acquisition.
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(b) With the prior written consent of the Administrative
Agent, Genesis (on behalf of the Borrowers) may from time to time redesignate
one or more Subsidiaries which are designated as Excluded Subsidiaries on
Schedule 11.1 - Part B to be Borrowers and Restricted Subsidiaries hereunder,
Pledgors under the Pledge Agreement and comparable parties under the other Loan
Documents (and not Excluded Subsidiaries). Thereupon and upon satisfaction of
the requirements set forth in paragraph (a) above for Joining Subsidiaries, such
redesignated Subsidiaries shall be Borrowers hereunder, Pledgors under the
Pledge Agreement and comparable parties to the other Loan Documents. The
Administrative Agent shall give the Lenders notice of any such redesignation.
6.11 PRESERVATION OF STATUS AS SENIOR INDEBTEDNESS. The Borrowers shall
comply with the terms of the 1995 Subordinated Note Indenture, the 1996
Subordinated Note Indenture and the 1998 Subordinated Note Indenture. Each
Borrower shall promptly take all action necessary or requested by the
Administrative Agent at any time to protect, preserve and give effect to the
status of the Loan Obligations as "Senior Indebtedness" and "Designated Senior
Indebtedness" within the meaning of the 1995 Subordinated Note Indenture and the
1996 Subordinated Note Indenture and, the 1998 Subordinated Note Indenture.
6.12 INTEREST RATE HEDGING AGREEMENTS. At all times from and after
ninety (90) days after the Closing Date, the Borrowers shall maintain one or
more Interest Rate Hedging Agreements to the extent necessary to ensure that at
all times at least fifty percent (50%) of the Total Funded Indebtedness of the
Borrowers effectively bears, or is capped at, a fixed interest rate provided,
however, that no Borrower shall enter into any rate swap, cap or collar
agreement which is not an Interest Rate Hedging Agreement.
6.13 CORPORATE SEPARATENESS. Each Borrower shall observe all
requirements necessary to cause it to be treated as a separate legal entity for
all purposes under applicable corporate law. Without limiting the foregoing
requirement, each Borrower specifically shall (i) maintain, and cause each
Excluded Subsidiary to maintain, separate corporate and financial records and
observing all corporate formalities; (ii) maintain, and cause each Excluded
Subsidiary to maintain, capitalization adequate to meet its business needs;
(iii) cause all reports, filings and public information to refer to such
Borrower or Excluded Subsidiary, as the case may be, as a separate company (and
not a division of each other); and (iv) otherwise conduct, and cause each
Excluded Subsidiary to conduct, its dealings with third parties in its own name
and as a separate and independent entity. Without limiting the generality of the
foregoing, unless specifically agreed to by the Required Lenders, no Borrower
may enter into any merger or other combination with or transfer assets to any
Excluded Subsidiary, or make any loan to, advance to, or other investment in any
Excluded Subsidiary, or guarantee any Indebtedness or otherwise be liable for
obligations of any Excluded Subsidiary except as expressly permitted by this
Agreement, provided, nothing in this Section 6.13 shall prohibit the execution
and delivery of the Multicare Management Agreement or the Tax Sharing Agreement
and the transactions contemplated thereby or the consummation of the
Deleveraging Transaction in accordance with the terms hereof so long as both
before and after giving effect to such action there would exist no Default or
Event of Default. Notwithstanding the foregoing (a) the Borrowers may make such
Investments in, borrow money from, and carry on other transactions with,
Excluded Subsidiaries on an arm's length basis to the extent that this Agreement
permits the Borrowers to carry on such activities with unrelated third parties,
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(b) so long as no Default or Event of Default shall then exist or be caused
thereby, the Borrowers may contribute capital to, or make other Investments in,
The Multicare Group from the proceeds of the sale of equity of Genesis common
stock in an amount not to exceed $20,000,000 in the aggregate from the Amendment
Effective Date through the Maturity Date (to the extent that such proceeds are
so used promptly upon the receipt thereof) and (c) so long as no Event of
Default shall then exist or be caused thereby, the Borrowers may effect the
Salisbury Transaction.
6.14 TRANSACTIONS WITH AFFILIATES. Each Borrower shall effect all
transactions with Affiliates (excluding transactions with other Borrowers) on a
basis at least as favorable to such Borrower as would at the time be obtainable
for a comparable transaction on an arm's length dealing with an unrelated third
party, except that this Section 6.14 shall not apply to (a) the Tax Sharing
Agreement, (b) the Transaction Documents and (c) the Deleveraging Transaction so
long as both before and after giving effect to such action there would exist no
Default or Event of Default.
6.15 MORTGAGED PREMISES AND OTHER ADDITIONAL SECURITY.
(a) Payment of Obligations; Protection of Liens. Each Borrower
will pay all sums due and becoming due under the Mortgages on the Mortgaged
Properties, all such payments to be made as and when due. Each Borrower shall
preserve, protect and defend the title, validity and priority of the Mortgages
on the Mortgaged Properties and the Liens on the other Additional Security
against all claims and demands whatsoever, subject to Permitted Liens and
dispositions permitted under this Agreement.
(b) Taxes and Insurance Premiums. Subject to the provisions of
Section 6.9 (Payment of Taxes and Other Charges), each Borrower shall pay, prior
to the accrual of any interest or penalty thereon, all taxes (including, without
limitation, all real estate taxes and corporate taxes), water and sewer rents,
charges, claims, assessments, liens and encumbrances now or hereafter assessed
with respect to the Mortgaged Properties, and the premiums on all policies of
insurance held by Borrowers pursuant to the provisions of Section 6.8
(Insurance) above.
(c) Repair and Condition of Additional Security. The Borrowers
shall keep the Mortgaged Property and improvements thereon and the other
Additional Security in good condition and repair, ordinary wear and tear
excepted and shall not remove, demolish or materially alter the buildings or
improvements on the Mortgaged Property (except to the extent that, in the
reasonable business judgment of the Borrower that owns or leases the applicable
property, such demolition, removal or alteration is in the best interest of such
Borrower and not adverse to the interests of the Secured Parties taken as a
whole), nor commit or suffer waste with respect thereto. The Borrowers shall
materially comply with all laws, rules, regulations and ordinances made or
promulgated by lawful authority which may now or hereafter become applicable to
the Mortgaged Property or other Additional Security, and the Borrowers shall
prohibit any use of the Mortgaged Property which would permit the confiscation
or seizure thereof. The Borrowers shall permit the Administrative Agent at any
reasonable time and from time to time to enter upon the Mortgaged Property and
the buildings and improvements thereon erected for the purpose of inspecting and
appraising the same, and shall make restorations and replacements reasonably
required by the Administrative Agent. The Borrowers shall not take or permit any
action with respect to the Mortgaged Property or other Additional Security which
will in any manner impair the security of the Mortgage on the Mortgaged Property
or the Lien on the other Additional Security.
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(d) Collateral Agent's Right to Cure. In the event of the
failure of any Borrower to pay the taxes and other charges set forth in Section
6.15(b) (Taxes and Insurance Premiums), or to furnish and pay for the insurance
as set forth in subsection 6.8 (Insurance), or to keep the Mortgaged Property in
good condition and repair as provided in subsection 6.15(c) (Repair and
Condition of Mortgaged Property), the Administrative Agent and/or the Collateral
Agent may, at its option, but without any obligation to do so, pay any or all
such items, together with penalties and interest thereon, and procure and pay
for such insurance and repairs; and any such Agent may at any time and from time
to time advance such additional sum or sums as such Agent in its sole discretion
may deem necessary to protect the security of the Mortgage on the Mortgaged
Property. All such sums so paid or advanced by the Administrative Agent or the
Collateral Agent shall immediately and without demand be repaid by the
Borrowers, together with interest thereon at the Default Rate, and shall be
added to the principal indebtedness secured by the Mortgage on the Mortgaged
Property. The production of a receipt by the Administrative Agent or the
Collateral Agent shall be conclusive proof of a payment or advance authorized
hereby, and the amount and validity thereof.
(e) Obligations Under Leases. Each Borrower who is a tenant or
subtenant under a lease with respect to a leased Mortgaged Property shall
perform all of its obligations under such lease and send to the Administrative
Agent a copy of any notice relating to default, termination or the like relating
to such lease within one (1) business day after receipt thereof by such
Borrower. The Administrative Agent is hereby granted the right (but not the
obligation) to cure any default by any Borrower under a lease.
(f) Environmental Laws. Each Borrower covenants and agrees
with each Lender Party to comply (and to cause all occupants of the Mortgaged
Property to comply) in all material respects with all Environmental Laws, and to
give prompt written notice to the Administrative Agent of any violation or
alleged violation of any Environmental Law with respect to the Mortgaged
Property. Without limiting any other indemnification provision, each Borrower
will indemnify and defend each Lender Party and hold each Lender Party harmless
from any loss, liability, damage, claim, action or cause of action, including,
without limitation, court costs and attorney's fees, consultants' fees and any
costs associated with any Remedial Action, arising from any violation or alleged
violation of any Environmental Law with respect to the Mortgaged Property owned
or leased by such Borrower, which undertaking shall not be subject to any
limitation on such Borrower's liability as may be contained in any Loan
Document, and which shall survive repayment of the Loan Obligations and/or the
foreclosure of the Mortgage on the applicable Mortgaged Property.
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6.16 FURTHER ASSURANCES.
(a) The Borrowers shall continue to use commercially
reasonable efforts to provide additional Mortgages (including leasehold
mortgages) on all real property owned or leased by the Borrowers other than the
Excluded Assets provided, however, at a minimum, the Borrowers shall cause,
(i) at least 42 Mortgages on owned or leased
property to be delivered to the Collateral
Agent in form and substance (with all
exhibits) ready for recording on or before
9/30/99 (which number of properties shall
include those recorded on or before the
Amendment Effective Date) accompanied by
such title reports and flood zone
certifications as the Administrative Agent
may reasonably request; and
(ii) at least 48 Mortgages on owned or leased
property to be delivered to the Collateral
Agent in form and substance (with all
exhibits) ready for recording on or before
10/31/99 (which number of properties shall
include those recorded on or before 9/30/99)
accompanied by such title reports and flood
zone certifications as the Administrative
Agent may reasonably request.
(b) Each of the Borrowers agrees that it shall execute and
deliver such documents and statements as the Administrative Agent may reasonably
request and shall take such other action as may be required to perfect, protect
or extend the Lien or priority of the Mortgage on the Mortgaged Property and the
Lien or priority on the other Additional Security. In addition, each of the
Borrowers agrees that it will take such other action as the Administrative Agent
may reasonably request to carry out the purposes of this Agreement.
6.17 USE OF PROCEEDS. The Borrowers will apply the proceeds of the
Loans only (i) to fund working capital and Capital Expenditure needs, subject to
the other limitations set forth in this Agreement, (ii) to fund Acquisitions
permitted by the terms of this Agreement, (iii) to fund interest and principal
payments on the Loans and other permitted Indebtedness and (iv) for general
corporate purposes.
6.18 ASSET SALES. During each of the periods referred to below, the
Borrowers shall dispose of assets in accordance with Section 8.5 (Dispositions)
below and/or shall cause refinancings of Loans made by Borrowers to
third-parties in such amounts as will result in the Borrowers receiving Net Cash
Proceeds of asset sales and Milford/Dover Proceeds and General Refinancing
Proceeds in an aggregate amount equal to or greater than the amount referred to
below for the period noted:
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Period Net Cash Proceeds
------ -----------------
8/15/99 through 12/31/99 $12,000,000
8/15/99 through 6/30/00 $49,000,000
8/15/99 through 12/31/00 $89,000,000
Article 7
FINANCIAL COVENANTS
7.1 CERTAIN FINANCIAL COVENANTS. So long as any Loan Obligations shall
remain unpaid or any Lender or the Issuer has any Commitment under this
Agreement, the Borrowers shall comply with the following financial covenants.
(a) Fixed Charge Coverage. The Fixed Charge Coverage Ratio
shall be at least equal to the ratios set forth below during the periods
indicated below:
Period Ratio
------ -----
September 30, 1997 through September 30, 1998 1.30 to 1.00
October 1, 1998 through March 31, 1999 1.25 to 1.00
April 1, 1999 through June 30, 1999 1.10 to 1.00
July 1, 1999 through December 30, 1999 1.00 to 1.00
December 31, 1999 through March 30, 2000 1.05 to 1.00
March 31, 2000 through September 29, 2000 1.10 to 1.00
September 30, 2000 through September 29, 2001 1.20 to 1.00
September 30, 2001 and thereafter 1.25 to 1.00
(b) Consolidated Net Worth. The amount at any date of
determination after the Amendment Effective Date shall be not less than the sum
of
(i) Seven Hundred and Forty Million Dollars
($740,000,000.00)
plus
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(ii) an amount equal to the sum of:
(A) an amount equal to 100% of the net
proceeds of all equity offerings of Genesis on a
cumulative basis commencing on the Amendment
Effective Date through such date of determination
(other than proceeds used to acquire the shares of
Genesis ElderCare Corp. pursuant to the Put/Call
Agreement or used to make loans or advances to, or
other investments in, the Multicare Group as
permitted by Section 8.3 below),
(B) 75% of the cumulative amount of Net
Income (which shall not be reduced by the amount of
any net loss for any fiscal quarter) of Genesis and
its Restricted Subsidiaries, on a consolidated basis,
for the period commencing on the first day of the
fiscal quarter in which the Amendment Effective Date
occurs through the last day of the fiscal quarter
ending on, or most recently prior to, such date of
determination, and
(C) any reduction in the amount of debt as a
result of the conversion of convertible debt
securities into equity.
"Consolidated Net Worth" shall mean the total amount of
stockholders equity of Genesis and its Restricted Subsidiaries, on a
consolidated basis, adjusted as follows:
(1) The value (as reflected on the balance sheet
determined in accordance with GAAP) of any Designated Stock that is issued in
connection with the Acquisition of Vitalink shall be included as "net proceeds
of ... equity offerings" for purposes of calculations of amounts referred to in
clause (ii)(A) of this paragraph (b) of Section 7.1.
(2) The effect of the non-cash charge taken against
income in the period ended September 30, 1998 shall be excluded to the extent
that such charge does not exceed $80,000,000.00 after tax;
(3) Consolidated Net Worth shall not be reduced by
the amount of the write-down for the carrying value of Multicare;
(4) Consolidated Net Worth shall not be reduced by
the non-cash charge related to the extinguishment of the put obligation under
the Permitted Put/Call Amendment; and
(5) Consolidated Net Worth shall be determined
without regard to the payment by Genesis of dividends on its preferred stock in
shares of capital stock of Genesis.
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(c) Adjusted Total Debt/Cash Flow Ratio. The Adjusted Total
Debt/Cash Flow Ratio shall be not greater than the ratios set forth below during
the periods indicated below:
Period Ratio
------ -----
September 30, 1997 through June 30, 1998 6.25 to 1.00
July 1, 1998 through September 30, 1998 5.75 to 1.00
October 1, 1998 through March 31, 1999 6.25 to 1.00
April 1, 1999 through June 30, 1999 8.00 to 1.00
July 1, 1999 through December 30, 1999 8.50 to 1.00
December 31, 1999 through March 30, 2000 8.15 to 1.00
March 31, 2000 through June 30, 2000 7.75 to 1.00
July 1, 2000 through September 29, 2000 7.50 to 1.00
September 30, 2000 through March 30, 2001 6.75 to 1.00
March 31, 2001 through September 29, 2001 6.50 to 1.00
September 30, 2001 through March 30, 2002 6.25 to 1.00
March 31, 2002 through September 29, 2002 5.75 to 1.00
September 30, 2002 through September 29, 2003 5.50 to 1.00
September 30, 2003 and thereafter 5.00 to 1.00
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(d) Adjusted Senior Debt/Cash Flow. The Adjusted Senior
Debt/Cash Flow Ratio shall be not greater than the ratios set forth below during
the periods indicated below:
Period Ratio
------ -----
September 30, 1997 through December 30, 1998 5.25 to 1.00
December 31, 1998 through March 31, 1999 4.75 to 1.00
April 1, 1999 through June 30, 1999 6.25 to 1.00
July 1, 1999 through December 30, 1999 6.75 to 1.00
December 31, 1999 through March 30, 2000 6.40 to 1.00
March 31, 2000 through June 30, 2000 6.00 to 1.00
July 1, 2000 through September 29, 2000 5.75 to 1.00
September 30, 2000 through March 30, 2001 5.25 to 1.00
March 31, 2001 through September 29, 2001 5.00 to 1.00
September 30, 2001 through March 30, 2002 4.75 to 1.00
March 31, 2002 through September 29, 2002 4.50 to 1.00
September 30, 2002 through September 29, 2003 4.00 to 1.00
September 30, 2003 and thereafter 3.50 to 1.00
7.2 CALCULATION OF FINANCIAL COVENANTS.
(a) The financial covenants set forth in this Article 7 shall
be maintained continuously and shall be tested at the end of each fiscal quarter
(based on the financial information delivered pursuant to Section 6.1 (Reporting
Requirements) above) and at such other times as may be required by the terms of
this Agreement.
(b) Following the effective date of any Acquisition that is
effected by Genesis or any of its Restricted Subsidiaries and that is permitted
under Section 8.4 below (Acquisitions, Etc.), the financial covenants set forth
in this Article 7 shall be computed on a pro forma basis as if the effective
date of such Acquisition had been the first day of the earliest of the four
fiscal quarters ended on, or most recently prior to, such actual date of the
Acquisition. For purposes of such computation, the Borrowers may elect to make
pro forma income statement adjustments at the time of the effective date of such
Acquisition under the following circumstances: (i) adjustments to reflect the
elimination of that portion of salary and employee benefit expenses that will no
longer be incurred after the Acquisition, to the extent demonstrated by Genesis
to the satisfaction of the Administrative Agent, and (ii) adjustments to reflect
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any other savings in expenses which will be realized by such Person so acquired
as a consequence of such Acquisition, to the extent demonstrated by Genesis to
the satisfaction of the Administrative Agent. Following the effective date of
any disposition that is effected by Genesis or any of its Restricted
Subsidiaries and that is permitted under Section 8.5 below (Dispositions), the
financial covenants set forth in this Article 7 shall be computed on a pro forma
basis as if the effective date of such disposition had been the first day of the
earliest of the four fiscal quarters ended on, or most recently prior to, such
actual date of disposition. Following the Closing Date, the financial covenants
set forth in this Article 7 shall be computed on a pro forma basis as if all
transactions in connection with the Transaction Documents had been consummated,
including as if the Multicare Management Agreement had been in effect since the
first day of the earliest of the four fiscal quarters ended on, or most recently
prior to, the Closing Date. Unless otherwise agreed to by the Required Lenders,
the financial condition and results of operations of the Multicare Group or
other Excluded Subsidiaries shall not be combined with those of the Borrowers
for purposes of calculating the financial covenants set forth in this Article 7
except that distributions actually made to the Borrowers by Genesis Eldercare
Corp. shall be included in the financial statements of the Borrower Group as
income on its Investments.
(c) For purposes of determining the Fixed Charge Coverage
Ratio, the Adjusted Total Debt/Cash Flow Ratio and the Adjusted Senior Debt/Cash
Flow Ratio, the amount of Cash Flow, Interest Expense, income taxes, Rental
Expenses and principal payments required to be made on Total Funded Indebtedness
(and each component of the foregoing):
(i) will be calculated as the product of two (2)
times the two most recently completed fiscal
quarters for the reporting periods beginning
with the quarter ended 6/30/99 and thereafter
through and including the quarter ending
9/30/00;
(ii) will be calculated as the product of
four-thirds (4/3) times the three most recently
completed fiscal quarters for the reporting
periods ending 12/31/00 and 3/31/01; and
(iii) will be calculated on a rolling four quarter
basis for each quarter ended prior to 6/30/99
and from and after the quarter ending 6/30/01.
Article 8
NEGATIVE COVENANTS
So long as any Loan Obligations shall remain unpaid or any Lender or
the Issuer shall have any Commitment under this Agreement, each of the Borrowers
shall comply with the following covenants.
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8.1 INDEBTEDNESS. No Borrower shall, at any time, create, incur, assume
or suffer to exist any Indebtedness (including any Guaranties, Capitalized
Leases or Assumed Indebtedness), except:
(a) Indebtedness to the Lender Parties pursuant to this
Agreement and the other Loan Documents;
(b) Indebtedness constituting intercompany (i.e.,
inter-Borrower) loans and advances evidenced by promissory notes duly pledged to
the Collateral Agent (for the benefit of the Secured Parties) pursuant to the
terms of the Pledge Agreement;
(c) Indebtedness in an aggregate principal amount not to
exceed at any time Fifty Million Dollars ($50,000,000.00) on terms and
conditions no more onerous than those set forth in this Agreement and the other
Loan Documents the proceeds of which shall be used for the development of the
Newly Developed Facilities;
(d) Obligations of Genesis under Interest Rate Hedging
Agreements entered into pursuant to Section 6.12 hereof;
(e) Indebtedness in respect of the Synthetic Lease Facility in
a principal amount not to exceed Eighty Million Dollars ($80,000,000.00);
(f) Indebtedness (including the indebtedness under the 1995
Subordinated Notes and the 1996 Subordinated Notes and the 1998 Subordinated
Notes) existing on the Amendment Effective Date acceptable to the Agents and
described on Schedule 8.1 hereto, which sets forth certain Indebtedness in a
principal amount not exceeding $449,335,313.00; and any extensions, renewals,
refinancings of the same so long as such extensions, renewals and refinancings
(i) are in a principal amount no greater than the amount of the Indebtedness so
extended, renewed or refinanced, (ii) are incurred pursuant to agreements or
instruments which do not prohibit the Indebtedness or Liens created pursuant to
the Loan Documents or otherwise conflict with the terms of the Loan Documents or
contains terms and conditions which are more onerous than the terms and
conditions in the existing agreements and instruments, (iii) are not made at a
time that a Default or Event of Default has occurred and is continuing or would
be caused thereby, (iv) have maturity dates (and amortization schedules) no
earlier than the debt being refinanced and (v) in the case of any extension,
renewal or refinancing of the 1995 Subordinated Notes, 1996 Subordinated Notes,
or 1998 Subordinated Notes shall have subordination provisions at least as
favorable to the senior lenders as those set forth in the agreement refinanced
or extended and shall generally be on terms acceptable to the Administrative
Agent.
(g) Other Indebtedness incurred from time to time, in an
aggregate outstanding principal amount not to exceed Thirty Million Dollars
($30,000,000.00) at any time, so long as such Indebtedness (other than Assumed
Indebtedness) is incurred pursuant to agreements or instruments which contain
terms and conditions no more onerous than the terms and conditions hereof and
which do not, in the case of such Indebtedness for borrowed money, mature, or
have principal amortization prior to, the Maturity Date;
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(h) Indebtedness in an aggregate principal amount not in
excess of $375,000,000.00 which is (i) subordinated to the Loan Obligations and
obligations in respect of the Synthetic Lease Facility on terms substantially
the same or more favorable to the Lender Parties as those set forth in the 1995
Subordinated Note Indenture, the 1996 Subordinated Note Indenture and the 1998
Subordinated Note Indenture, (ii) contains covenants which are not more onerous
to the Borrower in any material way than those set forth in the 1995
Subordinated Note Indenture, the 1996 Subordinated Note Indenture or the 1998
Subordinated Note Indenture, (iii) shall not require any principal payments
until after the Maturity Date and (iv) is otherwise on terms approved by the
Administrative Agent whose approval shall not be unreasonably withheld; and
(i) Other Indebtedness in an aggregate principal amount not to
exceed at any time Seventy-five Million Dollars ($75,000,000.00) the proceeds of
which shall be used exclusively for the acquisition pursuant to Section 8.4
below of the facilities from Meridian set forth on Schedule 8.4(d) hereto so
long as (a) such Indebtedness is incurred pursuant to agreements or instruments
which contain terms and conditions no more onerous than the terms and conditions
hereof, (b) no more than five percent (5%) of the original principal amount of
such Indebtedness shall amortize (or be subject to required prepayment) in any
year and (c) the sum of
(x) the aggregate amount of the Term Loans repaid or
prepaid from sources other than proceeds of
Indebtedness between the Revolver Increase
Effective Date and the date such Indebtedness is
incurred and
(y) the aggregate amount of RC Commitment permanently
reduced during such period
shall be at least equal to the amount of Indebtedness so incurred pursuant to
this paragraph (i). If the proceeds of any sale of a purchase option to acquire
facilities listed on Schedule 8.5(k) have been used to prepay Term Loans
hereunder on or before the Revolver Increase Effective Date, such prepayment
shall be treated as if it had occurred after the Revolver Increase Effective
Date for purposes of this clause (i)
provided, however, that all Indebtedness incurred pursuant to paragraph (c),
(g), (h) or (i) above shall be subject to the following (without duplication):
(i) it shall be incurred on terms which do not prohibit the Indebtedness created
pursuant to the Loan Documents or otherwise conflict with the terms hereof or
the other Loan Documents; (ii) at the time such Indebtedness is incurred, no
Default or Event of Default shall have occurred and be continuing or shall be
caused or created thereby; (iii) prior to the incurrence of such Indebtedness,
Genesis (on behalf of the Borrowers) shall deliver to the Administrative Agent a
certificate of a Responsible Officer of Genesis stating: (1) the amount of such
Indebtedness, (2) a representation that such Indebtedness was incurred in
compliance with the provisions of this Section 8.1 (indicating how much of the
permitted Indebtedness under the relevant paragraph of this Section 8.1 is
available before and after giving effect thereto) and (3) a representation that
such Indebtedness was incurred in compliance with the financial covenants set
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forth herein, in Section 5.9 of the 1995 Subordinated Note Indenture and in
Section 5.9 of the 1996 Subordinated Note Indenture and Section 5.9 of the 1998
Subordinated Note Indenture and, in the case of Indebtedness incurred pursuant
to paragraph (h) above, showing the calculations thereof; (iv) the terms of the
instruments and agreements respecting such Indebtedness shall be no more
restrictive than the terms of this Agreement; and (v) the instruments and
agreements respecting such Indebtedness shall not contain provisions that would
violate the terms of Section 8.12 (Limitation on Certain Restrictive Provisions)
below.
8.2 LIENS. No Borrower shall, at any time create, incur, assume or
suffer to exist any Lien on any of its assets (now owned or hereafter acquired),
except for the following ("Permitted Liens"):
(a) Liens pursuant to the Loan Documents;
(b) Liens acceptable to the Agents and existing on the
Amendment Effective Date securing obligations existing on the Amendment
Effective Date, which Liens and obligations are listed in Schedule 8.2 hereto
(and any extension, renewal and replacement Liens upon the same property
theretofore subject to a listed Lien, provided that (i) the amount secured by
each Lien constituting such an extension, renewal or replacement Lien shall not
exceed the amount secured by the corresponding Lien theretofore existing and
(ii) such replacement Liens are incurred pursuant to agreements or instruments
which do not prohibit the Liens or Indebtedness created pursuant to the Loan
Documents or otherwise conflict with the terms of the Loan Documents);
(c) Liens arising from taxes, assessments, charges or claims
described in Section 6.9 hereof to the extent permitted by said Section 6.9,
provided that the aggregate amount secured by all Liens described in this clause
(c) shall not at any time exceed $500,000.00;
(d) Liens existing on real estate and equipment acquired by
any Borrower in an Acquisition permitted under Section 8.4 hereof so long as any
such Lien (i) secures only the corresponding Assumed Indebtedness permitted
under clause (g) of Section 8.1 above;
(e) Liens on the property subject to the Synthetic Lease
Facility securing the obligations in respect of the Synthetic Lease Facility;
(f) Other Liens (which may be Capitalized Leases, purchase
money Liens or other types of Liens) securing Indebtedness in a principal amount
not to exceed at any time Fifteen Million Dollars ($15,000,000.00) incurred
pursuant to paragraph (g) of Section 8.1 above;
(g) Liens on property which constitutes Newly Developed
Facilities securing Indebtedness incurred pursuant to paragraph (c) of Section
8.1 above;
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(h) Liens in respect of property or assets of the Borrowers
imposed by law which were incurred in the ordinary course of business, such as
carriers, warehousemen's and mechanics' Liens, statutory landlord's Liens, and
other similar Liens arising in the ordinary course of business, and (x) which do
not in the aggregate materially detract from the value of such property or
assets or materially impair the use thereof in the operation of the business of
the Borrowers taken as a whole or (y) which are being contested in good faith by
appropriate proceedings, which proceedings have the effect of preventing the
forfeiture or sale of the property or asset subject to such lien and that
adequate reserves have been set aside on the applicable Borrower's books to
protect against an adverse result;
(i) Liens arising from judgments, decrees or attachments and
Liens securing appeal bonds arising from judgments, in each case in
circumstances not constituting an Event of Default under Section 9.1(h);
(j) Liens (other than any Lien imposed by ERISA) incurred or
deposits made in the ordinary course of business in connection with workers'
compensation, unemployment insurance and other types of social security, or to
secure the performance of tenders, statutory obligations, surety and appeal
bonds, bids, leases, government contracts, performance and return-of-money bonds
and other similar obligations incurred in the ordinary course of business
(exclusive of obligations in respect of the payment for borrowed money);
(k) Easements, rights-of-way, restrictions, minor defects or
irregularities in title to real property and other similar charges or
encumbrances on real property not interfering in any material respect with the
ordinary conduct of the business of the Borrowers taken as a whole or the value
or saleability of the assets so encumbered or affecting their use for their
intended purposes; and
(l) Purchase money Liens in favor of Cardinal on the inventory
provided by Cardinal to the extent that such Liens secure liabilities that do
not exceed in the aggregate an amount equal to $50,000,000,
provided, however, no Lien permitted under clauses (d), (f), (g) or (h) above
shall be created at any time, if there shall exist, either before or after
giving effect to such transaction, a Default or an Event of Default. "Permitted
Liens" shall in no event include any Lien imposed by, or required to be granted
pursuant to, ERISA or any Environmental Law.
8.3 LOANS, ADVANCES AND INVESTMENTS. No Borrower shall, at any time (i)
make or suffer to exist any loan or advance to, or (ii) purchase, acquire or own
(beneficially or of record) any stock, bonds, notes or securities of, or any
partnership interest (whether general or limited) in, or any other interest in,
or (iii) make any capital contribution to, or other investment in (collectively,
"Investments") any other Person, except:
(a) Receivables owing to such Borrower arising from provision
of services or sales of inventory under usual and customary terms in the
ordinary course of business; and loans and advances extended by a Borrower to
subcontractors or suppliers under usual and customary terms in the ordinary
course of business;
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(b) (i) Loans or advances from Genesis to a wholly-owned
Restricted Subsidiary of Genesis or (ii) loans from a wholly-owned Restricted
Subsidiary of Genesis to Genesis or another wholly-owned Restricted Subsidiary
of Genesis provided, however, all such loans and advances shall be evidenced by
promissory notes duly pledged to the Collateral Agent, for the benefit of the
Secured Parties, pursuant to the Pledge Agreement;
(c) The capital stock or other ownership interests in other
Borrowers duly pledged to the Collateral Agent, for the benefit of the Secured
Parties;
(d) Cash Equivalent Investments;
(e) Acquisitions permitted under Section 8.4 below
(Acquisitions);
(f) The Borrowers' initial Investment in the capital stock of
Genesis ElderCare Corp. for $325,000,000.00; the option/obligation to purchase
the remaining capital stock of Genesis ElderCare Corp. pursuant to the Put/Call
Agreement; and the exercise of the option (or fulfillment of the obligation) to
purchase the remaining equity of Genesis ElderCare Corp. pursuant to the
Put/Call Agreement in exchange solely for (i) common stock of Genesis and/or
(ii) net cash proceeds received by Genesis from a substantially contemporaneous
sale of its common stock in an amount not to exceed $20,000,000 in the aggregate
during the period commencing with the Amendment Effective Date;
(g) (i) the capital stock or other ownership interests in the
Excluded Subsidiaries (other than the Multicare Group) existing on the Amendment
Effective Date or on the date such entity shall become an Excluded Subsidiary as
set forth on Schedule 11.1 - Part B hereto, and (ii) the ownership interests in
the entities created as Excluded Subsidiaries in connection with the
Deleveraging Transaction and separately identified on a Schedule to be delivered
to the Administrative Agent at least five (5) Business Days prior to the
commencement of the Deleveraging Transaction (which entities are herein
sometimes referred to collectively as "Newco"), in exchange for, among other
consideration, an equity contribution of assets, subject to the various
requirements relating to transfers of assets to Newco set forth in Section
8.5(i) below;
(h) Other Investments not covered by paragraphs (a) through
(g) of this Section 8.3 provided, that
(i) at the time that any Investment is made, the
aggregate amount (which shall include all existing amounts and
all new commitments therefor) of all Investments pursuant to
this paragraph (h) shall not exceed an amount equal to 8.5% of
the total consolidated assets of the Borrowers (determined at
the time such Investment is made);
(ii) no Investment in any entity shall be made
pursuant to this paragraph (h) if the Borrowers' existing
Investment in such entity exceeds $25,000,000.00 or if such
additional Investment would cause the total amount of the
Borrowers' Investment in such entity to exceed Twenty Five
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Million Dollars ($25,000,000.00) except that the Borrowers may
make an additional Investment in an amount not exceeding Five
Million Dollars ($5,000,000.00) in the aggregate from the
Closing Date in Doctors Health Systems and an additional
Investment in an aggregate amount not exceeding Five Million
Dollars ($5,000,000.00) in the aggregate from the Closing Date
in Age Institute of Florida; and
(iii) no Default or Event of Default shall then exist
either before or after giving effect to such transaction.
Investments referred to in paragraph (h) which are existing on the Amendment
Effective Date and the amount of each such Investment are listed on Schedule 8.3
hereto. On or before (if practicable) but in any event within 5 days after any
Investment is made pursuant to the preceding paragraph (h), Genesis (on behalf
of the Borrowers) shall deliver to the Administrative Agent a supplement to
Schedule 8.3 showing the proposed Investment, together with a certificate of a
Responsible Officer of Genesis stating that such Investment was made in
compliance with this Section 8.3 (and showing the aggregate amount of permitted
Investments which may be made under said paragraph (h) above, the amount of the
existing Investments thereunder and the amount of the proposed Investment) and
in compliance with the provisions of the 1995 Subordinated Note Indenture, the
1996 Subordinated Note Indenture and the 1998 Subordinated Note Indenture. The
"amount" of any Investment referred to in this Section 8.3 shall mean the sum of
the following (without duplication): the amount of cash paid for or contributed
to such Investment; the fair market value of any equity or assets constituting
consideration for or contributed to such Investment; and any commitment to pay,
contribute, incur, or become liable for any of the foregoing.
8.4 ACQUISITIONS, ETC. No Borrower shall engage in any Acquisition
(other than an acquisition of assets in the ordinary course of business) except:
(a) A Borrower may merge with or into Genesis or any
direct or indirect wholly-owned Restricted Subsidiary of
Genesis, provided that (i) if Genesis is a party to the
merger, it is the surviving entity and (ii) if Genesis is not
a party to the merger, a wholly-owned Restricted Subsidiary of
Genesis is the surviving entity and provided, further, that no
Event of Default or Default shall occur and be continuing
before or after giving effect to such transaction;
(b) INTENTIONALLY OMITTED;
(c) One or more Borrowers may acquire Genesis
ElderCare Corp. on the terms and subject to the conditions set
forth in paragraph (f) of Section 8.3 (Investments) above;
(d) So long as no Default or Event of Default has
occurred or would exist after giving effect to such
Acquisition, any Borrower may make an Acquisition not covered
by paragraph (a), (b) or (c) of this Section 8.4, subject to
the following: (i) the "Acquisition Conditions" set forth on
Schedule 8.4 hereto shall have been satisfied; and (ii) the
Acquisition Cost of all Acquisitions made pursuant to this
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paragraph (d) shall not exceed Fifty Million Dollars
($50,000,000.00) in any fiscal year, provided, that if the
Adjusted Total Debt/Cash Flow Ratio is, and has been for two
consecutive fiscal quarters, less than or equal to 4.5 to 1.0,
then the Acquisition Cost of all Acquisitions pursuant to this
paragraph (d) shall not exceed One Hundred Million Dollars
($100,000,000.00) in any fiscal year but no single Acquisition
(or series of related Acquisitions) shall have an Acquisition
Cost in excess of Fifty Million Dollars ($50,000,000.00).
8.5 DISPOSITIONS. No Borrower shall sell, convey, assign, lease as
lessor, transfer, abandon or otherwise dispose of (collectively, for purposes of
this Section 8.5, "transfer"), voluntarily or involuntarily, any of its assets,
except:
(a) A Borrower may sell inventory in the ordinary course of
business;
(b) A Borrower may dispose of equipment which is obsolete or
no longer useful in its business;
(c) A Borrower may transfer its properties to Genesis or a
wholly-owned Restricted Subsidiary of Genesis so long as no Event of Default or
Default shall exist either before or after giving effect to such transfer;
(d) The Borrowers may carry out the transactions contemplated
by the Synthetic Lease Facility;
(e) The Borrowers may, from time to time, transfer Newly
Developed Facilities to ElderTrust in exchange for cash and cancellation of
liabilities in an amount equal to the fair market value of the facilities so
transferred so long as no Default or Event of Default shall exist either before
or after giving effect to such disposition and so long as no more than Fifty
Million Dollars ($50,000,000) worth of such assets are transferred in any
consecutive four fiscal quarter period;
(f) The Borrowers may grant Liens permitted under Section 8.2
(Liens) above;
(g) So long as no Default or Event of Default has occurred or
would exist after giving effect to such transfer, a Borrower may transfer other
assets (including ownership interests in Restricted Subsidiaries) provided,
however, that (i) the "Disposition Conditions" set forth on Schedule 8.5 (g)
hereto shall have been satisfied and (ii) both of the following financial tests
shall be satisfied:
(A) The sum of the aggregate fair market value of the
property subject to such proposed transfer plus
the aggregate fair market value of all property
previously transferred pursuant to this paragraph
(g) at any time after the Closing Date (in each
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case determined as of the date of transfer or
proposed transfer, as the case may be) is less
than an amount equal to 5% of the total assets of
Genesis and its Restricted Subsidiaries, on a
consolidated basis, determined as of the fiscal
quarter ending on, or most recently prior to, the
date of the proposed transfer; and
(B) The sum of the amount of Cash Flow attributable
to the property subject to such proposed transfer
plus the amount of Cash Flow attributable to all
property previously transferred pursuant to this
paragraph (g) at any time after the Closing Date
(in each case for the four fiscal quarters ended
on, or most recently prior to, the date of the
transfer or proposed transfer, as the case may
be) is less than an amount equal to 5% of the
Cash Flow of Genesis and its Restricted
Subsidiaries, on a consolidated basis, for the
four fiscal quarters ending on, or most recently
prior to, the date of the proposed transfer.
(h) So long as no Default or Event of Default has occurred or
would exist after giving effect to such transfer, the Borrowers may dispose of
interests in Excluded Subsidiaries;
(i) On or before December 31, 1999, the Borrowers may transfer
their interests in the facilities described on Schedule 8.5(i) hereto (or such
other facilities as are described in paragraph (11) below) to Newco subject to
satisfaction of each of the following requirements:
(1) Genesis shall have given the
Administrative Agent at least five (5) Business Days'
prior written notice of the intended transfer
together with a schedule of the new Excluded
Subsidiaries that shall constitute "Newco";
(2) The facilities at the time of the
disposition shall have a fair market value
approximately equal to $250,000,000.00 or such lesser
amount consistent with paragraph (11) below as is
approved by the Administrative Agent and, in support
of such valuation, the Borrowers shall have provided
the Administrative Agent with written appraisals from
a nationally-recognized appraiser of such types of
facilities based substantially on the Cash Flow
generated from such facilities in form and substance
satisfactory to the Administrative Agent (the
"Appraised Value");
(3) Newco shall make a cash distribution to
the transferor Borrowers immediately upon such
disposition (but in any event on the same day as the
assets are transferred) in an amount equal to at
least 85% of the Appraised Value;
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(4) In addition to the cash distribution
referred to in the preceding clause (3), Genesis
and/or one or more Restricted Subsidiaries will
immediately (but in any event on the same day as the
assets are transferred) receive in cash in connection
with an arm length sale of the general partnership
interest in Newco an amount equal to the fair market
value thereof;
(5) The amounts referred to in the preceding
clauses (3) and (4) shall be used immediately to
prepay the Loans in the manner, (and with the effect,
if any, on the RC Commitment), set forth in Section
1.5(c)(iii) above (Timing and Application of
Mandatory Prepayments);
(6) Prior to the time of the disposition to
Newco, Genesis shall have delivered to the
Administrative Agent an opinion prepared by Valuation
Research (or another recognized valuation expert
acceptable to the Administrative Agent) which shall
be in form and substance satisfactory to the
Administrative Agent, as to the solvency of Newco
(all of the Subsidiaries constituting Newco to be
taken as a whole) after giving effect to (i) the cash
distribution referred to in clause (3) above, (ii)
the incurrence of indebtedness by Newco contemplated
in connection with the Deleveraging Transaction and
(iii) other transactions related thereto or
contemplated in connection therewith;
(7) The transfer to Newco shall not violate
the terms of the 1995 Subordinated Indenture, the
1996 Subordinated Indenture, any other indenture or
similar agreement or any other material agreement
affecting any of the Borrowers or their respective
properties;
(8) The transferee(s) of the facilities
shall have entered into one or more binding
Management Agreements (collectively, the "Newco
Management Agreement,") with Genesis or one or more
Borrowers to manage the facilities, which agreements
shall have an initial term of at least five years,
shall provide for annual management and network
services fees at least equal to 7% of the revenues
generated by such facilities, and shall otherwise be
on terms and conditions reasonably satisfactory to
the Administrative Agent;
(9) No Default or Event of Default shall
have occurred and be continuing or would exist after
giving effect to such transfer;
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(10) The Borrowers shall have delivered to
the Administrative Agent a certificate, duly executed
by an authorized officer, stating with specificity
that each of the conditions set forth in this clause
(i) have been satisfied;
(11) The facilities to be transferred shall
be the facilities set forth on Schedule 8.5(i) hereto
subject to such adjustment to said Schedule as shall
be set forth in a writing delivered to the
Administrative Agent at least five (5) Business Days
prior to the date of transfer so long as (a) the
aggregate fair market value of all properties
excluded from Schedule 8.5(i) attached hereto shall
be no greater than twenty percent (20%) of the
aggregate fair market value of all properties set
forth on Schedule 8.5(i) attached hereto (based on
Appraised Values at the time of the proposed
disposition) and (b) the Administrative Agent shall
not have objected to the written adjustments within
three (3) Business Days of receipt of such writing;
and
(12) The Borrowers shall have given the
Administrative Agent an Officer's Compliance
Certificate giving pro forma effect to the
Deleveraging Transaction and such other information,
opinions and documents as the Administrative Agent
shall have requested;
(j) The Borrowers may sell facilities acquired in the Vitalink
Merger situated outside the geographic markets currently serviced by the
Borrowers in one or more arms-length transactions for consideration consisting
of cash and assumption of Indebtedness subject to the requirement that the Net
Cash Proceeds of such sales shall be used immediately to prepay Loans in the
manner and with the effect, if any, on the RC Commitments, set forth in Section
1.5(c)(iii) (Mandatory Prepayments) above; and
(k) The Salisbury Transaction.
8.6 ISSUANCE OF SUBSIDIARY STOCK OR OTHER OWNERSHIP INTERESTS. The
Borrowers shall not create, acquire, dispose of, or change any interest in any
Restricted Subsidiary except as follows:
(a) Restricted Subsidiaries of Borrowers (or any interest
therein) may be created or acquired in connection with an Acquisition to the
extent permitted under Section 8.4 above (Acquisitions, Etc.);
(b) Restricted Subsidiaries of Borrowers (or any interest
therein) may be created or acquired in connection with an Investment to the
extent permitted under Section 8.3 above (Loans, Advances and Investments);
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(c) Restricted Subsidiaries of Borrowers may be created as
direct or indirect Restricted Subsidiaries of Genesis for other purposes
consistent with the terms of this Agreement; and
(d) Restricted Subsidiaries (or any interest therein) may be
disposed of pursuant to the provisions of Section 8.5 above (Dispositions).
provided, however, that with respect to Restricted Subsidiaries created or
acquired in accordance with paragraphs (a), (b) or (c) above, they shall become
"Borrowers" hereunder and corresponding parties to the other Loan Documents,
their equity owned by Borrowers shall be pledged to the Collateral Agent, for
the benefit of the Secured Parties, pursuant to the Pledge Agreement and their
material assets shall be pledged to the Collateral Agent pursuant to the
Security Agreement and/or Mortgages (all as more fully set forth in Section 6.10
above) and they shall become parties to the Tax Sharing Agreement.
8.7 LEASES. The Borrowers shall not at any time enter into or suffer to
remain in effect any lease, as lessee, of any property, except:
(a) Leases (including subleases) by Genesis or a wholly-owned
Restricted Subsidiary of Genesis as lessor (or sublessor) to Genesis or another
wholly-owned Restricted Subsidiary of Genesis as lessee (or sublessee);
(b) Capitalized Leases and Synthetic Leases permitted under
Section 8.1 above; and
(c) Other leases which are not Capitalized Leases or Synthetic
Leases but only to the extent that the aggregate Rental Expense of the Borrowers
with respect to all such other leases does not exceed (i) during the fiscal year
ending September 30, 1998, Forty-five Million Dollars ($45,000,000) and (ii)
during each fiscal year thereafter, an amount equal to the amount permitted in
the preceding year plus an additional Five Million Dollars ($5,000,000) (e.g.,
$50,000,000 in the fiscal year ending September 30, 1999).
8.8 DIVIDENDS AND RELATED DISTRIBUTIONS. Genesis shall not (a) declare
or pay any dividends, (b) purchase, redeem, retire or otherwise acquire for
value any of its capital stock now or hereafter outstanding, or (c) make any
distribution of assets to its stockholders as such whether in cash, assets or
obligations of Genesis, (d) allocate or otherwise set apart any sum for the
payment of any dividend or distribution on, or for the purchase, redemption or
retirement of, any shares of its capital stock, (e) or make any other
distribution by return of capital or otherwise in respect of any shares of its
capital stock provided, however, notwithstanding the foregoing, (i) Genesis may
declare and pay dividends and make distributions payable solely in its common
stock, or options, warrants or other rights to purchase common stock and (ii) at
any time that the Adjusted Total Debt/Cash Flow Ratio is, and has been for two
consecutive fiscal quarters, less than 4.5 to 1.0, Genesis may, upon giving
written notice thereof to the Administrative Agent, redeem or otherwise purchase
outstanding shares of its capital stock in an aggregate amount not to exceed
Fifty Million Dollars ($50,000,000) from the Closing Date so long as such action
would not result in "Event of Acceleration" under the Put/Call Agreement and so
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long as both before and after giving effect to such action there would exist no
Default or Event of Default hereunder. Notwithstanding the preceding sentence of
this Section 8.8, (a) Genesis shall be permitted to declare and pay dividends on
the Designated Stock in shares of Series G Cumulative Convertible Preferred
Stock of Genesis at the times, in the amounts and otherwise as provided in the
Certificate of Designation and, so long as both before and after giving effect
thereto there would exist no Default or Event of Default hereunder, Genesis
shall be permitted to declare and pay cash dividends on the Designated Stock at
the times, in the amounts and otherwise as provided in the Certificate of
Designation and (b) Genesis shall be permitted to declare and pay (non-cash) PIK
dividends on its Series H Cumulative Convertible Preferred Stock issued to
Cypress, TPG and/or Nazem on the terms set forth in the Sponsor Letter of Intent
in exchange for the cancellation of the put provisions under the Permitted
Put/Call Amendment.
8.9 CONSOLIDATED TAX RETURN. No Borrower shall (a) file or consent to
the filing of any consolidated income tax return with any Person other than
other Borrowers or other Persons party to the Tax Sharing Agreement or (b)
become party to any tax sharing or tax allocation agreement with any Person
other than the Tax Sharing Agreement. From and after the effective date of the
Tax Sharing Agreement (which shall be on or about the Closing Date), each of the
Borrowers shall cause the Tax Sharing Agreement to remain in full force and
effect, subject to no amendments or modifications other than (a) joinder of
additional Subsidiaries of Genesis, from time to time, such that at all times
all Subsidiaries of Genesis shall be parties thereto, and (b) such amendments or
modifications which, individually or in the aggregate, could not reasonably be
expected to have an adverse effect on the Borrowers taken as a whole (including
the business, operations, condition, financial or otherwise, properties or
prospects of the Borrowers), the Loan Documents or any Lender Party.
8.10 LIMITATION ON PAYMENTS, PREPAYMENTS, DEFEASEMENT AND OTHER ACTION
WITH RESPECT TO CERTAIN DEBT OBLIGATIONS. No Borrower shall, directly or
indirectly, pay, prepay, purchase, defease, redeem, retire, acquire, or
otherwise make any payment (on account of principal, interest, premium or
otherwise) in respect of any obligation under, or evidenced by, the 1995
Subordinated Note Indenture, the 1996 Subordinated Note Indenture or the 1998
Subordinated Note Indenture (or cause or allow any event or condition to exist
which would require any payment, prepayment, purchase, defeasance, redemption,
retirement, acquisition or other payment of any such obligation) except that
Genesis may make cash interest payments on the aforesaid Indebtedness, as and
when required to do so by the mandatory terms thereof, all to the extent
consistent with the subordination provisions applicable thereto. No Borrower
shall amend, modify or supplement the terms or provisions contained in the
aforementioned debt agreements or any agreement or instrument evidencing,
relating or applicable thereto. No Borrower shall take or omit to take any
action under or in connection with, any such agreement or instrument, which
would violate or impair the subordination provisions thereof. No Borrower will
make (or give any notice that it shall make) any voluntary or optional payment
or prepayment or redemption or acquisition for value of, or will refund,
refinance or exchange any Indebtedness (excluding Loan Obligations) if at such
time any Default or Event of Default has occurred and is continuing or would be
directly or indirectly caused as a result thereof. No Borrower shall designate
any of its Indebtedness as "Designated Senior Indebtedness" for purposes of the
1995 Subordinated Note Indenture, or the 1996 Subordinated Note Indenture or the
1998 Subordinated Note Indenture except Indebtedness incurred pursuant to this
Agreement, the other Loan Documents, Qualifying Interest Rate Hedging Agreements
or the Synthetic Lease Facility. Notwithstanding the foregoing, Genesis may
refinance the 1995 Subordinated Note Indenture, the 1996 Subordinated Note
Indenture or the 1998 Subordinated Note Indenture in accordance with Section
8.1(f) above.
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8.11 LIMITATIONS ON MODIFICATION OF CERTAIN DOCUMENTS; EXERCISE OF
PUT/CALL AND UNDERTAKINGS RESPECTING PUT/CALL.
(a) Constituent Documents. No Borrower shall amend, modify or
supplement its articles or certificate of incorporation, bylaws, partnership
agreement or other constituent documents (i) if a Material Adverse Effect could
result from such amendment, modification or supplement or (ii) if such
amendment, modification or waiver could reasonably be expected to materially
adversely affect the rights or interests of the Agents, the Issuer or the
Lenders.
(b) Transaction Documents and Other Documents. No Borrower
shall amend, modify or supplement any Transaction Document, the Certificate of
Designation, the Vitalink Merger Agreement or, after the date the Deleveraging
Transaction is consummated, the Newco Management Agreement except (a) the
Permitted Put/Call Amendment and (b) such amendments, modifications or
supplements which could not reasonably be expected to have an adverse effect on
the Borrowers taken as a whole (including the condition (financial or
otherwise), properties or prospects of the Borrowers), the Loan Documents or any
Lender Party.
(c) Put/Call Agreement. Genesis shall not purchase or
otherwise pay for, directly or indirectly, any stock of Genesis ElderCare Corp.
(pursuant to the Put/Call Agreement or otherwise) for cash, or permit Genesis
ElderCare Corp. to do so, except with the consent of the Required Lenders
provided, however that Genesis may purchase the stock of Genesis Eldercare Corp.
under the Put/Call Agreement with proceeds of the issuance of capital stock of
Genesis. Genesis shall cause each of the conditions to the ability of Genesis to
issue Genesis common stock in lieu of paying the Option Price (as defined in the
Put/Call Agreement) in cash under Section 3.2 of the Put/Call Agreement (or any
successor section thereto) to be satisfied at all times relevant to the Put/Call
Agreement.
8.12 LIMITATION ON CERTAIN RESTRICTIVE PROVISIONS. No Borrower shall
enter into, or remain a party to, any agreement or instrument which would impose
any restriction; (a) on the right of such Person from time to time to declare
and pay dividends or take similar actions with respect to capital stock owned by
such Person or pay any Indebtedness, obligations or liabilities from time to
time owed to another Borrower; or (b) that would prohibit the grant of any Lien
upon any of its properties (now owned or hereafter acquired) to secure any
senior Indebtedness except for restrictions in agreements respecting Permitted
Liens to the extent that the prohibition applies only to property subject to the
Permitted Lien; or (c) would prohibit, or require the consent of any Person to,
any amendment, modification or supplement to any of the Loan Documents except:
(i) restrictions set forth in the Loan Documents or in documents entered into in
connection with the Synthetic Lease Facility; (ii) legal restrictions of general
applicability; and (iii) restrictions pursuant to the 1995 Subordinated Note
Indenture, the 1996 Subordinated Note Indenture and the 1998 Subordinated Note
Indenture or any amendment or refinancing thereof permitted by Section 8.1(f)
above; and (iv) any public subordinated indenture permitted under Section
8.1(h).
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8.13 LIMITATIONS ON MERGERS, ETC. No Borrower shall merge or
consolidate with or into any Person, except (a) mergers of any Borrower with
Genesis where Genesis is the survivor, (b) mergers of any Restricted Subsidiary
of Genesis with any wholly-owned Restricted Subsidiary of Genesis where such
wholly-owned Restricted Subsidiary is the survivor, (c) any merger pursuant to
an Acquisition permitted under Section 8.4 above (Acquisitions, Etc.) or (d) any
merger pursuant to a disposition permitted under Section 8.5 above
(Dispositions).
8.14 AVOIDANCE OF OTHER CONFLICTS. No Borrower shall violate or enter
into agreements which conflict with, be in default under, or be or remain
subject to any liability (contingent or otherwise) on account of any violation
or conflict with (a) its articles or certificate of incorporation, bylaws or
partnership agreement (or other constituent documents), or (b) any agreement or
instrument to which it is party or by which any of its properties (now owned or
hereafter acquired) may be subject or bound, except, with respect to clause (b),
for matters that could not, individually or in the aggregate, have a Material
Adverse Effect.
8.15 CAPITAL EXPENDITURES. No Borrower shall make or commit to make any
Capital Expenditure if, after giving effect to such Capital Expenditure, the
aggregate amount of all Capital Expenditures of the Borrowers incurred (i)
during the fiscal year ending September 30, 1998, would exceed Fifty-five
Million Dollars ($55,000,000.00) and (ii) during any fiscal year thereafter,
would exceed an amount equal to the amount permitted during the preceding year
plus an additional Five Million Dollars ($5,000,000.00) (e.g., $60,000,000.00 in
the fiscal year ending September 30, 1999) provided, however, that in addition
to the foregoing amounts, the Borrowers may make or commit to make Capital
Expenditures in connection with the development of the Newly Developed
Facilities so long as the amount of such Capital Expenditures do not exceed an
aggregate amount equal to:
(a) $40,000,000 during the four fiscal quarters ended 6/30/99;
(b) $35,000,000 during the four fiscal quarters ended 9/30/99;
(c) $30,000,000 during the four fiscal quarters ended
12/31/99; and
(d) $20,000,000 during the four fiscal quarters ended 3/31/00
and thereafter.
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Article 9
DEFAULTS
9.1 EVENTS OF DEFAULT. An "Event of Default" means any one of the
following events (whatever the reason for such Event of Default, whether it
shall be voluntary or involuntary and whether it shall be by action or inaction,
by operation of law, pursuant to a court order or any rule or regulation of any
Governmental Authority or otherwise):
(a) Failure to Pay Principal or Reimburse Drawings. The
Borrowers shall fail to make any payment of the principal of any Loan on the
date when the same shall become due and payable, whether at stated maturity or
at a date fixed for any installment or prepayment thereof or otherwise; or the
Borrowers shall fail to make any reimbursement of any Drawing under a Letter of
Credit or shall fail to deposit any amount into the cash collateral account, in
either case, at the times and in the amounts specified in Article 3 above.
(b) Failure to Pay Interest, Fees and Other Amounts. The
Borrowers shall fail to make any payment of interest on any Loan or shall fail
to pay any fees or any other amounts owing hereunder or under any other Loan
Documents (other than as specified in paragraph (a) above) on the dates when
such interest, fees or other amounts shall become due and payable and such
failure continues for more than three (3) Business Days.
(c) Covenant Defaults.
(i) There shall occur a default in the due
performance or observance of any term, covenant or agreement to be performed or
observed pursuant to any of Sections 6.1(f)(ii), 6.2, 6.3, 6.7, 6.10, 6.11, 6.14
or 6.17 or any Sections in Article 7 or Article 8.
(ii) The Borrowers shall fail to deliver any
certificates, statements or reports required to be delivered in accordance with
Sections 6.1(a), (b) or (c) and such default shall continue unremedied for
fourteen (14) days.
(iii) There shall occur any default in the due
performance or observance of any term, covenant or agreement to be performed or
observed pursuant to the provisions of this Agreement (other than as provided in
paragraph (a) or paragraph (b) above or subparagraphs (i) or (ii) of this
paragraph (c)) and, if capable of being remedied, such default shall continue
unremedied for thirty (30) days after any Borrower becomes aware, or should in
the exercise of reasonable diligence have become aware, of such default.
(d) Misrepresentation. Any representation or warranty made or
deemed made by any Loan Party in or pursuant to or in connection with any Loan
Document or made or deemed made by any subordinated creditor in or pursuant to
or in connection with the Investors' Subordination Agreement shall prove to have
been false or misleading in any material respect as of the time when made or
deemed made.
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(e) Synthetic Lease Default. There shall have occurred and be
continuing any "Lease Event of Default" or "Loan Event of Default" as such terms
are defined in the documents relating to the Synthetic Lease Facility.
(f) Subordinated Debentures. Any "Event of Default" (or
similar term) as defined in the 1995 Subordinated Note Indenture, the 1996
Subordinated Note Indenture, the 1998 Subordinated Note Indenture or any other
subordinated indentures to which any Borrower may from time to time be party
shall have occurred and be continuing; or, any term or provision of the
subordination provisions contained in any such indenture or the Investors'
Subordination Agreement shall cease to be in full force and effect in accordance
with its respective terms; or any Loan Party or any holder of any 1995
Subordinated Note, any 1996 Subordinated Note, any 1998 Subordinated Note, any
subordinated obligation under the Investors' Subordination Agreement or other
subordinated note or other subordinated obligations (or any trustee or agent on
behalf of such holder) shall terminate, repudiate, declare voidable or void or
otherwise contest any term or provision of such subordination provisions; or
Genesis shall make, or shall be required to make or to offer to make, any
defeasance, redemption or purchase of 1995 Subordinated Notes under Section 4.5
or 5.13 of the 1995 Subordinated Note Indenture or Genesis shall make, or shall
be required to make or to offer to make, any defeasance, redemption or purchase
of 1996 Subordinated Notes under Section 4.5 or 5.13 of the 1996 Subordinated
Note Indenture; or Genesis shall make, or shall be required to make or to offer
to make, any defeasance, redemption or purchase of the 1998 Subordinated Notes
(other than at final maturity) under any applicable provisions of the 1998
Subordinated Note Indenture; or Genesis shall make, or shall be required to make
or to offer to make, any purchase, defeasance or redemption of subordinated
notes under any similar provision, if any, under any such other subordinated
indentures or other subordinated obligations.
(g) Other Cross-Defaults. (i) Any Loan Party shall fail to
pay, in accordance with its terms and when due and payable, any Indebtedness
(other than Indebtedness referred in paragraph (a), under, or arising out of any
Qualifying Interest Rate Hedging Agreement or an agreement or instrument (or
group or series of related agreements or instruments) which evidences
outstanding Indebtedness in excess of $5,000,000.00; (ii) the maturity of any
such Indebtedness shall, in whole or in part, have been accelerated, or any such
Indebtedness shall, in whole or in part, have been required to be prepaid or
purchased prior to the stated maturity thereof; (iii) any event shall have
occurred and be continuing that permits any holder or holders of such
Indebtedness, any trustee or agent acting on behalf of such holder or holders or
any other Person to accelerate the maturity thereof or require any prepayment or
repurchase thereof; or (iv) a default by any Loan Party shall be continuing
under any other instrument or agreement (whether or not relating to
Indebtedness) binding upon such Person, except a default that, together with all
other such defaults under this clause (iv), could not have a Material Adverse
Effect.
(h) Judgments and Executions. One or more judgments for the
payment of money shall have been entered against any Loan Party or Loan Parties
which judgment or judgments, to the extent not paid or fully covered by
insurance, exceed $1,000,000.00 in the aggregate, and such judgment or judgments
shall have remained undischarged and unstayed for a period of 30 consecutive
days; or one or more writs or warrants of attachment, garnishment, execution,
distraint or similar process or any attachment (prejudgment or otherwise) of
assets exceeding in value the aggregate amount of $1,000,000.00 shall have been
issued against any Loan Party or Loan Parties or any of its or their respective
properties.
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(i) Invalidity or Noncompliance With Loan Documents;
Perfection. Any of the Loan Parties shall fail to perform any of its obligations
under any of the Loan Documents (after taking into account any applicable cure
period set forth in such agreements); or the validity of this Agreement or any
of the other Loan Documents or the subordination provisions of any other
instrument or document intended by the parties hereto to benefit the Lender
Parties shall have been challenged or disaffirmed by or on behalf of any of the
Loan Parties or subordinated creditors; or any of the Loan Documents shall cease
to be in full force and effect (other than pursuant to its terms); or other than
as a direct result of any action or inaction of a Lender Party, any Liens
created or intended to be created by any of the Loan Documents shall at any time
cease to be valid and perfected subject to no equal or prior Liens except
Permitted Liens. Without limiting the generality of the foregoing, (a) subject
to the provisions of Section 6.16 (Further Assurances) above, the Collateral
Agent ceases to have a first-priority perfected security interest in the
material assets of the Borrowers (other than Excluded Assets) subject only to
Permitted Liens and permitted dispositions or (b) after a Cash Management Notice
(as such term is used in the Security Agreement) is given pursuant to the
Security Agreement the Borrowers shall permit funds to be deposited in a deposit
account other than as permitted under the Security Agreement or shall allow any
Person other than the Borrowers and the Collateral Agent to have dominion and
control over any Restricted Assignment Lockbox Account (as such term is used in
the Security Agreement) or any time after a Cash Management Notice is given
pursuant to the Security Agreement requiring the same, the Borrowers fail to
keep sweep authorizations and required tri-party agreements in place.
(j) Material Adverse Effect. The Required Lenders shall have
determined in good faith that an event or condition has occurred which could
have a Material Adverse Effect.
(k) Environmental. Any one or more of the events or conditions
set forth in the following clauses (i) or (ii) shall have occurred with respect
to any Borrower or any Loan Party or any of their respective Environmental
Affiliates, and the Required Lenders shall determine in good faith (which
determination shall be conclusive) that such event(s) or condition(s),
individually or in the aggregate, could have a Material Adverse Effect: (i) any
past or present violation of any Environmental Law by such Person which has not
been cured to the satisfaction of the Required Lenders, or (ii) the existence of
any pending or threatened Environmental Claim against any such Person, or the
existence of any past or present acts, omissions, events or circumstances that
could form the basis of any Environmental Claim against any such Person.
(l) Change of Control. A Change of Control shall have
occurred; or a "Change in Control" as defined in the 1995 Subordinated Note
Indenture shall have occurred; or a "Change in Control" as defined in the 1996
Subordinated Note Indenture shall have occurred; or a "Change of Control" as
defined in the Put/Call Agreement shall have occurred; or a "Change in Control"
as defined in the 1998 Subordinated Note Indenture shall have occurred or (after
the issuance of any shares of Designated Stock) a "Change in Control" as defined
in the Certificate of Designation shall have occurred.
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(m) Subsidiaries as Loan Parties. Any direct or indirect
Subsidiary of Genesis, other than Excluded Subsidiaries, shall fail to be, or
shall cease to be, or fail to become, a Borrower hereunder; or the equity of any
such Person owned by any Borrower shall cease to be, or fail to be, pledged
under the Pledge Agreement; or, subject to the provisions of Section 6.16
(Further Assurances) above, the material assets (other than Excluded Assets) of
any Borrower shall cease to be pledged to the Collateral Agent pursuant to the
Security Agreement and/or Mortgages.
(n) Insolvency, Bankruptcy, Etc. Any Loan Party shall make an
assignment for the benefit of creditors or a composition with creditors, shall
generally not be paying its debts as they mature, shall admit its inability to
pay its debts as they mature, shall file a petition in bankruptcy, shall be
adjudicated insolvent or bankrupt, shall petition or apply to any tribunal for
the appointment of any receiver, custodian, liquidator or trustee of or for it
or any substantial part of its property or assets, shall commence any proceeding
relating to it under any bankruptcy, reorganization, arrangement, readjustment
of debt, receivership, dissolution or liquidation law or statute of any
jurisdiction, whether now or hereafter in effect; or there shall be commenced
against such Loan Party, any such proceeding and the same shall not be dismissed
within thirty (30) days or an order, judgment or decree approving the petition
in any such proceeding shall be entered against such Loan Party; or any Loan
Party shall by any act or failure to act indicate its consent to, approval of or
acquiescence in, any such proceeding or any appointment of any receiver,
custodian, liquidator or trustee of or for it or for any substantial part of its
property or assets, or shall suffer the appointment of any receiver, liquidator
or trustee, or shall take any corporate action for the purpose of effecting any
of the foregoing; or any court of competent jurisdiction shall assume
jurisdiction with respect to any such proceeding and the same shall not be
dismissed within thirty (30) days or a receiver or a trustee or other officer or
representative of a court or of creditors, or any court, governmental office or
agency, shall, under color of legal authority, take and hold possession of any
substantial part of the property or assets of such Loan Party and shall not have
relinquished possession within thirty (30) days, or such Loan Party shall have
concealed, removed, or permitted to be concealed or removed, any part of its
property, with intent to hinder, delay or defraud its creditors, or any of them,
or any Loan Party shall have suffered or permitted, while insolvent, any
creditor to obtain a Lien upon any of its property through legal proceedings or
distraint.
(o) Termination of Multicare Management Agreement or other
Transaction Documents. Except as permitted by the Required Lenders, (i) the
Multicare Management Agreement shall cease to be in full force and effect or
there shall be any breach by any party thereto or a default thereunder or an
amendment, modification or supplement thereto not permitted by the terms of this
Agreement or any notice of non-renewal or termination thereunder shall have been
delivered by any party thereto or (ii) any other Transaction Document shall
cease to be in full force and effect (other than by its terms) or there shall be
any material breach by any party thereto or a default thereunder or any such
document shall be amended, modified, restated or supplemented in a manner not
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expressly permitted by the terms of this Agreement or (iii) any other Management
Agreement of any Borrower shall be terminated or cease to be renewed or extended
or shall be amended, modified, restated or supplemented if such termination,
failure to renew or extend or amendment, modification or supplement (either
singly or collectively with all other such events relating to other Management
Agreements) could have a Material Adverse Effect or (iv) at the time of the
exercise by the Sponsors (as defined in the Put/Call Agreement) of their rights
as set forth in Section 2.2 of the Put/Call Agreement or Section 6.9 of the
Put/Call Agreement, any circumstance shall exist which would, under the terms of
the Put/Call Agreement, prohibit Genesis from paying the Put Option Exercise
Price (as defined in the Put/Call Agreement) in Genesis Common Stock (or with
the proceeds of a concurrent offering of Genesis Common Stock) as permitted
under the Put/Call Agreement, or (v) there shall be any "Event of Acceleration"
(or successor concept) under the Put/Call Agreement, or (vi) any event shall
occur which would entitle the Sponsors to exercise any remedy under Section 8.9
of the Put/Call Agreement. If there is any Permitted Put/Call Amendment, then
each of the references in this paragraph (o) to specific provisions of the
Put/Call Agreement shall be deemed to be the references to the relevant
successor provisions in the Put/Call Agreement.
(p) Loss of Licenses, Reimbursement Approvals, Etc. There
shall be a Limitation of one or more Licenses or Reimbursement Approvals of any
Borrower or Borrowers or Persons managed by a Borrower or Borrowers and the
Required Lenders shall determine in good faith that such Limitation,
individually or collectively all such Limitations, could reasonably be expected
to have a Material Adverse Effect.
9.2 CONSEQUENCES OF AN EVENT OF DEFAULT
(a) Events of Default in General. If an Event of Default
(other than one specified in paragraph (n) of Section 9.1 (Insolvency,
Bankruptcy, Etc.) hereof) shall occur and be continuing or shall exist, then, in
addition to all other rights and remedies which the Administrative Agent, the
Collateral Agent or any other Lender Party may have hereunder or under any other
Loan Document, at law, in equity or otherwise, the Lenders shall be under no
further obligation to make Loans, the Issuer shall be under no further
obligation to issue Letters of Credit hereunder, and the Administrative Agent
may, (and upon the written request of the Required Lenders, shall), by notice to
Genesis (on behalf of the Borrowers), from time to time do any or all of the
following:
(i) Declare the Commitments terminated, whereupon the
Commitments will terminate and any fees hereunder shall be
immediately due and payable without presentment, demand,
protest or further notice of any kind, all of which are hereby
waived, and an action therefor shall immediately accrue.
(ii) Declare the unpaid principal amount of the
Loans, interest accrued thereon and all other Loan Obligations
to be immediately due and payable without presentment, demand,
protest or further notice of any kind, all of which are hereby
waived, and an action therefor shall immediately accrue.
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(iii) Direct the Borrowers to pay (and the Borrowers
jointly and severally agree that upon receipt of notice they
will pay) to the Administrative Agent cash for deposit to the
credit of the Letter of Credit collateral account in
accordance with Article 3 hereof.
(iv) Take (or direct the Collateral Agent to take)
any and all actions permitted under the Pledge Agreement or
other Loan Documents.
(v) Exercise such other remedies as may be available
to the Lender Parties under applicable Law.
(b) Automatic Acceleration; Certain Bankruptcy-Related Events.
If an Event of Default specified in paragraph (n) of Section 9.1 (Insolvency,
Bankruptcy, Etc.) hereof shall occur or exist, then, in addition to all other
rights and remedies which any Lender Party may have hereunder or under any other
Loan Document, at law, in equity or otherwise, the Commitments shall
automatically terminate and the Lenders shall be under no further obligation to
make Loans and the Issuer shall be under no further obligation to issue Letters
of Credit hereunder, and the unpaid principal amount of the Loans, interest
accrued thereon and all other Loan Obligations, including those referred to in
clause (iii) of the preceding paragraph (a), shall become immediately due and
payable without presentment, demand, protest or notice of any kind, all of which
are hereby waived, and an action therefor shall immediately accrue, and in
addition, the Administrative Agent may, (and upon the written request of the
Required Lenders), shall, by notice to Genesis (on behalf of the Borrowers), do
(or shall direct the Collateral Agent to do) one or more of the following: (i)
take any and all actions permitted under the Pledge Agreement or any other Loan
Document or (ii) exercise such other remedies as may be available to the Lender
Parties under applicable Law.
(c) Directions to Collateral Agent. It is understood that
notwithstanding any direction that may be given by the Administrative Agent to
the Collateral Agent hereunder, the Collateral Agent may take such action as
appropriate under applicable Law and the Pledge Agreement, the Security
Agreement, the Mortgages, the Collateral Agency Agreement and such other
agreements as may bind the Collateral Agent; the Administrative Agent shall not
be liable to any Person for any act or failure to act by the Collateral Agent
regardless of any direction given, or any failure to give direction, by the
Administrative Agent.
(d) Equitable Remedies. It is agreed that, in addition to all
other rights hereunder or under Law, the Administrative Agent shall have the
right to institute proceedings in equity or other appropriate proceedings for
the specific performance of any covenant or agreement made in any of the Loan
Documents or for an injunction against the violation of any of the terms of any
of the Loan Documents or in aid of the exercise of any power granted in any of
the Loan Documents or by Law or otherwise.
9.3 APPLICATION OF PROCEEDS. After the occurrence of an Event of
Default and acceleration of the Loans, any amounts received on account of Loan
Obligations (whether received under the Collateral Agency Agreement or
otherwise) shall be applied by the Administrative Agent in the following order:
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First, to payment of that portion of the Loan Obligations
constituting fees, indemnities, expenses and other amounts due to the
Administrative Agent in its capacity as such;
Second, to payment of that portion of the Loan Obligations
constituting principal, interest or fees in respect of the Tranche II
Revolver Loans (if any) due to the Tranche II Revolver Lenders, ratably
among them in proportion to the amounts described in this clause Second
due to them;
Third, to payment of that portion of the Loan Obligations
constituting fees and indemnities (other than those paid pursuant to
clause First or Second above) due to the Lender Parties, ratably among
them in proportion to the amounts described in this clause Third due to
them;
Fourth, to payment of that portion of the Loan Obligations
constituting accrued and unpaid interest on Loans and accrued and
unpaid interest on Drawings, ratably among the Lender Parties in
proportion to the respective amounts described in this clause Fourth
due to them;
Fifth, to payment of that portion of the Loan Obligations
constituting unpaid principal of the Loans or unreimbursed Drawings
ratably among the Lender Parties in proportion to the respective
amounts described in this clause Fifth due to them;
Sixth, to be deposited in such cash collateral account, if
any, as may be required under Article 3 above;
Seventh, to payment of all other Loan Obligations, ratably
among the Lender Parties in proportion to the respective amounts
described in this clause Seventh due to them; and
Finally, the balance, if any, after all of the Loan
Obligations have been indefeasibly paid in full and all of the Letters
of Credit shall have terminated (or funds equal to the amount of any
contingent liabilities in respect thereof shall have been deposited in
the Letter of Credit cash collateral account), to Genesis (on behalf of
the Borrowers) or as otherwise required by Law.
Article 10
THE ADMINISTRATIVE AGENT
10.1 APPOINTMENT. Subject to the provisions of the second sentence of
Section 10.9 below, each Lender Party hereby irrevocably appoints Mellon to act
as Administrative Agent for such Lender Party under this Agreement and the other
Loan Documents. Each Lender Party hereby irrevocably authorizes the
Administrative Agent to take such action on behalf of such Lender Party under
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the provisions of this Agreement and the other Loan Documents, and to exercise
such powers and to perform such duties, as are expressly delegated to or
required of the Administrative Agent by the terms hereof or thereof, together
with such powers as are reasonably incidental thereto. Mellon hereby agrees to
act as Administrative Agent on behalf of the Lender Parties on the terms and
conditions set forth in this Agreement and the other Loan Documents, subject to
its right to resign as provided in Section 10.9 hereof. Each Lender Party hereby
irrevocably authorizes the Administrative Agent to execute and deliver each of
the Loan Documents and to accept delivery of such of the other Loan Documents as
may not require execution by the Administrative Agent. Each Lender Party agrees
that the rights and remedies granted to the Administrative Agent under the Loan
Documents shall be exercised exclusively by the Administrative Agent (or a
Person designated by the Administrative Agent), and that no Lender shall have
any right individually to exercise any such right or remedy, except to the
extent, if any, expressly provided herein or therein.
10.2 GENERAL NATURE OF ADMINISTRATIVE AGENT'S DUTIES. Notwithstanding
anything to the contrary elsewhere in this Agreement or in any other Loan
Document:
(a) The Administrative Agent shall have no duties or
responsibilities except those expressly set forth in this Agreement and the
other Loan Documents, and no implied duties or responsibilities on the part of
the Administrative Agent shall be read into this Agreement or any other Loan
Document or shall otherwise exist.
(b) The duties and responsibilities of the Administrative
Agent under this Agreement and the other Loan Documents shall be mechanical and
administrative in nature, and the Administrative Agent shall not have a
fiduciary relationship with respect to any Lender Party.
(c) The Administrative Agent's relationship with and to the
Lender Parties is governed exclusively by the terms of this Agreement and the
other Loan Documents. The Administrative Agent does not assume, and shall not at
any time be deemed to have, any relationship of agency or trust with or for, any
Lender Party or any other Person or (except only as expressly provided in this
Agreement and the other Loan Documents) any other duty or responsibility to such
Lender Party or other Person.
(d) The Administrative Agent shall be under no obligation to
take any action hereunder or under any other Loan Document if the Administrative
Agent believes in good faith that taking such action may conflict with any Law
or any provision of this Agreement or any other Loan Document, or may require
the Administrative Agent to qualify to do business in any jurisdiction where it
is not then so qualified or could impose any liability on the Administrative
Agent.
(e) The authority of the Administrative Agent to request
information from the Borrowers or to take any other voluntary action hereunder
shall impose no duty of any kind on the Administrative Agent to make such
request or take any such action.
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(f) The Administrative Agent shall have no duty to inquire
whether any Interest Rate Hedging Agreement conforms to the terms and
limitations of this Agreement and shall have no duty to inquire as to whether
the Borrowers maintain any Interest Rate Hedging Agreements.
10.3 EXERCISE OF POWERS. The Administrative Agent shall take any action
of the type specified in this Agreement or other Loan Document as being within
the Administrative Agent's rights, powers or discretion in accordance with
directions from the Required Lenders (or as otherwise provided in the Loan
Documents). In the absence of such direction, the Administrative Agent shall
have the authority (but under no circumstances shall be obligated), in its sole
discretion, to take any such action, except to the extent that this Agreement or
such other Loan Document expressly requires the direction or consent of the
Required Lenders (or all of the Lenders, or some other Person or group of
Persons), in which case the Administrative Agent shall not take such action
absent such direction or consent. Any action or inaction pursuant to such
direction, discretion or consent shall be binding on each Lender Party (whether
or not it so consented). The Administrative Agent shall not have any liability
to any Person as a result of any action or inaction in conformity with this
Section 10.3.
10.4 GENERAL EXCULPATORY PROVISIONS. Notwithstanding anything to the
contrary elsewhere in this Agreement or any other Loan Document:
(a) The Administrative Agent shall not be liable for any
action taken or omitted to be taken by it under or in connection with this
Agreement or any other Loan Document, except only for direct (as opposed to
consequential or other) damages suffered by a Person and only to the extent that
such Person proves that such damages were caused by the Administrative Agent's
own gross negligence or willful misconduct.
(b) The Administrative Agent shall not be responsible for (i)
the execution, delivery, effectiveness, enforceability, genuineness, validity or
adequacy of any Loan Document, (ii) any recital, representation, warranty,
document, certificate, report or statement in, provided for in, or received
under or in connection with, any Loan Document, (iii) any failure of any Loan
Party, any Lender or the Issuer to perform any of their respective obligations
under any Loan Document, (iv) the existence, validity, enforceability,
perfection, recordation, priority, adequacy or value, now or hereafter, of any
Lien or other direct or indirect security afforded or purported to be afforded
by any Loan Document or otherwise from time to time, (v) caring for, protecting,
insuring, or paying any taxes, charges or assessments with respect to any
Collateral or (vi) the enforceability of any subordination.
(c) The Administrative Agent shall not be under any obligation
to ascertain, inquire or give any notice relating to (i) the performance or
observance of any of the terms or conditions of this Agreement or any other Loan
Document on the part of any Loan Party, (ii) the business, operations, condition
(financial or otherwise) or prospects of any Loan Party or any other Person
(even if the Administrative Agent knows or should know that some event or
condition exists or fails to exist), or (iii) except to the extent set forth in
Section 10.5(f) below, the existence of any Event of Default or Default.
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(d) The Administrative Agent shall not be under any
obligation, either initially or on a continuing basis, to provide any Lender
Party with any notices, reports or information of any nature, whether in its
possession presently or hereafter, whether obtained under or in connection with
this Agreement or otherwise, except for such notices, reports and other
information expressly required by this Agreement or any other Loan Document to
be furnished by the Administrative Agent to such Lender Party.
10.5 ADMINISTRATION BY THE ADMINISTRATIVE AGENT.
(a) The Administrative Agent may rely upon any notice or other
communication of any nature (written or oral, including but not limited to
telephone conversations, whether or not such notice or other communication is
made in a manner permitted or required by this Agreement or any other Loan
Document) purportedly made by or on behalf of the proper party or parties, and
the Administrative Agent shall not have any duty to verify the identity or
authority of any Person giving such notice or other communication.
(b) The Administrative Agent may consult with legal counsel
(including in-house counsel for the Administrative Agent or in-house or other
counsel for any Loan Party), independent public accountants and any other
experts selected by it from time to time, and the Administrative Agent shall not
be liable for any action taken or omitted to be taken in good faith by it in
accordance with the advice of such counsel, accountants or experts.
(c) The Administrative Agent may conclusively rely upon the
truth of the statements and the correctness of the opinions expressed in any
certificates or opinions furnished to the Administrative Agent in accordance
with the requirements of this Agreement or any other Loan Document. Whenever the
Administrative Agent shall deem it necessary or desirable that a matter be
proved or established with respect to any Loan Party or Lender Party, such
matter may be established by a certificate of such Loan Party or Lender Party,
as the case may be, and the Administrative Agent may conclusively rely upon such
certificate (unless other evidence with respect to such matter is specifically
prescribed in this Agreement or another Loan Document).
(d) The Administrative Agent may fail or refuse to take any
action unless it shall be directed by the Required Lenders (or all of the
Lenders, or some other Person or group of Persons, if this Agreement or another
Loan Document so expressly requires) to take such action and it shall be
indemnified to its satisfaction from time to time against any and all amounts,
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind or nature which may be imposed on,
incurred by or asserted against the Administrative Agent by reason of taking or
continuing to take any such action.
(e) The Administrative Agent may perform any of its duties
under this Agreement or any other Loan Document by or through agents or
attorneys-in-fact. The Administrative Agent shall not be responsible for the
negligence or misconduct of any agents or attorneys-in-fact selected by it with
reasonable care.
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(f) The Administrative Agent shall not be deemed to have any
knowledge or notice of the occurrence of any Event of Default or Default unless
the Administrative Agent has received notice from a Lender Party or a Borrower
referring to this Agreement, describing such Event of Default or Default, and
stating that such notice is a "notice of default." If the Administrative Agent
receives such a notice, the Administrative Agent shall give prompt notice
thereof to each Lender Party.
10.6 LENDER PARTIES NOT RELYING ON ADMINISTRATIVE AGENT OR OTHER
LENDERS. Each Lender Party acknowledges as follows: (a) neither the
Administrative Agent nor any other Lender Party has made any representations or
warranties to it, and no act taken hereafter by the Administrative Agent or any
other Lender Party shall be deemed to constitute any representation or warranty
by the Administrative Agent or such other Lender Party to it; (b) it has,
independently and without reliance upon the Administrative Agent or any other
Lender Party, and based upon such documents and information as it has deemed
appropriate, made its own credit and legal analysis and decision to enter into
this Agreement and the other Loan Documents; and (c) it will, independently and
without reliance upon the Administrative Agent or any other Lender Party, and
based upon such documents and information as it shall deem appropriate at the
time, make its own decisions to take or not take action under or in connection
with this Agreement and the other Loan Documents.
10.7 INDEMNIFICATION. Each Lender agrees to reimburse and indemnify
each Agent and its directors, officers, employees and agents (to the extent not
reimbursed by a Loan Party and without limitation of the obligations of the Loan
Parties to do so), in proportion to the Lenders' respective pro rata share of
(without duplication) the Commitment, the Loans and Letter of Credit
Participations, from and against any and all amounts, losses, liabilities,
claims, damages, expenses, obligations, penalties, actions, judgments, suits,
costs or disbursements of any kind or nature (including the fees and
disbursements of counsel for such Agent or such other Person in connection with
any investigative, administrative or judicial proceeding commenced or
threatened, whether or not such Agent or such other Person shall be designated a
party thereto) that may at any time be imposed on, incurred by or asserted
against such Agent or such other Person as a result of, or arising out of, or in
any way related to or by reason of, this Agreement, any other Loan Document, the
Existing Credit Agreement or any other "Loan Document" referred to therein, the
Tender Offer, any Acquisition or any other transaction from time to time
contemplated hereby or thereby, or any transaction actually or proposed to be
financed in whole or in part, directly or indirectly, with the proceeds of any
Loan or Letter of Credit or any loan or letter of credit under the Existing
Credit Agreement, provided that no Lender shall be liable for any portion of
such amounts, losses, liabilities, claims, damages, expenses, obligations,
penalties, actions, judgments, suits, costs or disbursements that such Lender
proves were the result of the gross negligence or willful misconduct of such
Agent or such other Person. Payments under this Section 10.7 shall be due and
payable on demand.
10.8 REGISTER. The Administrative Agent shall maintain at its address
referred to in Section 12.1 a copy of each Assignment and Acceptance delivered
to and accepted by it and a register for the recordation of the names and
addresses of the Lenders and the Commitment of, and principal amount of the
Loans and stated interest thereon owing to, each Lender from time to time (the
"Register"). The entries in the Register shall be conclusive and binding for all
purposes, absent manifest error, and the Borrowers, the Agents and the Lenders
may treat each Person whose name is recorded in the Register as a Lender
hereunder for all purposes of this Agreement. The Register shall be available
for inspection by Genesis on behalf of the Borrowers or any Lender at any
reasonable time and from time to time upon reasonable prior notice.
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10.9 SUCCESSOR ADMINISTRATIVE AGENT. The Administrative Agent may
resign at any time by giving 30 days' prior written notice thereof to the other
Lender Parties and Genesis (on behalf of the Borrowers). The Administrative
Agent may be removed by the Required Lenders at any time for cause by such
Required Lenders giving 30 days' prior written notice thereof to the
Administrative Agent, the other Lender Parties and Genesis (on behalf of the
Borrowers). Upon any such resignation or removal, the Required Lenders shall
have the right to appoint a successor Administrative Agent with (so long as no
Default or Event of Default shall have occurred and then be continuing) the
consent of Genesis (on behalf of the Borrowers) whose consent shall not be
unreasonably withheld or delayed. If no successor Administrative Agent shall
have been so appointed and consented to, and shall have accepted such
appointment, within 30 days after such notice of resignation or removal, then
the retiring Administrative Agent may (but shall not be required to) appoint a
successor Administrative Agent. Each successor Administrative Agent shall be a
Lender if any Lender shall at the time be willing to become the successor
Administrative Agent, and if no Lender shall then be so willing, then such
successor Administrative Agent shall be an Eligible Institution. Upon the
acceptance by a successor Administrative Agent of its appointment as
Administrative Agent hereunder, such successor Administrative Agent shall
thereupon succeed to and become vested with all the properties, rights, powers,
privileges and duties of the former Administrative Agent in its capacity as
such, without further act, deed or conveyance. Upon the effective date of
resignation or removal of a retiring Administrative Agent, such Administrative
Agent shall be discharged from its duties under this Agreement and the other
Loan Documents, but the provisions of this Agreement shall inure to its benefit
as to any actions taken or omitted by it while it was Administrative Agent under
this Agreement. If and so long as no successor Administrative Agent shall have
been appointed, then any notice or other communication required or permitted to
be given by the Administrative Agent shall be sufficiently given if given by the
Required Lenders, all notices or other communications required or permitted to
be given to the Administrative Agent shall be given to each Lender, and all
payments to be made to the Administrative Agent shall be made directly to the
Loan Party or Lender Party for whose account such payment is made.
10.10 ADDITIONAL ADMINISTRATIVE AGENTS; COLLATERAL AGENT. If the
Administrative Agent shall from time to time deem it necessary or advisable, for
its own protection in the performance of its duties hereunder or in the interest
of the Lender Parties, the Administrative Agent and the Borrowers shall (and the
Borrowers shall cause the other Loan Parties to) execute and deliver a
supplemental agreement and all other instruments and agreements necessary or
advisable, in the opinion of the Administrative Agent, to constitute one or more
other Persons designated by the Administrative Agent, to act as
co-Administrative Agent or agent with respect to any part of the Collateral,
with such powers of the Administrative Agent as may be provided in such
supplemental agreement, and to vest in such other Person as such co-Agent or
separate agent, as the case may be, any properties, rights, powers, privileges
and duties of the Administrative Agent under this Agreement or any other Loan
Document.
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10.11 CALCULATIONS. The Administrative Agent shall not be liable for
any calculation, apportionment or distribution of payments made by it in good
faith and without gross negligence or willful misconduct. If such calculation,
apportionment or distribution is subsequently determined to have been made in
error, the sole recourse of any Lender Party to whom payment was due but not
made shall be to recover from the other Lender Parties any payment in excess of
the amount to which they are determined to be entitled or, if the amount due was
not paid by the appropriate Loan Party, to recover such amount from the
appropriate Loan Party.
10.12 OTHER AGENTS.
(a) In General. The title "Syndication Agent" given to
Citicorp USA, Inc. and Bank of America, N.A. (as successor to NationsBank, N.A.
and Bank of America NT&SA) in this Agreement and the title "Documentation Agent"
given to First Union National Bank in this Agreement and the title "Arranger"
given to Citicorp Securities, Inc. and Mellon are solely for identification
purposes and imply no rights in favor of such Person and no responsibility by
such Person except such rights or obligations of "Agents" (including the right
to make certain determinations) as are expressly stated herein. No such Agent
shall be liable for any act or failure to act on its part except for that which
the claimant proves constitutes the gross negligence or willful misconduct of
such Agent.
(b) Successor Agents. Any Syndication Agent and the
Documentation Agent may resign at any time and such Agents may be removed at any
time for cause by the other Agents and Genesis in which event, Genesis (on
behalf of the Borrowers) if no Default or Event of Default shall then exist, and
the Administrative Agent may (in their sole discretion) appoint a successor
Agent.
10.13 JOINDER OF CERTAIN SWAP PARTIES; APPOINTMENT OF AGENT. Any
Affiliate of a Lender Party that now or hereafter is a party to an Interest Rate
Hedging Agreement with any Borrower or Borrowers may become a "Swap Party "
under the Collateral Agency Agreement and a Secured Party within the meaning of
the Pledge Agreement and a secured party under the Security Agreement and
Mortgages (and the Interest Rate Hedging Agreement shall thereby become a
Qualifying Interest Rate Hedging Agreement secured by the Collateral under the
Pledge Agreement and Additional Security under the Security Agreement and
Mortgages) if (i) the Administrative Agent consents in writing to such Person
becoming a "Swap Party" (such consent not to be unreasonably withheld) and (ii)
such Affiliate signs a Joinder to this Agreement agreeing to the terms hereof.
By signing a Joinder to this Agreement in form and substance satisfactory to the
Administrative Agent, each such Affiliate shall be deemed to be a "Lender" and a
"Lender Party" for purposes of this Article 10 (but shall not be included in
determination of "Required Lenders" for voting or other purposes) and shall be
deemed to have appointed the Administrative Agent and the Collateral Agent as
their agents for the purposes set forth in the Loan Documents and to have agreed
to the exculpation and indemnification provisions set forth in such Loan
Documents relative to those agents. Without limiting the generality of the
foregoing, (a) the Collateral Agent and the Administrative Agent are each
authorized and directed to accept any and all payments under the Loan Documents
(including, without limitation, the Collateral Agency Agreement) on behalf of,
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among others, such Swap Party and to make payments to, among others, such Swap
Party in accordance with the provisions of the Collateral Agency Agreement and
(b) such "Swap Party" understands that any Qualifying Interest Rate Hedging
Agreement shall be secured with the Loans and other Obligations for so long as
the Obligations under the Credit Agreement remain outstanding and so secured,
but that the "Swap Party" is not entitled to voting or other rights under this
Agreement and the other Loan Documents except as expressly provided in the
Collateral Agency Agreement. Any Affiliate of a Lender Party that has become a
"Swap Party" pursuant to this Section 10.13 as in effect under the Exiting
Credit Agreement shall remain a "Swap Party" following the execution and
delivery of this Agreement with the same effect as if such Affiliate had
delivered a new Joinder to this Agreement as provided above.
ARTICLE 10A
SPECIAL INTERCREDITOR PROVISIONS
10A.1 SPECIAL PROVISIONS APPLICABLE TO LENDER PARTIES AS PARTIES TO THE
MULTICARE CREDIT AGREEMENT. There are certain understandings about the Multicare
Credit Agreement which the Lenders have relied upon in entering into this
Agreement and wish to confirm in an intercreditor agreement with the parties to
the Multicare Credit Agreement. This provision (and a corresponding provision in
the Multicare Credit Agreement) shall take the place of a separate agreement and
shall serve as an intercreditor agreement among the lenders party to this
Agreement and the lenders party to the Multicare Credit Agreement. Accordingly,
each of the Lenders hereunder, in its capacity as a "Lender" under the Multicare
Credit Agreement, agree to be bound by the following covenants so long as it
remains a party to the Multicare Credit Agreement:
(a) Without the written consent of the Required Lenders, the
parties to the Multicare Credit Agreement will not amend, modify, supplement or
restate the assignment provisions of the Multicare Credit Agreement (currently
set forth in Section 12.9 of the Multicare Credit Agreement) which require that
assignments or participations of any lender's rights and obligations thereunder
be made concurrent with a like assignment or participation of such lender's
rights and obligations hereunder; and
(b) Without the written consent of the Required Lenders, the
parties to the Multicare Credit Agreement will not amend, modify, supplement or
restate the provisions of the Multicare Credit Agreement (currently set forth in
Section 8.16 of the Multicare Credit Agreement) which set forth tests respecting
when management fees under the Multicare Management Agreement may be paid in
cash, which provisions are incorporated by reference into the Multicare
Management Agreement.
Notwithstanding the foregoing, certain "RC Lenders" as defined in the Multicare
Credit Agreement may not be Lenders hereunder and certain RC Lenders hereunder
may not be "Lenders" as defined in the Multicare Credit Agreement. Accordingly,
all RC Lenders hereunder that are not Lenders under the Multicare Credit
Agreement agree to abide by the special intercreditor provisions set forth in
this Article 10 A (or any successor provisions) and the special intercreditor
provisions set forth in Article 10 A of the Multicare Credit Agreement (or any
successor provision) as if a party thereto. The lenders party to the Multicare
Credit Agreement are intended third party beneficiaries of this provision.
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ARTICLE 10B
SPECIAL INTER-BORROWER PROVISIONS
10B.1 CERTAIN BORROWER ACKNOWLEDGEMENTS.
(a) Each Borrower acknowledges that it will enjoy significant
benefits from the business conducted by the other Borrowers because of, inter
alia, their combined ability to bargain with other Persons including without
limitation their ability to receive the credit facilities on favorable terms
granted by this Agreement and other Loan Documents which would not have been
available to an individual Borrower acting alone. Each Borrower has determined
that it is in its best interest to procure credit facilities which each Borrower
may utilize directly and which receive the credit support of the other Borrowers
as contemplated by the Credit Agreement and the other Loan Documents.
(b) The Lenders have advised the Borrowers that they are
unwilling to enter into this Agreement and the other Loan Documents and make
available the credit facilities extended hereby to any Borrower unless each
Borrower agrees, among other things, to be jointly and severally liable for the
due and proper payment of the obligations of each other Borrower under this
Agreement and other Loan Documents. Each Borrower has determined that it is in
its best interest and in pursuit of its purposes that it so induce the Lenders
to extend credit pursuant to this Agreement and the other documents executed in
connection herewith (i) because of the desirability to each Borrower of the
credit facilities, the interest rates and the modes of borrowing available
hereunder, (ii) because each Borrower may engage in transactions jointly with
other Borrowers and (iii) because each Borrower may require, from time to time,
access to funds under this Agreement for the purposes herein set forth.
(c) Each Borrower has determined that it has and, after giving
effect to the transactions contemplated by this Agreement and the other Loan
Documents (including, without limitation, the inter-Borrower arrangement set
forth in this Article 10B) will have, assets having a fair saleable value in
excess of the amount required to pay its probable liability on its existing
debts as they fall due for payment and that the sum of its debts is not and will
not then be greater than all of its property at a fair valuation, that such
Borrower has, and will have, access to adequate capital for the conduct of its
business and the ability to pay its debts from time to time incurred in
connection therewith as such debts mature and that the value of the benefits to
be derived by such Borrower from the access to funds under this Agreement
(including, without limitation, the inter-Borrower arrangement set forth in this
Section 10B) is reasonably equivalent to the obligations undertaken pursuant
hereto.
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10B.2 CERTAIN INTER-BORROWER AGREEMENTS.
(a) Subject to paragraph (b) below, each Borrower as indemnitor shall
indemnify the other Borrowers as indemnitees for all Loan Obligations incurred
by the indemnitee Borrowers for Loans advanced to, or Letters of Credit issued
for the account of, the indemnitor Borrower.
(b) The rights and obligations of the Borrowers pursuant to paragraph
(a) above shall be subordinated in all respects to the rights of the
Administrative Agent and the other Lender Parties with respect to the Loan
Obligations and, accordingly, each Borrower agrees that it shall not make any
payment or receive any payment pursuant to the preceding paragraph (a) at any
time a Default has occurred and is continuing or would be caused thereby. Each
Borrower agrees that in the event it receives any payment described by or in
violation of this paragraph (b), it shall accept such payment as agent of the
Administrative Agent, for the benefit of the Lender Parties, and hold the same
in trust on behalf of and for the benefit of the Administrative Agent, for the
benefit of the Lender Parties.
10B.3 RECORDS. Genesis (on behalf of each Borrower) shall maintain
records specifying (a) all Loan Obligations incurred by each Borrower, (b) the
date of such incurrence, (c) the date and amount of any payments made in respect
of such Loan Obligations and (d) all inter-Borrower obligations pursuant to
paragraph 10B.2 above. Genesis shall make copies of such records available to
the Administrative Agent, upon request.
ARTICLE 11
DEFINITIONS; CONSTRUCTION
11.1 CERTAIN DEFINITIONS. As used in this Agreement, the following
terms have the following meanings, (terms defined in the singular to have a
correlative meaning when used in the plural) unless the context hereof otherwise
clearly requires:
"Accumulated Funding Deficiency" has the meaning given to such term in
ss.4001(a)(18) of ERISA.
"Acquisition" means, any acquisition by one or more of the Borrowers,
directly or indirectly, whether in one transaction or in a series of related
transactions (and whether by merger, consolidation, acquisition of assets or
otherwise) of all or any substantial portion of the ownership interests in or
assets of any separate business enterprise.
"Acquisition Cost" means, with respect to any Acquisition, the value in
Dollars, of the total consideration paid or payable (whether immediate or
deferred and whether in cash, equity or other assets) by any of the Borrowers
(such consideration including the amount of any Assumed Indebtedness) for or in
respect of the ownership interests or assets being acquired in such Acquisition.
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"Additional Security" means all of the property and assets subject to
the Mortgages and/or the Security Agreement, from time to time.
"Additional Subordinated Note Indenture" means any indenture pursuant
to which Additional Subordinated Notes are issued from time to time.
"Additional Subordinated Notes" means the notes evidencing the
additional subordinated indebtedness permitted under Section 8.1(h)
(Indebtedness) above.
"Adjusted Senior Debt/Cash Flow Ratio" means as of any date of
determination:
(a) Adjusted Senior Debt as of such date of determination
divided by
----------
(b) Cash Flow of Genesis and its Restricted Subsidiaries, on a
consolidated basis.
"Adjusted Senior Debt" means, as of any date of determination, the
result of:
(a) Adjusted Total Indebtedness, as of such date of determination
less
----
(b) the sum of (i) Indebtedness which is evidenced by the 1995
Subordinated Notes, (ii) Indebtedness which is evidenced by the 1996
Subordinated Notes, (iii) Indebtedness which is evidenced by the 1998
Subordinated Notes, and (iv) any other Indebtedness which is both permitted
under the terms of this Agreement and expressly subordinated in right of payment
to all Loan Obligations under terms satisfactory to the Administrative Agent.
"Adjusted Total Debt/Cash Flow Ratio" means, as of any date of
determination, the ratio of:
(a) Adjusted Total Indebtedness as of such date of determination
divided by
----------
(b) Cash Flow of Genesis and its Restricted Subsidiaries, on a
consolidated basis.
"Adjusted Total Indebtedness" means, as of any date of determination,
the sum of:
(a) Total Funded Indebtedness (including Recourse Synthetic Leases but
excluding Non-Recourse Synthetic Leases) as of such date of determination
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plus
----
(b) the product of (i) the amount of Rental Expense of Genesis and its
Restricted Subsidiaries, on a consolidated basis (including Non-Recourse
Synthetic Leases but excluding Recourse Synthetic Leases), for the four fiscal
quarters ended on, or most recently prior to, such date of determination
multiplied by (ii) eight (8).
As used in this definition, a "Recourse Synthetic Lease" means (1) the Synthetic
Lease Facility and (2) any other Synthetic Lease (or any portion thereof) (x)
that is guaranteed under any circumstances by a Borrower, (y) for which a
Borrower has under any circumstances a purchase obligation or (z) that is
otherwise recourse under any circumstances to a Borrower (excluding rental
payments and guaranties of rental payments under Synthetic Leases).
"Non-Recourse Synthetic Lease" means each Synthetic Lease (or any portion
thereof) that is not a Recourse Synthetic Lease. A Synthetic Lease may be
comprised of both a Recourse Synthetic Lease component and a Non-Recourse
Synthetic Lease component.
"Administrative Agent" has the meaning ascribed to such term in the
preamble of this Agreement.
"Affiliate" of a Person means (a) any other Person which directly or
indirectly controls, or is controlled by, or is under common control with, such
Person, (b) any director or officer (or, in the case of a Person which is not a
corporation, any individual having analogous powers) of such Person or of a
Person who is an Affiliate of such Person, and (c) any individual related to
such Person or Affiliate by consanguinity or adoption within the third degree.
For purposes of the preceding sentence, "control" of a Person means (a) the
possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of such Person, whether through the
ownership of voting securities, by contract or otherwise and (b) in any case
shall include direct or indirect ownership (beneficially or of record) of, or
direct or indirect power to vote, 5% or more of the outstanding shares of any
class of capital stock of such Person (or in the case of a Person that is not a
corporation, 5% or more of any class of equity interest). Excluded Subsidiaries
may be "Affiliates" of Genesis.
"Agent-Involved Claim" shall have the meaning ascribed to such term in
Section 6.8.
"Agents" means collectively the Administrative Agent, Citicorp USA,
Inc. as Syndication Agent, First Union National Bank as Documentation Agent and
Bank of America, N.A. (as successor to NationsBank, N.A. and Bank of America
NT&SA) as Syndication Agent.
"Agreement" means this Fourth Amended and Restated Credit Agreement as
the same may be amended, modified, restated or supplemented from time to time in
accordance with its terms.
"Amendment Effective Date" means the date that this Fourth Amended and
Restated Credit Agreement becomes effective pursuant to Article 4 above.
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"Amendment No. 2 Effective Date" has the meaning ascribed to that term
in Amendment No. 2 to the Third Amended and Restated Credit Agreement, dated
August 28, 1998.
"Amount of Unfunded Benefit Liabilities" has the meaning given to such
term in ss.4001(a)(18) of ERISA.
"Applicable Margin" means a marginal rate of interest which is added to
the LIBO Rate or Prime Rate, as the case may be, to determine the effective rate
of interest on LIBO Rate Loans, Prime Rate Loans and other payments as specified
in the Loan Documents. Until the Officer's Compliance Certificate for the fiscal
year ended December 31, 1998 is delivered to the Administrative Agent and
Lenders pursuant to Section 6.1 above, the Applicable Margin (a) for LIBO Rate
Loans shall be the following: 2.5% for any RC Loans or Tranche A Term Loans;
3.0% for any Tranche B Term Loans; and 3.25% for any Tranche C Term Loan and (b)
for Prime Rate Loans shall be .75% for RC Loans and Tranche A Loans, shall be
1.25% for Tranche B Loans and shall be 1.50% for Tranche C Loans. Thereafter,
the Applicable Margin shall be determined in the following manner:
(a) For any RC Loans or Tranche A Term Loans, the Applicable Margin
shall be the percentage amount set forth below under the caption "Applicable
Margin for RC Loans and Tranche A Term Loans" opposite the relevant Adjusted
Total Debt/Cash Flow Ratio:
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Adjusted Total Applicable Margin for RC Loans
Debt/Cash Flow Ratio and Tranche A Term Loans
-------------------- ------------------------
Prime Rate Loans LIBO Rate Loans
---------------- ---------------
below 3.0 0% .75%
> 3.0 < 3.5 0% 1.00%
-
> 3.5 < 4.0 0% 1.25%
-
> 4.0 < 4.5 0% 1.50%
-
> 4.5 < 5.0 0% 1.75%
-
> 5.0 < 5.5 .25% 2.00%
-
> 5.5 < 5.75 .50% 2.25%
-
> 5.75 < 6.0 .75% 2.50%
-
> 6.0 < 6.5 1.00% 2.75%
-
> 6.5 < 7.0 1.25% 3.00%
-
> 7.0 1.50% 3.25%
(b) For any Tranche B Term Loans, the Applicable Margin for LIBO Rate
Loans shall be 3.50%, provided, however, that any time that the Adjusted Total
Debt/Cash Flow Ratio is less than 4.5 to 1.0, the Applicable Margin for Tranche
B Term Loans shall be 3.00%. The Applicable Margin for Tranche B Term Loans
which are Prime Rate Loans shall be 1.75% provided, however, that at any time
that the Adjusted Total Debt/Cash Flow Ratio is less than 4.5 to 1.0, the
Applicable Margin for Tranche B Loans which are Prime Rate Loans shall be 1.25%.
(c) For any Tranche C Term Loans, the Applicable Margin for LIBO Rate
Loans shall be 3.75%, provided, however, that any time that the Adjusted Total
Debt/Cash Flow Ratio is less than 4.5 to 1.0, the Applicable Margin for Tranche
C Term Loans shall be 3.25%. The Applicable Margin for Tranche C Term Loans
which are Prime Rate Loans shall be 2.00% provided, however, that at any time
that the Adjusted Total Debt/Cash Flow Ratio is less than 4.5 to 1.0, the
Applicable Margin for Tranche C Loans which are Prime Rate Loans shall be 1.50%.
The Applicable Margin shall be adjusted five Business Days after receipt of the
annual or quarterly Officer's Compliance Certificate, delivered pursuant to
Section 6.1 and shall be based on the Adjusted Total Debt to Cash Flow Ratio set
forth therein. At any time that such annual or quarterly Officer's Compliance
Certificate is required to be delivered pursuant to said Section 6.1 and is not
so delivered, then the Applicable Margin shall be the highest rate specified for
the subject Tranche of Loan until the Officer's Compliance Certificate is so
delivered.
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"Assignment and Acceptance" shall have the meaning ascribed to such
term in Section 12.9.
"Assumed Indebtedness" means Indebtedness incurred by a Person which is
not a Borrower and which (a) is existing at the time such Person (or assets of
such Person) is acquired by a Borrower and (b) is assumed by a Borrower in
connection with such Acquisition, other than Indebtedness incurred by the
original obligor in connection with, or in contemplation of, such Acquisition.
"Available RC Commitment" means, as of any date, the difference between
(a) and (b) where (a) is the amount of the RC Commitment on such date and (b) is
the sum of (i) the aggregate outstanding principal amount of all RC Loans on
such date, (ii) the face amount of all outstanding Letters of Credit on such
date, and (iii) the aggregate unpaid amount of all Drawings under Letters of
Credit as of such date.
"Bank Tax" means (i) any Tax based on or measured by net income of a
Lender Party, any franchise Tax and any doing business Tax imposed upon any
Lender Party by any jurisdiction (or any political subdivision thereof) in which
such Lender Party or any lending office of a Lender Party is located and (ii)
for the purposes of Section 1.13, any other Tax imposed by a jurisdiction other
than the United States or a political subdivision thereof that would not have
been imposed but for a present or former connection between such Lender Party or
lending office (as the case may be) and such jurisdiction.
"Borrowers" has the meaning ascribed to such term in the preamble
hereto. It is the intent of the parties (and a covenant of the Borrowers herein)
that each Person which is now or hereafter becomes a direct and indirect
Subsidiary of Genesis other than the Excluded Subsidiaries shall at all times
after becoming a Subsidiary of Genesis be a "Borrower" pursuant to the terms of
this Agreement.
"Business Day" means any day other than a Saturday, Sunday, public
holiday under the laws of the Commonwealth of Pennsylvania, the State of New
York or other day on which banking institutions are authorized or obligated to
close in the city in which the Administrative Agent's Domestic Lending Office is
located or, as applicable, in the city in which the Issuer's Domestic Lending
Office is located provided, however, that whether or not expressly stated in
this Agreement or other Loan Documents, when "Business Day" is used with respect
to any LIBO Rate Loan, such Business Day must also be a Eurodollar Business Day.
"Capital Expenditures", with respect to any Person, means, for any
period, all expenditures (whether paid in cash or accrued as liabilities) of
such Person during such period which are, or should be, classified as capital
expenditures in accordance with GAAP.
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"Capitalized Lease" means at any time any lease which is, or should be,
capitalized on the balance sheet of the lessee at such time in accordance with
GAAP, and "Capitalized Lease Obligation" of any Person at any time shall mean
the aggregate amount which is, or should be, reported as a liability on the
balance sheet of such Person at such time as lessee under a Capitalized Lease in
accordance with GAAP.
"Cardinal" means Cardinal Health, Inc. and certain of its subsidiaries.
"Cash Equivalent Investments" means any of the following: (i) full
faith and credit obligations of the United States of America, or fully
guaranteed as to interest and principal by the full faith and credit of the
United States of America, maturing in not more than one year from the date such
investment is made; (ii) time deposits and certificates of deposit having a
final maturity of not more than one year after the date of issuance thereof of
any commercial bank incorporated under the laws of the United States of America
or any state thereof or the District of Columbia, which bank is a member of the
Federal Reserve System and has a combined capital and surplus of not less than
$1,000,000,000.00 and with a senior unsecured debt credit rating of at least "A"
by Moody's Investors Service, Inc. or "A" by Standard & Poor's Ratings Services;
(iii) commercial paper of companies, banks, trust companies or national banking
associations (in each case excluding Genesis and its Affiliates) incorporated or
doing business under the laws of the United States or one of the States thereof,
in each case having a remaining term until maturity of not more than 180 days
from the date such investment is made and rated at least P-1 by Moody's
Investors Service, Inc. or at least A-1 by Standard & Poor's Ratings Group; and
(iv) repurchase agreements with any financial institution having combined
capital and surplus of not less than $1,000,000,000.00 with a term of not more
than seven days for underlying securities of the type referred to in clause (i)
above.
"Cash Flow", with respect to any Person, for any period, means (a) Net
Income of such Person plus (b) each of the following to the extent deducted in
determining Net Income: (i) Interest Expense, (ii) Rental Expense, (iii)
depreciation expense, (iv) amortization expense, (v) income taxes, (vi) equity
in the net loss of Multicare except to the extent funded in cash by such Person,
and equity in the net loss of all other Investments, except to the extent funded
in cash by such Person, (vii) compensation paid in common stock of Genesis, as
to which there is no repurchase or similar obligation, (viii) fees related to
the execution and delivery of this Fourth Amended and Restated Credit Agreement
and related documents and fees related to the Sponsor Letter of Intent and
transactions contemplated thereby, in an aggregate amount not to exceed
$15,000,000 and (ix) non-cash PIK dividends paid on the Series H Preferred Stock
and Series G Preferred Stock of Genesis, minus (c) to the extent included in Net
Income, equity in the net income of Multicare and equity in net income or gains
of all other Investments except to the extent received in cash by such Person,
all as adjusted for changes in accrued management fees under the Multicare
Management Agreement, in each case for such period.
"CERCLA" means the Comprehensive Environmental Response, Compensation
and Liability Act, as amended, and any successor statute of similar import, and
regulations thereunder, in each case as in effect from time to time.
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"CERCLIS" means the Comprehensive Environmental Response, Compensation
and Liability Information System List, as the same may be amended from time to
time.
"Certificate of Designation" means the Certificate of Designation of
Series G Cumulative Preferred Stock attached as Schedule I to the Vitalink
Merger Agreement.
"Change of Control" means the occurrence of any of the following
events:
(a) any "person" or "group" (as such terms are used in Sections 13(d)
and 14(d) of the Securities Exchange Act of 1934 as amended), in a single
transaction or through a series of related transactions, is or becomes the
"beneficial owner" (as defined in Rule 13d-3 under the Securities Exchange Act
of 1934, as amended, except that a Person shall be deemed to be the "beneficial
owner" of all securities that such Person has the right to acquire, whether such
right is exercisable immediately or only after the passage of time, upon the
happening of an event or otherwise), directly or indirectly, of more than 50% of
the total Voting Stock (as hereinafter defined) of Genesis;
(b) Genesis consolidates or merges with or into another corporation or
conveys, transfers or leases all or substantially all of its assets to any
Person, or any corporation consolidates or merges with or into Genesis, in any
such event pursuant to a transaction in which the outstanding Voting Stock of
Genesis is changed into or exchanged for cash, securities or other property,
other than any such transaction where (i) the outstanding Voting Stock of
Genesis is changed into or exchanged for (x) Voting Stock of the surviving
corporation which is not Redeemable Capital Stock (as hereinafter defined) or
(y) cash, securities or other property in an amount which Genesis would not be
prohibited, under Section 5.10 of the 1995 Subordinated Note Indenture if then
in effect, or under Section 5.10 of the 1996 Subordinated Note Indenture if then
in effect or under the applicable provisions of the 1998 Subordinated Note
Indenture and any Additional Subordinated Indenture, from paying as a
"restricted payment" (as defined in such indentures), and (ii) the holders of
the Voting Stock of Genesis immediately prior to such transaction own, directly
or indirectly, not less than 50% of the Voting Stock of the surviving
corporation immediately after such transaction;
(c) during any period of two consecutive years, individuals who at the
beginning of such period constituted the Board of Directors of Genesis (together
with any new directors whose election by such Board of Directors or whose
nomination for election by the stockholders of Genesis was approved by a vote of
at least 66-2/3% of the directors then still in office who were either directors
at the beginning of such period or whose election or nomination for election was
previously so approved) cease for any reason to constitute a majority of the
Board of Directors of Genesis then in office; or
(d) Genesis is liquidated or dissolved or adopts a plan of liquidation.
For purposes of this definition of "Change of Control," (A) "Voting Stock" means
stock of the class or classes pursuant to which the holders thereof have the
general voting power under ordinary circumstances to elect at least a majority
of the board of directors, managers or trustees of a corporation (irrespective
of whether or not at the time stock of any other class or classes shall have or
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might have voting power by reason of the happening of any contingency); (B)
"Redeemable Capital Stock" of a Person shall mean any capital stock or equity
interests that, either by its terms, by the terms of any security into which it
is convertible or exchangeable or otherwise, is, or upon the happening of an
event or passage of time would be, required to be redeemed prior to any stated
maturity of the principal of the 1995 Subordinated Notes or 1996 Subordinated
Notes or 1998 Subordinated Note or is redeemable at the option of the holder
thereof at any time prior to any such stated maturity, or is convertible into or
exchangeable for debt securities at any time prior to any such stated maturity
at the option of the holder thereof; and (C) "Board of Directors" of Genesis
shall mean the board of directors of Genesis or the executive committee of
Genesis.
"Closing Date" means October 9, 1997.
"COBRA Violation" means any violation of the "continuation coverage
requirements" of "group health plans" of former ss.162(k) of the Code (as in
effect for tax years beginning on or before December 31, 1988) and of ss.4980B
of the Code (as in effect for tax years beginning on or after January 1, 1989)
and Part 6 of Subtitle B of Title I of ERISA.
"Code" means the Internal Revenue Code of 1986, as amended, and any
successor statute of similar import, and regulations thereunder, in each case as
in effect from time to time, and the Treasury regulations thereunder.
"Collateral" means (a) the cash collateral account, if any, in respect
of Letters of Credit from time to time and (b) the collateral subject to, or
purported to be subject to, the Liens of the Pledge Agreement, from time to
time.
"Collateral Agency Agreement" has the meaning assigned to that term in
Section 4.1(d) (Collateral Agency Agreement) above.
"Collateral Agent" has the meaning assigned to that term in the
Collateral Agency Agreement.
"Commitment" means, with respect to any Lender, the obligation of such
Lender to make Loans (including, without limitation, Tranche II Revolver Loans)
pursuant to the terms of this Agreement and, with respect to the Issuer, to
issue Letters of Credit. "Commitment" means, with respect to all Lender Parties,
the sum of each Lender Party's Commitment.
"Contingent Reimbursement Obligation" means the contingent obligation
of the Borrowers to reimburse the Issuer for any Drawings that may be made under
an outstanding Letter of Credit, whenever issued. Without limiting the
generality of the foregoing, the amount of all Contingent Reimbursement
Obligations at any time shall be the aggregate amount available to be drawn
under outstanding Letters of Credit at such time.
"Controlled Group" means a group of employers, of which any Borrower is
a member and which group constitutes:
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(a) A controlled group of corporations (as defined in ss.414(b) of the
Code);
(b) Trades or businesses (whether or not incorporated) which are under
common control (as defined in ss.414(c) of the Code);
(c) Trades or businesses (whether or not incorporated) which constitute
an affiliated service group (as defined in ss.414(m) of the Code); or
(d) Any other entity required to be aggregated with any Borrower
pursuant to ss.414(o) of the Code.
"Cypress" means The Cypress Group L.L.C., a Delaware limited liability
company and (a) any Subsidiary thereof and (b) any other Affiliate thereof
reasonably acceptable to the Administrative Agent. Without limiting the
generality of the foregoing, "Cypress" shall include Cypress Associates L.P.,
Cypress Offshore Partners L.P., Cypress Merchant Banking Partners L.P., Cypress
Advisors Inc.
"Default" means any event or condition which with notice, passage of
time or both, would constitute an Event of Default.
"Default Rate" means, with respect to any amounts payable hereunder or
under the other Loan Documents, a rate equal to the sum of (a) two percent (2%)
per annum plus (b) the interest rate otherwise in effect with respect to such
amounts or, if no such rate is otherwise in effect with respect to such amounts,
a rate equal to the sum of (i) the Prime Rate plus (ii) the highest Applicable
Margin thereon plus (iii) two percent (2%).
"Defined Benefit Pension Plan" means a defined benefit plan (other than
a Multiemployer Plan) as defined in ss.3(35) of ERISA which is maintained by any
Borrower or any member of its Controlled Group.
"Defined Contribution Plan" means an individual account plan (other
than a Multiemployer Plan) as defined in ss.3(34) of ERISA which is maintained
by any Borrower or any member of its Controlled Group.
"Deleveraging Transaction" means a series of related transfers of
nursing home facilities by certain Borrowers to Newco as contemplated in
paragraph (i) of Section 8.5.
"Designated Stock" means the Series G Cumulative Convertible Preferred
Stock of Genesis created pursuant to the Certificate of Designation and issued
solely in connection with the Vitalink Merger.
"Dollar," "Dollars" and the symbol "$" means lawful money of the United
States of America.
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"Domestic Lending Office" means, with respect to any Lender or the
Issuer, the branch or office of such Lender or the Issuer, as the case may be,
designated, from time to time, by such Person in a notice to the Administrative
Agent and Genesis.
"Drawing" means (a) any amount disbursed by the Issuer pursuant to the
terms of a Letter of Credit or (b) as the context may require, the obligation of
the Borrowers to reimburse the Issuer for such disbursement.
"EBITDA" means Net Income before Interest Expense, provision for income
taxes, depreciation and amortization as adjusted on a pro forma basis for the
transactions contemplated by the Multicare Management Agreement.
"ElderTrust" means ElderTrust, a Maryland real estate investment trust.
"Eligible Institution" means (i) a Lender; (ii) an Affiliate of a
Lender; (iii) a commercial bank organized under the laws of the United States,
or any State thereof, and having a combined capital and surplus of at least
$1,000,000,000.00; (iv) a savings and loan association or savings bank organized
under the laws of the United States, or any State thereof, and having a combined
capital and surplus of at least $1,000,000,000.00; (v) a commercial bank
organized under the laws of any other country that is a member of the
Organization for Economic Cooperation and Development (the OECD) or has
concluded special lending arrangements with the International Monetary Fund
associated with its General Arrangements to Borrow or under the laws of a
political subdivision of any such country, and having a combined capital and
surplus of at least $1,000,000,000.00, so long as such bank is acting through a
branch or agency located in the United States; and (vi) a finance company,
insurance company or other financial institution or fund (whether a corporation,
partnership, trust or other entity) that is engaged in making, purchasing or
otherwise investing in commercial loans in the ordinary course of its business
and having a combined capital and surplus or total assets of at least
$500,000,000.00; and (vii) with respect to any Lender that is a fund, any other
fund with assets in excess of $100,000,000.00 that invests in bank loans and is
managed by the same investment advisor as such Lender; provided, however, that
neither any Loan Party nor any Affiliate of a Loan Party shall qualify as an
Eligible Institution under this definition.
"Environmental Affiliate" means, with respect to any Person, any other
Person whose liability (contingent or otherwise) for any Environmental Claim,
such Person has retained, assumed or otherwise is liable for (by Law, agreement
or otherwise).
"Environmental Approvals" means any approval, order, consent,
authorization, certificate, license, permit or validation of, or exemption or
other action by, or filing, recording or registration with, any Governmental
Authority pursuant to or required under any Environmental Law.
"Environmental Claim" means, with respect to any Person, any action,
suit, proceeding, investigation, notice, claim, complaint, demand, request for
information or other communication (written or oral) by any other Person
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(including but not limited to any Governmental Authority, citizens' group or
present or former employee of such Person) alleging, asserting or claiming any
actual or potential (a) violation of any Environmental Law, (b) liability under
any Environmental Law or (c) liability for investigatory costs, cleanup costs,
governmental response costs, natural resources damages, property damages,
personal injuries, fines or penalties arising out of, based on or resulting from
the presence, or release into the environment, of any Environmental Concern
Materials at any location, whether or not owned by such Person.
"Environmental Cleanup Site" means any location which is listed or
proposed for listing on the National Priorities List (as established under
CERCLA), on CERCLIS or on any similar state list of sites requiring
investigation or cleanup, or which is the subject of any pending or threatened
action, suit, proceeding or investigation related to or arising from any alleged
violation of any Environmental Law.
"Environmental Concern Materials" means (a) any flammable substance,
explosive, radioactive material, hazardous material, hazardous waste, toxic
substance, solid waste, pollutant, contaminant or any related material, raw
material, substance, product or by-product of any substance specified in or
regulated or otherwise affected by any Environmental Law (including but not
limited to any "hazardous substance" as defined in CERCLA or any similar state
Law), (b) any toxic chemical or other substance from or related to industrial,
commercial or institutional activities, and (c) asbestos, gasoline, diesel fuel,
motor oil, waste and used oil, heating oil and other petroleum products or
compounds, polychlorinated biphenyls, radon and urea formaldehyde.
"Environmental Law" means any Law, whether now existing or subsequently
enacted or amended, relating to (a) pollution or protection of the environment,
including natural resources, (b) exposure of Persons, including but not limited
to employees, to Environmental Concern Materials, (c) protection of the public
health or welfare from the effects of products, by-products, wastes, emissions,
discharges or releases of Environmental Concern Materials or (d) regulation of
the manufacture, use or introduction into commerce of Environmental Concern
Materials including their manufacture, formulation, packaging, labeling,
distribution, transportation, handling, storage or disposal. "Environmental Law"
shall also include any Environmental Approval and the terms and conditions
thereof.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and the regulations thereunder.
"Eurodollar Business Day" means any Business Day on which dealings in
Dollar deposits are carried on in the London interbank market and on which
commercial banks are open for domestic and international business (include
dealings in Dollar deposits) in London, England.
"Eurodollar Lending Office" means, with respect to any Lender or the
Issuer, the branch or office of such Lender or the Issuer, as the case may be,
designated by such Person in a notice to the Administrative Agent and Genesis.
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"Event of Default" means any of the Events of Default described in
Section 9.1 hereof.
"Excess Cash Flow" means, for any fiscal year of the Borrowers, the
amount, if any, by which Net Cash Provided by Operations for such fiscal year
exceeds the sum of (a) the aggregate principal amount of Total Funded
Indebtedness incurred consistently with the terms of this Agreement, and
scheduled to have been repaid or prepaid during such fiscal year and (b) the
amount of any Investments made pursuant to Section 8.3(h).
"Excluded Assets" are (a) those assets listed on Schedule 11.1-Part A
attached hereto and (b) any other assets which the Required Lenders agree to
include on Schedule 11.1 - Part A from time to time as additional Excluded
Assets, so long as the Required Lenders so agree prior to the date such assets
are acquired or created by the Borrowers and (c) those assets designated as
"Excluded Assets" pursuant to the terms of this Agreement.
"Excluded Subsidiaries" means, subject to Section 6.10(b), the entities
listed on Schedule 11.1-Part B attached hereto and, whether or not the same
would otherwise be Subsidiaries of Genesis, the Multicare Group and, after the
Closing Date, each Subsidiary of any Excluded Subsidiary.
"Existing Credit Agreement" has the meaning set forth in the recitals
hereof.
"Federal Funds Rate" for any day means the rate per annum determined by
the Administrative Agent (which determination shall be conclusive) to be the
rate per annum announced by the Federal Reserve Bank of New York on such day as
being the weighted average of the rates on overnight Federal funds transactions
arranged by federal funds brokers on the previous trading day, or, if such
Federal Reserve Bank does not announce such rate on any day, the rate for the
last day on which such rate was announced.
"Fixed Charge Coverage Ratio" means, as of any date of determination,
the result of:
(a) Cash Flow of Genesis and its Restricted Subsidiaries, on a
consolidated basis.
divided by
----------
(b) the sum of (i) Interest Expense, income taxes and Rental Expense of
Genesis and its Restricted Subsidiaries, on a consolidated basis, and (without
duplication) (ii) principal payments scheduled or required to be made on Total
Funded Indebtedness.
"GAAP" has the meaning set forth in Section 11.3 below.
"General Refinancing Proceeds" has the meaning set forth in Section
1.5(b) (Mandatory Prepayments) above.
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"Genesis" has the meaning ascribed to such term in the preamble hereto.
"Genesis ElderCare Acquisition Corp." means the Delaware corporation of
that name, formerly Waltz Acquisition Corp.
"Genesis ElderCare Corp." means the Delaware corporation of that name,
formerly Waltz Corp.
"Governmental Authority" means any government or political subdivision
or any agency, authority, bureau, central bank, commission, department or
instrumentality of either, or any court, tribunal, grand jury or arbitrator, in
each case whether foreign or domestic.
"Guaranty" means, with respect to any Person (a "Guarantor"), any
contractual or other obligation, contingent or otherwise, of such Person to pay
any Indebtedness or other obligation of any other Person or to otherwise protect
the holder of any such Indebtedness or other obligation against loss (whether
such obligation arises by agreement to pay, to keep well, to purchase assets,
goods, securities or services or otherwise) provided, however, that the term
"Guaranty" shall not include an endorsement for collection or deposit in the
ordinary course of business. The term, "Guaranty," when used as a verb has the
correlative meaning.
"Health Care Business" means any healthcare related business including
any facility, unit, operation or business supplying health care services,
supplies or products, including long-term care, rehabilitation therapy,
specialized health care, health care management, and pharmacies.
"Indebtedness" of any Person means (without duplication):
(a) all obligations on account of money borrowed by, or credit extended
to or on behalf of, or for or on account of deposits with or advances to, such
Person;
(b) all (i) obligations of such Person evidenced by bonds, debentures,
notes or similar instruments and (ii) Mandatorily Redeemable Stock;
(c) all obligations of such Person for the deferred purchase price of
property or services;
(d) all obligations secured by a Lien on property owned by such Person
(whether or not assumed) provided, however, for purposes of determining the
amount of such Indebtedness under this clause (d), the amount of any such
non-recourse Indebtedness shall be limited to the lesser of (i) the fair market
value of the asset subject to such Lien and (ii) the amount of such
Indebtedness;
(e) all obligations of such Person under Capitalized Leases (without
regard to any limitation of the rights and remedies of the holder of such Lien
or the lessor under such Capitalized Lease to repossession or sale of such
property);
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(f) the face amount of all letters of credit issued for the account of
such Person and, without duplication, the unreimbursed amount of all drafts
drawn thereunder, and all other obligations of such Person associated with such
letters of credit or draws thereon;
(g) all obligations of such Person with respect to acceptances or
similar obligations issued for the account of such Person;
(h) all obligations of such Person under a product financing or similar
arrangement described in paragraph 8 of FASB Statement of Accounting Standards
No. 49 or any similar requirement of GAAP;
(i) all obligations of such Person under any Interest Rate Hedging
Agreement or any currency protection agreement, currency future, option or swap
or other currency hedge agreement;
(j) all Guaranties of such Person; and
(k) all obligations of such Person under, or in respect of, any
Synthetic Leases.
Indebtedness shall not include (i) accounts payable to Cardinal in respect of
inventory purchased in the ordinary course of business or (ii) accounts payable
to other trade creditors arising out of purchases of goods or services in the
ordinary course of business, provided that (1) such accounts payable are payable
on usual and customary trade terms, and (2) such accounts payable are not
overdue by more than 60 days according to the original terms of sale except (if
no foreclosure, distraint, levy, sale or similar proceeding shall have been
commenced) where such payments are being contested in good faith by appropriate
proceedings diligently conducted and subject to such reserves or other
appropriate provisions as may be required by GAAP.
"Indemnified Parties" means the Lender Parties and their respective
Affiliates and (without duplication) the directors, trustees, officers,
employees, attorneys and agents of each of the foregoing.
"Interest Expense" means, for any Person, for any period, the sum
(without duplication) of (a) all interest accrued (or accreted) on Indebtedness
of such Person during such period whether or not actually paid (excluding any
obligations under any Synthetic Leases) plus (b) the net amount accrued under
any Interest Rate Hedging Agreements (or less the net amount receivable
thereunder) during such period.
"Interest Period" means with respect to any LIBO Rate Loan, (a)
initially, the period commencing on the borrowing or conversion date, as the
case may be, and ending one, two, three or six months thereafter as selected by
the Borrowers pursuant to Section 1.8 above and (b) thereafter, each period
commencing on the day after the last day of the preceding Interest Period and
ending one, two, three or six months thereafter, as selected by the Borrowers
pursuant to Section 1.8 above provided, however, if any such Interest Period
would otherwise end on a day which is not a Eurodollar Business Day, such
Interest Period shall be extended to the next succeeding Eurodollar Business Day
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unless the result of such extension would be to carry such Interest Period into
another calendar month in which event such Interest Period shall end on the
immediately preceding Eurodollar Business Day and provided, further, if any such
Interest Period begins on a day for which there is no numerically corresponding
day in the calendar month at the end of such Interest Period (as may be the case
with an Interest Period commencing at the end of a calendar month) the Interest
Period shall end on the last Eurodollar Business Day of the relevant calendar
month.
"Interest Rate Hedging Agreement" means any rate swap, cap or collar
agreement with a term of at least three years or such shorter term as may be
acceptable to the Administrative Agent to which any or all of the Borrowers are
party and which is on terms and conditions satisfactory to the Administrative
Agent.
"Investments" has the meaning set forth in Section 8.3 above.
"Investors' Subordination Agreement" means that certain Subordination
Agreement, dated as of October 7, 1997, among Cypress, TPG, Nazem, Genesis, as
the same may be amended, restated, modified and/or supplemented from time to
time pursuant to the terms hereof and thereof.
"Issuer" has the meaning ascribed to such term in the preamble hereto.
"JCAHO" - Joint Commission on Accreditation of Healthcare
Organizations.
"Joinder Effective Date" means the date that any Joining Subsidiary
becomes a Borrower hereunder pursuant to Section 6.10 above.
"Joinder Supplement" has the meaning set forth in Schedule 6.10 hereto.
"Joining Subsidiary" has the meaning set forth in Section 6.10 hereof.
"Law" means any law (including common law), constitution, statute,
treaty, convention, regulation, rule, ordinance, order, injunction, writ, decree
or award of any Governmental Authority.
"Lender" has the meaning ascribed to such term in the preamble hereto
and shall include, without limitation, each Tranche II Revolver Lender.
"Lender Parties" means, collectively, the Lenders, the Issuer, and the
Agents.
"Letter of Credit" means (i) any letter of credit issued by the Issuer
pursuant to Article 3 hereof or (ii) any letter of credit issued under the
Existing Credit Agreement and outstanding on the Closing Date.
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"Letter of Credit Participation" means, with respect to any RC Lender,
the participation interest of such Lender in any Letter of Credit acquired
pursuant to Article 3 above. The amount of the Letter of Credit Participation of
an RC Lender in any Letter of Credit shall be deemed to be the amount equal to
such RC Lender's pro rata share (determined on the basis of the RC Commitments
at such time) of the sum of (a) the aggregate unpaid amount of all Drawings
thereunder at such time and (b) the amount of any Contingent Reimbursement
Obligations with respect thereto at such time.
"LIBO Rate" means the rate per annum determined by the Administrative
Agent by dividing (the resulting quotient to be rounded upward to the nearest
1/100 of 1%) (a) the rate of interest (which shall be the same for each day in
such Interest Period) determined in good faith by the Administrative Agent
(which determination shall be conclusive) to be the average of the rates per
annum for deposits in Dollars offered to major money center banks in the London
interbank market at approximately 11:00 a.m., London time, two Eurodollar
Business Days prior to the first day of the applicable Interest Period for
delivery on the first day of such Interest Period in similar amounts and
maturities as the proposed LIBO Rate Loan by (b) a number equal to 1.0 minus the
Reserve Percentage. "Reserve Percentage" for any day means the percentage
(expressed as a decimal, rounded upward to the nearest 1/100 of 1%), as
determined in good faith by the Administrative Agent (which determination shall
be conclusive), which is in effect on such day as prescribed by the Board of
Governors of the Federal Reserve System representing the maximum reserve
requirement (including supplemental, marginal and emergency reserve
requirements) with respect to eurocurrency funding (currently referred to as
"Eurocurrency liabilities") of a member bank in such System. The LIBO Rate shall
be adjusted automatically as of the effective date of each change in the Reserve
Percentage.
"LIBO Rate Loan" means a Loan bearing interest at the per annum rate of
the LIBO Rate plus Applicable Margin.
"Licenses" means any and all licenses, including provisional licenses,
certificates of need, JCAHO and/or other accreditations, permits, franchises,
rights to conduct business, approvals by a Governmental Authority or otherwise,
consents, qualifications, operating authority, and/or any other authorizations.
"Lien" means any mortgage, deed of trust, pledge, lien, security
interest, charge or other encumbrance or security arrangement of any nature
whatsoever, including but not limited to any conditional sale or title retention
arrangement, and any assignment, deposit arrangement or lease intended as, or
having the effect of, security.
"Limitation" means a revocation, suspension, termination, impairment,
probation, limitation, non-renewal, forfeiture, declaration of ineligibility,
loss of status as a participating provider in a Third Party Payor Arrangement
and/or loss of any other rights.
"Loans" means, collectively, the Tranche II Revolver Loans, the Tranche
A Term Loans, the Tranche B Term Loans, the Tranche C Term Loans and the RC
Loans. A "Loan" means any of the Loans.
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"Loan Documents" means this Agreement (including any agreements or
writings incorporated in this Agreement), the Notes, the Letters of Credit, the
Investors' Subordination Agreement, the Pledge Agreement, the Security
Agreement, the Mortgages, the Collateral Agency Agreement, each Joinder
Supplement and all other agreements and instruments executed in connection
herewith or therewith in each case as the same may be amended, modified,
restated or supplemented from time to time.
"Loan Obligations" means all obligations, from time to time, of any
Loan Party to any Lender Party or other Indemnified Party under, or arising out
of, this Agreement or any Loan Document whether such obligations are direct or
indirect, absolute or contingent, due or to become due, now existing or
hereafter arising (specifically including obligations arising or accruing after
the commencement of any bankruptcy, insolvency or similar proceeding with
respect to any Loan Party, or which would have accrued but for the commencement
of such proceeding even if the claim is not allowed in such proceeding under
applicable law).
"Loan Parties" means the Borrowers and any other Person who from time
to time grants or purports to grant to the Collateral Agent a Lien on any
property pursuant to the Pledge Agreement or is a Guarantor of any Loan
Obligations.
"Management Agreement" means any agreement pursuant to which a Person
(or group of Persons) manages the business of another Person (or group of
Persons).
"Mandatorily Redeemable Stock" means all stock, other than the
Designated Stock or the Series H Preferred Stock or the Series I Preferred Stock
issued to Cypress and TPG substantially on the terms set forth in the Sponsor
Letter of Intent that is (i) redeemable, payable or required to be purchased or
otherwise retired or extinguished (other than stock which is redeemable, payable
or required to be purchased under all circumstances for consideration consisting
solely of common stock of Genesis), or convertible into any Indebtedness of the
issuer, (A) at a fixed or determinable date, whether by operation of a sinking
fund or otherwise, (B) at the option of any Person other than the issuer
(whether or not conditioned upon the occurrence of a circumstance or event, such
as a change in control of the issuer) or (C) upon the occurrence of a condition
not solely within the control of the issuer, such as a redemption required to be
made out of future earnings or (ii) convertible into Mandatorily Redeemable
Stock.
"Material Adverse Effect" means (a) a material adverse effect on the
business, operations, condition (financial or otherwise), properties or
prospects of Genesis or of the Borrowers, taken as a whole, or (b) an adverse
effect on the legality, validity, binding effect or enforceability of any Loan
Document, or the ability of the Collateral Agent or any Lender Party to enforce
any rights or remedies under or in connection with any Loan Document. Without
limiting the generality of the foregoing, as used in connection with any
provisions respecting the ownership or operation of any Health Care Business,
Material Adverse Effect may include, among other things, any loss or suspension
of a License or Reimbursement Approval for any material nursing home or other
material Health Care Business or material group of nursing homes or other
material group of Health Care Businesses of the Borrowers or any event,
occurrence or matter or series thereof giving rise to a reasonable probability
of any of the foregoing consequences.
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"Maturity Date" means the latest of the RC Maturity Date, the Tranche A
Maturity Date, the Tranche B Maturity Date, the Tranche C Maturity Date or the
maturity date for the Tranche II Revolver Loans or, as the context may require,
the applicable maturity date for a specified Tranche of Loan.
"Mellon" means Mellon Bank, N.A., a national banking association, and
any successor or assign thereof.
"Merger Agreement" means the Agreement and Plan of Merger, dated as of
June 16, 1997, among Genesis ElderCare Corp., Genesis ElderCare Acquisition
Corp. and Multicare.
"Meridian" means Meridian Health Care Growth & Income Fund, L.P.
"Milford/Dover Proceeds" means proceeds from refinancings consummated
during the period commencing on the Amendment Effective Date and ending prior to
the Tranche II Revolver Effective Date of the loans made by one or more
Borrowers to the joint ventures owning assisted living facilities in Dover and
Milford, Delaware or other joint ventures of the Borrowers up to an aggregate
amount for all such refinancings of $12,000,000.00.
"Mortgaged Property" means any property, from time to time subject to
any Mortgage.
"Mortgages" means the mortgages, deeds of trust and other conveyance
instruments and agreements granting a Lien on real property of the Borrowers in
favor of the Collateral Agent from time to time, as such instruments and
agreements may be amended, restated, modified and/or supplemented from time to
time.
"Multicare" means The Multicare Companies, Inc., a Delaware
corporation.
"Multicare Credit Agreement" means that certain Credit Agreement, dated
as of October 9, 1997, among Multicare, certain Subsidiaries thereof, Mellon as
Administrative Agent and the other agents and lenders referred to therein, as
the same may be amended, restated, modified and/or supplemented from time to
time consistent with the provisions of this Agreement and the Multicare Credit
Agreement.
"Multicare Group" means, collectively, Genesis ElderCare Corp., Genesis
ElderCare Acquisition Corp., Multicare (including the survivor of any merger
between Genesis ElderCare Acquisition Corp. and Multicare) and/or any of
Multicare's Subsidiaries from time to time.
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"Multicare Management Agreement" means that certain Management
Agreement, dated as of October 9, 1997, by and between Genesis Eldercare Network
Services, Inc. and Multicare (formerly Genesis ElderCare Corp.).
"Multiemployer Plan" means such term in ss.4001(a)(3) of ERISA.
"Nazem" means Nazem, Inc., a Delaware corporation and (a) any
Subsidiary thereof and (b) any other Affiliate thereof reasonably acceptable to
the Administrative Agent. Without limiting the generality of the foregoing,
"Nazem" includes Genesis ElderCare Portfolio K, L.P.
"Net Cash Proceeds" means, with respect to any transaction involving a
Borrower, the gross proceeds thereof in the form of cash or cash equivalents,
net of the sum of the following (without duplication): (a) payments made to
retire obligations (other than to a Borrower) that are attributable to or
secured by the properties that are the subject of a sale, assignment or other
disposition which is part of the transaction, (b) reasonable brokerage
commissions and other reasonable fees and expenses (including reasonable fees
and expenses of legal counsel and investment bankers) related to such
transaction and (c) all taxes actually paid or estimated in good faith to be or
become payable as a result of such transaction.
"Net Cash Provided by Operations" means for any period, the Net Income
of the Borrowers on a consolidated basis for such period plus amortization and
depreciation expense of the Borrowers for such period plus cash extraordinary
gains (other than from a disposition) less Capital Expenditures of the Borrowers
for such period (to the extent permitted by the terms of this Agreement), less
increases in working capital (or plus decreases in working capital) of the
Borrowers during such period.
"Net Income" means, with respect to any Person, for any period the net
earnings (or loss) after taxes of such Person for such period less cash
dividends paid on the Series G Cumulative Convertible Preferred Stock less
non-recurring gains plus non-recurring non-cash losses.
"Newco" means, collectively, the entities formed as Excluded
Subsidiaries to acquire the nursing home facilities referred to in Section
8.5(i). Newco shall initially be created as Excluded Subsidiaries, which soon
thereafter shall cease to be Subsidiaries because the general partnership
interests in Newco will be sold to one or more third-parties.
"Newco Management Agreement" has the meaning ascribed to such term in
Section 8.5(i)(8).
"Newly Developed Facilities" means, collectively, any newly developed
assisted living facilities built or developed after the Amendment Effective Date
by one or more Borrowers.
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"1995 Subordinated Note Indenture" means the Indenture dated as of June
15, 1995 between Genesis and Delaware Trust Company, as Trustee, relating to the
1995 Subordinated Notes, as such Indenture may be amended, modified, restated or
supplemented from time to time in accordance with the terms of this Agreement.
"1995 Subordinated Notes" means Genesis' 9-3/4% Senior Subordinated
Notes issued pursuant to the 1995 Subordinated Note Indenture in the original
aggregate principal amount of $120,000,000.00.
"1996 Subordinated Note Indenture" means the Indenture, dated as of
October 7, 1996, between Genesis and First Union National Bank, as Trustee,
relating to the 1996 Subordinated Notes, as such Indenture may be amended,
modified, restated or supplemented from time to time in accordance with the
terms of this Agreement.
"1996 Subordinated Notes" means Genesis' 9 1/4% Senior Subordinated
Notes issued pursuant to the 1996 Subordinated Note Indenture, in the original
aggregate principal amount of $125,000,000.00.
"1998 Subordinated Note Indenture" means an Indenture, dated as of
December 23, 1998, between Genesis and The Bank of New York, as Trustee,
relating to the 1998 Subordinated Notes, as such Indenture may be amended,
modified, restated or supplemented from time to time in accordance with the
terms of this Agreement.
"1998 Subordinated Notes" means Senior Subordinated Notes issued by
Genesis pursuant to the 1998 Subordinated Note Indenture in an aggregate
principal amount not to exceed $125,000,000.
"Non-U.S. Lender" means any Lender that is not a U.S. Person.
"Notes" means, collectively, the Tranche II Revolver Notes, the Tranche
A Term Notes, and the RC Notes. A "Note" means any of the Notes.
"Obligations" means Loan Obligations.
"Officer's Compliance Certificate" means a certificate, as of a
specified date, of the chief financial officer or controller of Genesis in
substantially the form of Exhibit G hereto as to each of the following: (a) the
absence of any Event of Default or Default on such date, (b) the truth of the
representations and warranties herein and in the other Loan Documents as of such
date and (c) compliance (or if required by the terms of this Agreement
respecting the delivery of any such Officer's Compliance Certificate, pro forma
compliance after taking account of such acquisitions, dispositions, indebtedness
or other events as this Agreement shall direct for such pro forma compliance
statement) with the financial covenants set forth in Article 7 and the financial
limitations set forth in Sections 8.1(g), 8.2(f), 8.3(h), 8.4(d), 8.5(g) and
8.7(c).
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"PBGC" means the Pension Benefit Guaranty Corporation or any entity
succeeding to any or all of its functions under ERISA.
"Pension Plan" means a pension plan (as defined in ss.3(2) of ERISA)
which is subject to Part 3 of Subtitle B of Title I of ERISA or subject to
ss.412 of the Code and maintained by any Borrower or any member of its
Controlled Group.
"Permitted Liens" has the meaning set forth in Section 8.2 above.
"Permitted Put/Call Amendment" means an amendment to the Put/Call
Agreement which
(a) is substantially on the terms described in the Sponsor Letter of
Intent;
(b) is substantially concurrent with, or subsequent to, the receipt by
Genesis of at least $50,000,000 in cash in exchange for its common stock or
warrants therefor;
(c) is accompanied by agreements insuring that at all times during the
period beginning on the date of the Permitted Put/Call Amendment and ending on
the date that Genesis acquires 100% of the capital stock of Genesis ElderCare
Acquisition Corp. it shall, under all circumstances, maintain control of the
Board of Directors of Multicare and of Genesis ElderCare Acquisition Corp.;
(d) would not cause a "Change of Control" as defined in any indenture
applicable to Multicare or cause any other default under any such indenture; and
(e) if it involves any transfer in the ownership of the stock of
Genesis ElderCare Acquisition Corp. and assignment of rights and obligations
under the Put/Call Agreement, each of the transferees/assignees signs an
Investor Subordination Agreement or other appropriate subordination agreement on
terms and conditions satisfactory to the Administrative Agent subordinating any
obligations of Genesis under the Put/Call Agreement (or related agreements), if
any, to the obligations to the Lender Parties hereunder and under the Synthetic
Lease Facility.
""Person" means an individual, corporation, partnership, trust,
unincorporated association, limited liability company, joint venture,
joint-stock company, Governmental Authority or any other entity.
"Plan" means an employee benefit plan (other than a Multiemployer Plan)
as defined in ss.3(3) of ERISA which is either (1) maintained by any Borrower or
any member of its Controlled Group, or (2) maintained pursuant to a collective
bargaining agreement or any other arrangement under which more than one employer
makes contributions and to which any Borrower or any member of its Controlled
Group is then making or accruing an obligation to make contributions or has ever
been obligated to make contributions.
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"Pledge Agreement" means the Pledge Agreement dated as of October 9,
1997, among Genesis and certain Subsidiaries as Pledgors and Mellon as
Collateral Agent, as the same may be amended, restated, modified and/or
supplemented from time to time consistent with the terms of this Agreement and
the Pledge Agreement.
"Premises" has the meaning ascribed to such term in Section 12.12
hereof.
"Prime Rate" means the greater of (A) the interest rate per annum
announced from time to time by the Administrative Agent as its prime rate or (B)
the Federal Funds Rate plus .50%. The Prime Rate may be greater or less than
other interest rates charged by the Administrative Agent to other borrowers.
"Prime Rate Loan" means any Loan bearing interest at the Prime Rate
plus the Applicable Margin.
"Prohibited Transaction" has the meaning given to such term in ss.406
of ERISA or ss.4975(c) of the Code.
"Put/Call Agreement" means the Put/Call Agreement dated as of October
9, 1997, among Genesis, TPG and Cypress as the same may be amended consistent
with Section 8.11 (Limitations on Modifications of Certain Documents) above.
"Qualifying Interest Rate Hedging Agreements" means such Interest Rate
Hedging Agreements as may be entered into from time to time pursuant to Section
6.12 above between any or all of the Borrowers, on the one hand, and any Lender
Party or Affiliate of a Lender Party that satisfies the conditions set forth in
Section 10.13 above, on the other hand.
"Quarterly Payment Date" means the last Business Day of each December,
March, June and September.
"RC Commitment" means, with respect to any RC Lender, (i) the amount
set forth opposite such Lender's name under the heading "RC Commitment" on
Schedule 1.1 hereto or, in the case of a Lender that becomes a Lender pursuant
to an assignment, the amount of the assignor's RC Commitment assigned to such
Lender, in either case as the same may be reduced from time to time pursuant to
Section 1.7 above or increased or reduced from time to time pursuant to
assignments in accordance with Section 12.9 below or (ii) as the context may
require, the obligation of such Lender to make RC Loans in an aggregate unpaid
principal amount not exceeding such amount; and "RC Commitment" means with
respect to all RC Lenders, the sum of each RC Lender's RC Commitment.
"RC Lender" means (i) any Lender with an "RC Commitment" designated on
Schedule 1.1 hereto and (ii) any Person that is assigned any or all of the
rights or obligations of an RC Lender with respect to its RC Commitment or RC
Loans, from time to time, pursuant to Section 12.9.
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"RC Loan" has the meaning ascribed to such term in Section 1.1 of this
Agreement.
"RC Maturity Date" means September 30, 2003.
"RC Note" means each promissory note of the Borrowers issued to an RC
Lender relating to such Lender's RC Loans and RC Commitments substantially in
the form of Exhibit A-1 hereto, together with any allonges thereto, from time to
time, and any promissory note issued in substitution therefor pursuant to the
terms hereof, together with all extensions, renewals, refinancings or refundings
thereof in whole or part, in each case as the same may be amended, modified,
restated or supplemented from time to time.
"Register" has the meaning ascribed to such term in Section 10.8
hereof.
"Registered Lender" has the meaning ascribed to such term in Section
1.14 hereof.
"Registered Note" has the meaning ascribed to such term in Section 1.14
hereof.
"Regulatory Change" means any applicable law, interpretation,
directive, request or guideline (whether or not having the force of law), or any
change therein or in the administration or enforcement thereof, that becomes
effective or is implemented or first required or expected to be complied with
after the Closing Date (including any applicable law that shall have become such
as the result of any act of omission of the Borrowers or any of their
Affiliates, without regard to when such applicable law shall have been enacted
or implemented), whether the same is (i) the result of an enactment by a
government or any agency or political subdivision thereof, a determination of a
court or regulatory authority or otherwise or (ii) enacted, adopted, issued or
proposed before or after the Closing Date, including any such that imposes,
increases or modifies any Tax, reserve requirement, insurance charge, special
deposit requirement, assessment or capital adequacy requirement, but excluding
any such that imposes, increases or modifies any Bank Tax.
"Reimbursement Approvals" means, with respect to all Third Party Payor
Arrangements, any and all certifications, provider numbers, provider agreements,
participation agreements, accreditations (including JCAHO accreditation) and/or
any other agreements with or approvals by organizations and Governmental
Authorities.
"Release" means a release, spill, emission, leaking, pumping, emptying,
escaping, injection, deposit, disposal, discharge, dispersal, leaching or
migration into the indoor or outdoor environment or into or out of any property,
including the movement of Environmental Concern Materials through or in the air,
soil, surface water, groundwater or property.
"Remedial Action" means actions necessary to comply with any
Environmental Law with respect to (a) clean up, removal, treatment or handling
of Environmental Concern Materials in the indoor or outdoor environment; (b)
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prevention of Releases or threats of Releases or minimization of further
Releases of Environmental Concern Materials so they do not migrate or endanger
or threaten to endanger public or employee health or safety or welfare or the
indoor or outdoor environment; or (c) performance of pre-remedial studies and
investigations and post-remedial monitoring and care.
"Rental Expense" means, with respect to any Person for any period, the
aggregate rental obligations of such Person, payable in respect of any leases
(including Synthetic Leases but excluding Capitalized Leases during such period,
but in any case including obligations for taxes, insurance, maintenance and
similar costs which the lessee is obligated to pay under the terms of such
leases and which are attributable to the leases for such period (whether such
amounts are accrued or paid during such period).
"Required Lenders" means, as of any date, Lenders otherwise eligible to
vote pursuant to the terms of this Agreement holding, in the aggregate, at least
51% of the aggregate outstanding Loans, participations in Letters of Credit and
available Commitments (including without limitation the Tranche II Revolver
Commitments) so eligible to vote.
"Responsible Officer" of a Person means the President, the Secretary,
the Chief Executive Officer, any Vice President, the Controller, the Treasurer
or the Chief Financial Officer of such Person.
"Restricted Subsidiaries" means all direct and indirect Subsidiaries of
Genesis at any time other than Excluded Subsidiaries.
"Revolver Increase Effective Date" has the meaning ascribed to that
term in Amendment No. 2 to this Agreement, dated August 28, 1998.
"Salisbury Transaction" means the transaction, or series of related
transactions, whereby the Borrowers create a new entity that will be deemed to
be an Excluded Subsidiary hereunder and either (a) (i) transfer the nursing home
facility known as the Salisbury Center to that entity, and (ii) sell at least
fifty percent of the ownership interest therein to an unrelated third-party in
an arm's length transaction for cash at least equal to the fair market value
thereof, or (b) sell the nursing home facility known as the Salisbury Center to
that entity for approximately $19,000,000 of which approximately $14,000,000
shall be in cash and approximately $5,000,000 shall be in seller financing and
in either event immediately applies the proceeds thereof in accordance with the
terms of Section 1.5 (Voluntary Prepayments and Unscheduled, Mandatory
Prepayments) above.
"Secured Parties" has the meaning ascribed to such term in the
Collateral Agency Agreement.
"Security Agreement" has the meaning ascribed to such term in Section
4.1 above.
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"Series H Preferred Stock" means the 5% Series H Senior Convertible
Cumulative Preferred Stock issued after the Amendment Effective Date by Genesis
to TPG, Nazem and Cypress in connection with the Permitted Put/Call Amendment on
substantially the terms set forth in the Sponsor Letter of Intent.
"Series I Preferred Stock" means the 5% Series I Senior Convertible
Exchangeable Participating Cumulative Preferred Stock issued after the Amendment
Effective Date by Genesis to TPG, Nazem and Cypress in connection with the
Permitted Put/Call Amendment on substantially the terms set forth in the Sponsor
Letter of Intent.
"Sponsor Letter of Intent" means that certain Letter of Intent, dated
on or about August 2, 1999, among TPG, Cypress, Nazem and Genesis.
"Subsidiary" of a Person at any time means:
(a) any corporation of which a majority (by number of shares or number
of votes) of any class of outstanding capital stock normally entitled to vote
for the election of one or more directors (regardless of any contingency which
does or may suspend or dilute the voting rights of such class) is at such time
owned directly or indirectly, beneficially or of record, by such Person or one
or more Subsidiaries of such Person;
(b) any trust of which a majority of the beneficial interest is at such
time owned directly or indirectly, beneficially or of record, by such Person or
one or more Subsidiaries of such Person;
(c) any partnership, limited liability company, joint venture or other
entity of which ownership interests having ordinary voting power to elect a
majority of the board of directors or other Persons performing similar functions
are at such time owned directly or indirectly, beneficially or of record, by, or
which is otherwise controlled directly, indirectly or through one or more
intermediaries by, such Person or one or more Subsidiaries of such Person; or
(d) any entity which is consolidated with such Person for financial
reporting purposes.
"Synthetic Lease" means any lease (other than a Capitalized Lease)
wherein the lessee is treated (or purported to be treated) as the owner of the
leased property for income tax purposes, including the Synthetic Lease Facility.
"Synthetic Lease Facility" means the $80,000,000 Synthetic Lease
facility evidenced by that certain Amended and Restated Participation Agreement
dated as of October 7, 1996, as amended by that certain Amendment to Amended and
Restated Participation Agreement dated as of January 31, 1997, that certain
Second Amendment to Amended and Restated Participation Agreement dated as of
March 7, 1997, and that certain Third Amendment to Amended and Restated
Participation Agreement and Amendment to Other Operative Documents dated as of
October 9, 1997, as amended as of the date hereof (as the same may be further
amended, modified or supplemented from time to time, the "Participation
Agreement") and other Operative Documents (as defined in the Participation
Agreement).
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"Tax" means any federal, state, local or foreign tax assessment or
other governmental charge or levy (including any withholding tax) upon a Person
or upon its assets, revenues, income or profits.
"Tax Sharing Agreement" means that certain Amended and Restated Tax
Sharing Agreement, dated as of October 9, 1997, among Genesis and its
Subsidiaries, as such agreement may be supplemented, from time to time, in
accordance with the terms of this Agreement.
"Tender Offer" means Genesis ElderCare Acquisition Corp.'s offer to
purchase the outstanding common shares of Multicare as contained in its "Offer
to Purchase for Cash All Outstanding Shares of Common Stock of the Multicare
Companies," dated June 20, 1997, as extended from time to time.
"Term Loans" means collectively the Tranche A Term Loans, the Tranche B
Term Loans and the Tranche C Term Loans.
"Third Party Claims" has the meaning set forth in Section 12.12 hereof.
"Third Party Payor Arrangements" means any and all arrangements with
Medicare, Medicaid, CHAMPUS, and any other Governmental Authority, or
quasi-public agency, Blue Cross, Blue Shield, any and all managed care plans and
organizations, including but not limited to HMOs and preferred provider
organizations, private commercial insurance companies, employee assistance
programs and/or any other third party arrangements, plans or programs for
payment or reimbursement in connection with health care services, products or
supplies.
"Total Funded Indebtedness" means the aggregate amount of consolidated
Indebtedness (including the current portion thereof) of Genesis and its
Restricted Subsidiaries (including all Indebtedness consisting of Capitalized
Lease Obligations, Synthetic Leases, Guaranties and letter of credit
reimbursement obligations).
"TPG" means TPG Partners II, L.P., a Delaware limited partnership and
(a) any Subsidiary thereof and (b) any other Affiliate thereof reasonably
acceptable to the Administrative Agent. Without limiting the generality of the
foregoing, "TPG" includes TPG Parallel II, L.P., TPG Investors II, L.P., TPG
Coinvestment, L.P.
"Tranche" means the designation of a Loan as an RC Loan, a Tranche II
Revolver Loan, a Tranche A Term Loan, a Tranche B Term Loan or a Tranche C Term
Loan and the designation of the related Commitment as an RC Commitment, a
Tranche II Revolver Commitment, a Tranche A Commitment, a Tranche B Commitment
or a Tranche C Commitment, as applicable.
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"Tranche A Commitment" means, (1) with respect to any Tranche A Lender,
(a) at any time on or prior to the Closing Date, (i) the amount set forth
opposite such Lender's name under the heading "Tranche A Commitment" on Schedule
1.1 hereto or, in the case of a Lender that becomes a Lender pursuant to an
assignment, the amount of the assignor's Tranche A Commitment assigned to such
Lender, in either case as the same may be increased or reduced from time to time
pursuant to assignments in accordance with Section 12.9 or (ii) as the context
may require, the obligation of such Lender to make Tranche A Loans in an
aggregate unpaid principal amount not exceeding such amount, and (b) thereafter,
zero and (2) with respect to all Tranche A Lenders, the sum of each Lender's
Tranche A Commitment.
"Tranche A Lender" means (a) any Lender with a "Tranche A Commitment"
designated on Schedule 1.1 hereto and (b) any Person that is assigned any or all
of the rights or obligations of a Tranche A Lender with respect to its Tranche A
Commitment or Tranche A Term Loans, from time to time, pursuant to Section 12.9.
"Tranche A Maturity Date" means September 30, 2003.
"Tranche A Term Loan" has the meaning ascribed to that term in Section
1.1 of this Agreement.
"Tranche A Term Note" means each promissory note of the Borrowers
issued to a Tranche A Lender relating to such Lender's Tranche A Loans and
Tranche A Commitment, substantially in the form of Exhibit A-2 hereto, together
with any allonges thereto from time to time and any promissory note issued in
substitution therefor pursuant to the terms hereof, together with all
extensions, renewals, refinancings or refundings thereof in whole or part, in
each case as the same may be amended, modified, restated or supplemented from
time to time.
"Tranche B Commitment" means, (1) with respect to any Tranche B Lender,
(a) at any time on or prior to the Closing Date, (i) the amount set forth
opposite such Lender's name under the heading "Tranche B Commitment" on Schedule
1.1 hereto or, in the case of a Lender that becomes a Lender pursuant to an
assignment, the amount of the assignor's Tranche B Commitment assigned to such
Lender, in either case as the same may be increased or reduced from time to time
pursuant to assignments in accordance with Section 12.9 or (ii) as the context
may require, the obligation of such Lender to make Tranche B Term Loans in an
aggregate unpaid principal amount not exceeding such amount, and (b) thereafter,
zero and (2) with respect to all Tranche B Lenders, the sum of each Lender's
Tranche B Commitment.
"Tranche B Lender" means (i) any Lender with a "Tranche B Commitment"
designated on Schedule 1.1 hereto and (ii) any Person that is assigned any or
all of the rights or obligations of a Tranche B Lender with respect to its
Tranche B Commitment or Tranche B Term Loans, from time to time, pursuant to
Section 12.9.
"Tranche B Maturity Date" means September 30, 2004.
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"Tranche B Opt-Out Lender" has the meaning ascribed to such term in
Section 1.5 hereof.
"Tranche B Term Loan" has the meaning ascribed to that term in Section
1.1 of this Agreement.
"Tranche C Commitment" means (1) with respect to any Tranche C Lender,
(a) at any time on or prior to the Closing Date, (i) the amount set forth
opposite such Lender's name under the heading "Tranche C Commitment" on Schedule
1.1 hereto or, in the case of a Lender that becomes a Lender pursuant to an
assignment, the amount of the assignor's Tranche C Commitment assigned to such
Lender, in either case as the same may be increased or reduced from time to time
pursuant to assignments in accordance with Section 12.9 or (ii) as the context
may require, the obligation of such Lender to make Tranche C Term Loans in an
aggregate unpaid principal amount not exceeding such amount, and (b) thereafter,
zero and (2) with respect to all Tranche C Lenders the sum of each Lender's
Tranche C Commitment.
"Tranche C Lender" means (i) any Lender with a "Tranche C Commitment"
designated on Schedule 1.1 hereto and (ii) any Person that is assigned any or
all of the rights or obligations of a Tranche C Lender with respect to its
Tranche C Commitment or Tranche C Term Loans, from time to time, pursuant to
Section 12.9.
"Tranche C Maturity Date" means June 1, 2005.
"Tranche C Opt-Out Lender" has the meaning ascribed to such term in
Section 1.5 above.
"Tranche C Term Loan" has the meaning ascribed to that term in Section
1.1 of this Agreement.
"Tranche II Revolver Effective Date" means the date that each of the
conditions to the obligation of the Tranche II Revolver Lenders to make the
initial Tranche II Revolver Loans is satisfied or waived by such Lenders.
"Tranche II Revolver Commitment" means, with respect to any Tranche II
Revolver Lender, the amount of its commitment to extend Tranche II Revolver
Loans.
"Tranche II Revolver Lender" means any Lender that agrees to make
Tranche II Revolver Loans, from time to time.
"Tranche II Revolver Loans" has the meaning ascribed to such term in
Section 1.1 of this Agreement.
"Transaction Documents" means each of the material documents as the
same exist on the Closing Date respecting (i) the Tender Offer, (ii) the
proposed merger between Genesis ElderCare Acquisition Corp. and Multicare, (iii)
the relationship between Genesis, Cypress, Nazem and TPG and the rights and
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obligations relating thereto and (iv) related matters including the Put/Call
Agreement, the Stockholders Agreement respecting Genesis ElderCare Corp., the
Merger Agreement and the Multicare Management Agreement.
"Type" means with respect to Loans, any of the following, each of which
shall be deemed to be a different "Type" of Loan: Prime Rate Loans, LIBO Rate
Loans having a one-month Interest Period commencing on a specified date, LIBO
Rate Loans having a two-month Interest Period commencing on a specified date,
LIBO Rate Loans having a three-month Interest Period and LIBO Rate Loans having
a six-month Interest Period commencing on a specified date.
"United States Person" has the meaning ascribed to such term in Section
1.13 hereof.
"Vitalink" means Vitalink Pharmacy Services, Inc., a Delaware
corporation.
"Vitalink Merger" means the merger contemplated in and consummated in
accordance with the Vitalink Merger Agreement.
"Vitalink Merger Agreement" means the Agreement and Plan of Merger,
dated as of April 26, 1998, as amended as of July 7, 1998, among Vitalink,
Genesis and V Acquisition Corporation, a Delaware corporation.
"Withdrawal Liability" has the meaning given to such term in ss.4201 of
ERISA.
11.2 CONSTRUCTION. In this Agreement and each other Loan Document,
unless the context otherwise clearly requires,
(a) references to the plural include the singular, the singular the
plural and the part the whole;
(b) "or" has the inclusive meaning represented by the phrase "and/or;"
(c) the terms "property" and "assets" each include all properties and
assets of any kind or nature, tangible or intangible, real, personal or mixed,
now existing or hereafter acquired;
(d) the words "hereof," "herein" and "hereunder" (and similar terms) in
this Agreement or any other Loan Document refer to this Agreement or such other
Loan Document, as the case may be, as a whole and not to any particular
provision of this Agreement or such other Loan Document;
(e) the words "includes" and "including" (and similar terms) in this
Agreement or any other Loan Document mean "includes, without limitation" and
"including, without limitation," respectively whether or not stated; and
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(f) references to "determination" (and similar terms) by any Lender
Party include good faith estimates by such Lender Party (in the case of
quantitative determinations) and good faith beliefs by such Lender Party (in the
case of qualitative determinations).
No doctrine of construction of ambiguities in agreements or instruments against
the interests of the party controlling the drafting thereof shall apply to this
Agreement or any other Loan Document. The section and other headings contained
in this Agreement and in each other Loan Document, and any tables of contents
contained herein or therein, are for reference purposes only and shall not
affect the construction or interpretation of this Agreement or such other Loan
Document in any respect. Whenever this Agreement requires the delivery of
financial projections, it is understood that the projections shall be made in
good faith, consistent with the Loan Documents and based on Genesis' reasonable
judgment as to the anticipated financial performance and results of operations.
However, any such financial projections shall not constitute a representation or
warranty that such future financial performance or results of operations will in
fact be achieved.
11.3 ACCOUNTING PRINCIPLES.
(a) As used herein, "GAAP" shall mean generally accepted accounting
principles (other than as set forth herein as to consolidation) in the United
States, applied on a basis consistent with the principles used in preparing the
financial statements of Genesis and its consolidated Subsidiaries as of
September 30, 1996 and for the fiscal year then ended. When the word
"consolidated" is used in this Agreement, it shall be used in a manner
consistent with generally accepted accounting principles in the United States
except that such principles relating to what entities shall be consolidated
shall be superseded by any terms of this Agreement which designate what entities
shall be consolidated for purposes relating hereto.
(b) Except as otherwise provided in this Agreement, all computations
and determinations as to accounting or financial matters shall be made, and all
financial statements to be delivered pursuant to this Agreement shall be
prepared, in accordance with GAAP and all accounting or financial terms shall
have the meanings ascribed to such terms by GAAP.
ARTICLE 12
MISCELLANEOUS
12.1 NOTICES. Unless otherwise expressly provided under this Agreement
all notices, requests, demands, directions and other communications
(collectively "notices") given to or made upon any party under the provisions of
this Agreement (and unless otherwise specified, in each other Loan Document)
shall be by telephone (immediately confirmed in writing) or in writing
(including facsimile communication) and if in writing shall be delivered by
hand, nationally recognized overnight courier or U.S. mail or sent by facsimile
to the respective parties at the addresses and numbers set forth under their
respective names on the signature pages of this Agreement or in accordance with
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any subsequent unrevoked written direction from any party to the others. All
notices shall, except as otherwise expressly provided in this Agreement, be
effective (a) in the case of facsimile, when received, (b) in the case of
hand-delivered notice, when hand delivered, (c) in the case of telephone, when
telephoned, provided, however, that in order to be effective unless otherwise
expressly provided, telephonic notices must be confirmed in writing no later
than the next day by letter or facsimile, (d) if given by U.S. mail, the day
after such communication is deposited in the mails with overnight first class
postage prepaid, return receipt requested, and (e) if given by any other means
(including by air courier), when delivered; provided, further, that notices to
the Administrative Agent shall not be effective until received. Any Lender
giving any notice to the Borrowers shall simultaneously send a copy of such
notice to the Administrative Agent, and the Administrative Agent shall promptly
notify the other Lenders of the receipt by it of any such notice. Except as
otherwise provided in this Agreement, in the event of a discrepancy between any
telephonic or written notice, the written notice shall control.
12.2 PRIOR UNDERSTANDINGS; ENTIRE AGREEMENT. This Agreement and the
other Loan Documents supersede all prior and contemporaneous understandings and
agreements, whether written or oral, among the parties hereto relating to the
transactions provided for herein and therein except as expressly provided
otherwise (e.g., certain fee agreements and fee arrangements set forth in the
commitment letter relating hereto and indemnification and other payment
obligations under the Existing Credit Agreement). This Agreement and the other
Loan Documents represent the entire agreement between the parties to this
Agreement with respect to the transactions contemplated hereby or thereby and,
except as expressly provided herein or in the other Loan Documents, shall not be
affected by reference to any other documents not incorporated herein.
Notwithstanding the foregoing, (a) the authorizations and waivers set forth in
the various amendments and waivers to the Third Amended and Restated Credit
Agreement, remain in full force and effect (including, without limitation,
certain waivers respecting compliance with Section 6.12 (Interest Rate Hedging
Agreements)) and (b) this Agreement and the other Loan Documents shall not
eliminate any liability of the Borrowers under, arising out of, or in connection
with the various amendments and waivers to the Third Amended and Restated Credit
Agreement or any other agreements, documents certificates or instruments
delivered in connection therewith.
12.3 SEVERABILITY. Every provision of this Agreement and each of the
other Loan Documents is intended to be severable, and if any term or provision
of this Agreement or any of the other Loan Documents shall be invalid, illegal
or unenforceable for any reason, the validity, legality and enforceability of
the remaining provisions shall not be affected or impaired thereby, and any
invalidity, illegality or unenforceability in any jurisdiction shall not affect
the validity, legality or enforceability of any such term or provision in any
other jurisdiction. If any provision of this Agreement shall be held invalid or
unenforceable in whole or in part in any jurisdiction, this Agreement shall, as
to such jurisdiction, be deemed amended to modify or delete, as necessary, the
offending provision or provisions and to alter the bounds thereof in order to
render it or them valid and enforceable to the maximum extent permitted by
applicable Law, without in any manner affecting the validity or enforceability
of such provision or provisions in any other jurisdiction or the remaining
provisions hereof in any jurisdiction.
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12.4 DESCRIPTIVE HEADINGS. The descriptive headings of the several
sections of this Agreement are inserted for convenience only and shall not
affect the meaning or construction of any of the provisions of this Agreement.
12.5 GOVERNING LAW. This Agreement and the rights and obligations of
the parties under this Agreement and under the other Loan Documents shall be
construed in accordance with and shall be governed by the laws of the
Commonwealth of Pennsylvania.
12.6 NON-MERGER OF REMEDIES. The covenants and obligations of the
Borrowers and the rights and remedies of the Administrative Agent and other
Lender Parties hereunder and under the other Loan Documents shall not merge with
or be extinguished by the entry of a judgment hereunder or thereunder, and such
covenants, obligations, rights and remedies shall survive any entry of a
judgment until payment in full of the Loan Obligations and termination of the
Commitment. All obligations under the Loan Documents shall continue to apply
with respect to and during the collection of amounts due under the Loan
Documents or the proof and allowability of any claim arising under this
Agreement or any other Loan Document, whether in bankruptcy or receivership
proceedings or otherwise, and in any workout, restructuring or in connection
with the protection, preservation, exercise or enforcement of any of the terms
of this Agreement or of any rights under this Agreement or under any other Loan
Document or in connection with any foreclosure, collection or bankruptcy
proceedings. Without limiting the generality of the foregoing, post-judgment
interest rate shall be the interest rate provided in paragraph (d) of Section
1.8 (Default Rate) above.
12.7 NO IMPLIED WAIVER; CUMULATIVE REMEDIES. No course of dealing and
no delay or failure of the Administrative Agent or any other Lender Party in
exercising any right, power or privilege under this Agreement or any other Loan
Document shall affect any other or future exercise thereof or exercise of any
other right, power or privilege; nor shall any single or partial exercise of any
such right, power or privilege or any abandonment or discontinuance of steps to
enforce such a right, power or privilege preclude any further exercise thereof
or of any other right, power or privilege. The rights and remedies of the
Administrative Agent and the other Lender Parties under this Agreement and any
other Loan Document are cumulative and not exclusive of any rights or remedies
which the Administrative Agent or any other Lender Party would otherwise have
hereunder or thereunder, at law, in equity or otherwise. Any waiver of a
specific default made in accordance with Section 12.8 below shall be effective
only as to such specific default and shall not apply to any subsequent default.
12.8 AMENDMENTS; WAIVERS. Any term, covenant, agreement or condition of
any Loan Document to which the Lenders (or the Administrative Agent) are party
may be amended, and any right under the Loan Documents may be waived, if, but
only if, such amendment or waiver is in writing and is signed by the Required
Lenders (or by the Administrative Agent at the direction of the Required
Lenders); provided, however, if the rights and duties of the Administrative
Agent are affected thereby, such amendment or waiver must be executed by the
Administrative Agent; and provided, further, that any amendment or waiver of the
terms of Article 3 hereof or any other amendment or waiver that relates to
Letters of Credit or rights or obligations relating thereto or the rights or
obligations of the Issuer must also be executed by the Issuer (and any
amendments to any Letter of Credit, itself, need only be approved by the
Borrowers and the Issuer); and provided, further, that no such amendment or
waiver shall be effective unless in writing and signed by each Lender referred
to below, if it would
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(a) increase such Lender's Commitment or the outstanding amount of such
Lender's Loans or Letters of Credit Participations; or
(b) extend the final maturity of any Loan held by such Lender or the
time of any scheduled principal payment of any Loan of such Lender; or
(c) decrease the rate of interest or amount of fees due to such Lender
or decrease the principal amount in respect of any Loan of such Lender or extend
the time of payment of interest or fees due to such Lender, provided that the
written consent of the Required Lenders, rather than the consent of all Lenders,
shall be sufficient to waive imposition of the Default Rate; or
(d) reduce or waive any payment owing to such Lender in respect to any
unreimbursed Drawings; or
(e) change the number of Lenders which are required to consent to any
proposed action under this Agreement before such action may be taken under this
Agreement if such change could cause such Lender to lose its right to
participate in such consent;
and provided, further, that no such amendment or waiver shall be effective
unless in writing and signed by all the Lenders if it would
(i) amend the definition of "Required Lenders" or
(ii) release any Borrower of its Obligations or release any guaranty or
collateral security granted pursuant to the Loan Documents;
provided, however, the Administrative Agent shall (or may direct the
Collateral Agent to), without the consent of any Person, release any
Borrower, guarantor or collateral security granted pursuant to the Loan
Documents (1) as a court of competent jurisdiction may direct, or (2)
in connection with a disposition permitted under Section 8.5 above
(other than a disposition to another Borrower) or as may be otherwise
provided under the Loan Documents, or (3) in connection with the
release of record of any security interest which was granted pursuant
to the Existing Credit Agreement or predecessor thereto and provided,
further, that no amendment or waiver of any terms of this Agreement or
any other Loan Document shall be made without the consent of such
Secured Parties as are required by the terms of the Collateral Agency
Agreement, and provided, further, that for purposes of determining
whether "all Lenders," "the Required Lenders" or "any Lender" has
consented to any amendment or waiver, no effect shall be given to the
determination of any Lender who has lost its right to vote pursuant to
Sections 1.3(c), 1.3(e)(ii) or 1.6(e) above and provided, further, any
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amendment to cash collateral documents or cash management documents
that may be entered into may be amended by the Collateral Agent without
the Required Lenders. Without limiting the generality of the foregoing,
the Administrative Agent is authorized and directed to take such action
as it deems necessary or desirable (including, without limitation, the
execution and filing of UCC-3 termination statements or the giving of
direction to another Person to do the same) to release any security
interest referred to in the proviso to this clause (ii),
and provided, further, that in order to amend any agreement or other writing
referred to in Section 1.1(c) (Tranche II Revolver Loans) above or to waive any
terms or conditions thereof, including without limitation any mandatory
prepayment of the Tranche II Revolver Loans, only the Borrowers, the
Administrative Agent and the Tranche II Revolver Lenders (or so many of such
Tranche II Revolver Lenders as is specified in such writing) shall be required
to amend such writing, provided, however, that the aggregate amount of the
Tranche II Revolver Commitments may not be increased above $40,000,000.00
without the consent of the Required Lenders and the consents of the Tranche II
Revolver Lenders as set forth in the agreement referred to in Section 1.1(c).
Further, the Administrative Agent and the Lenders may amend or modify the
provisions of Article 10 hereof (except for Section 10.9 (Successor
Administrative Agent) and paragraph (b) of Section 10.12 (Other Agents)) and
Article 10A hereof without the need for any consent or approval from the
Borrowers, it being acknowledged that the Borrowers are not third party
beneficiaries of the provisions of said Article 10 (except for Section 10.9
(Successor Administrative Agent) and paragraph (b) of Section 10.9 (Successor
Administrative Agent)) or Article 10A; and without the consent of any Lenders,
the Administrative Agent may enter into amendments and modifications to this
Agreement and the other Loan Documents as necessary or desirable to cure any
ambiguities herein or therein or to add additional Borrowers or add additional
Collateral.
Reference is also made to Article 10A of the Multicare Credit Agreement
which affects the right of the parties hereto to amend certain provisions set
forth in Section 12.9 below without the consent of certain Lenders party
thereto; accordingly, when amending Section 12.9 below, consideration shall be
given to the provisions of said Section 10A of the Multicare Credit Agreement.
Finally, reference is also made to Section 2.5 of the Collateral Agency
Agreement which affects the right of the parties hereto to amend Articles 6, 7
and 8; accordingly, when amending those Articles, consideration shall be given
to such provisions in the Collateral Agency Agreement.
12.9 SUCCESSORS AND ASSIGNS.
(a) Assignments by the Borrowers. Without the prior written consent of
all of the Lenders, no Borrower may assign any of its rights or delegate any of
its duties or obligations under this Agreement or any other Loan Document.
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(b) Participations. Any Lender or the Issuer may sell participations to
one or more Eligible Institutions of all or a portion of its rights and
obligations under this Agreement (including, without limitation, all or a
portion of its Commitment); provided, however, that, with respect to any Lender,
(i) such Lender's obligations under this Agreement shall remain unchanged, (ii)
such Lender shall remain solely responsible to the other parties to this
Agreement for the performance of such obligations, (iii) all amounts payable by
the Borrowers under this Agreement shall be determined as if such transferor
Lender had not sold such participation and no participant shall be entitled to
receive any greater amount pursuant to this Agreement than the transferor Lender
would have been entitled to receive in respect of the amount of the
participation transferred by such transferor Lender to such participant had no
such transfer occurred, (iv) such participant shall agree to be bound by the
provisions of this Agreement and the other Loan Documents, (v) with respect to
any sale of a participation in any Tranche hereunder except with respect to any
interest in RC Loans and RC Commitments and except with respect to Tranche II
Revolver Loans and Tranche II Revolver Commitments, such Lender shall
contemporaneously sell to the same participant a proportionately equal amount of
its interest in the same Tranche under the Multicare Credit Agreement and (vi)
the Borrowers, the Administrative Agent and the other Lenders shall continue to
deal solely and directly with such transferor Lender in connection with such
Lender's rights and obligations under this Agreement, and such Lender shall
retain the sole rights and responsibility vis-a-vis the Borrowers to enforce the
obligations of the Borrowers relating to the Loans and Letters of Credit
including the right to approve any amendment, modification or waiver of any
provision of this Agreement (except that such Lender may give its participants
the right to direct such Lender to approve or disapprove any amendment,
modification or waiver which would require such Lender's consent under clause
(a) (b), (c), of the preceding Section 12.8).
(c) Assignments by Lenders. Except to the extent that any assignments
of Tranche II Revolver Loans may be governed by the provisions of the agreement
or other writing referenced in Subsection 1.1(c) (Tranche II Revolver Loans)
above, each Lender and the Issuer may assign to one or more Eligible
Institutions all or a portion of its interest, rights and obligations under this
Agreement (including all or a portion of its Commitment) and the other Loan
Documents; provided, however, that with respect to any assignment,
(i) unless the assignee is (prior to the effective time of the
assignment) an existing Lender or the Issuer or an Affiliate of an existing
Lender or the Issuer, the Administrative Agent and, if no Event of Default has
occurred and is continuing, Genesis (on behalf of the Borrowers) must give their
prior written consents to such assignment (which consents shall not be
unreasonably withheld),
(ii) the parties to each such assignment shall execute and deliver to
the Administrative Agent and, unless an Event of Default has occurred and is
continuing, Genesis (on behalf of the Borrowers), for their acceptance, an
Assignment and Acceptance Agreement in substantially the form attached hereto as
Exhibit I (an "Assignment and Acceptance"), together with (A) any Note subject
to such assignment and (B) a processing and recordation fee of $3,500.00 (or
such lesser amount as is required for the Administrative Agent to receive an
aggregate amount equal to $3,500.00 under this Agreement and the Multicare
Credit Agreement in respect of such transfer),
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(iii) no Lender may make a partial assignment if the amount of its
portion of the Commitment and (without duplication) the outstanding Loans and
Letter of Credit Participations, together with the amount of its interest under
the Multicare Credit Agreement assigned in accordance with clause (v) below, is,
or after giving effect to the proposed assignment would be, less than Five
Million Dollars ($5,000,000.00),
(iv) unless the assignee is (prior to the effective time of the
assignment) the Issuer or a Lender hereunder, the aggregate amount of any
interest so sold to any assignee pursuant to any partial assignment hereunder,
together with the aggregate amount so sold to such assignee in accordance with
clause (v) below, may not be less than Five Million Dollars ($5,000,000.00), and
(v) with respect to any assignment of an interest in any Tranche
hereunder except with respect to any interest in RC Loans and RC Commitments,
the assignor Lender shall contemporaneously assign to the same assignee a
proportionately equal amount of its interest in the same Tranche under the
Multicare Credit Agreement.
The requirements set forth in paragraphs (iii) and (iv) above and the
requirement as to an assignee being an Eligible Institution shall not apply to
certain assignments approved by the Administrative Agent and Genesis (on behalf
of the Borrowers) prior to the Closing Date.
"Partial assignment" as used in clauses (iii) and (iv) above means any
assignment of a Lender's rights and obligations hereunder except an assignment
of all of such Lender's rights and obligations such that after the assignment
such Lender shall have no Commitment and no interest in any Loans or Letters of
Credit hereunder. Upon compliance with clauses (i) through (v) above, from and
after the effective date specified in the relevant Assignment and Acceptance,
(1) the assignee shall be a party to this Agreement and the other Loan
Documents, and to the extent provided in such Assignment and Acceptance, have
the rights and obligations of a Lender under this Agreement and under the other
Loan Documents and (2) the assigning Lender shall, to the extent provided in
such Assignment and Acceptance, be released from its obligations under this
Agreement and the other Loan Documents.
(d) Procedures Respecting Assignment. Upon their receipt of an
Assignment and Acceptance executed by the assignor and the assignee, subject to
the conditions set forth in the preceding paragraph (c), the Administrative
Agent and (unless an Event of Default shall have occurred and be continuing)
Genesis (on behalf of the Borrowers) shall accept such Assignment and
Acceptance. If the subject assignment is of an interest in the Tranche A
Commitment and Tranche A Term Loan and/or RC Commitment and RC Loans, within
thirty (30) days after such Assignment and Acceptance is signed and accepted by
all parties and made effective, the Borrowers, at their own expense, shall
execute and deliver to the Administrative Agent new Notes in exchange for the
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surrendered Notes, each to the order of such assignee in an amount equal to its
portion of the Commitment and Loans assigned to it pursuant to such Assignment
and Acceptance and new Notes to the order of the assigning Lender in an amount
equal to the Commitment and Loans retained by it. Such Notes shall be in an
aggregate principal amount equal to the aggregate principal amount of such
surrendered Notes, shall be dated the date of such surrendered Notes (each
assignee shall confirm in the Assignment and Acceptance that, notwithstanding
the date of the new Notes made in favor of such assignee, such assignee shall
have no right to, or interest in, any fees or interest which shall have accrued
on the Loans prior to the effective date of the Assignment and Acceptance).
Cancelled or replaced Notes shall be returned to the Borrowers upon the
execution of such new Notes.
(e) Assignments to Federal Reserve Bank. Notwithstanding any of the
terms of this Section 12.9 without the consent of the Administrative Agent and
the Borrowers, (i) any Lender may assign all or any portion of its rights to
payments in connection with this Agreement to a Federal Reserve Bank as
collateral in accordance with Regulation A of the Board of Governors of the
Federal Reserve System and (ii) in the case of any Lender that is a fund, any
such Lender may collaterally assign or pledge any portion of its Loans (other
than RC Loans) and its Notes (other than RC Notes) to its trustee (if such
trustee is an Eligible Institution) in support of its obligations to such
trustee, provided, however, that before any other transfer may be made to such
trustee (whether as a result of such collateral assignment or pledge or
otherwise) the conditions of paragraphs (c) and (d) above must be satisfied.
Such assignment shall not affect any other rights or any obligations of the
assigning Lender.
12.10 COUNTERPARTS; PHOTOCOPIED OR TELECOPIED SIGNATURE PAGES. Any Loan
Document may be executed in one or more counterparts, each of which shall
constitute an original, but all of which together shall constitute one and the
same instrument. Delivery of a photocopy or telecopy of an executed counterpart
of a signature page to any Loan Document shall be as effective as delivery of a
manually executed counterpart of such Loan Document.
12.11 MAXIMUM LAWFUL INTEREST RATE. Notwithstanding any provision
contained in this Agreement or the Notes or any other Loan Document, the total
liability of the Borrowers for payment of interest pursuant to this Agreement
and the Notes shall not exceed the maximum amount of such interest permitted by
Law to be charged, collected, or received from the Borrowers, and if any payment
by the Borrowers includes interest in excess of such a maximum amount, each
Lender shall apply such excess to the reduction of the unpaid principal amount
due pursuant to this Agreement and the Notes, or if none is due, to the other
Loan Obligations, if any, and then such excess shall be refunded to Genesis (on
behalf of the Borrowers).
12.12 INDEMNIFICATION.
(a) Whether or not any fundings are made under this Agreement, the
Borrowers jointly and severally shall unconditionally upon demand, pay or
reimburse the Administrative Agent and other Lender Parties for, and indemnify
and save the Administrative Agent, the other Lender Parties and their respective
Affiliates, officers, directors, employees, agents, attorneys, shareholders and
consultants (collectively, "Indemnitees") harmless from and against, any and all
losses, liabilities, claims, damages, expenses, obligations, penalties, actions,
judgments, suits, costs or disbursements of any kind or nature whatsoever
(including the fees and disbursements of counsel for such Indemnitee in
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connection with any investigative, administrative or judicial proceeding
commenced or threatened, whether or not such Indemnitee shall be designated a
party thereto) that may at any time be imposed on, asserted against or incurred
by such Indemnitee as a result of, or arising out of, or in any way related to
or by reason of, this Agreement or any other Loan Document, the Existing Credit
Agreement or any "Loan Document" referred to therein, the Tender Offer, any
Acquisition or transaction from time to time contemplated hereby or by any other
Loan Document, or any transaction actually or proposed to be financed in whole
or in part or directly or indirectly with the proceeds of any Loan or Letter of
Credit, any transaction contemplated by the Transaction Documents but excluding
any such losses, liabilities, claims, damages, expenses, obligations, penalties,
actions, judgments, suits, costs or disbursements that the Borrower proves were
the result solely of the gross negligence or willful misconduct of such
Indemnitee, as finally determined by a court of competent jurisdiction. If and
to the extent that the foregoing obligations of the Borrowers under this
paragraph (a), or any other indemnification obligation of the Borrowers
hereunder or under any other Loan Document are unenforceable for any reason, the
Borrowers hereby agree, jointly and severally, to make the maximum contribution
to the payment and satisfaction of such obligations which is permissible under
applicable Law.
(b) Without limiting the generality of the foregoing, the Borrowers
jointly and severally hereby indemnify and agree to defend and hold harmless
each Indemnitee, from and against any and all claims, actions, causes of action,
liabilities, penalties, fines, damages, judgments, losses, suits, expenses,
legal or administrative proceedings, interest, costs and expenses (including
court costs and attorneys', consultants' and experts' fees) arising out of or in
any way relating to: (i) the use, handling, management, production, treatment,
processing, storage, transfer, transportation, disposal, release or threat of
release of any Environmental Concern Material by or on behalf of, any Borrower
or any of its Environmental Affiliates; (ii) the presence of Environmental
Concern Materials on, about, beneath or arising from any premises owned or
occupied by any Borrower or any of its Environmental Affiliates (herein
collectively, the "Premises"); (iii) the failure of any Borrower or
Environmental Affiliate of a Borrower or any occupant of any Premises to comply
with the Environmental Laws; (iv) any Borrower's breach of any of the
representations, warranties and covenants contained herein or in any Loan
Documents; (v) Regulatory Actions (as hereinafter defined) and Third Party
Claims (as hereinafter defined); or (vi) the imposition or recording of a Lien
against any Premises in connection with any release at, on or from any Premises
or any activities undertaken on or occurring at any Premises, or arising from
such Premises or pursuant to any Environmental Law. The Borrowers' indemnity and
defense obligations under this section shall include, whether foreseeable or
unforeseeable, any and all costs related to any remedial action. "Regulatory
Action" means any notice of violation, citation, complaint, request for
information, order, directive, compliance schedule, notice of claim, consent
decree, action, litigation or proceeding brought or instituted by any
governmental authority under or in connection with any Environmental Law
involving any Borrower or any occupant of any of the Premises or involving any
of the Premises or any activities undertaken on or occurring at any Premises.
"Third Party Claims" means claims by a party (other than a party to this
Agreement and other than Regulatory Actions) based on negligence, trespass,
strict liability, nuisance, toxic tort or detriment to human health or welfare
due to Environmental Concern Materials on, about, beneath or arising from any
Premises or in any way related to any alleged violation of any Environmental
Laws or any activities undertaken on or occurring at any Premises.
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(c) The indemnities contained herein shall survive repayment of the
Loan Obligations, termination of the Commitment and satisfaction, release, and
discharge of the Loan Documents, whether through full payment of the Loans,
foreclosure, deed in lieu of foreclosure or otherwise.
(d) The foregoing amounts are in addition to any other amounts which
may be due and payable to the Administrative Agent and/or the Lenders under this
Agreement. A certification by the Administrative Agent or a Lender hereunder of
the amount of liabilities, losses, costs, expenses, claims and/or charges shall
be conclusive, absent manifest error.
12.13 EXPENSES.
Whether or not there shall be any funding hereunder, the Borrowers
agree, jointly and severally, to pay promptly or cause to be paid promptly and
to hold harmless
(i) with respect to matters relating to clause (1) of this paragraph
(i), the Agents, and, with respect to clauses (2) and (3) of this paragraph (i),
the Administrative Agent (and after an Event of Default and for the period in
which the same shall continue, each Lender Party) against liability for the
payment of all reasonable out-of-pocket costs and expenses (including but not
limited to reasonable fees and expenses of counsel, including local counsel,
auditors, consulting engineers, appraisers, and all other professional,
accounting, evaluation and consulting costs) incurred by it from time to time
arising from or relating to (1) the negotiation, preparation, execution and
delivery of this Agreement and the other Loan Documents, (2) the administration
and performance of this Agreement and the other Loan Documents, and (3) any
requested amendments, modifications, supplements, waivers or consents (whether
or not ultimately entered into or granted) to this Agreement or any other Loan
Document;
(ii) the Administrative Agent (and, with respect to clause (4) of this
paragraph (ii) after an Event of Default and for the period in which the same
shall continue, each Lender Party) against liability for the payment of all
reasonable out-of-pocket costs and expenses (including but not limited to
reasonable fees and expenses of counsel, including local counsel, auditors,
consulting engineers, appraisers, and all other professional, accounting,
evaluation and consulting costs) incurred by it from time to time arising from
or relating to the enforcement or preservation of rights under, or
administration of, this Agreement or any other Loan Document (including but not
limited to any such costs or expenses arising from or relating to (1) the
creation, perfection or protection of any Lien on any Collateral, (2) the
protection, collection, lease, sale, taking possession of, preservation of, or
realization on, any Collateral, including advances for storage, insurance
premiums, transportation charges, taxes, filing fees and the like, (3)
collection or enforcement of an outstanding Loan Obligation, and (4) any
litigation, proceeding, dispute, work-out, restructuring or rescheduling related
in any way to this Agreement or the other Loan Documents); and
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(iii) each Lender Party against liability for all stamp, document,
transfer, recording, filing, registration, search, sales and excise fees and
taxes and all similar impositions now or hereafter determined by any Lender
Party to be payable in connection with this Agreement or any other Loan
Documents.
12.14 MAXIMUM AMOUNT OF JOINT AND SEVERAL LIABILITY. To the extent that
applicable Law otherwise would render the full amount of the joint and several
obligations of any Subsidiary of Genesis hereunder and under the other Loan
Documents invalid or unenforceable, such Borrower's obligations hereunder and
under the other Loan Documents shall be limited to the maximum amount which does
not result in such invalidity or unenforceability, provided, however, that each
Borrower's obligations hereunder and under the other Loan Documents shall be
presumptively valid and enforceable to their fullest extent in accordance with
the terms hereof or thereof, as if this Section 12.14 were not a part of this
Agreement.
12.15 AUTHORIZATION OF GENESIS BY OTHER BORROWERS.
(a) Each of the Borrowers hereby irrevocably authorizes Genesis to give
notices, make requests, make payments, receive payments and notices, give
receipts and execute agreements, make agreements or take any other action
whatever on behalf of such Borrower under and with respect to any Loan Document
and each Borrower shall be bound thereby. This authorization is coupled with an
interest and shall be irrevocable, and the Administrative Agent and each Lender
Party may rely on any notice, request, information supplied by Genesis, every
document executed by Genesis, every agreement made by Genesis or other action
taken by Genesis in respect of the Borrowers or any thereof as if the same were
supplied, made or taken by any or all Borrowers. Without limiting the generality
of the foregoing, the failure of one or more Borrowers to join in the execution
of any writing in connection herewith shall not, unless the context clearly
requires, relieve any such Borrower from obligations in respect of such writing.
(b) The Borrowers acknowledge that the credit provided hereunder is on
terms more favorable than any Borrower acting alone would receive and that each
Borrower benefits indirectly from all Loans and Letters of Credit hereunder.
Genesis and, subject only to the terms of the preceding paragraph (a), each of
the other Borrowers, shall be jointly and severally liable for all Loan
Obligations, regardless of, inter alia, which Borrower requested (or received
the proceeds of) a particular Loan or Letter of Credit.
12.16 ADMINISTRATIVE AGENT IN ITS INDIVIDUAL CAPACITY. With respect to
its Commitment hereunder and the Loan Obligations owing to it, the
Administrative Agent shall have the same rights and powers under this Agreement
and each other Loan Document as any other Lender and may exercise the same as
though it were not the Administrative Agent, and the terms "Lender," "Issuer,"
"Holders of Notes" and like terms shall include the Administrative Agent in its
individual capacity as such. The Administrative Agent and its Affiliates may,
without liability to account, make loans to, accept deposits from, acquire debt
or equity interests in, act as trustee under indentures of, enter into Interest
Rate Hedging Agreements with, serve as "Administrative Agent" for other
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financing vehicles, issue letters of credit on behalf of, and engage in any
other business with, (a) any Loan Party or any stockholder, Subsidiary or
Affiliate of any Loan Party or (b) any other Person, whether such other Person
may be engaged in any conflict or dispute with any Loan Party or any Lender
Party or otherwise, as though the Administrative Agent were not the
Administrative Agent hereunder.
12.17 CERTAIN WAIVERS BY BORROWERS. Each Borrower hereby waives
promptness, diligence, notice of acceptance and any other notice with respect to
any of the Loan Obligations and any requirement that any Lender Party protect,
secure, perfect or insure any Lien or any property subject thereto or exhaust
any right or take any action against any other Borrower or any other Person or
any collateral or other direct or indirect security for any of the Loan
Obligations. Without limiting the generality of the foregoing, each Borrower
acknowledges and agrees that the Administrative Agent or other Lender Party may
commence an action against such Borrower whether or not any action is brought
against any other Borrower or against any collateral and it shall be no defense
to any action brought against any Borrower that the Lender Parties have failed
to bring an action against any other Loan Party or any Collateral.
12.18 SET-OFF. The Borrowers hereby agree that, to the fullest extent
permitted by Law, if any Loan Obligation shall be due and payable (by
acceleration or otherwise), each Lender Party shall have the right, without
notice to any Borrower, to set-off against and to appropriate and apply to such
Loan Obligation any indebtedness, liability or obligation of any nature owing to
any Borrower by such Lender Party, including but not limited to all deposits now
or hereafter maintained by any Borrower with such Lender Party. Such right shall
exist whether or not such Lender Party or any other Person shall have given
notice or made any demand to any Borrower or any other Person. The Borrowers
hereby agree that, to the fullest extent permitted by Law, any participant and
any Affiliate of any Lender Party or any participant shall have the same rights
of set-off as a Lender Party as provided in this Section 12.18. The rights
provided by this Section 12.18 are in addition to all other rights of set-off
and banker's lien and all other rights and remedies which any Lender Party (or
any such participant, or Affiliate) may otherwise have under this Agreement, any
other Loan Document, at law or in equity, or otherwise.
12.19 SHARING OF COLLECTIONS. The following provisions in this Section
12.19 shall be subject to the provisions of Section 9.3 (Application of
Proceeds) above and the distribution provisions of the Collateral Agency
Agreement. The Lender Parties hereby agree among themselves that if any Lender
Party shall receive (by voluntary payment, realization upon security, charging
of accounts, set-off or from any other source) any amount on account of the Loan
Obligations in greater proportion than any such amount received by any other
Lender Party (based on the relative amount of each such Lender Party's interest
in the Loan Obligations), then the Lender Party receiving such proportionately
greater payment shall notify each other Lender Party and the Administrative
Agent of such receipt, and equitable adjustment will be made in the manner
stated in this Section 12.19 so that, in effect, all such excess amounts will be
shared ratably among all of the Lender Parties. The Lender Party receiving such
excess amount shall purchase (which it shall be deemed to have done
simultaneously upon the receipt of such excess amount) for cash from the other
Lender Parties a participation in the applicable Loan Obligations owed to such
other Lender Parties in such amount as shall result in a ratable sharing by all
Lender Parties of such excess amount (and to such extent the receiving Lender
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Party shall be a participant). If all or any portion of such excess amount is
thereafter recovered from the Lender Party making such purchase, such purchase
shall be rescinded and the purchase price restored to the extent of such
recovery, together with interest or other amounts, if any, required by Law to be
paid by the Lender Party making such purchase. The Borrowers hereby consent to
and confirm the foregoing arrangements. Each participant shall be bound by this
Section 12.19 as fully as if it were a Lender hereunder.
12.20 OTHER LOAN DOCUMENTS. Each Lender acknowledges that on signing
this Agreement is bound by the terms of the Collateral Agency Agreement and the
other Loan Documents. Without limiting the generality of the foregoing, each
Lender party to a Qualifying Interest Rate Hedging Agreement acknowledges that
it is familiar with the provisions set forth in Section 2.3 of the Collateral
Agency Agreement.
12.21 CERTAIN BORROWER ACKNOWLEDGEMENTS. Each Borrower hereby
acknowledges that neither the Administrative Agent nor any other Lender Party
has any fiduciary relationship with or fiduciary duty to any Borrower arising
out of or in connection with this Agreement or any of the other Loan Documents,
and the relationship between the Administrative Agent and the Other Lender
Parties on the one hand, and the Borrower, on the other hand, in connection
herewith or therewith is solely that of debtor and creditor.
12.22 CERTAIN LENDER PARTY ACKNOWLEDGEMENTS. Each Lender Party
acknowledges that it has no right to any interest in any capital stock of
Multicare in connection with this Agreement and the other Loan Document and,
should that right otherwise arise hereunder or under the other Loan Documents,
it is hereby waived.
12.23 CONSENTS AND APPROVALS OF SIGNING PARTIES. Each of the Lenders
agrees that its execution of this Agreement, in addition to indicating its
approval, as a Lender, of the terms hereof, shall be deemed (a) to serve as its
consent to the amendments effected hereby in its capacity as a participant in
the Synthetic Lease Facility, if applicable, in accordance with the terms of the
Collateral Agency Agreement and (b) to serve as a consent to the amendments of
Section 8.16 of the Multicare Credit Agreement pursuant to Amendment No. 4 to
the Multicare Credit Agreement dated as of the date hereof.
12.24 CONSENT TO JURISDICTION, SERVICE AND VENUE; WAIVER OF JURY TRIAL.
(a) Consent to Jurisdiction. For the purpose of enforcing payment and
performance of the Loan Documents, including, any payment under the Notes and
performance of other obligations under the Loan Documents, or in any other
matter relating to, or arising out of, the Loan Documents, each of the Borrowers
hereby consents to the jurisdiction and venue of the courts of the Commonwealth
of Pennsylvania or of any federal court located in such state, waive personal
service of any and all process upon it and consents that all such service of
process be made by certified or registered mail directed to Genesis (on behalf
of the applicable Borrowers) at the address provided for in Section 12.1 and
service so made shall be deemed to be completed upon actual receipt or execution
of a receipt by any Person at such address. Each of the Borrowers hereby waives
the right to contest the jurisdiction and venue of the courts located in the
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Commonwealth of Pennsylvania on the ground of inconvenience or otherwise and,
further, waives any right to bring any action or proceeding against (a) the
Administrative Agent in any court outside the Commonwealth of Pennsylvania, or
(b) any other Lender other than in a state within the United States designated
by such Lender. The provisions of this Section 12.23 shall not limit or
otherwise affect the right of the Administrative Agent or any other Lender Party
to institute and conduct an action in any other appropriate manner, jurisdiction
or court.
(b) WAIVER OF JURY TRIAL; DAMAGES. NEITHER ANY LENDER PARTY NOR ANY
LOAN PARTY, NOR ANY ASSIGNEE, SUCCESSOR, HEIR OR PERSONAL REPRESENTATIVE OF THE
FOREGOING SHALL SEEK A JURY TRIAL IN ANY PROCEEDING BASED UPON OR ARISING OUT OF
THIS AGREEMENT, OR ANY OTHER LOAN DOCUMENT, OR INVOLVING ANY COLLATERAL OR ANY
GUARANTY RELATING TO THE INDEBTEDNESS HEREUNDER OR THE RELATIONSHIP BETWEEN OR
AMONG SUCH PERSONS OR ANY OF THEM. NO SUCH PERSON WILL SEEK TO CONSOLIDATE ANY
SUCH ACTION WITH ANY OTHER ACTION IN WHICH A JURY TRIAL CANNOT BE OR HAS NOT
BEEN WAIVED. EXCEPT AS PROHIBITED BY LAW, EACH PARTY TO THIS AGREEMENT WAIVES
ANY RIGHTS IT MAY HAVE TO CLAIM OR RECOVER IN ANY LITIGATION REFERRED TO IN THIS
SECTION 12.23 ANY SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OR ANY
DAMAGES OTHER THAN, OR IN ADDITION TO, ACTUAL DAMAGES. EACH PARTY TO THIS
AGREEMENT (i) CERTIFIES THAT NEITHER THE ADMINISTRATIVE AGENT NOR ANY LENDER
PARTY NOR ANY REPRESENTATIVE OR ATTORNEY OF THE ADMINISTRATIVE AGENT OR ANY
LENDER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT THE ADMINISTRATIVE
AGENT OR SUCH LENDER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO
ENFORCE THE FOREGOING WAIVERS AND (ii) ACKNOWLEDGES THAT IT HAS BEEN INDUCED TO
ENTER INTO THIS AGREEMENT AND EACH OTHER LOAN DOCUMENT BY, AMONG OTHER THINGS,
THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS PARAGRAPH (b) OF SECTION 12.23.
THE PROVISIONS OF THIS SECTION 12.23 HAVE BEEN FULLY DISCLOSED TO THE PARTIES
AND THE PROVISIONS SHALL BE SUBJECT TO NO EXCEPTIONS. NO PARTY HAS IN ANY WAY
AGREED WITH OR REPRESENTED TO ANY OTHER PARTY THAT THE PROVISIONS OF THIS
SECTION 12.23 WILL NOT BE FULLY ENFORCED IN ALL INSTANCES.
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<PAGE>
IN WITNESS WHEREOF, the parties have caused this Agreement to
be duly executed as of the date first above written.
BORROWERS:
Genesis: GENESIS HEALTH VENTURES, INC.,
a Pennsylvania corporation
By____________________________
Name: Barbara J. Hauswald
Title: Treasurer
Address for notices:
101 East State Street
Kennett Square, PA 19348
Attention: Ira C. Gubernick, Vice President
Chairman's Office & Corporate
Secretary
Telephone: (610) 444-6350
Facsimile: (610) 444-3365
Restricted Subsidiaries:
<TABLE>
<S> <C>
BREVARD MERIDIAN LIMITED EASTON MERIDIAN LIMITED
PARTNERSHIP, PARTNERSHIP,
a Maryland limited partnership a Maryland limited partnership
By: Meridian Healthcare, Inc., By: Meridian Health, Inc.,
a Pennsylvania corporation, a Pennsylvania corporation, and
its sole general partner Meridian Healthcare, Inc., a Pennsylvania
corporation, its general partners
CARE4, L.P., a Delaware limited
partnership EDELLA STREET ASSOCIATES,
By: Institutional Health Care Services, a Pennsylvania limited partnership
Inc., a New Jersey corporation By: Genesis Health Ventures of
Clarks Summit, Inc., a Pennsylvania
CATONSVILLE MERIDIAN LIMITED corporation, its sole general partner
PARTNERSHIP,
a Maryland limited partnership GENESIS PROPERTIES LIMITED
By: Meridian Health, Inc., PARTNERSHIP,
a Pennsylvania corporation, a Pennsylvania limited partnership
one of its general partners By: Genesis Health Ventures
of Arlington, Inc., a Pennsylvania
corporation, its sole general partner
</TABLE>
<PAGE>
<TABLE>
<S> <C>
GREENSPRING MERIDIAN LIMITED MERIDIAN VALLEY LIMITED
PARTNERSHIP, PARTNERSHIP
a Maryland limited partnership a Maryland limited partnership
By: Meridian Healthcare, Inc., By: Meridian Healthcare, Inc.,
a Pennsylvania corporation, a Pennsylvania corporation,
its sole general partner its general partner
HALLMARK HEALTHCARE LIMITED MERIDIAN VALLEY VIEW LIMITED
PARTNERSHIP, PARTNERSHIP
a Maryland limited partnership a Maryland limited partnership
By: Pharmacy Equities, Inc., By: Meridian Healthcare, Inc.,
a Pennsylvania corporation a Pennsylvania corporation,
its general partner its general partner
HAMMONDS LANE MERIDIAN MILLVILLE MERIDIAN LIMITED
LIMITED PARTNERSHIP, PARTNERSHIP,
a Maryland limited partnership a Maryland limited partnership
By: Meridian Healthcare, Inc., By: Meridian Healthcare, Inc.,
a Pennsylvania corporation, a Pennsylvania corporation,
one of its general partners its sole general partner
MERIDIAN/CONSTELLATION PHILADELPHIA AVENUE
LIMITED PARTNERSHIP ASSOCIATES, a
a Maryland limited partnership Pennsylvania limited partnership
By: Meridian Healthcare, Inc., By: Philadelphia Avenue Corporation,
a Pennsylvania corporation, a Pennsylvania corporation, its
its general partner sole general partner
MERIDIAN EDGEWOOD LIMITED RIVER STREET ASSOCIATES, a
PARTNERSHIP Pennsylvania limited partnership
a Maryland limited partnership By: Genesis Health Ventures of
By: Meridian Healthcare, Inc., Wilkes-Barre, Inc., a Pennsylvania
a Pennsylvania corporation, corporation, its sole general partner
its general partner
SEMINOLE MERIDIAN LIMITED
MERIDIAN PERRING LIMITED PARTNERSHIP,
PARTNERSHIP a Maryland limited partnership
a Maryland limited partnership By: Meridian Health, Inc., a
By: Meridian Healthcare, Inc., Pennsylvania corporation, its
a Pennsylvania corporation, sole general partner
its general partner
STATE STREET ASSOCIATES, L. P., a
Pennsylvania limited partnership
By: State Street Associates, Inc.,
a Pennsylvania corporation,
its sole general partner
</TABLE>
<PAGE>
<TABLE>
<S> <C>
THERAPY CARE SYSTEMS, L.P. a By:________________________________
Pennsylvania limited partnership On behalf of each of the foregoing
By: Team Rehabilitation, Inc., as Treasurer of the general partner
a Pennsylvania corporation,
its sole general partner Address for notices:
VOLUSIA MERIDIAN LIMITED Suite 100
PARTNERSHIP, 101 East State Street
a Maryland limited partnership Kennett Square, PA 19348
By: Meridian Health, Inc., a
Pennsylvania corporation, Attention: Vice President, Chairman's
its sole general partner Office & Corporate Secretary
GENESIS PROPERTIES OF DELAWARE Telephone: 610-444-6350
LTD. PARTNERSHIP, L.P., Facsimile: 610-444-3365
a Delaware limited partnership
By: Genesis Properties of Delaware
Corporation, a Delaware corporation,
a general partner
McKERLEY HEALTH FACILITIES,
a New Hampshire general partnership
By: Meridian Health, Inc.,
a Pennsylvania corporation,
and Meridian Healthcare, Inc.,
a Pennsylvania corporation,
its general partners
GENESIS HEALTH VENTURES OF
WEST VIRGINIA, L.P., a Pennsylvania
limited partnership
By: Genesis Eldercare Network Services,
Inc., a Pennsylvania corporation, and
Genesis Eldercare Rehabilitation Services,
Inc., a Pennsylvania corporation,
its general partners
</TABLE>
<PAGE>
<TABLE>
<S> <C>
GENESIS HEALTH VENTURES OF GENESIS IMMEDIATE MED
ARLINGTON, INC., CENTER, INC.,
a Pennsylvania corporation a Pennsylvania corporation
GENESIS HEALTH VENTURES OF GENESIS ELDERCARE HOME CARE
BLOOMFIELD, INC., SERVICES, INC. (f/k/a HEALTHCARE
a Pennsylvania corporation SERVICES NETWORK, INC.)
a Pennsylvania corporation
GENESIS HEALTH VENTURES OF
CLARKS SUMMIT, INC., GENESIS ELDERCARE PHYSICIAN
a Pennsylvania corporation SERVICES, INC., (f/k/a GENESIS
PHYSICIAN SERVICES, INC.)
GENESIS HEALTH VENTURES OF a Pennsylvania corporation
MASSACHUSETTS, INC.,
a Pennsylvania corporation HEALTHCARE RESOURCES CORP.,
a Pennsylvania corporation
GENESIS HEALTH VENTURES OF
NAUGATUCK, INC., KNOLLWOOD MANOR, INC.,
a Pennsylvania corporation a Pennsylvania corporation
GENESIS HEALTH VENTURES OF MERIDIAN HEALTH, INC.,
SALISBURY, INC., a Pennsylvania corporation
a Pennsylvania corporation
MERIDIAN HEALTHCARE, INC.,
GENESIS HEALTH VENTURES OF a Pennsylvania corporation
WAYNE, INC.,
a Pennsylvania corporation PHILADELPHIA AVENUE CORPORATION,
a Pennsylvania corporation
GENESIS HEALTH VENTURES OF
WEST VIRGINIA, INC., GENESIS ELDERCARE STAFFING
a Pennsylvania corporation SERVICES, INC. (f/k/a STAFF
REPLACEMENT SERVICES, INC.)
GENESIS HEALTH VENTURES OF a Pennsylvania corporation
WINDSOR, INC.,
a Pennsylvania corporation STATE STREET ASSOCIATES, INC.,
a Pennsylvania corporation
GENESIS HEALTH VENTURES OF
INDIANA, INC.,
a Pennsylvania corporation
GENESIS HEALTH VENTURES OF
NEW GARDEN, INC.
a Pennsylvania corporation
GENESIS HEALTH VENTURES OF
POINT PLEASANT, INC.
a Pennsylvania corporation
</TABLE>
<PAGE>
<TABLE>
<S> <C>
SUBURBAN MEDICAL SERVICES, GENESIS HEALTH SERVICES
INC., a Pennsylvania corporation CORPORATION,
a Delaware corporation
GENESIS ELDERCARE
REHABILITATION GENESIS HEALTHCARE CENTERS
SERVICES, INC., (f/k/a TEAM HOLDINGS, INC.,
REHABILITATION, INC.) a Delaware corporation
a Pennsylvania corporation
GENESIS HOLDINGS, INC.,
THERAPY CARE, INC., a Delaware corporation
a Pennsylvania corporation
GENESIS PROPERTIES OF DELAWARE
THE TIDEWATER HEALTHCARE CORPORATION, a Delaware corporation
SHARED SERVICES GROUP, INC.,
a Pennsylvania corporation HILLTOP HEALTH CARE CENTER,
INC., a Delaware corporation
WYNCOTE HEALTHCARE CORP.,
a Pennsylvania corporation HORIZON MEDICAL EQUIPMENT
AND SUPPLY, INC., a West Virginia
ASCO HEALTHCARE, INC., corporation
a Maryland corporation
KEYSTONE NURSING HOME, INC.,
ACCUMED, INC., a Delaware corporation
a New Hampshire corporation
LINCOLN NURSING HOME, INC.,
BRINTON MANOR, INC., a Delaware corporation
a Delaware corporation
McKERLEY HEALTH CARE CENTERS,
COMPASS HEALTH SERVICES, INC., INC., a New Hampshire corporation
a West Virginia corporation
WAYSIDE NURSING HOME, INC.,
CONCORD HEALTHCARE a Delaware corporation
CORPORATION,
a Delaware corporation PROFESSIONAL PHARMACY
SERVICES, INC., a Maryland Corporation
CONCORD PHARMACY SERVICES,
INC., a Pennsylvania corporation MEDICAL SERVICES GROUP, INC.,
a Maryland Corporation
CRYSTAL CITY NURSING CENTER,
INC., a Maryland corporation NEIGHBORCARE PHARMACIES, INC.,
a Maryland Corporation
EASTERN MEDICAL SUPPLIES, INC.,
a Maryland corporation DERBY NURSING CENTER
CORPORATION, a Connecticut
ENCARE OF MASSACHUSETTS, INC., corporation
a Delaware corporation
</TABLE>
<PAGE>
<TABLE>
<S> <C>
GENESIS ELDERCARE NATIONAL GERI-MED CORP., a Pennsylvania
CENTERS, INC., (f/k/a NATIONAL corporation
HEALTH CARE AFFILIATES, INC.)
a Florida corporation GMS INSURANCE SERVICES, INC.,
a Pennsylvania corporation
GENESIS ELDERCARE NETWORK
SERVICES, INC., (f/k/a GENESIS GENESIS ELDERCARE HOSPITALITY
MANAGEMENT RESOURCES, INC.) SERVICES, INC. (f/k/a HCHS, INC.)
(f/k/a TOTAL CARE SYSTEMS, INC.) a Pennsylvania corporation
a Pennsylvania corporation
GENESIS ELDERCARE
GENESIS ELDERCARE PROPERTIES, TRANSPORTATION SERVICES, INC.
INC., a Pennsylvania corporation (f/k/a HSS-PARA TRANSIT, INC.
a Pennsylvania corporation
VERSALINK, INC., a Delaware
corporation INNOVATIVE PHARMACY SERVICES,
INC., a New Jersey corporation
GERIATRIC & MEDICAL COMPANIES,
INC., a Delaware corporation INSTITUTIONAL HEALTH CARE
SERVICES, INC., a New Jersey
GERIATRIC AND MEDICAL corporation
SERVICES, INC., a New Jersey
corporation LIFE SUPPORT MEDICAL, INC.,
a Pennsylvania corporation
GERIATRIC AND MEDICAL
INVESTMENTS CORPORATION, LIFE SUPPORT MEDICAL
a Delaware corporation EQUIPMENT, INC., a Pennsylvania
corporation
BURLINGTON WOODS
CONVALESCENT CENTER, INC. METRO PHARMACEUTICALS, INC.,
a New Jersey corporation a Pennsylvania corporation
CRESTVIEW CONVALESCENT HOME, NATIONAL PHARMACY SERVICE,
INC., a Pennsylvania corporation INC., a Pennsylvania corporation
CRESTVIEW NORTH, INC., NETWORK AMBULANCE SERVICES,
a Pennsylvania corporation INC., (f/k/a REGIONAL AMBULANCE
SERVICES, INC.) (f/k/a LIFE SUPPORT
GENESIS ELDERCARE DIAGNOSTIC AMBULANCE, INC.)
SERVICES, INC., (f/k/a DIVERSIFIED a Pennsylvania corporation
DIAGNOSTICS, INC.)
a Pennsylvania corporation UNITED HEALTH CARE SERVICES,
INC., a Pennsylvania corporation
GMC MEDICAL CONSULTING
SERVICES, INC., a Pennsylvania VALLEY MEDICAL SERVICES, INC.,
corporation a Pennsylvania corporation
</TABLE>
<PAGE>
<TABLE>
<S> <C>
VALLEY TRANSPORT AMBULANCE HEALTH CONCEPTS AND SERVICES,
SERVICE, INC., a Pennsylvania INC., a Maryland corporation
corporation
INNOVATIVE HEALTH CARE
VILLAS REALTY & INVESTMENTS, MARKETING, INC., a Pennsylvania
INC., a Pennsylvania corporation corporation
WEISENFLUH AMBULANCE SERVICE, KNOLLWOOD NURSING HOME, INC.,
INC., a Pennsylvania corporation a Delaware corporation
GENESIS ELDERCARE ADULT DAY MANOR MANAGEMENT CORP.
HEALTH SERVICES, INC., a OF GEORGIAN MANOR, INC., a
Pennsylvania corporation Pennsylvania corporation
GENESIS ELDERCARE HOME McKERLEY HEALTH CARE CENTER-
HEALTH SERVICES - SOUTHERN, CONCORD, INC., a New Hampshire
INC., a Pennsylvania corporation corporation
GENESIS ELDERCARE MERIDIAN HEALTHCARE
MANAGEMENT INVESTMENTS, INC., a Maryland
SERVICES, INC., (f/k/a BLUEFIELD corporation
MANOR, INC.) a Delaware corporation
PHARMACY EQUITIES, INC., a
CARECARD, INC., a Maryland Pennsylvania corporation
corporation
PROSPECT PARK LTC
CAREFLEET, INC., a Pennsylvania MANAGEMENT,
corporation INC., a Pennsylvania corporation
CHELTENHAM LTC MANAGEMENT, WALNUT LTC MANAGEMENT, INC.,
INC., a Pennsylvania corporation a Pennsylvania corporation
EASTERN REHAB SERVICES, INC., WEST PHILADELPHIA LTC
a Maryland corporation MANAGEMENT, INC., a Pennsylvania
EIDOS, INC., a Florida corporation corporation
GMC LEASING CORPORATION, TRANSPORT SERVICES, INC.,
a Delaware corporation a Maryland corporation
GMS MANAGEMENT, INC., YORK LTC MANAGEMENT INC., a
a Pennsylvania corporation Pennsylvania corporation
GMS MANAGEMENT-TUCKER, INC.,
a Pennsylvania corporation
GOVERNOR'S HOUSE NURSING
HOME, INC., a Delaware corporation
</TABLE>
<PAGE>
<TABLE>
<S> <C>
GENESIS ELDERCARE NEIGHBORCARE-ORCA, INC.
REHABILITATION (f/k/a WHITE, MACK AND WART,
MANAGEMENT SERVICES, INC. INC.), an Oregon corporation
(f/k/a ROBINDALE MEDICAL NEIGHBORCARE OF OKLAHOMA,
SERVICES, INC.), a Pennsylvania INC. (f/k/a VITALINK SUBSIDIARY,
corporation INC.), an Oklahoma corporation
DELCO APOTHECARY, INC., a NEIGHBORCARE INFUSION
Pennsylvania corporation SERVICES, INC. (f/k/a VITALINK
INFUSION SERVICES, INC.),
GENESIS ELDERCARE LIVING a Delaware corporation
FACILITIES, INC., a Pennsylvania
corporation NEIGHBORCARE PHARMACY
SERVICES, INC. (f/k/a VITALINK
NEIGHBORCARE OF WISCONSIN, PHARMACY SERVICES, INC.), a
INC. Delaware corporation*
(f/k/a GCI INNOVATIVE PHARMACY,
INC.), a Wisconsin corporation DIANE MORGAN AND ASSOCIATES,
INC., a Pennsylvania corporation
NEIGHBORCARE OF NORTHERN
CALIFORNIA, INC. (f/k/a GENESIS ELDERCARE NETWORK
COMPUPHARM OF NORTHERN SERVICES OF MASSACHUSETTS,
CALIFORNIA, INC.), a California INC., a Pennsylvania corporation
corporation
NEIGHBORCARE OF VIRGINIA, INC. By:_______________________________
(f/k/a TEAMCARE OF VIRGINIA, INC.), On behalf of each of the foregoing
a Virginia corporation As Treasurer
NEIGHBORCARE OF INDIANA, INC. Address for Notices:
(f/k/a TEAMCARE OF INDIANA, INC.),
an Indiana corporation Suite 100
101 East State Street
NEIGHBORCARE-TCI, INC.* Kennett Square, PA 19348
(f/k/a TEAMCARE, INC.),
a Delaware corporation Attention: Vice President, Chairman's
Office & Corporate Secretary
NEIGHBORCARE-MEDISCO, INC.
(f/k/a MEDISCO PHARMACIES, INC.), Telephone: 610-444-6350
a California corporation Facsimile: 610-444-3365
- -------------------
* TeamCare Clinical Services, Inc., -------------------
ManorCare of Ohio Inc. and ManorCare * CompuPharm of Ohio, Inc. was merged
of Illinois, Inc., were into this entity.
merged into this entity.
</TABLE>
<PAGE>
MAIN STREET PHARMACY, L.L.C., a
Maryland limited liability company
By: Professional Pharmacy Services, Inc.,
a Maryland corporation, its managing
member
By:________________________________
On behalf of the foregoing
As Treasurer of the managing member
Address for Notices:
Suite 100
101 East State Street
Kennett Square, PA 19348
Attention: Vice President, Chairman's
Office & Corporate Secretary
Telephone: 610-444-6350
Facsimile: 610-444-3365
<PAGE>
AGENTS, ISSUER AND LENDERS:
MELLON BANK, N.A., as a Lender,
as Issuer and as Administrative Agent
By________________________________
Name:
Title:
Address for notices:
street address:
AIM 199-5220
Mellon Independence Center
701 Market Street
Philadelphia, Pennsylvania 19106
mailing address:
AIM 199-5220
P.O. Box 7899
Philadelphia, Pennsylvania 19101-7899
Attention: Linda Sigler,
Loan Administration
Telephone: 215-553-4583
Facsimile: 215-553-4789
<PAGE>
With a copy to
Mellon Bank, N.A.
One Mellon Bank Center
Room 151-4440
Pittsburgh, PA 15258-0001
Attention: Marsha Wicker
Vice President
Telephone: 412-236-1631
Facsimile: 412-236-0287
With a copy for notices respecting assignments
to:
MELLON BANK, N.A.
One Mellon Bank Center
43rd Floor
Pittsburgh, PA 15258-0001
Attention: Dean Hazelton
Telephone: 412-236-0316
Facsimile: 412-236-9176
<PAGE>
CITICORP USA, INC., as a Lender and as
Syndication Agent
By________________________________
Name:
Title:
Address for notices:
399 Park Avenue
8th Floor, Zone 11
New York, NY 10043
Attention: James J. McCarthy
Telephone: 212-559-0501
Facsimile: 212-793-0289
<PAGE>
FIRST UNION NATIONAL BANK, as a
Lender and as Documentation Agent
By________________________________
Name:
Title:
FIRST UNION NATIONAL BANK (as
successor to CORESTATES BANK, N.A.)
By________________________________
Name:
Title:
Address for notices:
One First Union Center TW-5
Charlotte, NC 28288-0735
Attention: Joe Towell
Telephone: 704-383-3844
Facsimile: 704-383-9144
<PAGE>
BANK OF AMERICA, N.A. (as successor to
NationsBank, N.A. and Bank of America, NT&SA), as
a Lender and as a Syndication Agent
By_______________________________
Name:
Title:
Address for notices:
101 North Tryon Street
15th Floor
Charlotte, NC 28255
NC1-001-15-11
Attention: Robert Campbell
Telephone: 704-388-8799
Facsimile: 704-388-0922
With a copy to
100 North Tryon Street
17th Floor
Charlotte, NC 28255
NC1-007-1711
Attention: Ms. Marty Mitchell
Telephone: 704-388-1115
Facsimile: 704-386-3893
<PAGE>
CREDIT LYONNAIS NEW YORK BRANCH
By:___________________________________
Name:
Title:
Address for notices:
Credit Lyonnaise New York Branch
1301 Avenue of the Americas
New York, NY 10019
Attention: Farboud Tavangar
Telephone: (212) 261-7832
Facsimile: (212) 261-3440
<PAGE>
FLEET NATIONAL BANK
By:___________________________________
Name:
Title:
Address for notices:
Fleet National Bank
One Federal Street
MA OF D07B
Boston, MA 02110
Attention: Carol Paige
Telephone: (617) 346-4619
Facsimile: (617) 346-4699
<PAGE>
THE INDUSTRIAL BANK OF JAPAN, LIMITED
By:___________________________________
Name:
Title:
Address for notices:
The Industrial Bank of Japan, Limited
1251 Avenue of the Americas
New York, NY 10020
Attention: Randall Wernes
Telephone: (212) 282-3461
Facsimile: (212) 282-4488
<PAGE>
NATIONAL WESTMINSTER BANK Plc
By:___________________________________
Name:
Title:
Address for notices:
National Westminster Bank Plc
65 East 55th Street, 21st Floor
New York, NY 10022
Attention: Andrew S. Weinberg
Phone: (212) 401-1330
Facsimile: (212) 401-1390
<PAGE>
THE SAKURA BANK, LIMITED
By:___________________________________
Name:
Title:
Address for notices:
The Sakura Bank, Limited
277 Park Avenue, 45th Floor
New York, NY 10172
Attention: Stephen Chan
Telephone: (212) 909-4554
Facsimile: (212) 909-4599
<PAGE>
PARIBAS
By:____________________________
Name:
Title:
By:____________________________
Name:
Title:
Address for notices:
Paribas
787 Seventh Avenue
New York, NY 10019
Attention: Stas Byhovsky
Telephone: (212) 841-2568
Facsimile: (212) 841-2292
<PAGE>
THE BANK OF NEW YORK
By:____________________________
Name:
Title:
Address for notices:
The Bank of New York
One Wall Street, 21st Floor
New York, NY 10286
Attention: Stephen Brennan
Telephone: (212) 635-8020
Facsimile: (212) 635-8092
<PAGE>
BANK OF TOKYO-MITSUBISHI TRUST COMPANY
By:____________________________
Name:
Title:
Address for notices:
Bank of Tokyo-Mitsubishi Trust Company
1251 Avenue of the Americas, 12th Floor
New York, NY 10020-1104
Attention: Douglas Weir
Telephone: (212) 782-4503
Facsimile: (212) 782-4935
<PAGE>
CRESTAR BANK
By:____________________________
Name:
Title:
Address for Notices:
Crestar Bank
c/o Suntrust Bank Nashville
P.O. Box 305110
Nashville, TN 37230
Attention: Jan Naifeh
Telephone: (615) 748-4026
Facsimile: (615) 748-5700
<PAGE>
DRESDNER BANK AG, NEW YORK
BRANCH AND GRAND CAYMAN BRANCH
By:____________________________
Name:
Title:
By:____________________________
Name:
Title:
Address for notices:
Dresdner Bank AG, New York
75 Wall Street, 25th Floor
New York, NY 10005-2889
Attention: Brigit Anderson
Telephone: (212) 429-2747
Facsimile: (212) 429-2129
<PAGE>
FINOVA CAPITAL CORPORATION
By:____________________________
Name:
Title:
Address for notices:
Finova Capital Corporation
311 S. Wacker, Suite 4400
Chicago, IL 60606
Attention: Brian Williamson
Telephone: (312) 294-4175
Facsimile: (312) 322-3553
<PAGE>
KEY CORPORATE CAPITAL INC.
By:___________________________
Name:
Title:
Address for notices:
Key Corporate Capital Inc.
c/o Key Bank, N.A.
127 Public Square
Cleveland, OH 44114
Attention: Arthur E. Cutler
OH-01-27-0504
Telephone: (216) 689-0854
Facsimile: (216) 689-8468
<PAGE>
ALLFIRST BANK (successor to FMB BANK, formerly
known as FIRST NATIONAL BANK OF MARYLAND)
By:____________________________
Name:
Title:
Address for notices:
Allfirst Bank
25 S. Charles Street, 18th Floor
Baltimore, MD 21201
Attention: Robert H. Hauver
Telephone: (410) 244-4246
Facsimile: (410) 244-4388
<PAGE>
NATEXIS BANQUE BFCE
By:____________________________
Name:
Title:
By:____________________________
Name:
Title:
Address for notices:
Natexis Banque BFCE
645 Fifth Avenue, 20th Floor
New York, NY 10022
Attention: Frank Madden
Telephone: (212) 872-5180
Facsimile: (212) 872-5045
<PAGE>
NATIONAL CITY BANK OF
PENNSYLVANIA
By:____________________________
Name:
Title:
Address for notices:
National City Bank of Pennsylvania
20 Stanwix Street, 46-25-191
Pittsburgh, PA 15222
Loc. 46-25-191
Attention: Bruce G. Shearer
Telephone: (412) 644-7726
Facsimile: (412) 471-4883
<PAGE>
THE SANWA BANK, LIMITED
By:____________________________
Name:
Title:
Address for notices:
The Sanwa Bank, Limited
55 E. 52nd Street
New York, NY 10055
Attention: Chris DiCarlo
Telephone: (212) 339-6336
Facsimile: (212) 754-1304
<PAGE>
SUMMIT BANK
By:____________________________
Name:
Title:
Address for notices:
Summit Bank
250 Moore Street, 2nd Floor
Hackensack, NJ 07601
Attention: Tom Hanrahan
Telephone: (201) 646-5859
Facsimile: (201) 646-9497
<PAGE>
THE DAI-ICHI KANGYO BANK, LTD.
By:____________________________
Name:
Title:
Address for notices:
The Dai-Ichi Kangyo Bank, Ltd.
One World Trade Center, 48th Floor
New York, NY 10048
Attention: Takayuki Kumagai
Telephone: (212) 432-6651
Facsimile: (212) 488-8955
<PAGE>
BANK AUSTRIA CREDITANSTALT
CORPORATE FINANCE, INC.
By:_________________________
Name:
Title:
By:__________________________
Name:
Title:
Address for notices:
Bank Austria Creditanstalt Corporate
Finance, Inc.
Two Greenwich Plaza
Greenwich, CT 06830
Attention: Clifford L. Wells
Telephone: (203) 861-6417
Facsimile: (203) 861-0297
<PAGE>
CREDIT SUISSE FIRST BOSTON
By:_________________________
Name:
Title:
By:__________________________
Name:
Title:
Address for notices:
Credit Suisse First Boston
11 Madison Avenue
New York, NY 10010
Attention: William S. Lutkins
Telephone: (212) 325-9705
Facsimile: (212) 325-8319
<PAGE>
FIRST NATIONAL BANK OF CHICAGO
By:________________________
Name:
Title:
Address for notices:
First National Bank of Chicago
1 First National Plaza
Mailcode: IL1-0536
Chicago, IL 60670
Attention: Tom Harkless/
Greg Tomczyk
Telephone: (312) 732-1134
Facsimile: (312) 732-2016
<PAGE>
SCOTIABANC, INC.
By:____________________________
Name:
Title:
Address for notices:
ScotiaBanc, Inc.
600 Peachtree Street NE
Suite 2700
Atlanta, GA 30308
Attention: Dana Maloney
Telephone: (404) 877-1524
Facsimile: (404) 888-8998
<PAGE>
CIBC INC.
By:_________________________
Name:
Title:
Address for notices:
CIBC Inc.
425 Lexington Avenue, 8th Floor
New York, NY 10025
Attention: John Livingston
Telephone: (212) 856-3581
Facsimile: (212) 856-3761
<PAGE>
AMSOUTH BANK
By:_________________________
Name:
Title:
Address for notices:
AmSouth Bank
1900 5th Ave. N. AST7FL
Birmingham, AL 35203
Attention: Ken DiFatta
Telephone: (205) 801-0358
Facsimile: (205) 326-4790
<PAGE>
PFL LIFE INSURANCE COMPANY
By:_________________________
Name:
Title:
Address for notices:
PFL Life Insurance Company
c/o Aegon USA Investment Management, Inc.
4333 Edgewood Road, NE
Cedar Rapids, IA 52499
Attention: John Bailey, Securities Analyst
Telephone: (319) 369-2811
Facsimile: (319) 369-2666
<PAGE>
MONUMENTAL LIFE INSURANCE COMPANY (successor by
merger to PEOPLES SECURITY LIFE INSURANCE
COMPANY)
By:____________________________
Name:
Title:
Address for notices:
Monumental Life Insurance Company
c/o Aegon USA Investment Management, Inc.
4333 Edgewood Road, NE
Cedar Rapids, IA 52499
Attention: John Bailey, Securities Analyst
Telephone: (319) 369-2811
Facsimile: (319) 369-2666
Payment Advice
--------------
Attention: Marla Johnson
Monumental Life Insurance Company
c/o AEGON USA Investment Management, Inc.
4333 Edgewood Road, NE
Cedar Rapids, IA 52499
Fax Number: (319) 398-8695
<PAGE>
FLOATING RATE PORTFOLIO
By: INVESCO Senior
Secured Management, Inc., as attorney in fact
By:____________________________
Name:
Title:
Address for notices:
Floating Rate Portfolio
c/o INVESCO Senior Secured
Management, Inc.
1166 Avenue of the Americas, 27th Floor
New York, NY 10036
Attention: Kathleen Lenarcic
Telephone: (212) 278-9794
Facsimile: (212) 278-9619
<PAGE>
MORGAN STANLEY DEAN WITTER
PRIME INCOME TRUST
By:___________________________
Name:
Title:
Address for notices:
Morgan Stanley Dean Witter
Prime Income Trust
c/o Morgan Stanley Dean Witter Advisors
72nd Floor
Two World Trade Center
New York, NY 10048
Attention: Kevin Egan
Telephone: (212) 392-5845
Facsimile: (212) 392-5345
<PAGE>
EATON VANCE INSTITUTIONAL SENIOR LOAN FUND
By: Eaton Vance Management
as Investment Advisor
By:_____________________________
Name:
Title:
Address for notices:
State Street Bank & Trust Company
Corporate Trust Division
One Enterprise Drive
North Quincy, MA 02171
Attention: Patrick McEnroe
Telephone: (617) 664-5367
Facsimile: (617) 664-5366
Eaton Vance Management
255 State Street, 8th Floor
Boston, MA 02109
Attention: Payson Swaffield
Telephone: (617) 598-8484
Telecopier: (617) 695-9594
Reference:
<PAGE>
ING HIGH INCOME PRINCIPAL PRESERVATION FUND
HOLDINGS, LDC
By: ING Capital Advisors, Inc.,
As Investment Advisor
By:___________________________________
Name:
Title:
Address for notices:
ING High Income Principal Preservation
Fund Holdings, LDC
c/o ING Capital Advisors, Inc.
333 South Grand Avenue, Suite 4250
Los Angeles, CA 90071
Attention: Helen Rhee
Telephone: (213) 346-3983
Facsimile: (213) 346-3995
<PAGE>
SENIOR DEBT PORTFOLIO
BY: Boston Management and Research
as Investment Advisor
By:________________________________
Name:
Title:
Address for notices:
Eaton Vance Management
255 State Street, 8th Floor
Boston, MA 02109
Attention: Payson Swaffield
Telephone: (617) 598-8484
Facsimile: (617) 695-9594
<PAGE>
MASSACHUSETTS MUTUAL LIFE INSURANCE CO.
By:________________________________
Name:
Title:
Address for notices:
Massachusetts Mutual Life Insurance Co.
1295 State Street
Springfield, MA 01111
Attention: John Wheeler, Managing Director
Telephone: (413) 744-6228
Facsimile: (413) 744-2022
<PAGE>
MERRILL LYNCH SENIOR FLOATING RATE FUND, INC.
By:____________________________
Name:
Title:
MERRILL LYNCH PRIME RATE PORTFOLIO
By: Merrill Lynch Asset Management, L.P., as
Investment Advisor
By:____________________________
Name:
Title:
Address for notices:
Merrill Lynch Senior Floating Rate Fund, Inc.
c/o Merrill Lynch Asset Management
800 Scudders Mill Road - Area 1B
Plainsboro, NJ 08536
Attention: Colleen Cunniffe
Telephone: (609) 282-2093
Facsimile: (609) 282-2756
<PAGE>
MERRILL LYNCH GLOBAL INVESTMENT SERIES
Income Strategies Portfolio
By: Merrill Lynch Asset Management, L.P., as
Investment Advisor As assignee
By:____________________________
Name:
Title:
Address for notices:
Merrill Lynch Global Investment Series
c/o Merrill Lynch Asset Management, L.P.
800 Scudders Mill Road - Area 1B
Plainsboro, NJ 08536
Attention: Colleen Cunniffe
Telephone: (609) 282-2093
Facsimile: (609) 282-2756
<PAGE>
METROPOLITAN LIFE INSURANCE COMPANY
By:__________________________
Name:
Title:
Address for notices:
Metropolitan Life Insurance Company
334 Madison Avenue
Convent Station, NJ 07961-0633
Attention: James Dingler
Asst. Vice President
Telephone: (973) 254-3206
Facsimile: (973) 254-3050
<PAGE>
THE NORTHWESTERN MUTUAL LIFE INSURANCE COMPANY
By:____________________________
Name:
Title: Its Authorized Representative
Address for notices:
The Northwestern Mutual Life Insurance
Company
720 E. Wisconsin Avenue
Milwaukee, WI 53202
Attention: David A. Barras
Director-Investments
Northwestern Investment Management Company
Telephone: (414) 299-1618
Facsimile: (414) 299-7124
<PAGE>
NEW YORK LIFE INSURANCE
AND ANNUITY CORPORATION
By: New York Life Insurance Company
By:__________________________
Name:
Title:
Address for notices:
New York Life Insurance and Annuity
Corporation
c/o New York Life Insurance Company
51 Madison Avenue, Room 206
New York, NY 10010
Attention: Christine Villaluz/Tony Malloy
Telephone: (212) 576-7590
Facsimile: (212) 447-4122
<PAGE>
OAK HILL SECURITIES FUND, L.P.
By: Oak Hill Securities GenPar, L.P.,
Its General Partner
By: Oak Hill Securities MGP, Inc.,
Its General Partner
By:________________________________
Name:
Title:
Address for notices:
Oak Hill Securities Fund, L.P.
c/o O'Sullivan Graev & Karabell, LLP
30 Rockefeller Plaza
New York, NY 10112
Attention: Michael Kontokosta
Telephone: (212) 408-2475
Facsimile: (212) 728-5950
<PAGE>
OCTAGON LOAN TRUST
By:______________________________
Name:
Title:
Address for notices:
Octagon Loan Trust
380 Madison Avenue, 12th Floor
New York, NY 10017
Attention: James P. Ferguson
Managing Director
Telephone: (212) 622-3070
Facsimile: (212) 622-3797
<PAGE>
PARIBAS CAPITAL FUNDING LLC
By:__________________________
Name:
Title:
Address for notices:
Paribas Capital Funding LLC
787 Seventh Avenue, 32nd Floor
New York, NY 10019
Attention: Francois Gauvin
Telephone: (212) 841-2144
Facsimile: (212) 841-2548
with a copy to:
State Street Bank & Trust Co.
Corporate Trust Dept.
Attn: Bill Connolly
Phone: (617) 664-5410
Fax: (617) 664-5366(67)(68)
<PAGE>
ROYALTON COMPANY
By: Pacific Investment Management Company, as its
Investment Advisor
By: PIMCO Management Inc., a general partner
By:____________________________
Name:
Title:
Address for notices:
Royalton Company
c/o Pacific Investment Management Co.
840 Newport Center Drive
Newport Beach, CA 92658
Attention: Melissa Fejdasz
Telephone: (949) 721-5169
Facsimile: (949) 718-2623
<PAGE>
NORTHERN LIFE INSURANCE COMPANY
By:___________________________
Name:
Title:
Address for notices:
Northern Life Insurance Company
c/o Reliastar Investment Research, Inc.
100 Washington Avenue South, Suite 800
Minneapolis, MN 55401-2121
Attention: James V. Wittich
Telephone: (612) 372-3553
Facsimile: (612) 372-5368
<PAGE>
KZH SOLEIL LLC
By:_________________________
Name:
Title:
Address for notices:
KZH Soleil LLC
c/o The Chase Manhattan Bank
450 West 33rd Street - 15th Floor
New York, NY 10001
Attention: Virginia Conway
Telephone: (212) 946-7575
Facsimile: (212) 946-7776
with a copy to:
SAI Investment Adviser, Inc.
1 SunAmerica Center, 34th Floor
Los Angeles, CA 90067
Attention: Sabur Moini
Telephone: (310) 772-6256
Facsimile: (310) 772-6078
<PAGE>
KZH III LLC
By:_______________________________
Name:
Title:
Address for notices:
KZH III LLC c/o The
Chase Manhattan Bank
450 West 33rd Street -
15th Floor New York,
NY 10001
Attention: Virginia Conway
Telephone: (212) 946-7575
Facsimile: (212) 946-7776
<PAGE>
VAN KAMPEN PRIME RATE INCOME TRUST
By:_________________________________
Name:
Title:
VAN KAMPEN CLO I, LIMITED
by: Van Kampen Management, Inc.,
as Collateral Manager
By:_________________________________
Name:
Title:
VAN KAMPEN SENIOR INCOME TRUST
By:_________________________________
Name:
Title:
Address for notices:
In care of:
Van Kampen Management
One Parkview Plaza, 5th Floor
Oakbrook Terrace, IL 60181
Attention: Scott Fries
Telephone: (630) 684-6026
Facsimile: (630) 684-6740
<PAGE>
CANADIAN IMPERIAL BANK OF COMMERCE
By:______________________________
Name:
Title:
Address for notices:
Canadian Imperial Bank of Commerce
425 Lexington Avenue, 7th Floor
New York, NY 10025
Attention: William Swenson
Telephone: (212) 856-3935
Facsimile: (212) 856-3799
<PAGE>
NEW YORK LIFE INSURANCE COMPANY
By:________________________
Name:
Title:
Address for notices:
New York Life Insurance and
Annuity Corporation
c/o New York Life Insurance Company
51 Madison Avenue
Room 206
New York, New York 10010
Attention: Christine Villaluz
Telephone: (212) 576-7590
Facsimile: (212) 447-4122
<PAGE>
CITY NATIONAL BANK
By:___________________________
Name:
Title:
Address for notices:
City National Bank
400 N. Roxbury Drive, 3rd Floor
Beverly Hills, CA 90210
Attention: Randall Watsek
Telephone: 310/888-6131
Fax: 310/888-6564
<PAGE>
TORONTO-DOMINION (NEW YORK), INC.
By:_________________________
Name:
Title:
Address for notices:
The Toronto-Dominion (New York), Inc.
31 West 52nd Street, 18th Floor
New York, NY 10019
Attention: Wayne Hosang
Telephone: 212/827-7307
Fax: 212/827-7250
<PAGE>
LEHMAN COMMERCIAL PAPER INC.
By:______________________________
Name:
Title:
Address for notices:
Lehman Commercial Paper Inc.
3 World Financial Center
New York, NY 10285
Attention: Michele Swanson
Telephone: 212/526-0330
Fax: 212/526-0242
<PAGE>
CAPTIVA II FINANCE LTD.
By:________________________
Name:
Title:
Address for notices:
Captiva II Finance Ltd.
c/o Deutsche Morgan Grenfell (Cayman) Limited
P.O. Box 1984GT, Elizabethan Square
Grand Cayman, Cayman Islands
Attention: Director
Telephone: (345) 949-8244
Facsimile: (345) 949-8178
with a copy to:
Stanfield Capital Partners
330 Madison Avenue, 27th Flr.
New York, NY 10017
Attention: Christopher Bondy
Telephone: (212) 284-4304
Facsimile: (212) 284-4320
<PAGE>
CERES FINANCE LTD.
By:____________________________
Name:
Title:
Address for notices:
Ceres Finance Ltd.
c/o Deutsche Morgan Grenfell (Cayman) Limited
P.O. Box 1984GT, Elizabethan Square
Grand Cayman, Cayman Islands
Attention: Director
Telephone: (345) 949-8244
Facsimile: (345) 949-8178
with a copy to:
Stanfield Capital Partners
330 Madison Avenue, 27th Flr.
New York, NY 10017
Attention: Christopher Bondy
Telephone: (212) 284-4304
Facsimile: (212) 284-4320
<PAGE>
COOPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK
B.A., "RABOBANK NEDERLAND", NEW YORK BRANCH
By:____________________________
Name:
Title:
By:____________________________
Name:
Title:
Address for notices:
Rabobank Nederland
245 Park Avenue
New York, NY 10167
Attention: Richard Mattner
Telephone: (212) 916-6848
Facsimile: (212) 916-7821
<PAGE>
AMARA-2 FINANCE LTD.
By:_________________________
Name:
Title:
Address for notices:
Amara-2 Finance Ltd.
c/o Stanfield Capital Partners LLC
330 Madison Avenue, 27th Flr.
New York, NY 10017
Attention: Christopher Bondy
Telephone: (212) 284-4304
Facsimile: (212) 284-4320
<PAGE>
MLCBO IV (CAYMAN) LTD.
BY: HIGHLAND CAPITAL MANAGEMENT L.P.,
as Collateral Manager
By:__________________________
Name:
Title:
Address for notices:
MLCBO IV (CAYMAN) LTD.
c/o Highland Capital Management L.P.
as Collateral Manager
1150 Two Galleria Tower
13455 Noel Road, LB #45
Dallas, TX 75240
Attention: Patrick Daugherty
Telephone: (972) 233-4300
Facsimile: (972) 233-4343
<PAGE>
PAMCO CAYMAN LTD.
BY: HIGHLAND CAPITAL MANAGEMENT L.P.,
as Collateral Manager
By:_______________________________
Name:
Title:
Address for notices:
PAMCO CAYMAN LTD.
c/o Highland Capital Management L.P.,
as Collateral Manager
1150 Two Galleria Tower
13455 Noel Road, LB #45
Dallas, TX 75240
Attention: Patrick Daugherty
Telephone: (972) 233-4300
Facsimile: (972) 233-4343
<PAGE>
JACKSON NATIONAL LIFE INSURANCE COMPANY
By: PPM America, Inc., as attorney-in-fact, on
behalf of Jackson National Life Insurance Company
By:______________________________
Name:
Title:
Address for notices:
PPM America, Inc.
225 W. Wacker, Suite 1200
Chicago, IL 60606
Attention: John Waldings
Telephone: (312) 634-1230
Facsimile: (312) 634-0054
<PAGE>
CYPRESSTREE INVESTMENT PARTNERS I., Ltd.
By: CypressTree Investment Management Company,
Inc., as Portfolio Manager
By:_____________________________
Name:
Title:
Address for notices:
CypressTree Investment Partners I, Ltd.
125 High Street
Boston, MA 02110
Attention: Phil Robbins
Telephone: (617) 946-0600
Facsimile: (617) 946-5681
<PAGE>
INDOSUEZ CAPITAL FUNDING III, LIMITED
By: Indosuez Capital, as Portfolio Advisor
By:________________________________
Name:
Title:
Address for notices:
Indosuez Capital Funding III, Limited
1211 Avenue of the Americas, 8th Floor
New York, NY 10036-8701
Attention: Melissa Marano
Telephone: (212) 278-2231
Facsimile: (212) 278-2250
<PAGE>
THE ROYAL BANK OF SCOTLAND plc
By:________________________________
Name:
Title:
Address for notices:
The Royal Bank of Scotland plc
Wall Street Plaza
88 Pine Street, 26th Floor
New York, NY 10005
Attention: Derek Bonner
Telephone: (212) 269-0938
Facsimile: (212) 269-8929
<PAGE>
ML CLO XX PILGRIM AMERICA (CAYMAN) LTD.
By: Pilgrim Investments, Inc.
As its Investment Manager
By:___________________________________
Name:
Title:
Address for notices:
ML CLO XX Pilgrim America (Cayman) Ltd.
c/o Pilgrim Investments, Inc.
Two Renaissance Square
40 North Central Avenue, Suite 1200
Phoenix, AZ 85004-3444
Attention: Chuck Lemieux
Telephone: (602) 417-8214
Facsimile: (602) 417-8327
<PAGE>
STEIN ROE & FARNHAM INCORPORATED
As Agent For
KEYPORT LIFE INSURANCE COMPANY
By:__________________________________
Name:
Title:
Address for notices:
Keyport Life Insurance Company
c/o Stein Roe & Farnham
One South Wacker Drive, 33rd Floor
Chicago, IL 60606
Attention: Brian W. Good
Telephone: (312) 368-7644
Facsimile: (312) 368-7857
<PAGE>
CHASE SECURITIES INC., as Agent
For The Chase Manhattan Bank, as Assignee
By:__________________________________
Name:
Title:
Address for notices:
Chase Securities, Inc.
270 Park Avenue, 4th Floor
New York, NY 10017
Attention: William Bokos
Telephone: (212) 270-3142
Facsimile: (212) 270-7968
<PAGE>
ALLIANCE CAPITAL MANAGEMENT L.P.,
As Manager on behalf of ALLIANCE CAPITAL FUNDING,
L.L.C. By: ALLIANCE CAPITAL MANAGEMENT
CORPORATION, General Partner of Alliance Capital
Management L.P.
By:__________________________________
Name:
Title:
Address for notices:
Alliance Capital Funding, L.L.C.
Alliance Capital Management L.P.
1345 Avenue of the Americas, 38th Floor
New York, NY 10105
Attention: Savitri Alex
Telephone: (212) 969-1350
Facsimile: (212) 969-1466
<PAGE>
ALLIANCE INVESTMENTS, LIMITED,
As Assignee
By: Alliance Capital Management Corp.
By:__________________________________
Name:
Title:
Address for notices:
Alliance Capital Management L.P.
1345 Avenue of the Americas
New York, NY 10105
Attention: Savitri Alex
Alliance Investments, Ltd.
Telephone: (212) 969-1350
Facsimile: (212) 969-1466
<PAGE>
ML CLO XII PILGRIM AMERICA (CAYMAN) LTD.
By: Pilgrim Investments, Inc.
As its Investment Manager
By:__________________________________
Name:
Title:
Address for notices:
ML CLO XII PILGRIM AMERICA
(CAYMAN) LTD.
c/o Pilgrim Investments, Inc.
Two Renaissance Square, Suite 1200
40 North Central Avenue
Phoenix, AZ 85004-3444
Attention: Chuck Lemieux
Telephone: (602) 417-8214
Facsimile: (602) 417-8327
<PAGE>
INTEGRITY LIFE INSURANCE COMPANY
By:__________________________________
Name:
Title:
Address for notices:
Integrity Life Insurance Company
515 W. Market Street
Louisville, KY 40202-3319
Attention: James Myjak
Telephone: (502) 582-7921
Facsimile: (502) 582-7903
<PAGE>
PROVIDENT BANK OF MARYLAND
By:__________________________________
Name:
Title:
Address for notices:
Provident Bank of Maryland
114 E. Lexington Street
Baltimore, MD 21202
Attention: Frieda McWilliams
Telephone: (410) 277-2086
Facsimile: (410) 277-2793
<PAGE>
GENERAL ELECTRIC CAPITAL CORPORATION
By:__________________________________
Name:
Title:
Address for notices:
General Electric Capital Corporation
c/o Capital Markets
201 High Ridge Road
Stamford, CT 06927
Attention: William E. Magee
Telephone: (203) 708-1405
Facsimile: (203) 316-7978
<PAGE>
ABN AMRO BANK N.V.
By:__________________________________
Name:
Title:
Address for notices:
ABN AMRO BANK N.V.
One Ravinia Dr., Suite 1200
Atlanta, GA 30346
Attention: Steve Hipsman
Telephone: (770) 399-7376
Facsimile: (770) 399-7397
<PAGE>
DEUTSCHE BANK AG NEW YORK BRANCH
a/o CAYMAN ISLANDS BRANCH
By:__________________________________
Name:
Title:
By:__________________________________
Name:
Title:
Address for notices:
Deutsche Bank AG
New York Branch
a/o Cayman Islands Branch
31 W. 52nd Street
New York, NY 10019
Attention: Sue Pearson
Telephone: (212) 469-7140
Facsimile: (212) 469-8701
<PAGE>
ERSTE BANK
By:__________________________
Name:
Title:
Address for notices:
Erste Bank
280 Park Avenue, 32nd Floor
West Building
New York, NY 10017
Attention: Rima Terradista
Telephone: (212) 984-5638
Facsimile: (212) 984-5627
<PAGE>
CAPTIVA III FINANCE, LTD.,
as advised by Pacific Investment Management
Company
By:_____________________________
Name:
Title:
CAPTIVA IV FINANCE LTD.,
as advised by Pacific Investment Management
Company
By:_____________________________
Name:
Title:
Address for notices:
Pacific Investment Management Co.
840 Newport Center Drive
Newport Beach, CA 92660
Attention: Melissa Fejdasz
Telephone: (949) 721-5169
Facsimile: (949) 718-2623
<PAGE>
ML CLO XIX STERLING (CAYMAN) LTD.
By: Sterling Asset Manager, L.L.C., as its
Investment Advisor
By:_______________________________
Name:
Title:
Address for notices:
Sterling Asset Management, LLC
40 Fulton Street, 10th Floor
New York, NY 10038
Attention: Rafael Scolari
Telephone: (212) 406-3580
Facsimile: (212) 406-3710
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DLJ CAPITAL FUNDING, INC.
By:____________________________
Name:
Title:
Address for notices:
DLJ Capital Funding, Inc.
277 Park Avenue, 10th Floor
New York, NY 10172
Attention: Mary McCormack
Telephone: (212) 892-6675
Facsimile: (212) 892-6031
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GALAXY CLO 1999-1, LTD.
By:_________________________
Name:
Title:
Address for notices:
SAI Investment Adviser, Inc.
1 SunAmerica Center, 34th Floor
Los Angeles, CA 90067
Attention: Sabur Moini
Telephone: (310) 772-6256
Facsimile: (310) 772-6078
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MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By:_______________________________
Name:
Title:
Address for notices:
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
250 Vesey Street
North Tower, 16th Floor
New York, NY 10281-1316
Attention: Sandra P. Anton
Telephone: (212) 449-3719
Facsimile: (212) 449-9435
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STANFIELD CLO, LTD.
By: Stanfield Capital Partners LLC
as its Collateral Manager
By:__________________________________
Name:
Title:
Address for notices:
Stanfield CLO, Ltd.
c/o Stanfield Capital Partners LLC
330 Madison Avenue, 27th Floor
New York, NY 10017
Attention: Gregory L. Smith
Telephone: (212) 284-4303
Facsimile: (212) 284-4320
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KZH STERLING LLC
By:_____________________________
Name:
Title:
Address for notices:
KZH Sterling LLC
c/o The Chase Manhattan Bank
450 West 33rd Street - 15th Floor
New York, NY 10001
Attention: Virginia Conway
Telephone: (212) 946-7575
Facsimile: (212) 946-7776
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KZH PAMCO LLC
By:__________________________
Name:
Title:
Address for notices:
KZH Pamco LLC
c/o The Chase Manhattan Bank
450 West 33rd Street - 15th Floor
New York, NY 10001
Attention: Virginia Conway
Telephone: (212) 946-7575
Facsimile: (212) 946-7776
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SRV-HIGHLAND, INC.
By:____________________________
Name:
Title:
Address for notices:
SRV-Highland, Inc.
c/o Bank of America Securities
100 North Tryon Street
NC1-007-06-07
Charlotte, NC 28255
Attention: Kelly Walker
Telephone: (704) 388-8943
Facsimile: (704) 388-0648
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SCHEDULE 6.10
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JOINDER OF BORROWERS
1. Joinder Supplement. Genesis (on behalf of itself and the other
Borrowers) and each Joining Subsidiary shall execute and deliver to the
Administrative Agent, with an executed counterpart for each Lender Party, an
agreement in substantially the form attached to this Agreement as Exhibit H (a
"Joinder Supplement") as to becoming a party hereto and to the relevant Loan
Documents.
2. Notes. Each Joining Subsidiary and each existing Borrower shall execute
and deliver to the Administrative Agent a replacement Note or Allonge for each
Tranche A Lender and each RC Lender, as necessary.
3. Collateral. Each applicable Borrower and each applicable Joining
Subsidiary shall deliver to the Administrative Agent (1) certificates and
instruments representing the stock certificates and other instruments to be
pledged pursuant to the Pledge Agreement accompanied by duly executed
instruments of transfer or assignments in blank to the extent required by the
Pledge Agreement and (2) evidence of the completion of all recordings and
filings (including Uniform Commercial Code financing statements) as may be
necessary or, in the opinion of the Administrative Agent or the Collateral
Agent, desirable to create or perfect the Liens granted and created or purported
to be granted and created by each Joining Subsidiary (or by each existing
Borrower in the collateral comprised of equity of any Joining Subsidiaries)
under and pursuant to the Pledge Agreement. Each applicable Joining Subsidiary
shall deliver to the Administrative Agent (a) such Mortgages as may be required
in accordance with Section 6.10 hereof to pledge or mortgage to the Collateral
Agent for the benefit of the Secured Parties all material assets and property
(other than Excluded Assets) and (b) evidence of the completion of all
recordings and filings (including Uniform Commercial Code financing statements)
as may be necessary or, in the opinion of the Administrative Agent or the
Collateral Agent, desirable to create or perfect the Liens granted and created
or purported to be granted and created by each Joining Subsidiary under and
pursuant to the Security Agreement and the Mortgages.
4. Lien Searches. For each Joining Subsidiary which is acquired by a
Borrower pursuant to an Acquisition, each Joining Subsidiary shall deliver to
the Administrative Agent such evidence of recent searches of Uniform Commercial
Code, tax, judgment records and other appropriate registers as the
Administrative Agent shall request.
5. Corporate or Partnership Proceedings. Each Joining Subsidiary shall
deliver to the Administrative Agent, with an executed counterpart for each
Lender Party, certificates by the Secretary or Assistant Secretary of each
Joining Subsidiary (or general partner thereof), dated as of the Joinder
Effective Date (as defined below) as to the incumbency and signatures of the
respective officers of such Joining Subsidiary who are authorized to sign Loan
Documents, together with (i) true copies of the articles of incorporation and
bylaws or
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partnership agreement (or other constituent documents) of such Joining
Subsidiary in effect on such date, (ii) true copies of all corporate or
partnership action taken by such Joining Subsidiary relative to this Agreement,
the Joinder Supplement and the other Loan Documents. Each Joining Subsidiary
shall also deliver certificates from the appropriate Secretaries of State or
other applicable Governmental Authorities dated not more than 30 days before the
relevant Joinder Effective Date showing the good standing of such Joining
Subsidiary in its state of incorporation or organization and each state in which
such Joining Subsidiary does business.
6. Legal Opinions of Counsel. The Borrowers and each Joining Subsidiary
collectively shall cause to be delivered to the Administrative Agent, with an
executed counterpart for each Lender Party, an opinion or opinions addressed to
each Lender Party, dated the relevant Joinder Effective Date, of counsel to such
Joining Subsidiary, Genesis and each of the other Borrowers as to such matters
as may be requested by the Administrative Agent, all in form and substance
satisfactory to the Administrative Agent.
7. Fees, Expenses, Etc. The Borrowers and each Joining Subsidiary shall pay
or cause to be paid all fees and other compensation required to be paid to the
Lender Parties pursuant hereto or pursuant to any other written agreement on or
prior to the Joinder Effective Date.
8. Additional Matters. The Borrowers and each Joining Subsidiary shall
deliver, or cause to be delivered, to the Administrative Agent such other
revised schedules, certificates, opinions, instruments and other documents
(including those relating to licensing) as may be requested by the
Administrative Agent. All such schedules, certificates, opinions, instruments
and other documents shall be satisfactory in form and substance to the
Administrative Agent.
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SCHEDULE 8.4
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ACQUISITION CONDITIONS
1. Notice. Not later than 15 Business Days before the consummation of a
proposed Acquisition, Genesis (on behalf of the Borrowers) shall have delivered
to each Lender Party a notice of the proposed Acquisition, together with the
following:
(1) copies of audited financial statements of the entity to be
acquired (the "Target") for its last three fiscal years (to the extent that
such audited statements are available, or, to the extent such audited
statements are not so available, unaudited statements for as much of such
period as is available);
(2) copies of the interim financial statements of the Target for the
latest fiscal quarter;
(3) a pro forma projected balance sheet of Genesis and its Restricted
Subsidiaries as of the date of, and after giving effect to, the proposed
Acquisition and a pro forma income statement of Genesis and its Restricted
Subsidiaries for the four fiscal quarters ended on, or most recently prior
to, the date of such proposed Acquisition after giving effect thereto;
(4) an Officer's Compliance Certificate showing pro forma compliance
with the covenants referred to therein after giving effect to the proposed
Acquisition (which certificate may be delivered after the other items
referred to in this paragraph (1) but no later than five (5) Business Days
prior to the date of the proposed Acquisition); and
(5) revisions to the most recent financial projections delivered to
the Lender Parties by Genesis, which revisions shall take into account the
projected financial condition and results of operations of the Target for
the period covered by such projections.
2. Other Information. In addition, Genesis (on behalf of the Borrowers)
shall have delivered to the Administrative Agent (and with respect to the
information referred to in paragraph (2) below, the requesting Lender Party) the
following:
(1) copies of any agreements entered into or proposed to be entered
into by such Borrower in connection with such Acquisition; and
(2) such other information about the Target or such Acquisition as any
Lender Party may reasonably request.
3. Board Approval. The board of directors (or equivalent governing body) of
the Target shall have approved such Acquisition.
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4. Line of Business. Not less than 75% of the Target's revenues during its
most recently completed fiscal year shall have been derived from lines of
business which are, at the time of the Acquisition, among the principal lines of
business of any of the Borrowers.
5. No Default. No Event of Default or Default shall have occurred and be
continuing before, or after giving effect to, the consummation of the
Acquisition.
6. Limitations on Mergers and Consolidations. If any merger is effected in
connection with the Acquisition, a Borrower (including an entity that becomes a
Borrower consistent with the provisions of this Agreement) shall be the
surviving entity in the merger. No consolidation shall be permitted in
connection with any Acquisition.
7. Joinder to Loan Documents. The Borrowers shall cause any new (direct or
indirect) Subsidiary of Genesis which is created or acquired as a direct or
indirect result of, or in connection with, such Acquisition, to become a
Borrower hereunder pursuant to and in accordance with the terms of Section 6.10
of this Agreement and shall cause the ownership interests therein to be pledged
under the Pledge Agreement.
8. Arm's Length. The Acquisition shall be made in good faith in an
arm's-length transaction to a Person which is not an Affiliate of any Borrower,
except as otherwise agreed to by the Required Lenders. Without limiting the
generality of the foregoing, the total consideration paid for the Acquisition
shall be no greater than the fair market value of the subject assets (including
intangible assets).
9. Indentures. The Acquisition shall not be prohibited by or result in a
default or breach under the terms of the 1995 Subordinated Note Indenture or
1996 Subordinated Note Indenture or, if applicable, the 1998 Subordinated Note
Indenture.
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SCHEDULE 8.5(g)
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DISPOSITION CONDITIONS
1. Notice. Genesis (on behalf of the Borrowers) shall have given each
Lender Party at least 5 days prior written notice of any transfer (as defined in
Section 8.5 of this Agreement), together with an Officer's Compliance
Certificate showing pro forma compliance with the financial covenants referred
to therein (including the financial tests set forth in paragraph (g) of Section
8.5) after giving effect to such transfer.
2. Arm's Length. The transfer shall be made in good faith in an
arm's-length transaction to a Person which is not an Affiliate of any Borrower,
except as otherwise agreed to by the Required Lenders. Without limiting the
generality of the foregoing, the total consideration for the transfer shall be
at least equal to the fair market value of the subject assets (including
intangible assets).
3. Transfer of Equity of a Borrower. In the event that any shares of
capital stock, partnership interests or other ownership interests of a Borrower
are to be disposed of or otherwise transferred in such transaction each of the
following additional conditions shall be met:
(a) All Loans made to such Borrower and all intercompany obligations
of such Borrower shall have been repaid in full and such Borrower shall
sign an acknowledgement that all obligations of the Lender Parties to it
are terminated; and
(b) The Administrative Agent shall have received such replacement
Notes, certificates, opinions, documents and/or instruments it shall
reasonably request.
4. Indentures. The disposition shall not be prohibited by or result in a
default or breach or mandatory prepayment under the terms of the 1995
Subordinated Note Indenture or the 1996 Subordinated Note Indenture or, if
applicable, the 1998 Subordinated Note Indenture.
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EXHIBIT I
ASSIGNMENT AND ACCEPTANCE AGREEMENT
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SCHEDULE 1.1
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COMMITMENTS
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SCHEDULE 8.4
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ACQUISITION CONDITIONS
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<PAGE>
SCHEDULE 8.4(d)
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MERIDIAN PROPERTIES
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SCHEDULE 8.5
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DISPOSITION CONDITIONS
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<PAGE>
SCHEDULE 8.5(i)
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PROPERTIES SUBJECT TO
Deleveraging Transaction
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