EXHIBIT 10.21
SECOND AMENDMENT AND LIMITED WAIVER TO
CREDIT AND GUARANTY AGREEMENT
This SECOND AMENDMENT AND LIMITED WAIVER TO CREDIT AND GUARANTY
AGREEMENT, dated as of March 31, 2003 (this "SECOND AMENDMENT") is entered into
by and among MARINER HEALTH CARE, INC. (f/k/a MARINER POST-ACUTE NETWORK, INC.),
a Delaware corporation ("COMPANY"), and the parties signatory hereto.
WHEREAS, Company has entered into that certain Credit and Guaranty
Agreement, dated as of May 13, 2002, as amended from time to time, including,
without limitation, by the First Amendment (the "FIRST AMENDMENT") to the Credit
and Guaranty Agreement, dated as of August 9, 2002 (the "CREDIT AGREEMENT"), by
and among Company, CERTAIN SUBSIDIARIES OF COMPANY, as Guarantors, the Lenders
party thereto from time to time, ▇▇▇▇▇▇▇ ▇▇▇▇▇ CREDIT PARTNERS L.P. ("GSCP"), as
a Joint Lead Arranger (in such capacity, a "JOINT LEAD ARRANGER"), and as Sole
Syndication Agent (in such capacity, "SYNDICATION AGENT"), UBS WARBURG LLC
("UBSW"), as a Joint Lead Arranger (in such capacity, a "JOINT LEAD ARRANGER",
and together with GSCP, the "JOINT LEAD ARRANGERS"), UBS AG, STAMFORD BRANCH
("UBS") as Administrative Agent and as Swing Line Lender (together with its
permitted successors in such capacities, "ADMINISTRATIVE AGENT" or "SWING LINE
LENDER", respectively), GENERAL ELECTRIC CAPITAL CORPORATION ("GECC"), as
Collateral Monitoring Agent (together with its permitted successors in such
capacity, "COLLATERAL MONITORING AGENT"), and as Documentation Agent (in such
capacity, "DOCUMENTATION AGENT"), and for the limited purposes of Sections 9.1,
9.6(b) and 10.3 thereof, RESIDENTIAL FUNDING CORPORATION dba GMAC-RFC HEALTH
CAPITAL ("GMAC"), as Joint Collateral Agent (together with its permitted
successors in such capacity, "JOINT COLLATERAL AGENT");
WHEREAS, the terms used herein, including in the preamble and recitals
hereto, not otherwise defined herein or otherwise amended hereby shall have the
meanings ascribed thereto in the Credit Agreement;
WHEREAS, the Credit Parties have requested certain amendments to the
Credit Agreement, and the Agents and Requisite Lenders signatory hereto are
willing to agree to such amendments, on the terms and conditions hereinafter set
forth;
WHEREAS, the Credit Parties have requested certain limited waivers to
the Credit Agreement, and the Agents and Requisite Lenders signatory hereto are
willing to agree to such limited waivers, on the terms and conditions
hereinafter set forth; and
NOW, THEREFORE, in consideration of the premises and the agreements,
provisions and covenants herein contained, Company, the Guarantors, the
Requisite Lenders and Agents party hereto agree as follows:
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SECTION 1. AMENDMENTS
1.1 AMENDMENTS TO SECTION 1.1: DEFINITIONS. Section 1.1 is hereby
amended as follows:
(a) The definition of "APPLICABLE REVOLVING COMMITMENT FEE PERCENTAGE"
is hereby amended by inserting the following sentence immediately below the
chart:
Notwithstanding anything to the contrary in this Agreement, from
April 1, 2003 until March 31, 2005, the Applicable Revolving Commitment Fee
Percentage shall be as indicated above plus 0.25%.
(b) The definition of "BORROWING BASE" is hereby amended by deleting
the first sentence and substituting in its place the following:
"BORROWING BASE" means, at any date of determination, an
amount equal to (a) the sum of (i) eighty percent (80%) of the net
amount of ISG Eligible Receivables, plus (ii) twenty-five percent (25%)
of SHG Eligible Receivables, plus (iii) the product of (x) fifty
percent (50%) and (y) the difference of (1) the Net Value of Eligible
Real Estate and (2) ISG Eligible Receivables, minus (b) the Liquidity
Reserve.
(c) The definition of "CONSOLIDATED ADJUSTED EBITDA" is hereby deleted
in its entirety and the following new definition thereof substituted in its
place:
"CONSOLIDATED ADJUSTED EBITDA" means, for any period, an
amount determined for Company and the Guarantor Subsidiaries on a
consolidated basis equal to (i) the sum, without duplication, of the
amounts for such period of (a) Consolidated Net Income, (b)
Consolidated Interest Expense, (c) provisions for taxes based on
income, (d) total depreciation expense, (e) total amortization expense,
(f) (for any period ending on or prior to December 31, 2002 only) to
the extent deducted in determining Consolidated Net Income, any
non-recurring charge or restructuring charge in connection with the
implementation of the Plan of Reorganization, (g) other non-Cash items
reducing Consolidated Net Income (excluding any such non-Cash item to
the extent that it represents an accrual or reserve for potential Cash
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items in any future period or amortization of a prepaid Cash item that
was paid in a prior period) and (h) the amount, if any, by which the
current insurance accounting accruals for general liability and
professional liability claims for each of the trailing four Fiscal
Quarter calculation periods ending in Fiscal Year 2003 and Fiscal Year
2004 exceeds actual cash paid in respect of general liability and
professional liability claims during the same period minus (ii) other
non-Cash items increasing Consolidated Net Income for such period
(excluding any such non-Cash item to the extent it represents the
reversal of an accrual or reserve for potential Cash item in any prior
period), all as may be adjusted pursuant to the terms of Schedule
1.1(iv); provided, however, that the amount added-back to Consolidated
Adjusted EBITDA pursuant to clause (h) above shall not exceed
$30,000,000 for each of the trailing four Fiscal Quarter calculation
periods ending in Fiscal Year 2003 and $15,000,000 for each of the
trailing four Fiscal Quarter calculation periods ending in Fiscal Year
2004.
(d) The definition of the term "CONSOLIDATED EXCESS CASH FLOW" is
hereby deleted in its entirety and the following new definition thereof
substituted in its place:
"CONSOLIDATED EXCESS CASH FLOW" means, for any period, an
amount (if positive) equal to: (i) the sum, without duplication, of the
amounts for such period of (a) Consolidated Adjusted EBITDA (after
subtracting therefrom, without duplication, any amounts deducted under
item (f) of such definition), plus (b) the Consolidated Working Capital
Adjustment and minus (ii) the sum, without duplication, of the amounts
for such period of (a) voluntary and scheduled repayments of
Consolidated Total Debt (excluding (i) repayments of Revolving Loans or
Swing Line Loans except to the extent the Revolving Commitments are
permanently reduced in connection with such repayments), (b)
Consolidated Capital Expenditures (net of any proceeds of (y) any
related financings with respect to such expenditures and (z) any sales
of assets used to finance such expenditures), (c) Consolidated Cash
Interest Expense, (d) provisions for taxes based on income of Company
and the Guarantor Subsidiaries and payable (or paid) in cash in such
period and (e) the aggregate Cash purchase price of all Permitted
Acquisitions consummated during such period and not included in clause
(b) of this clause (ii). Notwithstanding anything to the contrary set
forth herein, for purposes of the Company's
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2002 Fiscal Year and Consolidated Excess Cash Flow shall be determined
solely for the period from and including June 1, 2002 to December 31,
2002.
(e) The definition of the term "CONSOLIDATED NET INCOME" is hereby
amended by adding the following sentence at the end thereof:
"Notwithstanding anything to the contrary contained herein, upon the
shutdown of operations at ▇▇▇▇▇ Healthcare Center and Parkway
Healthcare Center (both of which are Sellco Assets), net income (or
loss) up to $1,000,000 from those facilities will be excluded from
Consolidated Net Income for periods ending on or prior to December 31,
2003."
(f) The definition of the term "GUARANTOR" is hereby amended by adding
the following additional sentence at the end thereof: "The term Guarantor
shall also include each other Domestic Subsidiary from time to time made a
Guarantor Subsidiary pursuant to Section 5.10 hereof."
(g) The following definition of "LIQUIDITY RESERVE" is inserted in the
proper alphabetical order:
"LIQUIDITY RESERVE" means $35,000,000.
(h) The definition of the term "NET VALUE OF ELIGIBLE REAL ESTATE" is
hereby deleted in its entirety and the following new definition is inserted
in its place:
"NET VALUE OF ELIGIBLE REAL ESTATE" shall mean the aggregate
net value of all Real Estate Assets, excluding Real Estate Assets which
are not currently utilized for ongoing operations or are subject to a
Mortgage Loan or a permitted sub-lease to a third party or are SHG
Health Care Facilities, based (i) upon an enterprise valuation with
respect to Real Estate Assets that are ISG Health Care Facilities owned
and operated by a Credit Party and with respect to Real Estate Assets
that are ISG Health Care Facilities leased to and operated by a Credit
Party, to be determined by the Collateral Monitoring Agent from time to
time based upon Facility net operating income and such other factors as
the Collateral Monitoring Agent may deem appropriate in its reasonable
credit judgment, as such amounts per bed may be (A)
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increased from time to time by the Collateral Monitoring Agent in its
sole discretion or (B) decreased from time to time by the Collateral
Monitoring Agent, as the Collateral Monitoring Agent may in its
reasonable discretion deem appropriate based upon changes in market
conditions, changes in Facility net operating income and any other
changes in circumstances that the Collateral Monitoring Agent deems
appropriate in its reasonable credit judgment and (ii) in case of Real
Estate Assets other than Health Care Facilities, the value of such Real
Estate Assets as set forth in appraisal report in form and substance
reasonably satisfactory to the Collateral Monitoring Agent or if no
such report is obtained, a value to be determined by the Collateral
Monitoring Agent in its sole discretion. Notwithstanding anything
herein to the contrary, for purposes of determining the Net Value of
Eligible Real Estate, as used herein, Real Estate Assets shall not
include any interest of any Credit Party in any owned real property to
the extent that the Joint Collateral Agent has not been granted a first
priority perfected Mortgage on such real property, with such amendments
and modifications as may be reasonably agreed by the Administrative
Agent. Collateral Monitoring Agent shall endeavor to furnish Company
with reasonable notice of any decrease in the enterprise valuation
pursuant to clause (i)(B) above; provided, however, that the failure to
furnish such notice shall not inhibit the effectiveness of any such
decrease or give rise to any liability on the part of the Collateral
Monitoring Agent. As of the Second Amendment Effective Date, the Net
Value of Eligible Real Estate is $559,751,337, subject to adjustment
from time to time by the Collateral Monitoring Agent as provided for
above in this definition.
(i) The following definition of "SECOND AMENDMENT" is inserted in the
proper alphabetical order:
"SECOND AMENDMENT" means that certain Second Amendment and
Limited Waiver to Credit and Guaranty Agreement dated as of March 31,
2003 by and among the Company, the Guarantors signatory thereto and the
Agents and Lenders signatory thereto.
The following definition of "SECOND AMENDMENT EFFECTIVE DATE" is
inserted in the proper alphabetical order:
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"SECOND AMENDMENT EFFECTIVE DATE" means the date on or prior
to 5:00 p.m. Eastern time on April 14, 2003 upon which all the
conditions precedent set forth in Section 2 of the Second Amendment are
satisfied or waived in writing by Requisite Lenders.
(j) The following definition of "SHARED SERVICES" is inserted in the
proper alphabetical order:
"SHARED SERVICES" means the Company's shared services project
which encompasses its Process Change and Performance Enhancement
Initiatives as reviewed by the Company's Board of Directors and more
fully described in the Company's Form 10K for the period ended December
31, 2002.
1.2 AMENDMENTS TO SECTION 2.8: INTEREST ON LOANS. Section 2.8(a) is
hereby amended by adding a new clause at the conclusion thereof:
(v) Notwithstanding anything to the contrary set forth in this
Agreement, from April 1, 2003 until March 31, 2005, Revolving Loans,
Swing Line Loans and Terms Loans shall bear interest as set forth in
clauses (i), (ii), (iii) and (iv) above plus 1% per annum.
1.3 AMENDMENTS TO SECTION 5.1: FINANCIAL STATEMENTS AND OTHER REPORTS.
Section 5.1 is hereby amended as follows:
(a) Section 5.1(d), Compliance Certificate, is hereby amended by adding
the following parenthetical immediately following the words "Section
5.1(b)":
(other than with respect to any Fiscal Quarter ending December
31)
(b) Section 5.1(i), Financial Plan, is hereby amended by (i) deleting
the phrase "as soon as practicable and in any event no later than the
beginning of each Fiscal Year" at the beginning thereof, and by
substituting the following phrase in its place: "as soon as practicable and
in any event no later than the end of February during each Fiscal Year" and
(ii) immediately after the phrase "together, in each case, with an
explanation of the assumptions on which such forecasts are based" inserting
the following phrase "and detailed line items".
1.4 AMENDMENTS TO SECTION 5.4: MAINTENANCE OF PROPERTIES. Section 5.4,
is hereby amended by substituting the following new Section 5.4 in its place:
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5.4 MAINTENANCE OF PROPERTIES. Each Credit Party will, and
will cause each of its Subsidiaries (other than the PHCMI Debtors) to,
maintain or cause to be maintained in good repair, working order and
condition, ordinary wear and tear excepted, all material properties
used or useful in the business of Company and its Subsidiaries (other
than the PHCMI Debtors which are not Guarantors) and from time to time
will make or cause to be made all appropriate repairs, renewals and
replacements thereof.
1.5 AMENDMENTS TO SECTION 5.5: INSURANCE. Section 5.5(a) is hereby
amended by inserting the following at the end of the third sentence thereof:
provided, however, that clauses (i) and (ii) of this sentence shall not
be applicable to any policy of insurance which is solely related to any
property of one or more PHCMI Debtors which are not Guarantors that
does not constitute Collateral hereunder.
1.6 AMENDMENTS TO SECTION 5.6: INSPECTIONS. Section 5.6 is hereby
amended substituting the following new Section 5.6 in its place:
5.6 INSPECTIONS. Each Credit Party will, and will cause each
of its Subsidiaries to, permit any authorized representatives
designated by any Lender or any Agent to visit and inspect any of the
properties of any Credit Party and any of its respective Subsidiaries,
to inspect, copy and take extracts from its and their financial and
accounting records and to discuss its and their affairs, finances and
accounts with its and their officers and independent public
accountants, all upon reasonable notice and at such reasonable times
during normal business hours and as often as may reasonably be
requested, provided that all visits to and inspections shall be
conducted in a manner calculated to minimize any disruption to the
Credit Parties' operations and consistent with the confidentiality
provision set forth in Section 10.17, and provided, further, that (i)
so long as no Event of Default has occurred and is then continuing, the
Credit Parties shall not be required to reimburse the costs or expenses
incurred by such representatives of any Lender or any Agent in
conducting in each case more than four such visits or inspections
(which may include up to ten (10) Health Care Facilities and any other
facility reasonably requested by the Collateral Monitoring Agent having
Medicaid/Medicare survey issues) in any Fiscal Year and (ii) upon
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the occurrence and during the continuation of an Event of Default, the
Collateral Monitoring Agent shall be permitted to conduct any and all
visits, inspections and collateral audits as it deems appropriate in
its reasonable discretion, and Credit Parties shall be required to
reimburse the Collateral Monitoring Agent for the reasonable and
documented costs and expenses incurred by it and its representative in
conducting all such visits and inspections. Without limiting the
foregoing, the Company shall, at Company's expense, permit
representatives and agents of Collateral Monitoring Agent on a
quarterly basis, to examine and make abstracts or copies from the
Credit Parties' books and records, and conduct collateral audits and
analysis of its Receivables, Facilities and Real Estate Assets at such
reasonable times and as often as may reasonably be desired.
1.7 AMENDMENTS TO SECTION 5.10: SUBSIDIARIES. Section 5.10(a) is hereby
deleted in its entirety and the following is inserted in its place:
(a) In the event after the Closing Date that any Person
becomes a wholly owned Domestic Subsidiary of Company (other than an
Approved Captive Insurance Subsidiary but expressly including each of
the PHCMI Debtors upon prepayment or repayment in full of the Omega
Loan and ▇▇▇▇▇▇▇▇▇ Nursing & Rehabilitation Center, Inc. upon
prepayment or repayment in full of its mortgage loan, or settlement in
full of such mortgage holder's claims in the Cases), Company shall (a)
promptly cause such Domestic Subsidiary to become a Guarantor hereunder
and a Grantor under the Pledge and Security Agreement by executing and
delivering to Administrative Agent and Collateral Monitoring Agent a
Counterpart Agreement, and (b) take all such actions and execute and
deliver, or cause to be executed and delivered, all such documents,
instruments, agreements, and certificates as are similar to those
described in Sections 3.1(g), 3.1(l), 3.1(m), 3.1(n), and 3.1(q). In
the event that any Person becomes a Foreign Subsidiary of Company
(other than an Approved Captive Insurance Subsidiary), and the
ownership interests of such Foreign Subsidiary are owned by Company or
by any wholly owned Domestic Subsidiary thereof, Company shall, or
shall cause such Domestic Subsidiary to, deliver, all such documents,
instruments, agreements, and certificates as are similar to those
described in Sections 3.1(g), and Company shall take, or shall cause
such
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Domestic Subsidiary to take, all of the actions referred to in Section
3.1(m)(i) necessary to grant and to perfect a First Priority Lien in
favor of Joint Collateral Agent, for the benefit of Secured Parties,
under the Pledge and Security Agreement in such ownership interests,
provided that in no event shall such Domestic Subsidiary be required to
pledge ownership interests exceeding sixty-five percent (65%) of its
total ownership interests in such Foreign Subsidiary. With respect to
each such Subsidiary, Company shall promptly send to Administrative
Agent and Collateral Monitoring Agent written notice setting forth with
respect to such Person (i) the date on which such Person became a
Subsidiary of Company, and (ii) all of the data required to be set
forth in Schedules 4.1 and 4.2 with respect to all Subsidiaries of
Company; provided, such written notice shall be deemed to supplement
Schedule 4.1 and 4.2 for all purposes hereof. In addition, upon each
such event, Company shall provide to Administrative Agent and
Collateral Monitoring Agent a Schedule 1.1(i)(a) setting forth a
complete list of Guarantor Subsidiaries, whereupon Schedule 1.1(i)
shall be deemed to be amended accordingly.
1.8 AMENDMENTS TO SECTION 5.12: INTEREST RATE PROTECTION. Section 5.12
is hereby amended by deleting it in its entirety by substituting the following
new Section 5.12 in its place:
5.12 INTEREST RATE PROTECTION. Upon the earlier of (i) the
tenth Business Day following the receipt by Company of notice from the
Administrative Agent that three month Eurodollar Rate equals or exceeds
3% per annum or (ii) October 15, 2003, Company shall enter into and
cause to be maintained in effect one or more Interest Rate Agreements
having terms, conditions and tenures, and being otherwise in form and
substance reasonably satisfactory to Administrative Agent and
Syndication Agent, to the extent necessary so that, until the Term Loan
Maturity Date, interest on Indebtedness in a principal amount equal to
at least 50.0 percent of the total outstanding funded Indebtedness of
the Company and its consolidated Subsidiaries is effectively fixed or
capped at rates which are reasonably acceptable to the Syndication
Agent and the Administrative Agent.
1.9 AMENDMENTS TO SECTION 5.14: CASH MANAGEMENT SYSTEM. Section 5.14 is
hereby amended by adding the following new subsection (c):
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(c) Notwithstanding anything to the contrary in subsection (b)
above, on and at all times after the date which is not later than 45
days after the Second Amendment Effective Date (the "CASH DOMINION
IMPLEMENTATION DATE"), the Credit Parties shall not have free access to
the funds in the Concentration Accounts (excluding the Insurance
Concentration Account and the New Disbursement Account hereinafter
referred to) and the balances in such accounts shall first be applied
toward the payment of the outstanding principal amount of Revolving
Loans, and then any other Obligations due and payable which are
overdue, if any, in accordance with the provisions hereof, before being
released and returned to the Company and made available for use by the
Company for other purposes. In order to accomplish the foregoing, each
Credit Party hereby authorizes and directs the Joint Collateral Agent
on or after the Cash Dominion Implementation Date (and irrespective of
whether or not a Default or Event of Default then exists) to deliver to
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ Bank, a Notice of Shifting Control under and as defined
in that certain Blocked Account Control Agreement dated May 13, 2002
(the "▇▇ ▇▇▇▇▇▇ CONTROL AGREEMENT") by and among ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ Bank,
the Company and Joint Collateral Agent, directing ▇▇ ▇▇▇▇▇▇ Chase Bank
on a daily basis on each Business Day on and at all times after the
Cash Dominion Implementation Date to sweep all available funds on
deposit in the Account (as defined in the ▇▇ ▇▇▇▇▇▇ Control Agreement,
but excluding in any event the Insurance Concentration Account) to the
designated deposit account of the Administrative Agent established at
JPMorgan Chase Bank, Houston, Texas, or such other deposit account at
such bank as Administrative Agent may from time to time designate upon
notice to the Company (the "AGENT COLLECTION ACCOUNT") and not to honor
any further instructions of the Company or any Credit Party with
respect to the withdrawal or transfer of any funds in the Account (as
defined in the ▇▇ ▇▇▇▇▇▇ Control Agreement).
On or prior to the Cash Dominion Implementation Date, the
Company shall establish a new deposit account with JPMorgan Chase Bank
(the "NEW DISBURSEMENT ACCOUNT"), which deposit account shall at all
times on and after the Cash Dominion Implementation Date be subject to
an effective control agreement among the Company, JPMorgan Chase Bank
and the Joint
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Collateral Agent in form and substance substantially the same as the ▇▇
▇▇▇▇▇▇ Control Agreement. So long as the Administrative Agent shall not
have delivered a "notice of shifting control" (as defined in the
control agreement relating to the New Disbursement Account) to JPMorgan
Chase Bank, which the Administrative Agent shall only be entitled to
deliver during the existence of an Event of Default, the Credit Parties
shall have free access to the funds in the New Disbursement Account.
Any funds swept by the Administrative Agent into the Agent Collection
Account on any Business Day and that are required to be released back
to the Company in accordance with this Section 5.14(c) shall be sent on
such Business Day by wire transfer (or, where possible, by intra-bank
transfer) by the Administrative Agent to the New Disbursement Account,
for same-day credit.
Notwithstanding anything to the contrary contained herein, the
Company, with the prior written consent of the Administrative Agent and
the Collateral Monitoring Agent in each instance, may from time to time
(i) enter into one or more agreements with the Administrative Agent or
any depository bank, or both, in connection with the implementation and
administration of the cash dominion arrangements described in this
Section 5.14(c), (ii) amend, modify or replace any such agreement, or
(iii) make other changes to the cash dominion arrangements described in
this Section for the purpose of facilitating the efficient and timely
flow and application of funds as contemplated herein. For illustrative
purposes, and without limiting the generality of the immediately
preceding sentence, the Company may, at its option (but only with the
prior written consent of the Administrative Agent and the Collateral
Monitoring Agent), transfer one of its JPMorgan Chase Bank
Concentration Accounts to the Administrative Agent, to serve as the
Agent's Collection Account, in lieu of the Administrative Agent opening
a new account in its name.
1.10 AMENDMENTS TO SECTION 6.8: FINANCIAL COVENANTS. Section 6.8 is
hereby amended as follows:
(a) Section 6.8(a), Fixed Charge Coverage Ratio, is hereby deleted in
its amended by substituting the following new Section 6.8(a) in its place:
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(a) Fixed Charge Coverage Ratio. Company shall not permit the
Fixed Charge Coverage Ratio (i) as of the last day for any Fiscal
Quarter, beginning with the Fiscal Quarter ending June 2002, to be less
than the correlative ratio indicated below:
FIXED CHARGE
DATE COVERAGE RATIO
------------------------- ----------------------
On or prior to
March 2003 1.50:1.00
June 2003 1.46:1.00
September 2003 1.42:1.00
December 2003 1.37:1.00
March 2004 1.44:1.00
June 2004 and thereafter 1.50:.00
(b) Section 6.8(b), Minimum Consolidated Adjusted EBITDA, is
hereby amended by deleting the chart therefrom and by substituting the
following chart in its place:
MINIMUM
EBITDA
DATE (MILLIONS)
------------------------- ----------------------
June 2002 $110.00
September 2002 $110.00
December 2002 $110.00
March 2003 $112.00
June 2003 $90.00
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MINIMUM
EBITDA
DATE (MILLIONS)
------------------------- ----------------------
September 2003 $75.00
December 2003 $71.00
March 2004 $74.00
June 2004 $78.00
September 2004 $80.00
December 2004 $80.00
March 2005 $130.00
June 2005 $130.00
September 2005 $130.00
December 2005 $130.00
March 2006 $135.00
June 2006 $135.00
September 2006 $135.00
December 2006 $135.00
March 2007 $135.00
June 2007 $135.00
September 2007 $135.00
December 2007 $135.00
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MINIMUM
EBITDA
DATE (MILLIONS)
------------------------- ----------------------
March 2008 $135.00
June 2008 $135.00
September 2008 $135.00
December 2008 $135.00
(c) Section 6.8(c), Leverage Ratio, is hereby amended as follows
(i) by deleting the chart from Section 6.8(c)(i) in its entirety and by
substituting the following chart in its place:
FISCAL TOTAL DEBT LEVERAGE
QUARTER RATIO
------------------------- ----------------------
June 2002 4.10:1.00
September 2002 4.00:1.00
December 2002 4.00:1.00
March 2003 4.05:1.00
June 2003 5.05:1.00
September 2003 5.90:1.00
December 2003 6.25:1.00
March 2004 6.00:1.00
June 2004 5.75:1.00
September 2004 5.60:1.00
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FISCAL TOTAL DEBT LEVERAGE
QUARTER RATIO
------------------------- ----------------------
December 2004 5.60:1.00
March 2005 3.00:1.00
June 2005 3.00:1.00
September 2005 3.00:1.00
December 2005 and 3.00:1.00
thereafter
(ii) by deleting the chart from Section 6.8(c)(ii) in its entirety and
by substituting the following chart in its place:
FISCAL SENIOR DEBT LEVERAGE
QUARTER RATIO
------------------------- ----------------------
June 2002 2.75:1.00
September 2002 2.75:1.00
December 2002 2.75:1.00
March 2003 2.75:1.00
June 2003 3.50:1.00
September 2003 4.00:1.00
December 2003 4.30:1.00
March 2004 4.00:1.00
June 2004 3.85:1.00
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FISCAL SENIOR DEBT LEVERAGE
QUARTER RATIO
------------------------- ----------------------
September 2004 3.75:1.00
December 2004 3.75:1.00
March 2005 2.00:1.00
June 2005 2.00:1.00
September 2005 2.00:1.00
December 2005 and 2.00:1.00
thereafter
(d) Section 6.8(d), Maximum Consolidated Capital Expenditures, is
hereby amended by (i) changing the maximum amount of Consolidated Capital
Expenditures permitted for Fiscal Year 2003 from "$40.00 million" to
"$65.00 million" and (ii) by deleting subsection 6.8(d)(iii) in its
entirety, and substituting the following new subsection 6.8(d)(ii) in its
place:
(ii) To the extent the amount of Consolidated Capital
Expenditures permitted by the preceding paragraph (i) for any Fiscal
Year (without regard to any carry-over from a prior Fiscal Year
pursuant to this paragraph) is in excess of the actual amount of
Consolidated Capital Expenditures for such period, the amount of
permitted Consolidated Capital Expenditures during the immediately
succeeding Fiscal Year only, shall be increased by the lesser of (A)
the amount of such excess and (B) the amount equal to 20% of the amount
of Consolidated Capital Expenditures permitted by such paragraph (i)
without regard to any carry-over from a prior Fiscal Year pursuant to
this paragraph) for the period with respect to which such excess exists
(provided that, (I) for purposes of determining the portion of any such
excess from the Closing Date through December 31, 2002 which may be
carried over into Fiscal Year 2003, the amount determined under clause
(B) of this paragraph shall be based on 20% of the Consolidated Capital
Expenditures permitted from the Closing Date through December 31, 2002
were annualized for all of Fiscal Year 2002; and (II) for purposes of
determining the portion of any such excess from Fiscal Year 2003 which
may be carried over into Fiscal Year 2004,
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such amount be increased by the lesser of (X) $34 million and (Y) the
amount of capital expenditures incurred in connection with the
provision of the Shared Services.
1.11 AMENDMENT TO SECTION 6.9: FUNDAMENTAL CHANGES; DISPOSITION OF
ASSETS; ACQUISITIONS.
(a) Section 6.9 is hereby amended by deleting subsection (c) thereof in
its entirety and by substituting the following new subsection (c) in its
place:
(c) Asset Sales, the proceeds of which (valued at the
principal amount thereof in the case of non-Cash proceeds consisting of
notes or other debt Securities and valued at fair market value in the
case of other non-Cash proceeds) (i) when aggregated with the proceeds
of all other Asset Sales made within the same Fiscal Year, are less
than $50,000,000; provided (i) the consideration received for such
assets shall be in an amount equal to the fair market value thereof
(determined in good faith by the Board of Directors (or similar
governing body) of the Company or the applicable Credit Party, (ii) no
less than 75% thereof shall be paid in Cash, (iii) for any single Asset
Sale or series of related Asset Sales in an aggregate amount in excess
of $10,000,000, the Company shall deliver to the Administrative Agent a
Compliance Certificate at least five (5) Business Days prior to the
date of sale (or such shorter period as Administrative Agent may agree
to from time to time), verifying that immediately after giving pro
forma affect to such Asset Sale, the Company will be in compliance with
its financial covenant set forth in Section 6.8, and (iv) the Net Asset
Sale Proceeds thereof shall be applied as required by Section 2.14(a).
(b) Section 6.9 is hereby amended by deleting subsection (e) thereof in
its entirety and by substituting the following new subsection (e) in its
place:
(e) Permitted Acquisitions, the consideration (including
without limitation all Indebtedness assumed in connection with such
acquisition) for which constitutes (i) less than $5,000,000 in each of
Fiscal Year 2003 and Fiscal Year 2004, (ii) less than $10,000,000 in
the aggregate in any other Fiscal Year, and (iii) less than $50,000,000
in the aggregate from the Closing Date to the date of determination;
provided that in no event shall any
17
Investment in any business or line of business deemed "reasonably
related" to the Closing Date business or lines of business of Company
pursuant to clause (vi) of the definition of Permitted Acquisitions (as
opposed to any business or line of business actually engaged in by the
Credit Parties on the Closing Date) exceed $2,500,000 during the term
of this Agreement;
1.12 AMENDMENT TO SECTION 8.1: EVENTS OF DEFAULT.
(a) Section 8.1 is hereby amended by deleting subsection (d) thereof in
its entirety and by substituting the following new subsection (d) it is
place:
(d) Breach of Certain Covenants. Failure of any Credit Party to perform or
comply with any term or condition contained in (i) Section 5.1(t), and
such default shall not have been remedied within five days, or (ii)
Section 2.6, Section 5.2, Section 5.14(b) or Section 6; or
(b) Section 8.1 is hereby amended by deleting subsection (i) thereof in
its entirety and by substituting the following new subsection (i) in its
place:
(i) Judgments and Attachments. Any money judgment, writ or warrant of
attachment or similar process involving in any individual case or in
the aggregate at any time an amount in excess of $5,000,000 (in either
case to the extent not adequately covered by insurance as to which a
solvent and unaffiliated insurance company has acknowledged coverage,
which coverage may provide for a self-insured retention provided such
self-insured retention is covered by an adequately funded Approved
Captive Insurance Subsidiary or, if none exist, an adequately funded
Insurance Concentration Account) shall be entered or filed against
Company or any of its Subsidiaries (other than a PHCMI Debtor which is
not a Guarantor to the extent such writ or warrant of attachment or
similar process is not enforceable against any of the Collateral) or
any of their respective assets and shall remain undischarged,
unvacated, unbonded or unstayed for a period of sixty (60) days (or in
any event later than five days prior to the date of any proposed sale
thereunder); or
18
1.13 AMENDMENT TO SECTION 10.2: EXPENSES. Section 10.2 is hereby
amended by deleting the "and" before clause (f) and inserting the following
immediately prior to the "." at the end thereof:
and (g) the reasonable and documented fees, expenses and disbursements
of counsel to Collateral Monitoring Agent in connection with (x) the
negotiation, preparation and execution of any consents, amendments,
waivers or other modifications of the Credit Documents from time to
time, and (y) any work undertaken by counsel to the Collateral
Monitoring Agent in connection with the enforcement of any of the
rights of the Collateral Monitoring Agent under the Credit Documents
after the occurrence and during the continuation of an Event of
Default.
1.14 SUBSTITUTION OF SCHEDULE 4.29. Schedule 4.29, Cash Management
System, to the Credit Agreement is hereby amended by deleting it in its entirety
and by substituting in its place the correspondingly designated Schedule
attached to this Second Amendment.
1.15 SUBSTITUTION OF EXHIBITS.
(a) Annex A to Exhibit C, Compliance Certificate, to the Credit
Agreement is hereby amended by deleting it in its entirety and by
substituting in its place the correspondingly designated Annex
attached to this Second Amendment:
(b) Exhibit N, Borrowing Base Certificate, to the Credit Agreement is
hereby amended by deleting it in its entirety and by substituting
in its place the correspondingly designated Annex attached to
this Second Amendment:
SECTION 2. LIMITED WAIVER
2.1 Requisite Lenders hereby waive the effect of the Company's
non-compliance with the provisions of Section 6.8(d) of the Credit Agreement for
Fiscal Year 2002 to the extent that the Consolidated Capital Expenditures for
Fiscal Year 2002 exceeded the maximum amount permitted by less than $7,500,000.
SECTION 3. LIMITATION OF AMENDMENTS AND WAIVER
3.1 Without limiting the generality of the provisions of Section
10.5 of the Credit Agreement, the waivers set forth above shall be limited
precisely as written and relate solely to the waivers of the provisions of the
Credit Agreement in the manner and to the extent described above, and nothing in
this Second Amendment shall be deemed to:
19
(a) constitute a waiver of compliance by the Company or any
Guarantor with respect to (1) Section 10.5 of the Credit Agreement in
any other instance or (2) any other term, provision or condition of the
Credit Agreement or any other instrument or agreement referred to
therein; or
(b) prejudice any right or remedy that any Lender may now have
(except to the extent such right or remedy was based upon existing
defaults that will not exist after giving effect to this Second
Amendment) or may have in the future under or in connection with the
Credit Agreement or any other instrument or agreement referred to
therein.
SECTION 4. CONDITIONS PRECEDENT TO EFFECTIVENESS
4.1 The effectiveness of the amendments set forth at Section 1
hereof is subject to the satisfaction, or waiver, of the following conditions on
the date hereof:
(a) The Company, the Guarantors, the Requisite Lenders, the
Administrative Agent and the Collateral Monitoring Agent shall have
indicated their consent by the execution and delivery of the signature
pages to the Administrative Agent.
(b) As of the Second Amendment Effective Date (and after giving effect
to this Second Amendment), the representations and warranties contained
herein and in the other Credit Documents shall be true, correct and
complete in all material respects on and as of the Second Amendment
Effective Date to the same extent as though made on and as of that
date, except to the extent such representations and warranties
specifically relate to an earlier date, in which case such
representations and warranties shall have been true, correct and
complete in all material respects on and as of such earlier date.
(c) As of the Second Amendment Effective Date, after giving effect to
this Second Amendment, no event shall have occurred and be continuing
that would constitute an Event of Default or a Default.
(d) Administrative Agent shall have received, for distribution to all
Lenders executing this Amendment on or prior to 5:00 p.m. Eastern time
on April 14, 2003, whether or not the Second Amendment Effective Date
shall have occurred prior to such date, an amendment fee equal to 0.50%
of such Lenders' outstanding Commitments immediately prior to the
Second Amendment Effective Date.
(e) The Company shall have reimbursed or paid to the Collateral
Monitoring Agent and its outside counsel, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, all
reasonable and documented costs,
20
fees, and expenses (including, without limitation, legal fees and
expenses) incurred by the Collateral Monitoring Agent and its outside
counsel in connection with the preparation, review and negotiation of
this Second Amendment and the transactions contemplated hereby, and
invoiced to the Company.
(e) The Company shall have paid all fees, costs and expenses owing to
the Administrative Agent, the Syndication Agent and its counsel
invoiced to the Company on or before the date hereof and reimbursable
by the Company under the terms of the Credit Agreement.
SECTION 5. REPRESENTATIONS AND WARRANTIES
5.1 In order to induce the Agents and Requisite Lenders to
enter into this Second Amendment, the Company and each Guarantor hereby
represents and warrants that after giving effect to this Second Amendment:
(a) as of the date hereof, after giving effect to this Second
Amendment, there exists no Default or Event of Default;
(b) all representations and warranties contained in the Credit
Agreement and the other Credit Documents are true, correct and complete
in all material respects on and as of the date hereof, except to the
extent such representations and warranties specifically relate to an
earlier date, in which case they were true, correct and complete in all
material respects on and as of such earlier date;
(c) the execution, delivery and performance of this Second Amendment
have been duly authorized by all necessary action on the part of the
Company and each Guarantor. The execution, delivery and performance by
the Company and each Guarantor of this Second Amendment and the
consummation of the transactions contemplated hereby, do not and will
not (i) violate any provision of any law or governmental rule or
regulation applicable to such Credit Party, the Organizational
Documents of such Credit Party, or any order, judgment or decree of any
court or other agency of government binding on any Credit Party, (ii)
conflict with, result in a breach of or constitute (with due notice or
the lapse of time or both) a default under any Contractual Obligation
of any Credit Party or any of its Subsidiaries, (iii) result in or
require the creation or imposition of any Lien upon any of the
properties or assets of any Credit Party or any of its Subsidiaries, or
(iv) require the approval of members of any Credit Party or any
approval or consent of any Person under any Contractual Obligation
which shall not have been obtained on or before the effective date of
this Second Amendment;
21
(d) this Second Amendment and each Credit Document has been duly
executed and delivered by each Credit Party and is the legally valid
and binding obligation of such Credit Party, enforceable in accordance
with its respective terms, except as may be limited by bankruptcy,
insolvency, reorganization or moratorium.
SECTION 6. ACKNOWLEDGMENT AND CONSENT
6.1 Each of the Company and the Guarantors hereby acknowledges
that it has reviewed the terms and provisions of the Credit Agreement and this
Second Amendment and consents to the amendments and limited waivers effected
pursuant to this Second Amendment. Each of the Company and the Guarantors
hereby: (i) confirms that each Credit Document to which it is a party or
otherwise bound and all Collateral encumbered thereby will continue to guarantee
or secure, as the case may be, to the fullest extent possible in accordance with
the Credit Documents, the payment and performance of all Guaranteed Obligations
under the Credit Agreement and Secured Obligations (as such term is defined in
the Pledge and Security Agreement) under the Pledge and Security Agreement now
or hereafter existing under or in respect of the Credit Agreement, and confirms
its grants to the Joint Collateral Agent of a continuing lien on and security
interest in and to all Collateral as collateral security for the prompt payment
and performance in full when due of the Guaranteed Obligations under the Credit
Agreement and the Secured Obligations (as such term is defined in the Pledge and
Security Agreement) under the Pledge and Security Agreement (whether at stated
maturity, by acceleration or otherwise) and (ii) acknowledges and agrees that
any of the Credit Documents to which it is a party or otherwise bound shall
continue in full force and effect and that all of its obligations thereunder
shall be valid and enforceable (subject to the qualifications set forth in
Section 4.6 of the Credit Agreement) and shall not be impaired or limited by the
execution or effectiveness of this Second Amendment.
6.2 Each Guarantor acknowledges and agrees that (i)
notwithstanding the conditions to effectiveness set forth in this Second
Amendment, such Guarantor is not required by the terms of the Credit Agreement
or any other Credit Document to consent to the amendments effected pursuant to
this Second Amendment, and (ii) nothing in the Credit Agreement, this Second
Amendment or any other Credit Document shall be deemed to require the consent of
such Guarantor to any future waivers or amendments to the Credit Agreement.
SECTION 7. MISCELLANEOUS
7.1 This Second Amendment shall be binding upon the parties
hereto and their respective successors and assigns and shall inure to the
benefit of the parties hereto and the successors and assigns of Lenders. No
Credit Party's rights or obligations hereunder or any
22
interest therein may be assigned or delegated by any Credit Party without the
prior written consent of all Lenders.
7.2 In case any provision in or obligation hereunder shall be
invalid, illegal or unenforceable in any jurisdiction, the validity, legality
and enforceability of the remaining provisions or obligations, or of such
provision or obligation in any other jurisdiction, shall not in any way be
affected or impaired thereby.
7.3 On and after the Second Amendment Effective Date, each
reference in the Credit Agreement to "this Agreement," "hereunder," "hereof",
"herein" or words of like import referring to the Credit Agreement, and each
reference in the other Credit Documents to the "Credit Agreement", "thereunder,"
"thereof", or words of like import referring to the Credit Agreement, shall mean
and be a reference to the Credit Agreement as amended by this Second Amendment.
7.4 Except as specifically waived by this Second Amendment,
the Credit Agreement and the other Credit Documents shall remain in full force
and effect and are hereby ratified and confirmed.
7.5 The execution, delivery and performance of this Second
Amendment shall not, except as expressly provided herein, constitute a waiver of
any provision of, or operate as a waiver of any right, power or remedy of any
Agent or Lender under, the Credit Agreement or any of the other Credit
Documents.
7.6 Section headings herein are included herein for
convenience of reference only and shall not constitute a part hereof for any
other purpose or be given any substantive effect.
7.8 THIS SECOND AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF
THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
7.9 This Second Amendment may be executed in any number of
counterparts, each of which when so executed and delivered shall be deemed an
original, but all such counterparts together shall constitute but one and the
same instrument. As set forth herein, this Second Amendment shall become
effective upon the execution of a counterpart hereof by each of the parties
hereto and receipt by Company and Agents of written or telephonic notification
of such execution and authorization of delivery thereof.
[The remainder of this page is intentionally left blank.]
23
COMPANY: MARINER HEALTH CARE, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: SVP-Treasurer
25
GUARANTORS: AID & ASSISTANCE, INC.
AMERICAN MEDICAL INSURANCE BILLING SERVICES,
INC.
AMERICAN PHARMACEUTICAL SERVICES, INC.
AMERICAN REHABILITY SERVICES, INC.
AMERRA PROPERTIES, INC.
APS HOLDING COMPANY, INC.
APS PHARMACY MANAGEMENT, INC.
BEECHWOOD HERITAGE RETIREMENT COMMUNITY,
INC.
▇▇▇▇▇ CENTER HEALTH & REHABILITATION/TAMPA,
INC.
▇▇▇▇▇ CENTER HEALTH & RETIREMENT/ALLEGHANY,
INC.
▇▇▇▇▇ CENTER HEALTH & RETIREMENT/▇▇▇▇▇▇▇,
INC.
▇▇▇▇▇ CENTER MANAGEMENT CORPORATION
▇▇▇▇▇ CENTER NURSING CARE/AUSTELL, INC.
▇▇▇▇▇ CENTER NURSING CARE/FINCASTLE, INC.
BRIDE BROOK NURSING & REHABILITATION CENTER,
INC.
COMPASS PHARMACY SERVICES OF MARYLAND, INC.
COMPASS PHARMACY SERVICES OF TEXAS, INC.
COMPASS PHARMACY SERVICES, INC.
CORNERSTONE HEALTH MANAGEMENT COMPANY
DEVCON HOLDING COMPANY
EH ACQUISITION CORP. III
GCI HEALTH CARE CENTERS, INC.
GCI REHAB, INC.
GCI THERAPIES, INC.
GCI-CAL THERAPIES COMPANY
GCI-WISCONSIN PROPERTIES, INC.
GRANCARE HOME HEALTH SERVICES, INC.
GRANCARE OF MICHIGAN, INC.
GRANCARE OF NORTH CAROLINA, INC.
GRANCARE SOUTH CAROLINA, INC.
GRANCARE, LLC
HERITAGE OF LOUISIANA, INC.
HOSPICE ASSOCIATES OF AMERICA, INC.
IHS REHAB PARTNERSHIP, LTD.
LCR, INC.
28
LIVING CENTERS DEVELOPMENT COMPANY
LIVING CENTERS LTCP DEVELOPMENT COMPANY
LIVING CENTERS OF TEXAS, INC.
LIVING CENTERS-EAST, INC.
LIVING CENTERS-ROCKY MOUNTAIN, INC.
LIVING CENTERS-SOUTHEAST DEVELOPMENT
CORPORATION
LIVING CENTERS-SOUTHEAST, INC.
LONG RIDGE NURSING AND REHABILITATION CENTER,
INC.
LONGWOOD REHABILITATION CENTER, INC.
MARINER HEALTH AT BONIFAY, INC.
MARINER HEALTH CARE MANAGEMENT COMPANY
MARINER HEALTH CARE OF ATLANTIC SHORES, INC.
MARINER HEALTH CARE OF DELAND, INC.
MARINER HEALTH CARE OF FORT ▇▇▇▇▇, INC.
MARINER HEALTH CARE OF GREATER LAUREL, INC.
MARINER HEALTH CARE OF INVERNESS, INC.
MARINER HEALTH CARE OF LAKE WORTH, INC.
MARINER HEALTH CARE OF MACCLENNY, INC.
MARINER HEALTH CARE OF METROWEST, INC.
MARINER HEALTH CARE OF NASHVILLE, INC.
MARINER HEALTH CARE OF NORTH HILLS, INC.
MARINER HEALTH CARE OF ORANGE CITY, INC.
MARINER HEALTH CARE OF PALM CITY, INC.
MARINER HEALTH CARE OF PINELLAS POINT, INC.
MARINER HEALTH CARE OF PORT ORANGE, INC.
MARINER HEALTH CARE OF SOUTHERN CONNECTICUT,
INC.
MARINER HEALTH CARE OF TOLEDO, INC.
MARINER HEALTH CARE OF TUSKAWILLA, INC.
MARINER HEALTH CARE OF WEST HILLS, INC.
MARINER HEALTH CENTRAL, INC.
MARINER HEALTH HOME CARE, INC.
MARINER HEALTH MASSACHUSETTS SHELF
CORPORATION
MARINER HEALTH OF FLORIDA, INC.
MARINER HEALTH OF JACKSONVILLE, INC.
MARINER HEALTH OF MARYLAND, INC.
MARINER HEALTH OF ORLANDO, INC.
29
MARINER HEALTH OF PALMETTO, INC.
MARINER HEALTH OF SEMINOLE COUNTY, INC.
MARINER HEALTH OF TAMPA, INC.
MARINER HEALTH PROPERTIES IV, LTD.
MARINER HEALTH RESOURCES, INC.
MARINER PHYSICIAN SERVICES, INC.
MARINER PRACTICE CORPORATION
MARINER SUPPLY SERVICES, INC.
MARINER-REGENCY HEALTH PARTNERS, INC.
MARINERSELECT STAFFING SOLUTIONS, INC.
MEDREHAB OF INDIANA, INC.
MEDREHAB OF LOUISIANA, INC.
MEDREHAB OF MISSOURI, INC.
MEDREHAB, INC.
MED-THERAPY REHABILITATION SERVICES, INC.
MERRIMACK VALLEY NURSING & REHABILITATION
CENTER, INC.
METHUEN NURSING & REHABILITATION CENTER, INC.
MHC CONSOLIDATING CORPORATION
MHC FLORIDA HOLDING COMPANY
MHC GULF COAST HOLDING COMPANY
MHC HOLDING COMPANY
MHC ILLINOIS, INC.
MHC MIDAMERICA HOLDING COMPANY
MHC MIDATLANTIC HOLDING COMPANY
MHC NORTHEAST HOLDING COMPANY
MHC RECRUITING COMPANY
MHC REHAB CORP.
MHC ROCKY MOUNTAIN HOLDING COMPANY
MHC TEXAS HOLDING COMPANY, LLC
MHC TRANSPORTATION, INC.
MHC WEST HOLDING COMPANY
MHC/CSI FLORIDA, INC.
MHC/LCA FLORIDA, INC.
MYSTIC NURSING & REHABILITATION CENTER, INC.
▇▇▇-▇▇▇ CORP.
NATIONAL HEALTH STRATEGIES, INC.
NATIONAL HERITAGE REALTY, INC.
THE OCEAN PHARMACY, INC.
▇▇
▇▇▇▇ ▇▇▇▇▇▇▇ NURSING & REHABILITATION CENTER,
INC.
▇▇▇▇▇▇▇▇▇ NURSING & REHABILITATION
CENTER, INC.
PHCMI HOLDING COMPANY, LLC
PINNACLE CARE CORPORATION OF HUNTINGTON
PINNACLE CARE CORPORATION OF NASHVILLE
PINNACLE CARE CORPORATION OF ▇▇▇▇▇▇▇▇ BAY
PINNACLE CARE CORPORATION OF WILMINGTON
PINNACLE CARE MANAGEMENT CORPORATION
PINNACLE PHARMACEUTICAL SERVICES, INC.
PINNACLE REHABILITATION OF MISSOURI, INC.
PINNACLE REHABILITATION, INC.
PRISM CARE CENTERS, INC.
PRISM HEALTH GROUP, INC.
PRISM HOME CARE COMPANY, INC.
PRISM HOME CARE, INC.
PRISM HOME HEALTH SERVICES, INC.
PRISM HOSPITAL VENTURES, INC.
PRISM REHAB SYSTEMS, INC.
PROFESSIONAL RX SYSTEMS, INC.
REGENCY HEALTH CARE CENTER OF SEMINOLE
COUNTY, INC.
REHABILITY HEALTH SERVICES, INC.
RENAISSANCE MENTAL HEALTH CENTER, INC.
SASSAQUIN NURSING & REHABILITATION CENTER, INC.
SEVENTEENTH STREET ASSOCIATES LIMITED
PARTNERSHIP
SUMMIT HOSPITAL OF SOUTHEAST ARIZONA, INC.
SUMMIT HOSPITAL OF SOUTHWEST LOUISIANA, INC.
SUMMIT INSTITUTE FOR PULMONARY MEDICINE AND
REHABILITATION, INC.
SUMMIT INSTITUTE OF AUSTIN, INC.
SUMMIT MEDICAL HOLDINGS, LTD.
SUMMIT MEDICAL MANAGEMENT, INC.
TAMPA MEDICAL ASSOCIATES, INC.
TRI-STATE HEALTH CARE, INC.
WINDWARD HEALTH CARE, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
31
LENDERS:
Foothill Income Trust, L.P.
by FITGP, LLC, Its General Partner
as a Lender
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: Managing Member
LENDERS:
The Foothill Group, Inc.
as a Lender
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: EVP
LENDERS:
Gleneagles Trading LLC
as a Lender
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇ ▇. ▇▇▇▇▇▇
Title: Asst. Vice President
LENDERS:
HIGHLAND LOAN FUNDING V, LTD
By Highland Capital Management, L.P.
As Collateral Manager
By: /s/
-------------------------------------------
Title:
LENDERS:
ELF FUNDING TRUST I
By Highland Capital Management, L.P.
As Collateral Manager
By: /s/
-------------------------------------------
Title:
LENDERS:
Highland Legacy Limited
By Highland Capital Management, L.P.
As Collateral Manager
By: /s/
-------------------------------------------
Title:
LENDERS:
CALIFORNIA PUBLIC EMPLOYEES' RETIREMENT SYSTEM
By Highland Capital Management, L.P.
As Authorized Representatives of the Board
By: /s/
-------------------------------------------
Title:
LENDERS:
RESTORATION FUNDING CLO, LTD.
By Highland Capital Management, L.P.
As Collateral Manager
By: /s/
-------------------------------------------
Title:
LENDERS:
Residential Funding Corporation
dba GMAC-RFC Health Capital
as a Lender
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: EVP Operations
LENDERS:
Emerald Orchard Limited
as a Lender
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Attorney in Fact
LENDERS:
Blue Square Funding Series 3,
By: Deutsche Bank Trust Co. Americas
FKA Bankers Trust Co.
as a Lender
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Assistant Vice President
LENDERS:
KZH PAMCO LLC
as a Lender
By: /s/ ▇▇▇▇▇ ▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇ ▇▇▇
Title: Authorized Agent
LENDERS:
KZH HIGHLAND-2 LLC
as a Lender
By: /s/ ▇▇▇▇▇ ▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇ ▇▇▇
Title: Authorized Agent
LENDERS:
KZH RIVERSIDE LLC
as a Lender
By: /s/ ▇▇▇▇▇ ▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇ ▇▇▇
Title: Authorized Agent
LENDERS:
KZH SOLEIL LLC
as a Lender
By: /s/ ▇▇▇▇▇ ▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇ ▇▇▇
Title: Authorized Agent