EXHIBIT 10.69
AMENDED AND RESTATED PLEDGE AGREEMENT
(BORROWER PLEDGING STOCK)
THIS AMENDED AND RESTATED PLEDGE AGREEMENT (the "Agreement"), dated as of
December 23, 1998, is made and entered into by and between MARINER HEALTH GROUP,
INC., a Delaware corporation (the "Debtor"), and PNC BANK, NATIONAL ASSOCIATION,
a national banking association in its capacity as Collateral Agent, as
hereinafter defined (the "Secured Party").
WITNESSETH THAT:
WHEREAS, Debtor, as borrower, PNC Bank, National Association, as
administrative agent, First Union National Bank, as syndication agent, and the
lenders party thereto (the "Banks"), are parties to that certain Credit
Agreement dated as of May 18, 1994, as amended (as it may hereafter from time
to time be amended, restated, modified or supplemented, the "Revolving Credit
Agreement"), pursuant to which the Banks have agreed to make certain revolving
credit loans to the Debtor upon the terms and subject to the conditions set
forth therein;
WHEREAS, Mariner Health Group, Inc. (the "Term Loan Borrower"), as
borrower, PNC Bank, National Association, as administrative agent, First Union
National Bank, as syndication agent, and the lenders party thereto (the "Term
Loan Banks"), are parties to that certain Term Loan Agreement dated of even date
herewith (as it may hereafter from time to time be amended, restated, modified
or supplemented, the "Term Loan Agreement"; the Revolving Credit Agreement and
the Term Loan Agreement are hereinafter collectively referred to as the "Credit
Agreements"), pursuant to which the Term Loan Banks have agreed to make certain
term loans to the Term Loan Borrower upon the terms and subject to the
conditions set forth therein;
WHEREAS, pursuant to that certain Collateral Agency and Sharing Agreement
dated of even date herewith (as it may hereafter from time to time be amended,
restated, modified or supplemented, the "Collateral Sharing Agreement"), among
the Debtor, the Term Loan Borrower, the other Loan Parties (as defined therein),
the Revolving Credit Agent and the Term Loan Agent (as such terms are defined in
the Collateral Sharing Agreement), and PNC Bank, National Association, as
Collateral Agent (together with its successors and assigns, the "Collateral
Agent"), the Facility Parties (as defined in the Collateral Sharing Agreement),
in order to secure the Obligations (as defined in the Collateral Sharing
Agreement), have agreed to share certain collateral as provided in the
Collateral Sharing Agreement;
WHEREAS, the Debtor and the Administrative Agent (as defined in the
Revolving Credit Agreement) are currently parties to that certain Pledge
Agreement (Subsidiaries Pledging Stock) dated May 18, 1994, as amended (the
"Original Pledge Agreement"), pursuant to which certain collateral is pledged to
secure the Revolving Credit Obligations (as defined in the Collateral Sharing
Agreement);
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WHEREAS, Debtor owns the outstanding capital stock of each Subsidiary of
the Debtor as set forth on Schedule A attached hereto and made a part hereof;
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and
WHEREAS, the parties to the Original Pledge Agreement now wish to amend and
restate the Original Pledge Agreement as provided herein, and as so amended,
this Agreement shall be a Shared Security Document (as defined in the Collateral
Sharing Agreement).
NOW, THEREFORE, intending to be legally bound hereby, the parties hereto
hereby agree as follows:
1. Amendment and Restatement; No Novation.
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The Original Pledge Agreement is hereby amended and restated as
provided herein. No novation, suspension of continuity, satisfaction, discharge
of prior duties, or termination of the Obligations, or the collateral therefore
(including, without limitation, the Pledged Collateral), is intended or
consented to by the parties hereto. The Debtor and the Secured Party
acknowledge and agree that the Original Pledge Agreement has continued to secure
the Revolving Credit Obligations since the day of the execution of the Original
Pledge Agreement; that this Agreement is entitled to all rights and benefits
originally pertaining to the Original Pledge Agreement; and that in the event a
court or other authority shall determine that a novation has occurred as a
result of the execution of this Agreement or any other Loan Documents (as
defined in the Collateral Sharing Agreement), or otherwise, and the Secured
Party's security interest in the Pledged Collateral created under the Original
Pledge Agreement is avoided or the Secured Party's priority with respect thereto
is materially and adversely affected, then the rights, privileges, obligations
and remedies of the parities hereto shall be governed as if this Agreement had
not been executed by any party hereto, and the parties hereto agree to negotiate
in good faith to achieve the objectives of this Agreement.
2. Defined Terms.
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(a) Except as otherwise expressly provided herein, capitalized terms used
in this Agreement shall have the respective meanings assigned to them in the
Credit Agreements. Where applicable and except as otherwise expressly provided
herein, terms used herein (whether or not capitalized) shall have the respective
meanings assigned to them in the Uniform Commercial Code as enacted in each
applicable jurisdiction and as may be amended from time to time (the "Code").
(b) "Pledged Collateral" shall mean and include the following: (i) all of
the securities owned by Debtor listed on Schedule A attached hereto and made a
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part hereof, together with all related rights, including without limitation, all
securities and additional securities receivable in respect of or in exchange for
any such securities, all rights to subscribe for securities incident to or
arising from ownership of any such securities, all cash, interest, stock and
other cash and non-cash dividends and distributions (including, without
limitation, stock dividends) paid or payable on any such securities, and all
books, records, and documents concerning any of the items described above
including, without limitation, all stock record and
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transfer books, both that which Debtor now owns and that which Debtor acquires
hereafter; (ii) any and all other securities hereafter pledged to the Secured
Party to secure the Secured Obligations (as hereinafter defined) of Debtor or
Debtor's Subsidiaries, and all rights and privileges pertaining thereto,
including, without limitation, all securities and additional securities
receivable in respect of or in exchange for any such securities, all rights to
subscribe for securities incident to or arising from ownership of any such
securities, all cash, interest, stock and other cash and non-cash dividends and
distributions paid or payable on such securities and all books and records
pertaining to the foregoing including, without limitation, all stock record and
transfer books, and (iii) all substitutions therefor, additions thereto, and
proceeds thereof with respect to any of the foregoing.
3. Grant of Security Interests.
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(a) Debtor, as security for the payment and performance of Debtor's
Obligations and of all other indebtedness and obligations of every nature it
owes under the Loan Documents (all of the foregoing indebtedness and obligations
being referred to herein as the "Secured Obligations"), hereby grants to the
Secured Party a first priority security interest in all of Debtor's now existing
and hereafter acquired and/or arising right, title and interest in, to and under
the Pledged Collateral owned by Debtor, whether now existing or hereafter
acquired and wherever located, subject to Permitted Liens.
(b) Prior to or concurrently with the execution and delivery of this
Agreement, Debtor has delivered to and deposited with the Secured Party in
pledge, stock certificates and any other instruments evidencing the Pledged
Collateral, together with updated Stock Powers signed in blank by Debtor.
4. Further Assurances.
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Prior to or concurrently with the execution of this Agreement, and
thereafter at any time and from time to time upon reasonable request of the
Secured Party, Debtor shall execute and deliver to the Secured Party all
financing statements, continuation or amendment financing statements,
termination statements, assignments, certificates and documents of title,
affidavits, reports, notices, schedules of account, letters of authority,
further pledges, powers of attorney and all other documents (collectively, the
"Security Documents") which the Secured Party may reasonably request, in form
reasonably satisfactory to the Secured Party, and take such other action which
the Secured Party may request, to perfect and continue perfected and to create
and maintain the first priority status (object only to Permitted Liens) of the
Secured Party's security interest in the Pledged Collateral and to fully
consummate the transactions contemplated under the Credit Agreements, the other
Loan Documents and this Agreement. Debtor hereby irrevocably makes, constitutes
and appoints the Secured Party (and any of the Secured Party's officers or
employees or agents designated by the Secured Party) as Debtor's true and lawful
attorney with power to sign the name of Debtor on all or any of the Security
Documents which the Secured Party reasonably determines must be executed, filed,
recorded or sent in order to perfect or continue perfected the Secured Party's
security interest in the Pledged Collateral. Such power, being coupled
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with an interest, is irrevocable until all of the Secured Obligations have been
indefeasibly paid in full and the Commitments have terminated.
5. Representations, Warranties and Certain Covenants.
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In addition to the representations and warranties of Debtor set forth
in the Loan Documents (which representations and warranties are hereby
incorporated herein by reference), Debtor hereby represents, warrants and
covenants to the Secured Party as follows:
(a) Debtor has, and will continue to have (or, in the case of after-
acquired Pledged Collateral, at the time Debtor acquires rights in such Pledged
Collateral, will have), title to the Pledged Collateral, free and clear of all
Liens other than Permitted Liens.
(b) The shares of capital stock constituting the Pledged Collateral have
been duly authorized and validly issued to the Debtor, are fully paid and
nonassessable, have no outstanding assessments, and constitute all of the issued
and outstanding shares of capital stock of the issuer thereof owned by Debtor.
(c) Except for Permitted Liens, the security interests in the Pledged
Collateral granted hereunder are valid, perfected and of first priority.
(d) There are no restrictions upon the transfer of the Pledged Collateral
and Debtor has the power and authority and right to transfer the Pledged
Collateral free of any encumbrances and without obtaining the consent of any
other Person except to the extent that a transfer upon the exercise of Secured
Party's rights and remedies under this Agreement and the other Loan Documents
would result in or constitute an assignment of any license relating to a health
care facility or a change of control with respect to the ownership of a health
care facility which is subject to the prior approval of health care regulatory
authorities issuing such license or regulating such health care facility. It is
acknowledged that a transfer of the Pledged Collateral by Secured Party
following foreclosure may require compliance with federal and state securities
laws.
(e) Debtor has all necessary power to execute, deliver and perform this
Agreement and all necessary action to authorize the execution, delivery and
performance of this Agreement has been properly taken.
(f) There are no actions, suits, or proceedings pending or, to Debtor's
best knowledge after due inquiry, threatened against or affecting Debtor with
respect to the Pledged Collateral, at law or in equity or before or by any
commissions, board, bureau, agency, department or instrumentality, and Debtor is
not in default with respect to any judgment, writ, injunction, decree, rule or
regulation which would adversely affect Debtor's performance hereunder.
(g) This Agreement has been duly executed and delivered and constitutes the
valid and legally binding obligation of Debtor, enforceable in accordance with
its
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terms, except to the extent that (i) enforceability of this Agreement may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium or
other similar Laws affecting the enforceability of creditors' rights generally
or limiting the right of specific performance or by general equitable
principles; and (ii) the exercise by Secured Party of its rights and remedies in
respect of the Pledged Collateral which would result in or constitute any
assignment of any license relating to a health care facility or any change of
control with respect to the ownership of a health care facility is subject to
the prior approval of health care regulatory authorities issuing such license or
regulating such health care facility.
(h) Neither the execution and delivery by the Debtor of this Agreement, nor
the compliance with the terms and provisions hereof, will violate any provision
of the Articles of Incorporation or Bylaws of the Debtor or any Law or conflict
with or result in a breach of any of the terms, conditions or provisions of any
judgment, order, injunction, decree or ruling of any court or arbitration
tribunal or any governmental authority to which Debtor is subject or any
provision of any material agreement, understanding or arrangement to which
Debtor is a party or by which Debtor is bound.
(i) The Debtor's principal place of business and chief executive office is
as set forth on the signature page hereto.
6. General Covenants.
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In addition to any covenants and agreements of the Debtor set forth in
the other Loan Documents, which are incorporated herein by this reference,
Debtor hereby covenants and agrees as follows:
(a) Debtor shall do all reasonable acts that may be necessary and
appropriate to maintain, preserve and protect the Pledged Collateral; Debtor
shall be responsible for the risk of loss of, damage to, or destruction of the
Pledged Collateral owned by Debtor, unless such loss is the result of the gross
negligence or willful misconduct of the Secured Party. Debtor shall notify the
Secured Party in writing ten (10) Business Days prior to any change in the
Debtor's name, the address and location of Debtor's chief executive office or
the address and location of Debtor's principal place of business.
(b) Debtor shall pay promptly when due all taxes, assessments, charges and
obligations secured by encumbrances and liens now or hereafter imposed upon or
affecting any of the Pledged Collateral, except as otherwise expressly permitted
under the Credit Agreements.
(c) Debtor shall appear in and defend any action or proceeding of which
Debtor is aware which could reasonably be expected to affect Debtor's title to,
or the Secured Party's interest in, the Pledged Collateral owned by Debtor and
the proceeds thereof; provided, however, that Debtor may settle such actions or
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proceedings with respect to the
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Pledged Collateral Debtor owns with the consent of the Secured Party, which
consent shall not be unreasonably withheld or delayed.
(d) Debtor shall keep separate, accurate and complete records of the
Pledged Collateral owned by Debtor, disclosing the Secured Party's security
interest hereunder.
(e) Debtor shall permit the Secured Party, its officers, employees and
agents at reasonable times and on reasonable prior notice to inspect all books
and records related to the Pledged Collateral.
(f) To the extent, following the date hereof, Debtor acquires capital stock
of a Subsidiary of Debtor or any of the interests, rights, property or
securities described in the definition of Pledged Collateral with respect to
Debtor's Subsidiaries, such interests stocks, rights, property or securities
shall be, upon such acquisition, pledged to the Secured Party, and Debtor shall
deliver the original certificates for such securities, stock powers executed in
blank, and an updated Schedule A hereto to the Secured Party.
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(g) During the term of this Agreement, Debtor shall not sell, assign,
transfer, pledge, grant a security interest in, place a lien on or otherwise
dispose of the Pledged Collateral except as permitted under the Credit
Agreements.
7. Other Rights With Respect to Pledged Collateral.
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In addition to the other rights with respect to the Pledged Collateral
granted to the Secured Party hereunder, at any time and from time to time, after
and during the continuation of an Event of Default, the Secured Party, at its
option and at the expense of the Debtor, may (a) transfer into its own name, or
into the name of its nominee, all or any part of the Pledged Collateral,
thereafter receiving all dividends, income or other distributions upon the
Pledged Collateral; (b) take control of and manage all or any of the Pledged
Collateral; (c) apply to the payment of any of the Secured Obligations, whether
any be due and payable or not, any moneys, including cash dividends and income
from any Pledged Collateral, now or hereafter in the hands of the Secured Party
or any Affiliate of the Secured Party, on deposit or otherwise, belonging to
Debtor, as the Secured Party, in its sole discretion, shall determine; and (d)
do anything which Debtor is required but fails to do hereunder. The exercise by
the Secured Party of its rights and remedies with respect to the Pledged
Collateral is subject to the licensing power of health care regulatory
authorities. The proceeds of any collection, sale or other disposition of the
Pledged Collateral of Debtor, or any part thereof, shall, after the Secured
Party has made all deductions of expenses, including but not limited to
reasonable attorneys' fees and other expenses incurred in connection with
repossession, collection, sale or disposition of such Pledged Collateral or in
connection with the enforcement of the Secured Party's rights with respect to
the Pledged Collateral in any insolvency, bankruptcy or reorganization
proceedings, be applied against the Secured Obligations, whether or not all the
same be then due and payable, in such manner and order as set forth in the
Collateral Sharing Agreement.
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8. Additional Remedies Upon Event of Default.
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Upon the occurrence of any Event of Default and while such Event of
Default shall be continuing, the Secured Party shall have, in addition to all
rights and remedies of a secured party under the Code or other applicable Law,
and in addition to its rights under Section 7 above and under the other Loan
Documents, the following rights and remedies:
(a) The Secured Party may, after ten (10) days' advance notice to the
Debtor, sell, assign, give an option or options to purchase or otherwise dispose
of the Pledged Collateral or any part thereof at public or private sale, at any
of the Secured Party's offices or elsewhere, for cash, on credit or for future
delivery, and upon such other terms as the Secured Party may deem commercially
reasonable. Debtor agrees that ten (10) days' advance notice of the time and
place of any public sale or the time after which any private sale is to be made
shall constitute reasonable notification. The Secured Party shall not be
obligated to make any sale of Pledged Collateral regardless of notice of sale
having been given. The Secured Party may adjourn any public or private sale from
time to time by announcement at the time and place fixed therefor, and such sale
may, without further notice, be made at the time and place to which it was so
adjourned. Debtor recognizes that the Secured Party may be compelled to resort
to one or more private sales of the Pledged Collateral to a restricted group of
purchasers who will be obliged to agree, among other things, to acquire such
securities for its own account for investment and not with a view to the
distribution or resale thereof. Debtor acknowledges and agrees that any such
private sale may result in prices and other terms less favorable than if such
sale were a public sale and, notwithstanding such circumstances, agrees that any
such private sale shall be deemed to have been made in a commercially reasonable
manner. The Secured Party shall be under no obligation to delay sale of any of
the Pledged Collateral for the period of time necessary to permit Debtor to
register such securities for public sale under the Securities Act of 1933, as
amended, or under applicable state securities laws, even if Debtor would agree
to do so.
(b) The proceeds of any collection, sale or other disposition of the
Pledged Collateral of Debtor, or any part thereof, shall, after the Secured
Party has made all deductions of expenses, including but not limited to
reasonable attorneys' fees and other expenses incurred in connection with
repossession, collection, sale or disposition of such Pledged Collateral or in
connection with the enforcement of the Secured Party's rights with respect to
the Pledged Collateral in any insolvency, bankruptcy or reorganization
proceedings, be applied against the Secured Obligations, whether or not all the
same be then due and payable, in such manner and order as set forth in the
Collateral Sharing Agreement.
9. Secured Party's Duties.
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The powers conferred on the Secured Party hereunder are solely to
protect its interest in the Pledged Collateral and shall not impose any duty
upon it to exercise any such powers. Except for the safe custody of any Pledged
Collateral in its possession and the accounting for moneys actually received by
it hereunder, the Secured Party shall have no duty as to any Pledged Collateral
or as to the taking of any necessary steps to preserve rights against prior
parties or any other rights pertaining to any Pledged Collateral. Further, the
exercise by the Secured Party
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of its rights and remedies with respect to the Pledged Collateral or as
otherwise provided under this Agreement shall only be an exercise of rights with
respect to the Pledged Collateral and shall not in any manner constitute an
assumption of any liabilities with respect to the Pledged Collateral.
10. No Waiver; Cumulative Remedies.
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No failure to exercise, and no delay in exercising, on the part of the
Secured Party, any right, power or privilege hereunder shall operate as a waiver
thereof; nor shall any single or partial exercise of any right, power or
privilege hereunder preclude any further exercise thereof or the exercise of any
other right, power or privilege. The remedies herein provided are cumulative
and not exclusive of any remedies provided under the other Loan Documents or by
Law. Debtor waives any right to require the Secured Party to proceed against
any other Person or to exhaust any of the Pledged Collateral or other security
for the Secured Obligations or to pursue any remedy in the Secured Party's
power.
11. Assignment.
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All rights of the Secured Party under this Agreement shall inure to
the benefit of its successors and assigns. All obligations of Debtor shall bind
its successors and assigns; provided, however, Debtor may not assign or transfer
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any of its rights and obligations hereunder or any interest herein.
12. Severability.
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Any provision of this Agreement which shall be held invalid or
unenforceable shall be ineffective without invalidating the remaining provisions
hereof.
13. Governing Law.
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This Agreement shall be construed in accordance with and governed by
the internal laws of the Commonwealth of Pennsylvania without regard to its
conflicts of law principles, except to the extent the validity or perfection of
the security interests or the remedies hereunder in respect of any Pledged
Collateral are governed by the law of a jurisdiction other than the Commonwealth
of Pennsylvania.
14. Notices.
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Debtor agree that all notices, statements, requests, demands and other
communications under this Agreement shall be given in the manner provided in
Section 11.06 of the Credit Agreements, and shall be addressed (a) to the Debtor
at the address set forth below the Debtor's name on the signature page of this
Agreement, and (b) to the Secured Party at the address set forth below the
Secured Party's name on the signature page of this Agreement.
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15. Specific Performance.
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Debtor acknowledges and agrees that, in addition to the other rights
of the Secured Party hereunder and under the other Loan Documents, because the
Secured Party's remedies at law for failure of the Debtor to comply with the
provisions hereof relating to the Secured Party's rights (i) to inspect the
books and records related to the Pledged Collateral, (ii) to receive the various
notifications the Debtor are required to deliver hereunder, (iii) to obtain
copies of agreements and documents as provided herein with respect to the
Pledged Collateral, (iv) to enforce the provisions hereof pursuant to which the
Debtor has appointed the Secured Party its attorney-in-fact, and (v) to enforce
the Secured Party's remedies hereunder, would be inadequate and that any such
failure would not be adequately compensable in damages, Debtor agrees that each
such provision hereof may be specifically enforced.
16. Dividends; Voting Rights in Respect of the Pledged Collateral.
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So long as no Event of Default shall occur and be continuing under any
of the Loan Documents, Debtor may exercise any and all voting and other
consensual rights pertaining to the Pledged Collateral owned by Debtor or any
part thereof for any purpose not inconsistent with the terms of this Agreement
or the other Loan Documents; provided, however, that Debtor will not exercise
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or will refrain from exercising any such right, as the case may be, if such
action would be inconsistent with the covenants and obligations of Debtor under
the Credit Agreements and the other Loan Documents or would have a material
adverse effect on the value of any Pledged Collateral. So long as no Event of
Default has occurred and is continuing, any lawful dividends paid in cash to a
Debtor in respect of the Pledged Collateral may be used or applied by Debtor for
any purpose permitted by the Credit Agreements.
17. Entire Agreement; Amendments.
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This Agreement constitutes the entire agreement between the parties
with respect to the subject matter hereof and supersedes all prior agreements
relating to a grant of a security interest in the Pledged Collateral by the
Debtor. This Agreement may not be amended or supplemented except by a writing
signed by the Secured Party and the Debtor.
18. Counterparts.
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This Agreement may be executed in any number of counterparts, and by
different parties hereto in separate counterparts, each of which when so
executed shall be deemed an original and all of which taken together shall
constitute but one and the same agreement.
19. Descriptive Headings.
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The descriptive headings which are used in this Agreement are for the
convenience of the parties only and shall not affect the meaning of any
provision of this Agreement.
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[SIGNATURE PAGE 1 OF 1 TO THE AMENDED AND RESTATED PLEDGE AGREEMENT
(BORROWER PLEDGING STOCK)]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
SECURED PARTY:
PNC BANK, NATIONAL ASSOCIATION,
as Collateral Agent
By:_________________________________
Title:________________________________
Address for Notices for Secured Party:
One PNC Plaza
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DEBTOR:
MARINER HEALTH GROUP, INC.,
a Delaware corporation
By: _________________________________
Title: ________________________________
Address for Notices for Debtor:
Mariner Health Group, Inc.
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SCHEDULE A
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PLEDGE AGREEMENT
(BORROWER PLEDGING STOCK)
Description of Securities Owned by Debtor
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