EXHIBIT 10.72
AMENDED AND RESTATED PLEDGE AGREEMENT
(PLEDGING LIMITED LIABILITY COMPANY INTERESTS)
THIS AMENDED AND RESTATED PLEDGE AGREEMENT (the "Agreement"), dated as of
December 23, 1998, is made and entered into by and among the undersigned debtors
(each a "Debtor" and collectively, the "Debtors"), and PNC BANK, NATIONAL
ASSOCIATION, a national banking association, in its capacity as Collateral Agent
(as hereinafter defined) for the benefit of the Facility Parties (as hereinafter
defined) (the "Secured Party").
WITNESSETH THAT:
WHEREAS, Mariner Health Group, Inc., a Delaware corporation (the
"Borrower"), 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
Borrower upon the terms and subject to the conditions set forth therein;
WHEREAS, Mariner Health Group, Inc., a Delaware corporation (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 Borrower, 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 Debtors and the Administrative Agent (as defined in the
Revolving Credit Agreement) are currently parties to that certain Pledge
Agreement (Subsidiaries Pledging Limited Liability Company Interests) dated
October 3, 1996, 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);
WHEREAS, each Debtor owns the outstanding limited liability company
interests of each Subsidiary or of each Excluded Entity as set forth on Schedule
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A attached hereto and made a part hereof; and
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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 Debtors 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 limited liability company interests owned by each Debtor listed on Schedule
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A attached hereto and made a part hereof, together with all related rights,
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including without limitation, all limited liability company interests and
additional limited liability company interests receivable in respect of or in
exchange for any such limited liability company interests, all rights to
subscribe for limited
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liability company interests incident to or arising from ownership of any such
limited liability company interests, all cash, interest, and other cash and non-
cash distributions paid or payable on any such limited liability company
interests, and all books, records, and documents concerning any of the items
described above, both that which any Debtor now owns and that which any Debtor
acquires hereafter; (ii) any and all other limited liability company interests
hereafter pledged to the Secured Party to secure the Secured Obligations (as
hereinafter defined) of any Debtor or any Debtor's Subsidiaries, and all rights
and privileges pertaining thereto, including, without limitation, all limited
liability company interests and additional limited liability company interests
receivable in respect of or in exchange for any such limited liability company
interests, all rights to subscribe for limited liability company interests
incident to or arising from ownership of any such limited liability company
interests, all cash, interest, and other cash and non-cash distributions paid or
payable on such limited liability company interests and all books and records
pertaining to the foregoing, 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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Each Debtor, as security for the payment and performance of such 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 such Debtor's now
existing and hereafter acquired and/or arising right, title and interest in, to
and under the Pledged Collateral owned by such Debtor, whether now existing or
hereafter acquired and wherever located, subject only to Permitted Liens.
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, each Debtor shall (a) 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, (b) provide each limited liability
company that has issued or shall issue Pledged Collateral with a copy of this
Agreement and direct the Custodian of the books and records of each such limited
liability company to register the pledge of the applicable Pledged Collateral on
such limited liability company's books and records, (c) cause each limited
liability company that has issued or shall issue Pledged Collateral to execute
and deliver to the Secured Party an Agreement and Acknowledgment, in form and
substance acceptable to the Secured Party (which shall, among other things,
provide that the Custodian of the books and records of the limited liability
company represents, acknowledges, warrants and confirms that it is holding of
record the limited liability company interests of the Debtors which constitute
part of the Pledged Collateral in its capacity as authorized custodial agent,
bailee, representative and nominee for the Secured Party, it has noted this fact
by means of appropriate entries made on the books and records of the limited
liability
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company, and except as contemplated by this Agreement, the Custodian will not
cause or permit to occur any change, alteration or modification of any kind in
the form of the Pledged Collateral, including, without limitation, any
conversion of the Pledged Collateral or any part thereof to certificated, bearer
or any other form, without the prior written consent of the Secured Party), and
(d) take such other action which the Secured Party may request, to perfect and
continue perfected and to create and maintain the first priority status 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. Each 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 such
Debtor's true and lawful attorney with power to sign the name of such 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 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 Debtors set forth in
the Loan Documents (which representations and warranties are hereby incorporated
herein by reference), each of the Debtors 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.
(b) The limited liability company interests 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 limited liability company interests of the issuer
thereof owned by Debtor.
(c) 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.
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(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 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.
(j) No certificate has been or, during the term hereof shall be issued, to
evidence the Pledged Collateral, and no limited liability company interest which
is Pledged Collateral constitutes a "certificated security" (as such term is
defined in Section 8-102 of the Code).
6. General Covenants.
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In addition to any covenants and agreements of the Debtors set forth in the
other Loan Documents, which are incorporated herein by this reference, each
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
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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 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 a limited
liability company interest in Debtor's Subsidiaries 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 an updated Schedule A hereto to the Secured Party. To the
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extent, following the date hereof, any of the Pledged Collateral constitutes a
"certificated security," Debtor shall immediately upon receipt of any original
certificates for such Pledged Collateral deliver such original certificates to
the Secured Party.
(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 Debtors, 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 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 distributions 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 any
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Debtor, as the Secured Party, in its sole discretion, shall determine; and (d)
do anything which any 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 any 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.
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
Debtors, 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. Each 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. Each 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. Each
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 any Debtor to register such securities
for public sale under the Securities Act of 1933, as amended, or under
applicable state securities laws, even if such Debtor would agree to do so.
(b) The proceeds of any collection, sale or other disposition of the
Pledged Collateral of any 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
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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 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. Each 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 each Debtor shall
bind its successors and assigns; provided, however, no Debtor may assign or
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transfer 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
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of any Pledged Collateral are governed by the law of a jurisdiction other than
the Commonwealth of Pennsylvania.
14. Notices.
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Debtors 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
Debtors at the address set forth below the Debtors' names on the signature pages
of this Agreement, and (b) to the Secured Party at the address set forth below
the Secured Party's name on the signature pages of this Agreement.
15. Specific Performance.
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Each 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 Debtors 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 Debtors 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
Debtors have appointed the Secured Party their 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, each Debtor agrees
that each such provision hereof may be specifically enforced.
16. 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, each Debtor may exercise any and all voting and other
consensual rights pertaining to the Pledged Collateral owned by such Debtor or
any part thereof for any purpose not inconsistent with the terms of this
Agreement or the other Loan Documents; provided, however, that such Debtor will
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not exercise 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
Debtors 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 distributions paid
in cash to a Debtor in respect of the Pledged Collateral may be used or applied
by such 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
Debtors. This Agreement may not be amended or supplemented except by a writing
signed by the Secured Party and the Debtors.
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.
20. Additional Debtors.
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Each Loan Party which pursuant to a Credit Agreement hereafter is required
to pledge limited liability company interests of another Subsidiary or Excluded
Entity shall execute a Joinder to this Agreement in form and substance
satisfactory to the Collateral Agent.
INTENTIONALLY LEFT BLANK
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[SIGNATURE PAGE 1 OF 1 TO THE AMENDED AND RESTATED
PLEDGE AGREEMENT PLEDGING LIMITED LIABILITY COMPANY INTERESTS]
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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DEBTORS:
Address for Notices for Debtors:
c/o Mariner Health Group, Inc.
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SCHEDULE A
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PLEDGE AGREEMENT
(PLEDGING LIMITED LIABILITY COMPANY INTERESTS)
DESCRIPTION OF LIMITED LIABILITY
Debtor COMPANY INTERESTS OWNED BY DEBTOR
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