SECOND AMENDMENT TO AMENDED AND RESTATED
PARTICIPATION AGREEMENT
This SECOND AMENDMENT TO AMENDED AND RESTATED PARTICIPATION AGREEMENT,
dated as of March 7, 1997 (this "Amendment") is entered into among GENESIS
ELDERCARE PROPERTIES, INC., as Lessee; MELLON FINANCIAL SERVICES CORPORATION #4,
as Lessor; various financial institutions as Lenders and MELLON BANK, N.A., a
national banking association, as Agent for Lessor and the Lenders.
Recitals
A. Lessee, Lessor, Lenders and Agent entered into that certain Amended
and Restated Participation Agreement dated as of October 7, 1996, as amended by
that certain Amendment to Amended and Restated Participation Agreement dated as
of January 31, 1997 (as the same is hereby amended and as the same may be
further amended, modified or supplemented from time to time, the "Participation
Agreement"), evidencing a $150,000,000 synthetic lease facility (the "Synthetic
Lease Facility).
B. A certain Second Amended and Restated Credit Agreement, among
Genesis Health Ventures, Inc. and certain Subsidiaries thereof as Borrowers,
Mellon Bank, N.A. as Administrative Agent and Co-Syndication Agent, Citibank,
N.A. as Co-Syndication Agent, certain other Co-Agents named therein and certain
Lenders named therein was entered into on October 7, 1996. On October 11, 1996,
in connection with an acquisition by Genesis Health Ventures, Inc., certain
additional Subsidiaries became Borrowers thereunder (as so modified, the
"Existing Credit Agreement" and, as the same is hereby amended and as the same
may be further amended, modified or supplemented from time to time, the "Credit
Agreement"). Unless otherwise defined herein, terms are used herein as defined
in the Participation Agreement.
C. The Borrowers have requested that the total amount of the commitment
under the Existing Credit Agreement be increased from $300,000,000 to
$375,000,000. There will not be any increase in amount of the Synthetic Lease
Facility. However, in order to continue the proportionate relationship of each
Lender under the Credit Agreement and each Lender in the Synthetic Lease
Facility, the Existing Credit Agreement and the Participation Agreement and
other Operative Documents are being amended as of the date hereof to provide for
(a) the increase in the total commitment under the Existing Credit Agreement and
the inclusion of any additional Lenders, (b) the inclusion of any additional
Lenders under the Credit Agreement as additional Lenders in the Synthetic Lease
Facility, (c) a downward adjustment in existing interests in the Synthetic Lease
Facility to allow for appropriate allocations, and (d) a commensurate increase
in commitments under the Credit Agreement. The Lenders are willing to make such
changes to the Participation Agreement and other Operative Documents, subject to
the terms and conditions set forth below.
NOW THEREFORE, the parties hereto, intending to be legally bound,
hereby agree as follows.
Agreement
1. Amendments to Participation Agreement. The Participation Agreement
is hereby amended as of the Amendment Effective Date (as defined below) as
follows:
a. Change in Commitment; New Schedule I-A. The individual
Commitment of each Lender under the Participation Agreement shall be amended by
deleting Schedule I to the Participation Agreement and replacing it with a new
Schedule I-A which shall be delivered by the Agent to each Lender, Lessor and
Lessee within ten days of the Amendment Effective Date. Said new Schedule I-A
shall specify the Amendment Effective Date, and shall reflect the revised
Commitments and revised percentage interest of the Lenders and the additional
Lenders:
b. Additional Lenders added to Notice and Funding Offices
Schedule; Amended Schedule II. Schedule II to the Participation Agreement is
hereby amended by adding notice and funding office information of the additional
Lenders to a revised Schedule II to be delivered by the Agent to each Lender,
Lessor and Lessee within ten days of the Amendment Effective Date.
c. Additional Definition: Amendment Effective Date. The following
new definition shall be added to Appendix 1 of the Participation Agreement in
its correct alphabetical location:
"Amendment Effective Date" shall have the meaning ascribed to such
term in Section 4 to the Second Amendment to Amended and Restated
Participation Agreement dated as of March 7, 1997.
d. Joinder of Additional Lenders. Each Person that shall agree
to be a Lender under the Participation Agreement shall execute a joinder
thereto, effective as of the Amendment Effective Date, in form and substance
satisfactory to the Agent and thereafter shall be a Lender thereunder and under
each Operative Document for all purposes as if it had been an original signatory
to the Participation Agreement.
e. New Schedule V; Commitments Outstanding. A new Schedule V
setting forth the outstanding amount of each Lender's (i) Total Commitment, (ii)
Transaction Costs Commitment and (iii) Acquisition and Construction Commitment,
as of the Amendment Effective Date shall be delivered by Agent to Lessor, Lessee
and each Lender within ten days of the Amendment Effective Date.
2. Representations and Warranties. In order to induce the Lenders and
the Agent to agree to amend the Participation Agreement, Lessee makes the
following representations and warranties, which shall survive the execution and
delivery of this Amendment:
(a) No Lease Event of Default has occurred and is continuing or
would exist immediately after giving affect to the amendments
contained herein; and
(b) Each of the representations and warranties set forth in the
Participation Agreement is true and correct in all material respects
both before and after giving effect to the amendments and
transactions contemplated hereby as though each such representation
and warranty were made at and as of the date hereof and as of the
Amendment Effective Date.
3. Notes. On the Amendment Effective Date, Lessor shall issue a
replacement Note to each existing Lender and a new Note to each new Lender. The
principal amount of each
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Lenders' Note shall be equal to the amount of its Revised Commitment as
specified on Schedule I-A. All Advances made under the Synthetic Lease Facility
on or after the Amendment Effective Date will be made by all Lenders pro rata in
accordance with Schedule I-A. On April 24, 1997, each new Lender (i) will
deliver to Agent in immediately available funds, its Commitment Percentage of
the aggregate amount of the outstanding Loan, calculated as of the date
immediately preceding the Amendment Effective Date, as specified by Agent, and
(ii) the Agent will remit to each existing Lender, its Commitment Percentage of
the amounts received under clause (i).
4. Amendment Effective Date. The amendments set forth in Section 1
above shall be effective on the date (the "Amendment Effective Date") that each
of the following conditions is satisfied:
a. Execution of Amendment. Lessee, Lessor, Agent and the Lenders
shall have executed a counterpart to this Amendment.
b. Joinder of New Lenders. The additional Lenders, Agent and the
Lessee shall have executed a joinder to the Participation Agreement as set forth
in Section 1 (d) above.
c. Opinion. The Agent shall have received opinions of Ira C.
Gubernick, in-house counsel of Guarantor, and Blank, Rome, Comisky & McCauley as
to this Amendment and such other matters as the Agent may request.
d. Investment Letter. The Agent shall have received an Investor's
Letter substantially in the form of Exhibit G to the Participation Agreement
from each additional Lender.
e. Credit Agreement Amendment. The Credit Agreement shall have been
amended to provide for the inclusion of any new Lenders and the adjustment of
each Lender's interest therein.
f. Other Documents and Information. The Agent shall have received
such other documents and information as it shall reasonably request.
5. Counterparts. This Amendment may be executed in counterparts and by
different parties hereto in separate counterparts, each of which, when executed
and delivered, shall be deemed to be an original and all of which, when taken
together, shall constitute one and the same instrument. A facsimile signature
shall be deemed to be the functional equivalent of a manually executed original
for all purposes.
6. Ratification. The Participation Agreement, as amended by this
Amendment, and the other Operative Documents are, and shall continue to be, in
full force and effect and are hereby in all respects confirmed, approved and
ratified.
7. Payment of Expenses. Without limiting other payment obligations of
Lessee set forth in the Operative Documents, Lessee agrees to pay all costs and
expenses incurred by the Agent in connection with the preparation, execution and
delivery of this Amendment and any other documents or instruments which may be
delivered in connection herewith, including, without limitation, the reasonable
fees and expenses of its counsel, Mayer, Brown & Platt.
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8. Authorization to Agents. Each Lender hereby authorizes the Agent to
take such action (including, without limitation, signing amendments to the other
Operative Documents) as it shall deem necessary or appropriate to carry out the
purposes of this Amendment.
9. Governing Law. This Amendment shall be construed in accordance
with, and governed by the laws of, the Commonwealth of Pennsylvania, without
regard to choice of law principles.
10. References. From and after the Amendment Effective Date, each
reference in the Participation Agreement to "this Agreement", "hereof",
"hereunder" or words of like import, and all references to the Participation
Agreement in any and all Operative Documents, other agreements, instruments,
documents, certificates and writings of every kind and nature, shall be deemed
to mean the Participation Agreement as modified and amended by this Amendment
and as the same may be further amended, modified or supplemented in accordance
with the terms thereof.
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IN WITNESS WHEREOF, the parties have executed this Amendment as of the
date first written above.
GENESIS ELDERCARE PROPERTIES, INC., as Lessee
By:_______________________________
Name Printed: George V. Hager, Jr.
Title: Senior Vice President
MELLON FINANCIAL SERVICES CORPORATION #4, as Lessor
By:________________________________
Name Printed: Robert C. Carpenter
Title: Assistant Vice President
MELLON BANK, N.A., not in its individual capacity except as expressly
stated herein, but solely as Agent
By:________________________________
Name Printed: Carol Paige
Title: Vice President
MELLON BANK, N.A., as Lender
By:________________________________
Name Printed: Carol Paige
Title: Vice President
CITIBANK, N.A., as Lender
By:________________________________
Name Printed:______________________
Title:_____________________________
FIRST UNION NATIONAL BANK OF NORTH CAROLINA, as Lender
By:________________________________
Name Printed:______________________
Title:_____________________________
NATIONSBANK, N.A., as Lender
By:________________________________
Name Printed:______________________
Title:_____________________________
FLEET NATIONAL BANK, as Lender
By:________________________________
Name Printed:______________________
Title:_____________________________
CORESTATES BANK, N.A., as Lender
By:________________________________
Name Printed:______________________
Title:_____________________________
PNC BANK, NATIONAL ASSOCIATION, as Lender
By:________________________________
Name Printed:______________________
Title:_____________________________
BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, as Lender
By:________________________________
Name Printed:______________________
Title:_____________________________
CREDIT LYONNAIS NEW YORK BRANCH, as Lender
By:________________________________
Name Printed:______________________
Title:_____________________________
CREDIT SUISSE FIRST BOSTON, as Lender
By:________________________________
Name Printed:______________________
Title:_____________________________
By:________________________________
Name Printed:______________________
Title:_____________________________
AMSOUTH BANK OF ALABAMA, as Lender
By:________________________________
Name Printed:______________________
Title:_____________________________
BANQUE PARIBAS, as Lender
By:________________________________
Name Printed:______________________
Title:_____________________________
By:________________________________
Name Printed:______________________
Title:_____________________________
CREDITANSTALT CORPORATE FINANCE, INC., as Lender
By:________________________________
Name Printed:______________________
Title:_____________________________
By:________________________________
Name Printed:______________________
Title:_____________________________
SIGNET BANK, as Lender
By:________________________________
Name Printed:______________________
Title:_____________________________
THE SUMITOMO BANK, LIMITED, as Lender
By:________________________________
Name Printed:______________________
Title:_____________________________
By:________________________________
Name Printed:______________________
Title:_____________________________
THE FIRST NATIONAL BANK OF MARYLAND, as Lender
By:________________________________
Name Printed:______________________
Title:_____________________________