EXECUTION COPY
AMENDMENT NO. 1 TO SECOND AMENDED AND RESTATED
CREDIT AGREEMENT
AMENDMENT NO. 1, dated as of March 7, 1997 by and among:
Genesis Health Ventures, Inc. and certain Subsidiaries identified on the
signature pages hereto as "Borrowers"; the institutions identified on the
signature pages hereto as "Lenders"; Mellon Bank, N.A. as Issuer of Letters of
Credit; Mellon Bank, N.A. as Administrative Agent and Co-Syndication Agent;
Citibank, N.A. as Co-Syndication Agent; and the other Co-Agents specified on the
signature pages hereto.
Background
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 Existing Credit Agreement.
Also on October 7, 1996, Genesis Eldercare Properties, Inc.,
one of the Borrowers under the Existing Credit Agreement, entered into a certain
Amended and Restated Participation Agreement (the "Participation Agreement") and
related documents evidencing a $150,000,000 Synthetic Lease Facility. The
Participation Agreement and other Synthetic Lease Facility Documents (as defined
in the Credit Agreement) as amended or modified to (but not including) the date
hereof are collectively referred to herein as the "Existing Synthetic Lease
Facility Documents". Each of the Lenders under the Existing Credit Agreement are
participants in the Participation Agreement. Each of the Borrowers under the
Credit Agreement are guarantors of the Synthetic Lease Facility (as defined in
the Credit Agreement).
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 participant in the Synthetic Lease
Facility, both the Existing Credit Agreement and the Existing Synthetic Lease
Facility 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 new Lenders, (b) the inclusion of any new Lenders under the
Credit Agreement as participants 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 Credit
Agreement, 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 Existing Credit Agreement. The Existing
Credit Agreement shall be, as of the Amendment Effective Date (as defined
below), amended in each of the following respects.
1.1 Change in Commitment; New Exhibit G. The total
Commitment of all Lenders under the Credit Agreement and the individual
Commitment of each Lender under the Credit Agreement shall be amended to be the
amounts set forth on a new Exhibit G which shall be delivered by the Agent to
each Lender and Borrower within ten days of the Amendment Effective Date. Said
new Exhibit G shall also specify the Amendment Effective Date and shall be added
as an additional Exhibit to the Credit Agreement. The information on Exhibit G
shall conform to the following criteria:
(a) As to each Lender that is a party to the Credit
Agreement prior to the Amendment Effective Date (an
"Existing Lender"), unless otherwise specifically agreed
to in a writing between such Existing Lender and the
Agent, (i) the sum of its revised Commitment on said
Exhibit G and its revised participation in the Synthetic
Lease Facility (after giving effect to the related
amendments to the Synthetic Lease Facility Documents)
shall be equal to (ii) the sum of such Existing Lender's
Initial Commitment under the Existing Credit Facility and
its initial participation interest in the Synthetic Lease
under the Existing Synthetic Lease Facility Documents;
(b) Each new Lender and each Existing Lender will
have the same percentage interest in the Credit Agreement
as such Lender/participant has in the Synthetic Lease
Facility; and
(c) The aggregate amount of the total Commitments
under the Credit Agreement shall not exceed Three Hundred
and Seventy-Five Million Dollars ($375,000,000). The
increased amount of the Commitments may be allocated
among such institutions as the Agent (in its sole
discretion) may determine.
1.2 Additional Definition: Amendment Effective Date. The
following new definition shall be added to Section 1.1 of the Existing Credit
Agreement in its correct alphabetical location:
"Amendment Effective Date" shall have the meaning
ascribed to such term in Amendment No. 1, dated as of
March 7, 1997 to this Agreement.
1.3 Amendment to Section 2.1: Initial Commitment. The
second sentence of Section 2.1(a) of the Existing Credit Agreement shall be
amended in its entirety to read as follows:
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On the Amendment Effective Date, each Lender's Commitment
shall be equal to the amount set forth as its "Revised
Commitment" next to its name on Exhibit G attached
hereto, and shall be subject to adjustment pursuant to
the terms hereof.
1.4 Amendment to Exhibit F: Commitment Percentage.
Exhibit F to the Existing Credit Agreement shall be amended in its entirety to
read as set forth on a new Exhibit F to be delivered to the Lenders and the
borrowers by the Agent within ten days of the Amendment Effective Date. Said new
Exhibit F shall set forth the correct percentage interest of each Lender in the
total Commitment under the Credit Agreement after giving effect to the new
Commitment allocations set forth on Exhibit G.
1.5 Joinder of Additional Lenders. Each Person that
shall agree to be a Lender under the Credit 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 Loan Document for all purposes as if it had been an original signatory to
the Credit Agreement.
1.6 Amendment to Section 2.7: Prepayments. In order to
allow for the prepayment of Loans bearing interest at the Euro-Rate Option prior
to the expiration of the applicable Funding Period subject to breakage costs,
Section 2.7 is amended by replacing the colon after the parenthetical phrase
"(subject, however, to Section 2.12(b) hereof)" with a period and by deleting
clauses (a) and (b) thereof.
2. Representations and Warranties. In order to induce the
Lenders and the Agent to agree to amend the Credit Agreement, each of the
Borrowers, jointly and severally, makes the following representations and
warranties, which shall survive the execution and delivery of this Amendment
No. 1:
(a) No 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 Credit 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, the Borrowers
shall issue a replacement Note to each Existing Lender and a new Note to each
new Lender. The principal amount of each Lenders' Note shall be equal to the
amount of its "Revised Commitment" as specified on Exhibit G.
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:
4.1 Execution of Amendment. The Issuer, each of the
Borrowers, the Lenders and the Agents shall have executed a counterpart to this
Amendment No. 1.
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4.2 Joinder of New Lenders. The additional Lenders and
the Borrowers shall have executed a joinder to the Credit Agreement as set forth
in Section 1.5 above.
4.3 Opinion. The Agent shall have received an opinion of
Blank, Rome, Comisky & McCauley as to the enforceability of this Amendment No. 1
and such other matters as the Agent may request.
4.4 Fees. Each of the Existing Lenders shall have
received such amendment fees as are specified in the letter dated February 25,
1997 from Carol Paige, Vice President of Mellon Bank, N.A. as Agent to each
Existing Lender and all other amounts payable to it under the Loan Documents.
4.5 Amendment to Synthetic Lease Facility Documents. The
Existing Synthetic Lease Facility Documents shall have been amended to provide
for the inclusion of any new Lenders as participants thereunder and the
adjustment in each participant's interest therein to maintain the same
proportionate interest under the Credit Agreement and the Synthetic Lease
Facility after giving effect to this Amendment No. 1 and those amendments to the
Synthetic Lease Facility Documents. In addition, there shall have been
appropriate provisions made for payments in connection with the Synthetic Lease
Facility Documents to account for the necessary adjustments to the outstanding
amounts thereunder to effect the reallocation contemplated hereby.
4.6 Other Documents and Information. The Agent shall have
received such other documents and information as it shall reasonably request.
5. Counterparts. This Amendment No. 1 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 Credit Agreement, as amended by this
Amendment No. 1, and the other Loan Documents are, and shall continue to be, in
full force and effect and are hereby in all respects confirmed, approved and
ratified. Without limiting the generality of the foregoing, the undersigned
Borrowers, in their capacity as "Grantors" under the Pledge Agreement, confirm
that the security interest granted pursuant to the Pledge Agreement secures all
of the Secured Obligations (as defined in the Pledge Agreement) including,
without limitation, all repayment obligations in connection with loans made
under the new commitment amount and under any other new commitment amount from
time to time.
7. Payment of Expenses. Without limiting other payment
obligations of the Borrowers set forth in the Loan Documents, the Borrowers
hereby, jointly and severally, agree to pay all costs and expenses incurred by
the Agent in connection with the preparation, execution and delivery of this
Amendment No. 1 and any other documents or instruments which may be delivered in
connection herewith, including, without limitation, the reasonable fees and
expenses of its counsel, Drinker Biddle & Reath.
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8. Authorization to Agents. Each Lender hereby authorizes
the Agent and the Collateral Agent to take such action (including, without
limitation, signing amendments to Loan Documents) as shall be consistent with
the purposes hereof as it shall deem necessary or appropriate to carry out the
purposes of this Amendment No. 1.
9. Governing Law. This Amendment No. 1 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 Credit Agreement to "this Agreement", "hereof",
"hereunder" or words of like import, and all references to the Credit Agreement
in any and all Loan Documents, other agreements, instruments, documents,
certificates and writings of every kind and nature, shall be deemed to mean the
Credit Agreement as modified and amended by this Amendment No. 1 and as the same
may be further amended, modified or supplemented in accordance with the terms
thereof. Further, each reference to the "Lenders", the "Notes", "Commitment",
"Initial Commitment", or "Commitment Percentage" shall be and mean a reference
to the same as modified in accordance with the provisions of this Amendment No.
1 and as the same may be further amended, modified or supplemented from time to
time in accordance with the terms of the Credit Agreement.
IN WITNESS WHEREOF, the parties have caused this Amendment
No. 1 to be duly executed as of the date first above written.
GENESIS HEALTH VENTURES, INC., a Pennsylvania corporation
By_______________________________________________________
Title: General Counsel-Corporate and Secretary
Address for notices:
Suite 100
148 West State Street
Kennett Square, PA 19348
Attention: Senior Vice President and Chief Financial
Officer
Telephone: 610-444-6350
Facsimile: 610-444-3365
BREVARD MERIDIAN LIMITED PARTNERSHIP,
a Maryland limited partnership
By: Meridian Healthcare, Inc., a Pennsylvania
corporation, its sole general partners
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CATONSVILLE MERIDIAN LIMITED PARTNERSHIP,
a Maryland limited partnership
By: Meridian Health, Inc., a Pennsylvania corporation,
one of its general partners
EASTON MERIDIAN LIMITED PARTNERSHIP,
a Maryland limited partnership
By: Meridian Health, Inc., a Pennsylvania corporation,
its sole general partner
EDELLA STREET ASSOCIATES,
a Pennsylvania limited partnership
By: Genesis Health Ventures of Clarks Summit, Inc.,
its sole general partner
GENESIS PROPERTIES LIMITED PARTNERSHIP,
a Pennsylvania limited partnership
By: Genesis Health Ventures of Arlington, Inc.,
its sole general partner
GREENSPRING MERIDIAN LIMITED PARTNERSHIP,
a Maryland limited partnership
By: Meridian Healthcare, Inc., a Pennsylvania
corporation, its sole general partner
HAMMONDS LANE MERIDIAN LIMITED PARTNERSHIP,
a Maryland limited partnership
By: Meridian Healthcare, Inc., a Pennsylvania
corporation, one of its general partners
MERIDIAN/CONSTELLATION LIMITED PARTNERSHIP
By: Meridian Healthcare, Inc., general partner
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MERIDIAN EDGEWOOD LIMITED PARTNERSHIP
By: Meridian Healthcare, Inc., a general partner
MERIDIAN PERRING LIMITED PARTNERSHIP
By: Meridian Healthcare, Inc., a general partner
MERIDIAN VALLEY LIMITED PARTNERSHIP
By: Meridian Healthcare, Inc., a general partner
MERIDIAN VALLEY VIEW LIMITED PARTNERSHIP
By: Meridian Healthcare, Inc., a general partner
MILLVILLE MERIDIAN LIMITED PARTNERSHIP,
a Maryland limited partnership
By: Meridian Healthcare, Inc., a Pennsylvania
corporation, its sole general partner
PHILADELPHIA AVENUE ASSOCIATES,
a Pennsylvania limited partnership
By: Philadelphia Avenue Corp., its sole general partner
RIVER STREET ASSOCIATES,
a Pennsylvania limited partnership
By: Genesis Health Ventures of Wilkes-Barre, Inc.,
its sole general partner
SEMINOLE MERIDIAN LIMITED PARTNERSHIP,
a Maryland limited partnership
By: Meridian Health, Inc., a Pennsylvania corporation,
its sole general partner
STATE STREET ASSOCIATES, L.P.,
a Pennsylvania limited partnership
By: State Street Associates, Inc. its sole general
partner
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THERAPY CARE SYSTEMS, L.P.
a Pennsylvania limited partnership
By: Genesis Eldercare Rehabilitation Services, Inc.
its sole general partner
VOLUSIA MERIDIAN LIMITED PARTNERSHIP,
a Maryland limited partnership
By: Meridian Health, Inc., a Pennsylvania corporation,
its sole general partner
GENESIS PROPERTIES OF DELAWARE LTD PARTNERSHIP, L.P.,
a Delaware limited partnership
By: Genesis Properties of Delaware Corporation, a
general partner
McKERLEY HEALTH FACILITIES,
a New Hampshire general partnership
By: Meridian Health, Inc., a Pennsylvania corporation,
and Meridian Healthcare, Inc., a Pennsylvania
corporation, its general partners
NORTH CAPE CONVALESCENT CENTER ASSOCIATES, L.P.
a Pennsylvania limited partnership
By:__________________
On behalf of each of the foregoing
as General Counsel-Corporate and
Secretary of the general partner
GENESIS HEALTH VENTURES OF ARLINGTON, INC.,
a Pennsylvania corporation
GENESIS HEALTH VENTURES OF BLOOMFIELD, INC.,
a Pennsylvania corporation
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GENESIS HEALTH VENTURES OF CLARKS SUMMIT, INC.,
a Pennsylvania corporation
GENESIS HEALTH VENTURES OF MASSACHUSETTS, INC.,
a Pennsylvania corporation
GENESIS HEALTH VENTURES OF NAUGATUCK, INC.,
a Pennsylvania corporation
GENESIS HEALTH VENTURES OF SALISBURY, INC.,
a Pennsylvania corporation
GENESIS HEALTH VENTURES OF WAYNE, INC.,
a Pennsylvania corporation
GENESIS HEALTH VENTURES OF WEST VIRGINIA, INC.,
a Pennsylvania corporation
GENESIS HEALTH VENTURES OF WINDSOR, INC.,
a Pennsylvania corporation
GENESIS IMMEDIATE MED CENTER, INC.,
a Pennsylvania corporation
GENESIS ELDERCARE HOME SERVICES, INC.
a Pennsylvania corporation
GENESIS ELDERCARE PHYSICIAN SERVICES, INC.,
a Pennsylvania corporation
HEALTHCARE RESOURCES CORP.,
a Pennsylvania corporation
KNOLLWOOD MANOR, INC.,
a Pennsylvania corporation
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MERIDIAN HEALTH, INC.,
a Pennsylvania corporation
MERIDIAN HEALTHCARE, INC.,
a Pennsylvania corporation
PHILADELPHIA AVENUE CORPORATION,
a Pennsylvania corporation
GENESIS ELDERCARE STAFFING SERVICES INC.
a Pennsylvania corporation
STATE STREET ASSOCIATES, INC.,
a Pennsylvania corporation
SUBURBAN MEDICAL SERVICES, INC.
a Pennsylvania corporation
GENESIS ELDERCARE REHABILITATION SERVICES, INC.,
a Pennsylvania corporation
THERAPY CARE INC.,
a Pennsylvania corporation
THE TIDEWATER HEALTHCARE SHARED SERVICES GROUP, INC.,
a Pennsylvania corporation
WYNCOTE HEALTHCARE CORP.
a Pennsylvania corporation
ASCO HEALTHCARE, INC.,
a Maryland corporation
BRINTON MANOR, INC.,
a Delaware corporation
CONCORD HEALTHCARE CORPORATION,
a Delaware corporation
CRYSTAL CITY NURSING CENTER, INC.,
a Maryland corporation
EASTERN MEDICAL SUPPLIES, INC.,
a Maryland corporation
GENESIS HEALTH SERVICES CORPORATION,
a Delaware corporation
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GENESIS HEALTHCARE CENTERS HOLDINGS, INC.,
a Delaware corporation
GENESIS HOLDINGS, INC.,
a Delaware corporation
GENESIS PROPERTIES OF DELAWARE CORPORATION,
a Delaware corporation
HILLTOP HEALTH CARE CENTER, INC.,
a Delaware corporation
KEYSTONE NURSING HOME, INC.,
a Delaware corporation
LINCOLN NURSING HOME, INC.,
a Delaware corporation
McKERLEY HEALTH CARE CENTERS, INC.,
a New Hampshire corporation
WAYSIDE NURSING HOME, INC.,
a Delaware corporation
PROFESSIONAL PHARMACY SERVICES, INC.,
a Maryland Corporation
MEDICAL SERVICES GROUP, INC.,
a Maryland Corporation
NEIGHBORCARE PHARMACIES, INC.,
a Maryland Corporation
DERBY NURSING CENTER CORPORATION,
a Connecticut Corporation
GENESIS ELDERCARE NATIONAL CENTERS INC.,
a Florida Corporation
GENESIS ELDERCARE NETWORK SERVICES, INC.,
a Pennsylvania Corporation
GENESIS ELDERCARE PROPERTIES, INC.,
a Pennsylvania Corporation
OAK HILL HEALTH CARE CENTER, INC.,
a Virginia Corporation
VERSALINK, INC.,
a Delaware Corporation
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GERIATRIC & MEDICAL COMPANIES, INC.
a Delaware corporation
GERIATRIC & MEDICAL SERVICES, INC.
a New Jersey corporation
BURLINGTON WOODS CONVALESCENT CENTER, INC.
a New Jersey corporation
CRESTVIEW CONVALESCENT HOME, INC.
a Pennsylvania corporation
CRESTVIEW NORTH, INC.
a Pennsylvania corporation
DIVERSIFIED DIAGNOSTICS, INC.
a Pennsylvania corporation
GMC MEDICAL CONSULTING SERVICES, INC.
a Pennsylvania corporation
GERIATRIC AND MEDICAL INVESTMENTS CORP.
a Delaware corporation
GERIMED CORP.
a Pennsylvania corporation
GMS INSURANCE SERVICES, INC.
a Pennsylvania corporation
HCHS, INC.
a Pennsylvania corporation
HSS-PARA TRANSIT, INC.
a Pennsylvania corporation
INNOVATIVE PHARMACY SERVICES, INC.
a New Jersey corporation
LIFE SUPPORT AMBULANCE, INC.
a Pennsylvania corporation
LIFE SUPPORT MEDICAL, INC.
a Pennsylvania corporation
METRO PHARMACEUTICALS, INC.
a Pennsylvania corporation
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UNITED HEALTH CARE SERVICES, INC.
a Pennsylvania corporation
VALLEY MEDICAL SERVICES, INC.
a Pennsylvania corporation
VALLEY TRANSPORT AMBULANCE SERVICE, INC.
a Pennsylvania corporation
VILLAS REALTY & INVESTMENT, INC.
a Pennsylvania corporation
WEISENFLUH AMBULANCE SERVICE, INC.
a Pennsylvania corporation
By: ___________________________________________________
On behalf of each of the foregoing as
General Counsel-Corporate and Secretary
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Agents and Lenders:
MELLON BANK, N.A., as a Lender,
as Issuer, as Agent and as Co-Syndication Agent
By ____________________________________________________
Title: Vice President
CITIBANK, N.A., as a Lender and as Co-Syndication Agent
By ____________________________________________________
Title:
FIRST UNION NATIONAL BANK OF NORTH CAROLINA,
as a Lender and as a Co-Agent
By ____________________________________________________
Title:
NATIONSBANK, N.A., as a Lender and as a Co-Agent
By ____________________________________________________
Title:
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FLEET NATIONAL BANK
By ____________________________________________________
Title:
CORESTATES BANK, N.A.
By ____________________________________________________
Title:
PNC BANK, NATIONAL ASSOCIATION
By ____________________________________________________
Title:
BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION
By ____________________________________________________
Title:
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CREDIT LYONNAIS NEW YORK BRANCH
By ____________________________________________________
Title:
CREDIT SUISSE FIRST BOSTON
By ____________________________________________________
Title:
By ____________________________________________________
Title:
AMSOUTH BANK OF ALABAMA
By ____________________________________________________
Title:
BANQUE PARIBAS
By ____________________________________________________
Title:
By ____________________________________________________
Title:
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CREDITANSTALT CORPORATE FINANCE, INC.
By ____________________________________________________
Title:
By ____________________________________________________
Title:
SIGNET BANK
By ____________________________________________________
Title:
THE SUMITOMO BANK, LIMITED
By ____________________________________________________
Title:
By ____________________________________________________
Title:
THE FIRST NATIONAL BANK OF MARYLAND
By ____________________________________________________
Title:
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