THIRD AMENDMENT
EXHIBIT 2.1
THIRD AMENDMENT
THIRD AMENDMENT TO AGREEMENT AND PLAN OF MERGER, dated as of November 20, 2005 (“Third
Amendment”), by and among North American Senior Care, Inc., a Delaware corporation
(“NASC”), NASC Acquisition Corp., a Delaware corporation and a wholly-owned direct
Subsidiary of NASC (“NASC Acquisition”), Pearl Senior Care, Inc., a Delaware corporation
(“PSC”), PSC Sub, Inc., a Delaware corporation and wholly-owned direct Subsidiary of PSC
(“PSC Sub”), Xxxxxxx Enterprises, Inc., a Delaware corporation (the “Company”) and,
solely for purposes of Article 9 of the Merger Agreement (as hereinafter defined) and Section 4 of
this Third Amendment, SBEV Property Holdings LLC, a Delaware limited liability company
(“SBEV”), and Xxxxx Property Holdings LLC, a Delaware limited liability company
(“GPH”).
WHEREAS, NASC, NASC Acquisition, the Company and SBEV are parties to an Agreement and Plan of
Merger dated as of August 16, 2005, as amended by the First Amendment thereto, dated as of August
23, 2005 and the Second Amendment thereto, dated as of September 22, 2005 (the “Second Amendment”)
(as so amended, the “Merger Agreement”) (capitalized terms used but not defined herein
shall have the definitions given to them in the Merger Agreement);
WHEREAS, NASC, NASC Acquisition and SBEV have agreed to assign their rights under the Merger
Agreement to PSC, PSC Sub and GPH and PSC, PSC Sub and GPH have agreed to assume the obligations of
NASC, NASC Acquisition and SBEV under the Merger Agreement;
WHEREAS, the Company, PSC, PSC Sub and GPH have agreed to amend the terms of the Merger
Agreement as set forth herein;
WHEREAS, the respective Boards of Directors of PSC, PSC Sub and the Company have approved and
declared advisable the Merger upon the terms and subject to the conditions of the Merger Agreement
as amended hereby and in accordance with the DGCL; and
WHEREAS, the respective Boards of Directors of PSC, PSC Sub and the Company have determined
that the Merger as so amended (as amended, the “Merger”) is in furtherance of, and
consistent with, their respective business strategies and is in the best interest of their
respective stockholders, and PSC has approved this Third Amendment and the Merger as the sole
stockholder of PSC Sub, and the Company Board and the Board of Directors of PSC Sub have approved
the Merger.
NOW, THEREFORE, in consideration of the foregoing and the respective representations,
warranties, covenants and agreements set forth in this Third Amendment and intending to be legally
bound hereby, the Parties agree as follows:
Article 1
Assignment and Assumption
Section 1.1 Each of NASC, NASC Acquisition and SBEV hereby assigns and transfers unto each of
PSC, PSC Sub and GPH, respectively, all of its right, title and interest in, to and under the
Merger Agreement (including to the BIF Deposit), with effect from and after the date hereof,
subject to the covenants, conditions, agreements, terms, obligations, restrictions, and other
provisions set forth in the Merger Agreement, and with effect from
2
and after the date hereof, none of NASC, NASC Acquisition and SBEV shall have any rights under
or obligations in respect of the Merger Agreement.
Section 1.2 Each of PSC, PSC Sub and GPH hereby accepts such assignment, and assumes and
agrees to perform, pay, discharge and comply with all of the covenants, conditions, agreements,
terms, obligations and restrictions to be performed or complied with on the part of NASC, NASC
Acquisition and SBEV, respectively, from and after the date hereof under the Merger Agreement,
subject to the covenants, conditions, agreements, terms, obligations, restrictions and other
provisions set forth in the Merger Agreement.
Section 1.3 The Company hereby consents to the foregoing assignment and assumption.
Article 2
Representations and Warranties
Section 2.1 The Company represents and warrants to NASC, NASC Acquisition, PSC and PSC Sub as
follows:
(a) the Company has all necessary corporate power and authority to execute and deliver this
Third Amendment, to perform its obligations hereunder and to consummate the transactions
contemplated by the Merger Agreement as amended by this Third Amendment;
(b) the execution and delivery of this Third Amendment by the Company and the consummation by
the Company of the transactions contemplated hereby have been duly and validly authorized by all
necessary corporate action and no other corporate proceedings on the part of the Company and no
stockholder votes are necessary to authorize this Third
3
Amendment or to consummate the transactions contemplated hereby other than, with respect to
the Merger, the Stockholder Approval; and
(c) this Third Amendment has been duly authorized and validly executed and delivered by the
Company and, assuming this Third Amendment and the Merger Agreement are valid and binding
obligations of NASC, NASC Acquisition, PSC and PSC Sub, the Merger Agreement as amended by this
Third Amendment constitutes a legal, valid and binding obligation of the Company, enforceable
against the Company in accordance with its terms, subject to the Bankruptcy and Equity Exception.
Section 2.2 NASC and NASC Acquisition jointly and severally represent and warrant to the
Company as follows:
(a) each of NASC and NASC Acquisition has all necessary corporate power and authority to
execute and deliver this Third Amendment and to perform its obligations hereunder;
(b) the execution and delivery of this Third Amendment by NASC and NASC Acquisition and the
consummation by NASC and NASC Acquisition of the transactions contemplated hereby have been duly
and validly authorized by all necessary corporate action and no other corporate proceedings on the
part of NASC and NASC Acquisition and no stockholder votes are necessary to authorize this Third
Amendment or to consummate the transactions contemplated hereby; and
(c) this Third Amendment has been duly authorized and validly executed and delivered by the
NASC and NASC Acquisition and, assuming this Third Amendment is a valid and binding obligations of
the Company, this Third Amendment constitutes a legal,
4
valid and binding obligation of NASC and NASC Acquisition, enforceable against each of them in
accordance with its terms, subject to the Bankruptcy and Equity Exception.
Section 2.3 (a) PSC and PSC Sub jointly and severally represent and warrant to the Company as
follows:
(i) each of PSC and PSC Sub has all necessary corporate power and authority to execute and
deliver this Third Amendment, to perform its obligations hereunder and to consummate the
transactions contemplated by the Merger Agreement as amended by this Third Amendment;
(ii) the execution and delivery of this Third Amendment by PSC and PSC Sub and the
consummation by PSC and PSC Sub of the transactions contemplated hereby have been duly and validly
authorized by all necessary corporate action and no other corporate proceedings on the part of PSC
and PSC Sub and no stockholder votes are necessary to authorize this Third Amendment or to
consummate the transactions contemplated hereby; and
(c) this Third Amendment has been duly authorized and validly executed and delivered by the
PSC and PSC Sub and, assuming this Third Amendment and the Merger Agreement are valid and binding
obligations of the Company, the Merger Agreement as amended by this Third Amendment constitutes a
legal, valid and binding obligation of PSC and PSC Sub, enforceable against each of them in
accordance with its terms, subject to the Bankruptcy and Equity Exception.
5
(b) PSC and PSC Sub jointly and severally represent and warrant to the Company, as of the date
hereof, the matters set forth in Article 5 of the Merger Agreement (other than Section 5.8
thereof).
(c) PSC and PSC Sub jointly and severally represent and warrant to the Company, as of the date
hereof, as follows:
(i) PSC has delivered to the Company true, complete and correct signed counterparts of (I)
debt commitment letters by and between GPH and Column Financial on the one hand, and GPH and
CapitalSource Finance LLC, on the other, pursuant to which the lenders party thereto have agreed,
subject to the terms and conditions set forth therein, to provide or cause to be provided, debt
financing in connection with the transactions provided for in the Merger Agreement (together with
the updates thereto as contemplated in the Merger Agreement, the “Debt Commitment Letters”)
and (II) the equity commitment letter, dated as of the date hereof, from Fillmore Strategic
Investors, L.L.C. (“Fillmore”), pursuant to which Fillmore has agreed, subject to the terms
and conditions set forth therein, to provide, equity financing in connection with the transactions
provided for herein to GPH (together with the updates thereto, as contemplated herein, the
“Equity Commitment Letter” and, together with the Debt Commitment Letters, the
“Commitments”);
(ii) subject to such amendments to which the Company provides its prior written consent or
for which such consent is not required pursuant to Section 6.14 of the Merger Agreement, such
consent not to be unreasonably withheld, the Commitments have not been amended and are (solely to
the Knowledge of Parent and Merger Sub, in the case of the Debt Commitment letters) in full force
and effect;
6
(iii) the Commitments are subject to no contingencies or conditions other than those set
forth in the copies thereof delivered to the Company;
(iv) no event has occurred which, with or without notice, lapse of time or both, would
constitute a default or breach on the part of GPH, PSC or PSC Sub under any term or condition of
the Commitments;
(v) PSC has no reason to believe that it or GPH will be unable to satisfy on a timely basis
any term or condition of closing to be satisfied by it or GPH contained in the Commitments;
(vi) any and all commitment fees and other fees required by the Commitments to be paid as of
the date hereof have been paid; and
(vii) subject to the terms and conditions of the Commitments and this Agreement, the
Commitments would provide PSC and GPH with financing at the Effective Time sufficient to (I)
consummate the Merger upon the terms contemplated by this Agreement, (II) effect any other
repayment or refinancing of debt contemplated in connection with the Merger or the Commitments, and
(III) pay all related fees and expenses.
(d) GPH represents and warrants to the Company, as of the date hereof, the matters set forth
in Section 9.5.1 of the Merger Agreement, with the references therein to SBEV replaced by GPH.
Article 3
Amendments to Merger Agreement
Section 3.1 All references to “North American Senior Care, Inc.” in the Merger Agreement are
hereby amended to refer instead to “Pearl Senior Care, Inc.,” a Delaware
7
corporation, and, for the avoidance of doubt, all references in the Merger Agreement to “Parent”
shall refer to Pearl Senior Care, Inc.
Section 3.2 All references to “NASC Acquisition Corp.” in the Merger Agreement are hereby
amended to refer instead to “PSC Sub, Inc.,” a Delaware corporation, and, for the avoidance of
doubt, all references in the Merger Agreement to “Merger Sub” shall refer to PSC Sub, Inc.
Section 3.3 All references to “SBEV Property Holdings LLC” in the Merger Agreement are hereby
amended to refer instead to “Xxxxx Property Holdings LLC,” a Delaware limited liability company,
and, for the avoidance of doubt, all references in the Merger Agreement to “SBEV” are hereby
amended to refer instead to GPH.
Section 3.4 The definition of “Company Material Adverse Effect” contained in Section 1.1 of
the Merger Agreement is amended by adding the following immediately prior to the period at the end
thereof:
, and (f) the effects on the Company of any litigation (to the extent worse than the
proposed settlement), in the event the Company proposes to settle such litigation and
Parent does not, if requested, provide its consent to such settlement.
Section 3.5 The definition of “Parent Expenses” contained in Section 1.1 of the Merger
Agreement is amended in its entirety to read as follows:
“Parent Expenses” shall mean all reasonable and documented out-of-pocket
expenses (including, without limitation, all reasonable fees and expenses of
counsel, accountants, investment bankers, experts and consultants) incurred by or on
behalf of Parent, Merger Sub, GPH, North American Senior Care, Inc., a Delaware
corporation (“NASC”), NASC Acquisition Corp., a Delaware corporation
(“NASC Acquisition”), and SBEV Property Holdings LLC, a Delaware limited
liability company (“SBEV”) (with respect to NASC, NASC Acquisition and SBEV,
for expenses incurred on or prior to November 20, 2005) in connection with or
related to the transactions contemplated hereby, including, without limitation,
expenses in
8
connection with due diligence, and the negotiation, execution and performance
of this Agreement and the transactions contemplated hereby.
Section 3.6 The definition of “Suspension Period” contained in Section 1.1 of the Merger
Agreement is amended in its entirety to read as follows:
“Suspension Period” means the period beginning on September 22, 2005 and ending at 11:59
P.M. New York City time on December 12, 2005.
Section 3.7 The Merger Consideration provided for in the first sentence of Section 3.1.1 of
the Merger Agreement is amended to be $12.50.
Section 3.8 Section 2.5 of the Merger Agreement is amended in its entirety to read as follows:
At the Effective Time, the Certificate of Incorporation and the By-laws of the
Surviving Corporation shall, subject to Section 6.9 hereof, be amended in their
entirety to contain the provisions set forth in the Certificate of Incorporation and
the By-laws attached as Exhibit A hereto, except that the name of the Surviving
Corporation shall at the Effective Time be changed to the name of the Company.
Section 3.9 Section 5.10 of the Merger Agreement is amended by deleting the parenthetical
contained therein.
Section 3.10 A new Section 6.1(q) is added to the Merger Agreement, which reads as follows:
(q) (i) between November 21,2005 and March 31,2006, pay or agree to pay in excess of
$24 million (net present value with respect to payments agreed to be made in the
future) in any new settlement of any litigation to the extent any such payments are
not covered by insurance (other than self insurance reserves), and the parties agree
that any such settlement payments (or agreements to pay) in excess of such $24 million
amount during such period shall require the consent of the formally designated
representative of Parent following advance notice thereof, it being understood that
this Section 6.1(q) shall not apply to nor restrict any payment of any judgment,
posting of a bond or letter of credit, or judicially
9
required cash or reserve “set-aside” in respect of any litigation, and (ii) not settle
any litigated matter for an amount in excess of $1,000,000 out of self insured
reserves or cash (due to lack of insurance coverage) without: (1) advising the
designated representative of Parent as promptly as practicable; (2) providing the
rationale for such settlement at the recommended level; and (3) furnishing on a
regular basis lawsuit evaluations and other reasonably pertinent information to
provide an understanding of the case.
Section 3.11 The first sentence of Section 6.2.1 of the Merger Agreement is amended by
changing the reference therein to “November 23, 2005” to “December 12, 2005.”
Section 3.12 Section 6.5.2 of the Merger Agreement is amended by replacing the reference
therein to “October 21, 2005” with “December 23, 2005”.
Section 3.13 The last sentence of Section 6.8.5 of the Merger Agreement is amended in its
entirety to read as follows:
The Company shall cooperate reasonably with Parent and Merger Sub in accelerating to
the earlier of the Closing Date or December 28, 2005, with respect to those
individuals and specific awards or payments identified by Parent, any one or more of
the following: (i) outstanding bonus awards under the 1998 Annual Incentive Program
Plan; (ii) 2003 Cash Bonus Awards (at target) under the 2003 Long-Term Program;
(iii) 1997 LTIP Performance Awards (at target), including without limitation the
2004 and 2005 performance awards payable in cash; (iv) benefits under the Enhanced
Supplemental Executive Retirement Plan; (v) benefits under the Supplemental
Executive Retirement Plan; (vi) benefits under the Executive Deferred Compensation
Plan (including the Retirement Enhancement Program); and (vii) benefits under
severance and employment agreements; provided, however, that Parent shall advance to
the Company (or provide other adequate security, upon reasonable terms and
conditions satisfactory to the Company, for) the excess of the amount that the
Company determines is necessary to make such accelerated payments over the “Company
Portion.” For purposes of this Section 6.8.5, the “Company Portion” shall be an
amount equal to the sum of (x) the amount of any accelerated payments of benefits
under the Executive Deferred Compensation Plan that are vested as of the requested
payment date, (y) the amount of such portion of the accelerated payments as the
plans and/or individuals identified by Parent would, in the absence of a
10
change in ownership or control, receive on or before April 30, 2006, and (z)
$10,000,000.
Section 3.14 Subsection (B)(2) of the second sentence of Section 6.14 of the Merger Agreement
is amended to add a proviso at the end of such section to read as follows:
; provided, however, that in connection with any change in participant
Institutional Lenders pursuant to clause (B)(1) above, if such substituted
Institutional Lender requires additional or different contingencies or
conditions to its lending obligation, the Company shall be required to grant
its consent as a result of such changed contingencies or conditions so long as
the effect of such changed contingencies or conditions does not increase the
conditionality (taken as a whole) of its commitment beyond that contemplated by
the commitment of the previous lender.
Section 3.15 The following sentence is added to Section 6.18 of the Merger Agreement
immediately following the eighth sentence of such section:
For the avoidance of doubt, except as set forth in the last sentence of this
Section 6.18, the Company acknowledges and agrees that it shall not have the
right to draw upon the Letter of Credit unless and until this Agreement permits
the Company to retain the Business Interruption Fee in accordance with the
terms hereof.
Section 3.16 Clause (ii) of the first sentence of Section 8.2 of the Merger Agreement is
amended in its entirety to read as follows:
the Termination Fee and/or Parent Expenses shall be the exclusive remedy of
Parent, Merger Sub under circumstances where the Termination Fee and/or Parent
Expenses is or are payable by the Company and the Business Interruption Fee
shall be the exclusive remedy of the Company under circumstances where the
Business Interruption Fee is payable by Parent; provided, further, that,
subject to the provision of Section 4.3 of the Third Amendment to this
Agreement, no Party shall be relieved or released from any liabilities or
damages arising out of its willful and material breach of any provision of this
Agreement. For the avoidance of doubt, the Parties acknowledge that the
Company’s sole remedies in the event that the Company does not terminate the
Agreement shall be the
11
cure of such breach or other specific performance as contemplated by Section
9.11 hereof, but not money damages.
Section 3.17 The first sentence of Section 8.4.1 of the Merger Agreement is amended by
replacing the reference therein to “the date hereof” with “November 20, 2005”.
Section 3.18 The third sentence of Section 8.4.1 of the Merger Agreement is amended in its
entirety to read as follows:
If this Agreement is terminated pursuant to Section 8.1(c)(ii) during the Suspension Period
and neither Parent, Merger Sub nor GPH is in material breach of this Agreement at the time
of such termination, then the Company shall pay Parent the Parent Expenses, not to exceed
$30,000,000.
Section 3.19 Section 9.2 of the Merger Agreement is amended by replacing the contact
information of NASC and SBEV with the contact information of PSC and GPH, respectively, to read as
follows:
If to Parent or Merger Sub, addressed to it at:
Pearl Senior Care, Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Facsimile: (000) 000-0000
Email: xxxxx@xxxxxxxxxxx.xxx
000 Xxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Facsimile: (000) 000-0000
Email: xxxxx@xxxxxxxxxxx.xxx
If to Geary, addressed to it at:
Geary Property Holdings LLC
000 Xxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Facsimile: (000) 000-0000
Email: xxxxx@xxxxxxxxxxx.xxx
000 Xxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Facsimile: (000) 000-0000
Email: xxxxx@xxxxxxxxxxx.xxx
12
With a mandated copy to:
Dechert LLP
Xxx Xxxxxx, Xxxxxxx Xxxxx
Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxx
Facsimile: (000) 000-0000
Email: xxxxxx.xxxx@xxxxxxx.xxx
Xxx Xxxxxx, Xxxxxxx Xxxxx
Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxx
Facsimile: (000) 000-0000
Email: xxxxxx.xxxx@xxxxxxx.xxx
And
Xxxxxxxx Xxxxxxx LLP
000 Xxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attention: X. Xxxxxxxx Xxxxxxxxx, Jr.
Facsimile: (000) 000-0000
Email: xxxxx.xxxxxxxxx@xxxxxxxxxxxxxxx.xxx
000 Xxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attention: X. Xxxxxxxx Xxxxxxxxx, Jr.
Facsimile: (000) 000-0000
Email: xxxxx.xxxxxxxxx@xxxxxxxxxxxxxxx.xxx
Section 3.20 The first sentence of Section 9.6 is amended in its entirety to read as follows:
This Agreement, as amended by that certain First Amendment dated as of August 23, 2005 by
and among Parent, Merger Sub, the Company and, solely for purposes of Article 3 thereof,
SBEV (the “First Amendment”), that certain Second Amendment dated as of September
22, 2005 by and among Parent, Merger Sub, the Company and, solely for purposes of Article 3
thereof, SBEV (the “Second Amendment”), and that certain Third Amendment dated as
of November 20, 2005 by and among Parent, Merger Sub, the Company, North American Senior
Care, Inc., a Delaware corporation, NASC Acquisition Corp., a Delaware corporation, and
solely for purposes of Articles 1, 4 and 5 thereof, SBEV Property Holdings LLC, and Xxxxx
Property Holdings LLC (the “Third Amendment” and together with the First Amendment and the
Second Amendment, the “Amendments”) (together with the Exhibits, Parent Disclosure
Schedule, Company Disclosure Schedule and the other documents delivered pursuant hereto),
the Commitments and the Confidentiality Agreement constitute the entire agreement of the
Parties and supersede all prior agreements and undertakings, both written and oral, between
the Parties, or any of them, with respect to the subject matter hereof and thereof and,
except as otherwise expressly provided herein, are not (other than in the case of Sections
3.5, 6.8, 6.9 and 6.13) intended to confer upon any other Person any rights or remedies
hereunder.
Article 4
Other Agreements
Section 4.1 The Company acknowledges that Parent has satisfied, or the Company has waived
satisfaction of, each and all of the following conditions: (i) Parent has
13
made the Subsequent BIF Deposit or caused the LC Condition Removal to occur in accordance with
Section 6.18 of the Merger Agreement, (ii) Parent has delivered to the Company updated Debt
Commitment Letters with any due diligence conditions deleted in accordance with Section 6.14 of the
Merger Agreement, (iii) Parent has delivered the Solvency Opinion (but not the bring-down thereof)
in accordance with Section 6.13 of the Merger Agreement and (iv) Parent has delivered an updated
Equity Commitment Letter with the condition set forth in Section 2(iii) of the form attached to the
Merger Agreement as Exhibit C removed, in accordance with Section 6.18 of the Merger Agreement.
Section 4.2 Parent shall have the right in its sole discretion to change or modify in any way
the equity and/or membership interests in Parent, Merger Sub and GPH; provided that the Equity
Commitment Letter is not amended and remains in full force and effect and any such change or
modification does not and could not reasonably be expected to result in any significant delay in
the Closing (whether as a result of the need to amend and/or refile Governmental Consents other
Third Party approvals or otherwise).
Section 4.3 PSC, PSC Sub and GPH acknowledge that the Company has complied with, or PSC, PSC
Sub and GPH have waived satisfaction of, any and all provisions of the Merger Agreement in
connection with (i) the settlement or discharge by the Company and/or any of its Subsidiaries prior
to the date hereof of any lawsuit or legal claim or action filed or made against the Company and/or
any of its Subsidiaries and (ii) any requirements of the Company and/or its affiliates to cooperate
prior to the date hereof with Parent, Merger Sub and/or their affiliates in matters relating to the
transactions contemplated by the Merger Agreement.
14
Section 4.4 (a) Each of NASC, NASC Acquisition and SBEV and their affiliates and successors,
and each of their officers, directors, employees, managers, shareholders, members, representatives
and agents (collectively, the “NASC Releasing Parties”) hereby releases and discharges the Company
and its affiliates and successors, and each of its officers, directors, employees, managers,
shareholders, members, representatives and agents (collectively the “Seller Releasing Parties) from
any and all claims, demands, proceedings, causes of action and liabilities whatsoever which any of
the NASC Releasing Parties has or may have against the Seller Releasing Parties under or pursuant
to the Merger Agreement, arising prior to the date hereof. The foregoing release shall in no way
be deemed to constitute a release or waiver by the PSC Releasing Parties as a result of the
assignment and assumption provided for herein.
(b) Each of the Seller Releasing Parties hereby releases and discharges the NASC Releasing
Parties from any and all claims, demands, proceedings, causes of action and liabilities whatsoever
which any of the Seller Releasing Parties has or may have against the NASC Releasing Parties under
or pursuant to the Merger Agreement, arising prior to the date hereof.
(c) Each of PSC , PSC Sub and GPH and their affiliates and successors, and each of their
officers, directors, employees, managers, shareholders, members, representatives and agents
(collectively, the “PSC Releasing Parties”) hereby releases and discharges the Seller Releasing
Parties from any and all claims, demands, proceedings, causes of action and liabilities whatsoever
which any of the PSC Releasing Parties has or may have against the Seller Releasing Parties under
or pursuant to the Merger Agreement, arising prior to the date hereof and relating solely to (i)
the settlement or discharge by the
15
Company and/or any of its Subsidiaries prior to the date hereof of any lawsuit or legal claim
or action filed or made against the Company and/or any of its Subsidiaries, and/or (ii) any
requirements of the Company and/or its affiliates to cooperate with Parent, Merger Sub and/or their
affiliates in matters relating to the transactions contemplated by the Merger Agreement.
(d) Each of the Seller Releasing Parties (i) hereby releases and discharges each of the PSC
Releasing Parties from any and all claims, demands, proceedings, causes of action and liabilities
whatsoever which the Seller Releasing Parties has or may have against the PSC Releasing Parties
under or pursuant to the Merger Agreement arising prior to the date hereof and relating solely to
the obligations of (A) Parent to make the Subsequent BIF Deposit or cause the LC Condition Removal
to occur in accordance with Section 6.18 of the Merger Agreement, (B) Parent to deliver to the
Company updated Debt Commitment Letters with any due diligence conditions deleted in accordance
with Section 6.14 of the Merger Agreement, (C) Parent to deliver the Solvency Opinion (but not the
bring-down thereof) in accordance with Section 6.13 of the Merger Agreement and (D) Parent to
deliver an updated Equity Commitment Letter with the condition set forth in Section 2(iii) of the
form attached to the Merger Agreement as Exhibit C removed, in accordance with Section 6.18 of the
Merger Agreement, and (ii) agrees that notwithstanding the assignment and assumption pursuant to
Article 1 hereof, the PSC Releasing Parties shall have no liability to or through the Seller
Releasing Parties for any acts or omissions of the NASC Releasing Parties prior to the date hereof
for which the PSC Releasing Party would be liable as a result of such assignment and assumption.
16
(e) Each of PSC, PSC Sub,GPH, NASC, NASC Acquisition and SBEV represent and warrant to the
Company that it is not aware of any breach by the Company of any representation, warranty, covenant
or agreement in the Merger Agreement, as amended hereby, taking into account Section 4.3 hereof.
(f) The Company hereby represents and warrants to PSC, PSC Sub,GPH, NASC, NASC Acquisition and
SBEV that it is not aware of any breach by PSC, PSC Sub, GPH, NASC, NASC Acquisition or SBEV of any
representation, warranty, covenant or agreement in the Merger Agreement, as amended hereby, taking
into account Section 4.1 hereof.
(g) For purposes of this Section 4.4 and for the avoidance of doubt, (i) none of PSC, PSC Sub
and GPH shall be considered affiliates or successors of any of NASC, NASC Acquisition or SBEV, and
none of NASC, NASC Acquisition or SBEV shall be considered affiliates or successors of PSC, PSC Sub
or GPH, (ii) Fillmore Capital Partners, LLC, Fillmore Strategic Investors, L.L.C. and their
affiliates shall not be considered NASC Releasing Parties and (iii) any reference in this Section
4.4 to the officers, directors, employees, managers, shareholders, members, representatatives or
agents of any Person shall be understood to be a reference to such Persons acting in such capacity.
Section 4.5 The Company hereby releases all obligations under the equity commitment letter
delivered in connection with the Second Amendment.
17
Article 5
General Provisions
Section 5.1 Except as expressly amended hereby, the Merger Agreement shall remain in full
force and effect.
Section 5.2 The provisions of Article 9 of the Merger Agreement shall apply to this Third
Amendment as if set forth herein in their entirety.
18
IN WITNESS WHEREOF, the undersigned have caused this Third Amendment to be executed as of the
date first written above by their respective officers thereunto duly authorized.
NORTH AMERICAN SENIOR CARE, INC. | ||
By:
|
/s/ XXXX XXXXXXXXX | |
Name: Xxxx Xxxxxxxxx | ||
Title: President | ||
NASC ACQUISITION CORP. | ||
By:
|
/s/ XXXX XXXXXXXXX | |
Name: Xxxx Xxxxxxxxx | ||
Title: President | ||
SBEV PROPERTY HOLDINGS LLC | ||
By:
|
/s/ XXXXXXX XXXXXXXXX | |
Name: Xxxxxxx Xxxxxxxxx | ||
Title: Manager |
19
PEARL SENIOR CARE, INC. | ||
By:
|
/s/ XXXXXX X. XXXXX | |
Name: Xxxxxx X. Xxxxx | ||
Title: Authorize Signatory | ||
PSC SUB, INC. | ||
By:
|
/s/ XXXXXX X. XXXXX | |
Name: Xxxxxx X. Xxxxx | ||
Title: Authorized Signatory | ||
XXXXX PROPERTY HOLDINGS LLC | ||
By:
|
/s/ XXXXXX X. XXXXXX | |
Name: Xxxxxx X. Xxxxxx | ||
Title: Authorized Signatory |
20
XXXXXXX ENTERPRISES, INC. | ||
By:
|
/s/ XXXXXXX X. XXXXX | |
Name: Xxxxxxx X. Xxxxx | ||
Title: Chairman, President and Chief Executive Officer |
21