AMENDMENT TO $80,000,000 CREDIT AGREEMENT
EXHIBIT 99.2
AMENDMENT
TO $80,000,000 CREDIT AGREEMENT
This
AMENDMENT TO $80,000,000 CREDIT AGREEMENT (this “Amendment”) is made
as of August 30, 2010, by and among (i) INTEGRATED HEALTHCARE HOLDINGS, INC., a
Nevada corporation (“IHHI”), WMC-SA, INC.,
a California corporation (“WMC-SA”), WMC-A,
INC., a California corporation (“WMC-A”), ▇▇▇▇▇▇▇
MEDICAL CENTER, INC., a California corporation (“▇▇▇▇▇▇▇”), COASTAL
COMMUNITIES HOSPITAL, INC., a California corporation (“Coastal”), PACIFIC
COAST HOLDINGS INVESTMENT, LLC, a California limited liability company (“PCHI”), and GANESHA
REALTY, LLC, a California limited liability company (“Ganesha”), (ii) SPCP
GROUP IV, LLC, a Delaware limited liability company (“SP 1”) and SPCP
Group, LLC, a Delaware limited liability company (“SP 2”) and (iii)
SILVER POINT FINANCE, LLC, a Delaware limited liability company (“Silver
Point”).
RECITALS
WHEREAS,
(i) IHHI, WMC-SA, WMC-A, ▇▇▇▇▇▇▇, Coastal (collectively, the “$80,000,000
Borrowers”), (ii) PCHI and Ganesha (collectively, the “$80,000,000 Credit
Parties”), (iii) SP 1 and SP 2 (collectively, the “$80,000,000 Lenders”)
and (iv) Silver Point (the “$80,000,000 Lender
Agent”) are parties to that certain Credit Agreement dated as of October
9, 2007 (as amended by Amendment No. 1 dated April 2, 2009 and the
Acknowledgment, Waiver and Consent and Amendment to Credit Agreements dated
April 2, 2009 and as further amended by the Omnibus Credit Agreement Amendment
dated as of April 13, 2010, the “$80,000,000 Credit
Agreement”), providing, subject to the terms and conditions thereof, for
extensions of credit (by means of loans) to be made, by the $80,000,000 Lenders
to the $80,000,000 Borrowers in an original aggregate principal amount equal to
$80,000,000; and
WHEREAS,
the $80,000,000 Borrowers, the $80,000,000 Credit Parties and the $80,000,000
Lenders have agreed to amend certain provisions of the $80,000,000 Credit
Agreement as provided herein;
NOW,
THEREFORE, in consideration of the foregoing and for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties hereto hereby agree as follows:
Section
1. Definitions. Except
as otherwise defined in this Amendment, terms defined in the $80,000,000 Credit
Agreement are used herein as defined therein.
Section
2. Amendments to the
$80,000,000 Credit Agreement. Subject to the receipt by the
$80,000,000 Lender Agent of counterparts of this Amendment executed by each
$80,000,000 Borrower, each $80,000,000 Credit Party, the $80,000,000 Lenders and
the $80,000,000 Lender Agent, but effective as of the date hereof, the
$80,000,000 Credit Agreement shall be amended as follows:
2.1 References
Generally. References in the $80,000,000 Credit Agreement
(including references to the $80,000,000 Credit Agreement as amended hereby) to
“this Agreement” (and indirect references such as “hereunder”, “hereby”,
“herein” and “hereof”) shall be deemed to be references to the $80,000,000
Credit Agreement as amended hereby.
2.2 Defined
Terms. Annex A of the $80,000,000 Credit Agreement is hereby
amended by adding the following definitions in the appropriate alphabetical
order:
(a)
“MidCap
Facility” means the Credit and Security Agreement, dated as of or about
August 30, 2010, among MidCap Financial, LLC, as administrative agent and a
lender, the Borrowers and the other parties thereto from time to time, as
amended, restated, supplemented or otherwise modified from time to
time.
(b)
“MidCap Facility
Closing Date” means August 30, 2010.
(c)
“MidCap Intercreditor
Agreement” means the Intercreditor Agreement, dated as of or about August
30, 2010, among MidCap Financial, LLC, the Lender Agent, the Borrowers and the
Credit Parties, as amended, restated, supplemented or otherwise modified from
time to time.
2.3 Prepayments. Section
1.4(b) of the $80,000,000 Credit Agreement is hereby amended by deleting the
existing Section 1.4(b) and replacing it in its entirety with the following
language (with the new language indicated below by the bold and double-underline
text):
“(b) Mandatory
Prepayments. Notwithstanding the foregoing, (i) immediately
upon receipt by Borrowers or Credit Parties of any cash proceeds of any sale or
other disposition of any Collateral, the Borrowers shall (or,
without limiting the obligation of the Borrowers to make such payment, may cause
the Credit Party receiving such cash proceeds to) prepay the Loans in an
amount equal to all such proceeds, net of (A) commissions and other reasonable
and customary transaction costs, fees and expenses properly attributable to such
transaction and payable by Borrowers in connection therewith (in each case, paid
to non-Affiliates), (B) transfer taxes, and (C) an appropriate reserve for
income taxes; (ii) on the date of availability of any A/R Financing executed by
the Borrowers as contemplated by Section 1.17, the Borrowers shall prepay the
$35,000,000 Non-Revolving Line of Credit Loan and all accrued and unpaid
interest and fees thereon in an aggregate amount equal to the outstanding
balances thereof as of such date; and (iii) after giving effect to any prior
application of funds to prepay the $10,700,000 Convertible Term Loan required on
such date, immediately upon receipt by Borrowers or Credit Parties of any
payment or reimbursement of enhanced federal matching funds, net of: provider
fees, pledged funds due to the California Health Foundation & Trust and
estimated federal and state taxes on such net funds (assuming a marginal blended
tax rate of 40%) received from Medi-Cal upon implementation of California AB1383
(or any substitute, replacement or successor legislation or payments), Borrowers
shall prepay the $35,000,000 Non-Revolving Line of Credit Loan or any
outstanding A/R Financing, as applicable, in an amount equal to 65% of such
payment or reimbursement up to an annual aggregate prepayment equal to
$25,000,000, provided that in the
case of a prepayment of any A/R Financing, (x) the loans thereunder shall not be
required to be prepaid to the extent such prepayment would cause
the outstanding principal amount thereof on the date of such prepayment to
be less than $10,000,000 and (y) commitments under such A/R Financing equal to
the amount prepaid shall be permanently reduced and terminated (but in no event
shall such commitments be required to be reduced below
$10,000,000). Any prepayment pursuant to clause (i) or (iii) of the
immediately foregoing sentence shall be applied in accordance with Section
1.4(c) (Application of Prepayments); provided that no such
prepayment under clause (iii) shall be applied to the $45,000,000 Real Estate
Term Loan. The following shall not be subject to mandatory prepayment
under this subsection: (1) proceeds of sales of Inventory in the
ordinary course of business; (2) proceeds of collection of Accounts in the
ordinary course of business (except as otherwise set forth herein); and (3)
proceeds of sales of Equipment and other personal property in the ordinary
course of business so long as such Equipment and other personal property is
replaced (if necessary in the exercise of prudent business judgment) by
Equipment and other personal property of equal or greater value or
utility.”
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2.4 Financial
Statements. Section 4.1(a) of the $80,000,000 Credit Agreement
is hereby amended by deleting such Section 4.1(a) in its entirety.
2.5 Affirmative
Covenants. Section 5.11 of the $80,000,000 Credit Agreement is
hereby amended by deleting the period at the end of the existing Section 5.11
and adding the following language immediately thereafter:
“; provided that so long
as the MidCap Facility is in effect, Borrowers may deposit any net cash proceeds
of Collateral in accordance with the terms of the MidCap Facility (as in effect
on the MidCap Facility Closing Date) and subject to the terms of the MidCap
Intercreditor Agreement.”
2.6 Affirmative
Covenants.
Article 5 of the $80,000,000 Credit Agreement is hereby amended by adding the
following new Section 5.16 immediately after the existing Section
5.15:
“Section
5.16 Financial Reports, Notices
and Other Information.
(a) Financial Statements and
Other Reports. Each Borrower will deliver to Lender
Agent: (1) as soon as available, but no later than thirty (30)
days after the last day of each month, a company prepared consolidated balance
sheet and income statement covering Borrowers’ and their consolidated
Subsidiaries’ consolidated operations during the period, prepared under GAAP,
consistently applied (except for ordinary course adjustments to such monthly
financial statements which are taken in good faith, actuarial adjustments for
self-insurance retention and disproportionate share payment adjustments), in a
form reasonably acceptable to Lender Agent; (2) as soon as available, but
no later than one hundred fifty (150) days after the last day of each Fiscal
Year, audited consolidated financial statements prepared under GAAP,
consistently applied, together with an unqualified opinion on the financial
statements from an independent certified public accounting firm acceptable to
Lender Agent in its reasonable discretion; (3) within five (5) days of
delivery or filing thereof by any Borrower, copies of all statements, reports
and notices made available to such Borrower’s security holders or to any holders
of Subordinated Debt and copies of all reports and other filings made by such
Borrower with any stock exchange on which any securities of such Borrower are
traded and/or the United States Securities and Exchange Commission; (4) a
prompt report of any legal actions pending or threatened in writing against any
Borrower or any of its Subsidiaries that are not covered by insurance (including
Borrower’s self-insured retention amounts) and could reasonably be expected to
result in damages or costs to any Borrower or any of its Subsidiaries of
$500,000 or more; (5) prompt written notice of an event that materially and
adversely affects the value of any material Intellectual Property;
(6) budgets, sales projections, operating plans and other financial
information and other information, reports or statements regarding the
Borrowers, their business and the Collateral as Lender Agent may from time to
time reasonably request; (7) concurrent with the delivery of its audited
consolidated financial statements prepared under GAAP, a reconciliation between
its interim fourth quarter report and any adjustments thereafter in connection
with finalizing its audited consolidated financial statements prepared under
GAAP, consistently applied; (8) promptly upon their becoming available, copies
of all interest rate and currency hedging agreements that any Borrower or any of
its Subsidiaries is party to and all Material Contracts (as defined in the
MidCap Facility) to the extent such documents are filed with the United States
Securities and Exchange Commission; (9) every Fiscal Quarter (but not more
frequently unless an Event of Default then exists and is continuing), a schedule
of Eligible Accounts (as defined in the MidCap Facility) and the thirty (30)
largest Account Debtors (as defined in the MidCap Facility) during such quarter;
(10) within ten (10) days after the preparation or issuance thereof, copies of
financial statements (other than those required to be delivered pursuant to
clauses (1) and (2) above) prepared by, for or on behalf of Borrowers and any
other notes, reports and other materials related thereto, including, without
limitation, any pro forma financial statements; (11) promptly upon receipt
thereof, copies of any reports submitted to a Borrower by its independent
accountants in connection with any interim audit of the books of such Person or
any of its Affiliates and copies of each management control letter provided by
such independent accountants; (12) within fifteen (15) days after the execution
thereof, a copy of any contracts with the federal government or with a
Governmental Authority in the State of California; (13) not less than thirty
(30) days prior to the commencement of each Fiscal Year, consolidated month by
month projected operating budgets, annual projections, profit and loss
statements, and cash flow reports of and for Borrowers for such upcoming Fiscal
Year (including an income statement for each month and a balance sheet as of the
end of the last month in each Fiscal Quarter); and (14) any additional
information, documents, statements, reports and other materials that are
provided to the agent or the lenders under the MidCap Facility.
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(b) Notices. Borrowers
will give prompt written notice to Lender Agent: (1) of any
litigation or governmental proceedings pending or, to Borrower’s knowledge,
threatened (in writing) against Borrowers or any Credit Party which would
reasonably be expected to have a Material Adverse Effect with respect to
Borrowers or any Credit Party or which in any manner calls into question the
validity or enforceability of any Loan Document; (2) upon any Borrower becoming
aware of the existence of any Default or Event of Default (which notice shall
specify the nature and status thereof, the period of existence thereof and what
action is proposed to be taken with respect thereto); (3) if any Borrower is in
breach or default under or with respect to any Material Contract (as defined in
the MidCap Facility), or if any Borrower is in breach or default under or with
respect to any other contract, agreement, lease or other instrument to which it
is a party or by which its property is bound or affected, which breach or
default could reasonably be expected to have a Material Adverse Effect; (4) of
any strikes or other labor disputes pending or, to any Borrower’s knowledge,
threatened in writing against any Borrower; (5) if there is any infringement or
claim of infringement by any other Person with respect to any Intellectual
Property rights of any Borrower that could reasonably be expected to have a
Material Adverse Effect, or, to Borrower’s knowledge, if there is any claim by
any other Person that any Borrower in the conduct of its business is infringing
on the Intellectual Property rights of others that could reasonably be expected
to have a Material Adverse Effect; and (6) of all returns, recoveries, disputes
and claims relating to any of the Borrowers’ accounts receivable that involve
more than $500,000; (7) any other development, event, fact, circumstance or
condition that would reasonably be likely to have a Material Adverse Effect, in
each case describing the nature and status thereof and the action proposed to be
taken with respect thereto; (8) to the extent not otherwise delivered pursuant
to another provision hereof, any notice given by a Borrower to any other lender
of a Borrower, which notice to Lender shall be accompanied by a copy of the
applicable notice given to the other lender; (9) receipt of any notice or
request from any Governmental Authority or governmental payor regarding any
liability or claim of liability or any material modification to any special
program or the amounts payable to a Borrower thereunder; (10) receipt of any
notice by a Borrower regarding termination of any manager of any facility owned,
operated or leased by a Credit Party; and (11) promptly after a Borrower or any
authorized officer of a Borrower obtains knowledge thereof, any oral or written
communication from the IRS or otherwise with respect to any tax investigations,
relating to a Borrower directly, or relating to any consolidated tax return
which was filed on behalf of a Borrower, in respect of (x) any tax assessment or
possible tax assessment, (y) years that are designated open pending tax
examination or audit, or (z) information that could give rise to an IRS tax
liability or assessment.”
2.7 Negative
Covenants. Section 6.2 of the $80,000,000 Credit Agreement is
hereby amended by deleting the period at the end of the existing Section 6.2 and
adding the following language immediately thereafter:
4
“; provided that so long
as the MidCap Facility is in effect, Borrowers may invest all cash pursuant to
the terms of the MidCap Facility (as in effect on the MidCap Facility Closing
Date) and subject to the terms of the MidCap Intercreditor
Agreement.”
2.8 Financial
Covenants. Article 6 of the $80,000,000 Credit Agreement is
hereby amended by adding the following new Section 6.17 immediately after the
existing Section 6.16:
“Section
6.17 Financial
Covenants.
(a) Minimum EBITDA. The
Borrowers will not at any time permit, for (i) the Test Period ending June 30,
2010, EBITDA to be less than $17,500,000, (ii) the Test Period ending September
30, 2010, EBITDA to be less than $10,000,000, (iii) the Test Period ending
December 31, 2010, EBITDA to be less than $17,500,000 and (iv) each Test Period
after the Test Period ending December 31, 2010, EBITDA to be less than
$20,000,000.
(b) Fixed Charge Coverage
Ratio. The Borrowers will not permit the Fixed Charge Coverage
Ratio (as defined in and calculated pursuant to the Worksheet in Annex E) as of
the last day of any Fiscal Quarter set forth below to be less than the ratio set
forth below for such period:
|
Period
|
Ratio
|
|
Any
given Fiscal Quarter, measured on a trailing four quarter basis (which
shall be the “Defined
Period” for purposes of Annex E)
|
1.00 to 1.00
|
(c) Evidence of
Compliance. Borrowers shall furnish to Lender Agent, together
with the financial reporting required of Borrowers pursuant to Section 4.1
(Reports and Notices), evidence (in form and content satisfactory to Lender
Agent) of Borrowers’ compliance with the covenants in this Section 6.17 and
evidence that no Default or Event of Default resulting from the provisions of
this Section 6.17 has occurred and is continuing. Such evidence shall
include, without limitation, (a) a statement and report, on a form approved by
Lender Agent, detailing Borrowers’ calculations, and (b) if requested by Lender
Agent, back-up documentation (including, without limitation, invoices, receipts
and other evidence of costs incurred during such quarter as Lender Agent shall
reasonably require) evidencing the propriety of the calculations.
(d) Defined
Terms. For purposes of this Section 6.17, the following
definitions shall apply:
‘EBITDA’ means, for
any period, the sum, without duplication, of the following for each Borrower
collectively on a consolidated basis: Net Income, plus (a) Interest
Expenses, (b) taxes on income, whether paid, payable or accrued, (c)
depreciation expense, (d) amortization expense, (e) all other non-cash,
non-recurring charges and expenses, excluding accruals for cash expenses made in
the ordinary course of business, (f) loss from any sale of assets, other than
sales in the ordinary course of business, and (g) the portion of lease payments
paid by Borrower to PCHI in respect of lease payments which are attributable to
interest minus (a) gains from any sale of assets, other than sales in the
ordinary course of business and (b) other extraordinary or non-recurring gains,
in each case determined in accordance with GAAP.
5
‘Interest Expense’
means, for any period, for Borrowers collectively on a consolidated basis, (a)
total interest expense (including without limitation attributable to Capital
Leases in accordance with GAAP), (b) fees with respect to all outstanding
Indebtedness including without limitation capitalized interest but excluding
commissions, discounts and other fees owed with respect to letters of credit and
bankers’ acceptance financing and (c) net costs under any interest rate hedging
agreements.
‘Net Income’ means,
for any period, the net income (or loss) of Borrowers collectively on a
consolidated basis determined in accordance with GAAP; provided, however, that such
amount shall exclude (a) the income (or loss) of any Person in which any other
Person (other than any Credit Party) has a joint interest, except to the extent
of the amount of dividends or other distributions actually paid to a Borrower by
such Person (b) the income (or loss) of any Person accrued prior to the date it
becomes a Borrower or is merged into or consolidated with a Borrower or that
Person’s assets are acquired by a Borrower, (c) the income of any Subsidiary of
any Borrower to the extent that the declaration or payment of dividends or
similar distributions of that income by that Subsidiary is not at the time
permitted by operation of the terms of the charter or any agreement, instrument,
judgment, decree, order, statute, rule or governmental regulation applicable to
that Subsidiary, (d) compensation expense resulting from the issuance of capital
stock, stock options or stock appreciation rights issued to former or current
employees, including officers, of a Borrower, or the exercise of such options or
rights, in each case to the extent the obligation (if any) associated therewith
is not expected to be settled by the payment of cash by a Borrower or any
affiliate thereof, and (e) compensation expense resulting from the repurchase of
capital stock, options and rights described in clause (d) of this definition of
Net Income.
‘Test Period’ means,
with respect to each Fiscal Quarter beginning with Fiscal Quarter ending June
30, 2010, the four most recent Fiscal Quarters then ended (taken as one
accounting period), or such other period as specified in the Agreement or any
Annex thereto.”
2.9 Events of
Default. Section 8.1 of the $80,000,000 Credit Agreement is
hereby amended by adding the following new subsection (ii) immediately after the
existing subsection (hh):
“(ii)
Borrowers or Credit Parties fail or neglect to perform, keep or observe any
provision of Section 6.17 (Financial Covenants) applicable to them and the same
shall remain unremedied for five (5) days or more after the earlier of (i)
Borrower’s or Credit Party’s actual knowledge thereof, or (ii) Borrower’s or
Credit Party’s receipt of notice thereof from Lender.”
2.10 Annex
E. The $80,000,000 Credit Agreement is hereby amended by
adding Exhibit A attached hereto as the new Annex E to the $80,000,000 Credit
Agreement immediately after the existing Annex D thereto.
Section
3. MidCap
Intercreditor Agreement. Notwithstanding anything to the
contrary in the $80,000,000 Credit Agreement or any of the instruments,
documents and other agreements executed in connection therewith (together with
the $80,000,000 Credit Agreement, the “$80,000,000 Loan
Documents”), any obligations of any $80,000,000 Borrower to physically
deliver any Shared Collateral (as defined in the Intercreditor Agreement
referred to below) to the $80,000,000 Lender Agent, or to make any
representation or warranty or to perform any other obligation to provide a first
priority lien to the $80,000,000 Lenders in respect of such Shared Collateral
vis-à-vis the lenders under that certain Credit and Security Agreement, dated as
of or about August 30, 2010, among MidCap Financial, LLC, as administrative
agent and a lender, the $80,000,000 Borrowers and the other parties thereto,
shall be subject to the terms of that certain Intercreditor Agreement, dated as
of or about August 30, 2010, among MidCap Financial, LLC, the $80,000,000 Lender
Agent, the $80,000,000 Borrowers and the $80,000,000 Credit Parties (the “Intercreditor
Agreement”) and shall be deemed satisfied so long as the $80,000,000
Borrowers satisfy such requirements under the Intercreditor Agreement; provided that (i) the
foregoing shall only be applicable so long as the Intercreditor Agreement is in
effect and (ii) nothing in this Section 3 shall apply to any Collateral other
than the Shared Collateral (as defined in the Intercreditor Agreement) nor shall
this Section 3 affect any obligation of the $80,000,000 Borrowers to provide and
maintain the second priority lien of the $80,000,000 Lenders in such Shared
Collateral.
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Section
4. Representations and
Warranties. Each $80,000,000 Borrower and each $80,000,000
Credit Party represents and warrants to the $80,000,000 Lenders and the
$80,000,000 Lender Agent that the representations and warranties set forth in
Section 3 of the $80,000,000 Credit Agreement are true and complete on the date
hereof as if made on and as of the date hereof (or, if any such representation
or warranty is expressly stated to have been made as of a specific date, such
representation or warranty shall be true and correct as of such specific date),
and as if each reference in said Section 3 to “this Agreement” included
reference to this Amendment.
Section
5. No
Further Amendments. Except for the amendments set forth
herein, the text of the $80,000,000 Credit Agreement shall remain unchanged and
in full force and effect. No waiver by the $80,000,000 Lenders under
the $80,000,000 Credit Agreement is granted or intended and the $80,000,000
Lenders expressly reserve the right to require strict compliance with the terms
of the $80,000,000 Credit Agreement. The amendments agreed to herein
shall not constitute or evidence a course of dealing at variance with the
$80,000,000 Credit Agreement such as to require further notice by the
$80,000,000 Lenders to require strict compliance with the terms of the
$80,000,000 Credit Agreement in the future. The $80,000,000 Borrowers
and $80,000,000 Credit Parties confirm and agree that this Amendment shall
constitute a Loan Document under the $80,000,000 Credit Agreement.
Section
6. Miscellaneous. This
Amendment may be executed in any number of counterparts, all of which taken
together shall constitute one and the same agreement, and any of the parties
hereto may execute this Amendment by signing any such
counterpart. Delivery of a counterpart by electronic transmission
shall be effective as delivery of a manually executed counterpart
hereof. This Amendment shall be governed by, and construed in
accordance with, the law of the State of Nevada.
[remainder
of the page intentionally blank]
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IN
WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly
executed by their respective authorized representatives as of the date first
above written.
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$80,000,000
BORROWERS:
INTEGRATED
HEALTHCARE HOLDINGS, INC., a Nevada corporation
By:
/s/ ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇
Title:
President and Chief Executive Officer
WMC-A,
INC., a California corporation
By:
/s/ ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇
Title:
Chief Executive Officer
WMC-SA,
INC., a California corporation
By:
/s/ ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇
Title:
Chief Executive Officer
COASTAL
COMMUNITIES HOSPITAL, INC., a California corporation
By:
/s/ ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇
Title:
Chief Executive Officer
▇▇▇▇▇▇▇
MEDICAL CENTER, INC., a California corporation
By:
/s/ ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇
Title:
Chief Executive Officer
|
|
$80,000,000
CREDIT PARTIES:
PACIFIC
COAST HOLDINGS INVESTMENT, LLC, a California limited liability
company
By:
/s/ ▇▇▇▇▇
▇▇▇▇▇▇▇
Title:
Co-Manager
By:
/s/ ▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇
Title:
Manager
GANESHA
REALTY, LLC, a California limited
liability company
By:
/s/ ▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇
Title:
Manager
|
2
|
$80,000,000
LENDERS:
SPCP
GROUP IV, LLC,
a
Delaware limited liability company
By:
Silver Point C&I Opportunity GP, LLC
By:
/s/ ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇
Title:
Authorized Signatory
SPCP
GROUP, LLC,
a
Delaware limited liability company
By:
/s/ ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇
Title:
Authorized Signatory
$80,000,000
LENDER AGENT:
SILVER
POINT FINANCE, LLC,
a
Delaware limited liability company
By:
/s/ ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇
Title:
Authorized Signatory
|
3
ANNEX
E
TO
CREDIT
AGREEMENT ($80 MILLION FACILITY)
Fixed
Charge Coverage Ratio Worksheet
|
“Fixed Charge Coverage
Ratio” for the applicable Defined Period (as defined in Section
6.17(b)) means the ratio of Operating Cash Flow (as defined below) to
Fixed Charges (as defined below) for such Defined
Period.
|
|
|
“Fixed Charges”
means:
|
|
|
Interest
expense (including interest expense of PCHI) ($______), net of interest
income ($______), interest paid in kind ($______) and amortization of
capitalized fees and expenses incurred to consummate the financing
transaction governed by the MidCap Facility and included in interest
expense ($______), included in the determination of net income of
Borrowers and their consolidated Subsidiaries for the Defined Period
(“Total Interest
Expense”)
|
$___________
|
|
Plus:Any
provision for (or less any benefit from) income or franchise taxes
included in the determination of net income for the Defined
Period
|
___________
|
|
Scheduled
payments of principal for the Defined Period with respect to all
Indebtedness (including the portion of scheduled payments under Capital
Leases1 allocable to principal but
excluding scheduled repayments of revolving loans and other Indebtedness
subject to reborrowing to the extent not accompanied by a concurrent and
permanent reduction of the revolving loan commitment in respect of such
revolving loan)
|
___________
|
|
The
amount of “Permitted Asset Dispositions” and “Permitted Distributions” as
defined in and pursuant to the MidCap Facility on the date
hereof
|
___________
|
|
“Operating Cash Flow”
means:
|
|
|
EBITDA
for the Defined Period (calculated in the manner required by the
definition thereof in Section 6.17)
|
$___________
|
|
Less:Unfinanced
capital expenditures for the Defined Period
|
___________
|
|
To
the extent not already reflected in the calculation of EBITDA, other
capitalized costs, defined as the gross amount paid in cash and
capitalized during the Defined Period, as long term assets, other than
amounts capitalized during the Defined Period as capital expenditures for
property, plant and equipment or similar fixed asset
accounts
|
___________
|
|
Operating
Cash Flow
|
$
|
|
Fixed
Charge Coverage Ratio (Ratio of Operating Cash Flow to Fixed Charges) for
the Defined Period
|
___
to 1.0
|
|
Minimum
Fixed Charge Coverage for the Defined Period
|
1.00
to 1.0
|
|
In
Compliance
|
Yes/No
|