FORM OF
FIRST AMENDMENT TO CREDIT AGREEMENT
THIS FIRST AMENDMENT TO CREDIT AGREEMENT (this "First Amendment"), dated as
of November 12, 1997, is entered into among Sun Healthcare Group, Inc., a
Delaware corporation ("Borrower"), the entities listed on the signature pages
hereto as Lenders (collectively, "Lenders"), the co-agents listed on the
signature pages hereto as Co-Agents (collectively, the "Co-Agents"), and
NationsBank of Texas, N.A., as Administrative Agent (in said capacity, "the
Administrative Agent").
BACKGROUND
The Borrower, certain of the Lenders (herein, the "Existing Lenders"), the
Co-Agents and the Administrative Agent heretofore entered into that certain
Credit Agreement, dated as of October 8, 1997 (the "Credit Agreement"; the terms
defined in the Credit Agreement and not otherwise defined herein shall be used
herein as defined in the Credit Agreement).
The Borrower, the Lenders, the Co-Agents and the Administrative Agent
desire to amend the Credit Agreement to, among other things, (a) add certain of
the Lenders as Lenders thereto (herein, the "New Lenders"), (b) extend the
Maturity Date and (c) make certain other changes thereto.
NOW, THEREFORE, in consideration of the covenants, conditions and
agreements hereafter set forth, and for other good and valuable consideration,
the receipt and adequacy of which are all hereby acknowledged, the Borrower, the
Lenders, the Co-Agents and the Administrative Agent covenant and agree as
follows:
1. AMENDMENTS TO CREDIT AGREEMENT.
(a) The definition of "APPLICABLE BASE RATE MARGIN" set forth in
Section 1.1 of the Credit Agreement is hereby amended in its entirety to read as
follows:
"APPLICABLE BASE RATE MARGIN" means the following per annum
percentages, applicable in the following situations:
Facility A Term
Loan Advances Facility B Facility C
and Revolving Term Loan Term Loan
Applicability Credit Advances Advances Advances
------------- ---------------- ---------- ----------
(a) INITIAL PRICING PERIOD 1.00% 1.25% 1.50%
Facility A Term
Loan Advances Facility B Facility C
and Revolving Term Loan Term Loan
Applicability Credit Advances Advances Advances
------------- ---------------- ---------- ----------
(b) SUBSEQUENT PRICING PERIOD
(i) The Leverage Ratio is equal 1.00% 1.25% 1.50%
to or greater than 6.00 to 1
(ii) The Leverage Ratio is less 0.75% 1.25% 1.50%
than 6.00 to 1 but is equal
to or greater than 5.50 to 1
(iii) The Leverage Ratio is 0.50% 1.25% 1.50%
less than 5.50 to 1 but
is equal to or greater
than 5.00 to 1
(iv) The Leverage Ratio is less 0.25% 1.25% 1.50%
than 5.00 to 1 but is equal
to or greater than 4.50 to 1
(v) The Leverage Ratio is less 0.00% 1.00% 1.25%
than 4.50 to 1 but is equal
to or greater than 4.00 to 1
(vi) The Leverage Ratio is less 0.00% 0.75% 1.00%
than 4.00 to 1
During the Subsequent Pricing Period, the Applicable Base Rate Margin
payable by the Borrower on the Base Rate Advances outstanding hereunder
shall be subject to reduction or increase, as applicable and as set forth
in the table above, on a quarterly basis according to the Leverage Ratio;
PROVIDED, that each adjustment in the Applicable Base Rate Margin shall be
effective as of the fifth day following the date of receipt by the
Administrative Agent of the financial statements required pursuant to
SECTION 6.1 or 6.2 hereof (and corresponding Compliance Certificate), as
appropriate. If financial statements of the Borrower (and corresponding
Compliance Certificate setting forth the Leverage Ratio) are not received
by the Administrative Agent by the fifth day following the date required
pursuant to SECTION 6.1 or 6.2 hereof, as appropriate, the Applicable Base
Rate Margin shall be determined as if the Leverage Ratio is equal to or
greater than 6.00 to 1 until such time as such financial statements and
Compliance Certificate are received.
(b) The definition of "APPLICABLE LIBOR RATE MARGIN" set forth in
Section 1.1 of the Credit Agreement is hereby amended in its entirety to read as
follows:
"APPLICABLE LIBOR RATE MARGIN" means the following per annum
percentages, applicable in the following situations:
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Facility A Term
Loan Advances Facility B Facility C
and Revolving Term Loan Term Loan
Applicability Credit Advances Advances Advances
------------- ---------------- ---------- ----------
(a) INITIAL PRICING PERIOD 2.50% 2.75% 3.00%
(b) SUBSEQUENT PRICING PERIOD
(i) The Leverage Ratio is equal 2.50% 2.75% 3.00%
to or greater than 6.00 to 1
(ii) The Leverage Ratio is less 2.25% 2.75% 3.00%
than 6.00 to 1 but is equal
to or greater than 5.50 to 1
(iii) The Leverage Ratio is 2.00% 2.75% 3.00%
less than 5.50 to 1 but
is equal to or greater
than 5.00 to 1
(iv) The Leverage Ratio is less 1.75% 2.75% 3.00%
than 5.00 to 1 but is equal
to or greater than 4.50 to 1
(v) The Leverage Ratio is less 1.50% 2.50% 2.75%
than 4.50 to 1 but is equal
to or greater than 4.00 to 1
(vi) The Leverage Ratio is less 1.25% 2.25% 2.50%
than 4.00 to 1 but is equal
to or greater than 3.50 to 1
(vii) The Leverage Ratio is 1.00% 2.25% 2.50%
less than 3.50 to 1 but
is equal to or greater
than 3.00 to 1
(viii) The Leverage Ratio is 0.75% 2.25% 2.50%
less than 3.00 to 1
During the Subsequent Pricing Period, the Applicable LIBOR Rate Margin
payable by the Borrower on the LIBOR Advances outstanding hereunder shall
be subject to reduction or increase, as applicable and as set forth in the
table above, on a quarterly basis according to the Leverage Ratio;
PROVIDED, that each adjustment in the Applicable LIBOR Rate Margin shall be
effective as of the fifth day following the date of receipt by the
Administrative Agent of the financial statements required pursuant to
SECTION 6.1 or 6.2 hereof (and corresponding Compliance Certificate), as
appropriate. If financial statements (and corresponding Compliance
Certificate setting forth the Leverage Ratio) are not received by the
Administrative Agent by the fifth day following the date required pursuant
to SECTION 6.1 or 6.2 hereof, as appropriate, the Applicable LIBOR Rate
Margin shall be determined as if the Leverage Ratio is equal to or greater
than 6.00 to 1 until such time as such financial statements and Compliance
Certificate are received.
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(c) The definition of "DOMESTIC EBITDA" set forth in Section 1.1 of the
Credit Agreement is hereby amended in its entirety to read as follows:
"DOMESTIC EBITDA" means, for any period, determined in accordance with
GAAP on a consolidated basis for the Borrower and its Restricted
Subsidiaries, the sum of (a) pre-tax net income (excluding therefrom
(i) any items of extraordinary gain, including net gains on the sale of
assets other than asset sales in the ordinary course of business, (ii) any
items of extraordinary loss, including net losses on the sale of assets
other than asset sales in the ordinary course of business, and charges and
expenses related to this Agreement, (iii) charges related to settlement of
the Shareholder Lawsuits and the Golden Care or SunCare Litigation as
described in the Borrower's Form 10-K filed immediately prior to the
Agreement Date not to exceed in aggregate amount the remainder of
$31,000,000 minus any insurance proceeds received in connection with any
such settlement, (iv) charges related to the RCA Acquisition, the Contour
Acquisition, the Acquisition of Regency and non-recurring items recognized
by RCA which would have qualified as purchase accounting adjustments had
the RCA Acquisition been accounted for as a purchase rather than a pooling
not to exceed $65,000,000 in aggregate amount and (v) charges taken by RCA
not to exceed $20,000,000 in aggregate amount related to impairment loss,
as determined by Statement of Financial Accounting Standards No. 121,
provided that items, charges and expenses set forth above (including,
without limitation, the charges set forth in clauses (iii), (iv) and (v)
immediately preceding) shall apply to the period in which such items,
charges and expenses are set forth in the financial statements delivered to
the Lenders pursuant to SECTION 6.1 or 6.2 hereof, as appropriate), plus
(b) interest expense, whether or not capitalized (including interest
expense pursuant to Capitalized Lease Obligations), Depreciation and
amortization, in each case for the four fiscal quarters immediately
preceding the date of calculation. For purpose of the calculation of
Domestic EBITDA with respect to assets not owned at all times during the
four fiscal quarters immediately preceding the date of determination,
Domestic EBITDA shall be adjusted, on a pro-forma basis, to (i) include the
Domestic EBITDA attributable to an Acquisition which occurred during any
such fiscal quarter for the twelve month period preceding the date of
determination, provided the Acquisition Consideration for such Acquisition
is in excess of $5,000,000 and (ii) exclude the Domestic EBITDA of any
asset or group of related amounts disposed of in one transaction or a
series of related transactions during any such fiscal quarter for the
twelve month period preceding the date of determination, provided the
consideration received from the disposition of such asset or group of
related assets is in excess of $5,000,000.
(d) The definition of "EBITDA" set forth in Section 1.1 of the Credit
Agreement is hereby amended and restated in its entirety to read as follows:
"EBITDA" means, for any period, determined in accordance with GAAP on
a consolidated basis for the Borrower and its Subsidiaries, the sum of
(a) pre-tax net income (excluding therefrom (i) any items of extraordinary
gain, including net gains on the sale
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of assets other than asset sales in the ordinary course of business,
(ii) any items of extraordinary loss, including net losses on the sale of
assets other than asset sales in the ordinary course of business, and
charges and expenses related to this Agreement, (iii) charges related to
settlement of the Shareholder Lawsuits and the Golden Care or SunCare
Litigation as described in the Borrower's Form 10-K filed immediately
prior to the Agreement Date not to exceed in aggregate amount the remainder
of $31,000,000 minus any insurance proceeds received in connection with any
such settlement, (iv) charges related to the RCA Acquisition, the Contour
Acquisition, the Acquisition of Regency and non-recurring items recognized
by RCA which would have qualified as purchase accounting adjustments had the
RCA Acquisition been accounted for as a purchase rather than a pooling not
to exceed $65,000,000 in aggregate amount, and (v) charges taken by RCA not
to exceed $20,000,000 in aggregate amount related to impairment loss, as
determined by Statement of Financial Accounting Standards No. 121, provided
that items, charges and expenses set forth above (including, without
limitation, the charges set forth in clauses (iii), (iv) and (v) immediately
preceding) shall apply to the period in which such items, charges and
expenses are set forth in the financial statements delivered to the Lenders
pursuant to SECTION 6.1 or 6.2 hereof, as appropriate), plus (b) interest
expense, whether or not capitalized (including interest expense pursuant to
Capitalized Lease Obligations), Depreciation, amortization, in each case for
the four fiscal quarters immediately preceding the date of calculation. For
purpose of the calculation of EBITDA with respect to assets not owned at all
times during the four fiscal quarters immediately preceding the date of
determination, EBITDA shall be adjusted, on a pro-forma basis, to (i)
include the EBITDA attributable to an Acquisition which occurred during any
such fiscal quarter for the twelve month period preceding the date of
determination, provided the Acquisition Consideration for such Acquisition
is in excess of $5,000,000 and (ii) exclude the EBITDA of any asset or group
of related assets disposed of in one transaction or a series of related
transactions during any such fiscal quarter for the twelve month period
preceding the date of determination, provided the consideration received
from the disposition of such asset or group of related assets is in excess
of $5,000,000.
(e) The definition of "INTEREST PERIOD" set forth in Section 1.1 of the
Credit Agreement is hereby amended in its entirety to read as follows:
"INTEREST PERIOD" means, for any LIBOR Advance, the period beginning
on the day the Advance is made and ending one, two, three or six months
thereafter (as the Borrower shall select); PROVIDED, HOWEVER, that all of
the foregoing provisions are subject to the following:
(i) if any Interest Period would otherwise end on a day which is
not a Business Day, such Interest Period shall be extended to the next
succeeding Business Day, unless, with respect to a LIBOR Advance, the
result of such extension would be to extend such Interest Period into
another calendar month, in
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which event such Interest Period shall end on the immediately preceding
Business Day;
(ii) any Interest Period with respect to a LIBOR Advance that
begins on the last Business Day of a calendar month (or on a day for
which there is no numerically corresponding day in the calendar month
at the end of such Interest Period) shall end on the last Business Day
of a calendar month;
(iii) the Borrower may not select any Interest Period in
respect of Advances having an aggregate principal amount less than
$5,000,000; and
(iv) there shall be outstanding at any one time no more than ten
Interest Periods in the aggregate.
(f) The definition of "LETTER OF CREDIT FACILITY" is hereby amended in its
entirety to read as follows:
"LETTER OF CREDIT FACILITY" has the meaning specified in
SECTION 2.16(a) hereof.
(g) The definition of "LIBOR RATE" set forth in Section 1.1 of the Credit
Agreement is hereby amended in its entirety to read as follows:
"LIBOR RATE" means, for any LIBOR Advance for any Interest Period, the
rate per annum (rounded upwards, if necessary, to the nearest 1/100th of
1%) appearing on Telerate Page 3750 (or any successor page) as the London
interbank offered rate for deposits in Dollars at approximately 11:00 a.m.
(London time) two Business Days prior to the first day of such Interest
Period for a term comparable to such Interest Period. If for any reason
such rate is not available, the term "LIBOR Rate" shall mean, for any LIBOR
Advance for any Interest Period therefor, the rate per annum (rounded
upwards, if necessary, to the nearest 1/100th of 1%) appearing on Reuters
Screen LIBO Page as the London interbank offered rate for deposits in
Dollars at approximately 11:00 a.m. (London time), two Business Days prior
to the first day of such Interest Period for a term comparable to such
Interest Period; PROVIDED, HOWEVER, if more than one rate is specified on
Reuters Screen LIBO Page, the applicable rate shall be the arithmetic mean
of all such rates (rounded upwards, if necessary, to the nearest 1/100th of
1%).
(h) The definition of "NET CASH PROCEEDS" is hereby amended by adding "and
cash equivalents" after the word "cash" appearing in the second line thereof.
(i) The definition of "PERMITTED LIENS" set forth in Section 1.1 of the
Credit Agreement is hereby amended by amending clause (f) thereof in its
entirety to read as follows:
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(f) Liens created to secure Indebtedness permitted by SECTION 7.1(k)
hereof, which is (i) incurred solely for the purpose of financing the
acquisition of assets or an Acquisition and incurred at the time of such
acquisition of assets or such Acquisition or (ii) assumed in connection
with an Acquisition, so long as (A) each such Lien permitted by this
subsection (f) shall at all times be confined solely to the asset or assets
so acquired (and proceeds thereof) and refinancings thereof, (B) the
aggregate amount of Indebtedness related thereto does not result in a
violation of SECTION 7.1(k) hereof, and (C) the aggregate amount of
inventory and accounts receivable (and any proceeds thereof) secured by
such Liens does not exceed at any time 5% of the aggregate amount of
inventory and accounts receivable of the Borrower and its Restricted
Subsidiaries;
(j) SECTION 1.1 of the Credit Agreement is hereby amended by adding the
following defined terms thereto in proper alphabetical order:
"EXCESS CASH FLOW" means, with respect to the Borrower and its
Subsidiaries on a consolidated basis, the remainder of (a) Net Operating
Cash Flow minus (b) voluntary prepayments of Indebtedness which cannot be
reborrowed, in each case for the four fiscal quarters immediately preceding
the date of calculation.
"FACILITY A TERM LOAN MATURITY DATE" means November 12, 2003, or the
earlier date of acceleration of Facility A Term Loan Advances pursuant to
SECTION 8.2 hereof.
"FACILITY B TERM LOAN MATURITY DATE" means November 12, 2004, or the
earlier date of acceleration of Facility B Term Loan Advances pursuant to
SECTION 8.2 hereof.
"FACILITY C TERM LOAN MATURITY DATE" means November 12, 2005, or the
earlier date of acceleration of Facility C Term Loan Advances pursuant to
SECTION 8.2 hereof.
"INITIAL PRICING PERIOD" means the period from and including the
Agreement Date to and including the Rate Adjustment Date.
"NET INCOME" means net earnings (or deficit) after taxes of the
Borrower and its Restricted Subsidiaries, on a consolidated basis,
determined in accordance with GAAP.
"NET OPERATING CASH FLOW" means, for the Borrower and its Restricted
Subsidiaries determined in accordance with GAAP on a consolidated basis,
the remainder of (a)(i) Net Income, plus (ii) any portion of interest
expense or tax expense not actually paid in cash, plus (iii) Depreciation,
amortization and other non-cash charges (to the extent used in determining
Net Income), plus (iv) net losses on sale of assets and non-cash write down
of assets (to the extent used in determining Net Income), minus
(b)(i) capital expenditures, plus (ii) scheduled principal payments on
Indebtedness actually paid, plus (iii) net gains on sale of assets (to the
extent included in determining Net Income), plus (iv) cash paid for
acquisitions (including Acquisitions) and investments (including
Investments), plus or
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minus, as the case may be, (v) any increase or decrease, as the case may
be, in working capital.
"QUARTERLY DATE" means the last day of each March, June, September and
December, beginning December 31, 1997.
"RATE ADJUSTMENT DATE" means the date which is five days following the
date that the Lenders receive the financial statements of the Borrower and
its Subsidiaries for March 31, 1998 required to be delivered pursuant to
SECTION 6.1 hereof.
"REVOLVING COMMITMENT MATURITY DATE" means November 12, 2003, or the
earlier date of termination in whole of the Revolving Credit Commitment
pursuant to SECTION 2.6 or 8.2 hereof.
"SENIOR DEBT" means, as of any date of determination, determined for
the Borrower and its Subsidiaries, an amount equal to the remainder of
(a) Total Debt minus (b) Subordinated Debt.
"SENIOR DEBT TO EBITDAR RATIO" means, for any date of calculation,
calculated for the Borrower and its Subsidiaries on a consolidated basis
(provided that if Foreign Subsidiary EBITDAR shall ever equal or exceed 15%
of EBITDAR, the Senior Debt to EBITDAR Ratio shall be calculated (a) for
the Borrower and its Restricted Subsidiaries on a consolidated basis and
(b) using Domestic EBITDAR), the ratio of (i) Senior Debt as of the date of
calculation to (ii) EBITDAR for the four fiscal quarters immediately
preceding the date of calculation.
"SUBSEQUENT PRICING PERIOD" means the period from and including the
date which is the first day following the end of the Initial Pricing Period
to and including the Release Date.
(k) SECTION 1.1 of the Credit Agreement is hereby amended by deleting the
definition of "MATURITY DATE" therefrom.
(l) SECTION 2.2(b) of the Credit Agreement is hereby amended by amending
the last sentence thereof in its entirety to read as follows:
For LIBOR Advances, the notice of borrowing shall specify the requested
funding date, which shall be a Business Day, the amount of the proposed
aggregate LIBOR Advances to be made by the Lenders and the Interest Period
selected by the Borrower, provided that no such Interest Period shall
extend past the Revolving Commitment Maturity Date, the Facility A Term
Loan Maturity Date, the Facility B Term Loan Maturity Date, or the
Facility C Term Loan Maturity Date, as appropriate, or prohibit or impair
the Borrower's ability to comply with SECTION 2.5 or 2.8 hereof.
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(m) SECTION 2.3(a)(ii) of the Credit Agreement is hereby amended in its
entirety to read as follows:
(ii) Interest on each Base Rate Advance shall be computed on the basis
of a year of 365 or 366 days, as applicable, for the number of days
actually elapsed, and shall be payable in arrears on each Quarterly Date
and on the Revolving Commitment Maturity Date, the Facility A Term Loan
Maturity Date, the Facility B Term Loan Maturity Date, or the Facility C
Term Loan Maturity Date, as appropriate.
(n) SECTION 2.3(b)(ii) of the Credit Agreement is hereby amended in its
entirety to read as follows:
(ii) Subject to SECTION 11.9 hereof, accrued and unpaid interest on
each LIBOR Advance shall be computed on the basis of a 360-day year for the
actual number of days elapsed, and shall be payable in arrears on the
applicable Payment Date and on the Revolving Commitment Maturity Date, the
Facility A Term Loan Maturity Date, the Facility B Term Loan Maturity Date,
or the Facility C Term Loan Maturity Date, as appropriate; provided,
however, that if the Interest Period for such LIBOR Advance exceeds three
months, interest shall also be due and payable in arrears on each three-
month anniversary of the commencement of such Interest Period during such
Interest Period.
(o) SECTION 2.3(d) of the Credit Agreement is hereby amended by amending
the second sentence thereof in its entirety to read as follows:
Such interest shall be payable on the earlier of demand or the Revolving
Commitment Maturity Date, the Facility A Term Loan Maturity Date, the
Facility B Term Loan Maturity Date, or the Facility C Term Loan Maturity
Date, as appropriate, and shall accrue until the earlier of (i) waiver or
cure (to the satisfaction of the Determining Lenders) of the applicable
Event of Default, or (ii) payment in full of the Obligations.
(p) SECTION 2.4(a) of the Credit Agreement is hereby amended and restated
in its entirety to read as follows:
(a) COMMITMENT FEE. Subject to SECTION 11.9 hereof, the Borrower
agrees to pay to the Administrative Agent, for the ratable account of the
Lenders, a commitment fee (which shall be payable in arrears on each
Quarterly Date and on the Revolving Commitment Maturity Date) based on the
daily average Unused Portion (subject to SECTION 11.9 hereof, computed on
the basis of a 360-day year for the actual number of days elapsed) at the
per annum percentages, applicable in the following situations:
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Applicability Percentage
------------- ----------
(i) INITIAL PRICING PERIOD 0.500%
(ii) SUBSEQUENT PRICING PERIOD
(A) The Leverage Ratio is greater than or equal to 0.500%
5.00 to 1
(B) The Leverage Ratio is less than 5.00 to 1 but is 0.375%
equal to or greater than 4.00 to 1
(C) The Leverage Ratio is less than 4.00 to 1 but is 0.300%
equal to or greater than 3.50 to 1
(D) The Leverage Ratio is less than 3.50 to 1 0.250%
During the Subsequent Pricing Period, the commitment fee shall be subject
to reduction or increase, as applicable and as set forth above, on a
quarterly basis according to the performance of the Borrower as tested by
the Leverage Ratio. Any such increase or decrease in such fee shall be
effective on the fifth day following the date of receipt by the
Administrative Agent of the financial statements required pursuant to
SECTION 6.1 or 6.2 hereof (and corresponding Compliance Certificate), as
appropriate. If such financial statements (and corresponding Compliance
Certificate) are not received by the fifth day following the date required,
the commitment fee shall be determined as if the Leverage Ratio is greater
than or equal to 5.00 to 1 until such time as such financial statements
(and corresponding Compliance Certificate) are received.
(q) SECTION 2.5(c) of the Credit Agreement is hereby amended in its
entirety to read as follows:
(c) PREPAYMENTS FROM SALES OF ASSETS. Concurrently with the receipt
of Net Cash Proceeds from the sale or disposition by the Borrower or any
Restricted Subsidiary of the Borrower of any assets, including any Equity
of any such Subsidiary (other than sales or dispositions of assets
permitted pursuant to (A) clauses (i) through (iii) of SECTION 7.4(a)
hereof, (B) clause (viii) of SECTION 7.4(a) hereof, to the extent that the
aggregate book value of assets sold pursuant to such clause (vii) during
any fiscal year does not exceed $1,000,000, (C) SECTION 7.16 hereof and
(D) the Regency Sale Leaseback), the Borrower shall apply (i) an amount
equal to 100% of such aggregate Net Cash Proceeds at any time that the
Leverage Ratio for the fiscal quarter immediately preceding such sale or
disposition (but computed after giving effect on a pro forma basis to the
application of Net Cash Proceeds thereof as provided herein) is equal to or
greater than 5.50 to 1 or (ii) an amount equal to 50% of such aggregate Net
Cash Proceeds (excluding, however, any amount of such Net Cash Proceeds
which are used within 180 days of such sale or disposition to purchase
assets to be used in the business of the
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Borrower and its Restricted Subsidiaries described in SECTION 4.1(d)
hereof) at any time that the Leverage Ratio for the fiscal quarter
immediately preceding such sale or disposition (but computed after giving
effect on a pro forma basis to the application of Net Cash Proceeds
thereof as provided herein) is less than 5.50 to 1 to prepay Facility A
Term Loan Advances, Facility B Term Loan Advances and Facility C Term
Loan Advances (and, thereafter, Revolving Credit Advances (or provide
cash collateral in the amount of such Net Cash Proceeds for the
outstanding Reimbursement Obligations to the extent that Revolving Credit
Advances are not outstanding) when there are no Facility A Term Loan
Advances, Facility B Term Loan Advances and Facility C Term Loan Advances
outstanding). Each such prepayment of Facility A Term Loan Advances,
Facility B Term Loan Advances and Facility C Term Loan Advances shall be
applied PRO RATA to all of the unpaid scheduled installment payments of
the Facility A Term Loan Advances, Facility B Term Loan Advances and
Facility C Term Loan Advances, in each case PRO RATA based upon the
respective principal amounts of such installment payments then unpaid.
Any prepayment of Revolving Credit Advances pursuant to this SECTION
2.5(c) shall permanently reduce the Revolving Credit Commitment by the
amount of such prepayment.
(r) SECTION 2.5(d) of the Credit Agreement is hereby amended in its
entirety to read as follows:
(d) PREPAYMENT FROM SALES OF EQUITY. Concurrently with receipt of
Net Cash Proceeds from the sale or issuance by the Borrower or any
Restricted Subsidiary to any Person (other than the Borrower or a
Restricted Subsidiary) of any Equity of the Borrower or Indebtedness
convertible into any Equity in the Borrower (other than Equity issued as a
result of the exercise of options or warrants in respect of such Equity),
the Borrower shall apply (i)(A) an amount equal to 100% of the first
$300,000,000 of aggregate Net Cash Proceeds received after the Agreement
Date at any time that the Leverage Ratio for the fiscal quarter immediately
preceding such sale or issuance (but computed after giving effect on a pro
forma basis to the application of the Net Cash Proceeds thereof as provided
herein) is equal to or greater than 5.50 to 1 or (B) an amount equal to 50%
of the first $300,000,000 of aggregate Net Cash Proceeds received after the
Agreement Date at any time that the Leverage Ratio for the fiscal quarter
immediately preceding such sale or issuance (but computed after giving
effect on a pro forma basis to the application of the Net Cash Proceeds
thereof as provided herein) is less than 5.50 to 1, to prepay the
Facility A Term Loan Advances, the Facility B Term Loan Advances and the
Facility C Term Loan Advances (and, thereafter Revolving Credit Advances
(or provide cash collateral in the amount of such Net Cash Proceeds for the
outstanding Reimbursement Obligations to the extent that Revolving Credit
Advances are not outstanding) when there are no Facility A Term Loan
Advances, Facility B Term Loan Advances and Facility C Term Loan Advances
then outstanding), (ii)(A) an amount equal to 100% of such aggregate Net
Cash Proceeds received in excess of $300,000,000 within six months after
the Agreement Date (but not to exceed $250,000,000) at any time that the
Leverage Ratio for the fiscal quarter immediately preceding such sale or
issuance (but computed after
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giving effect on a pro forma basis to the application of the Net Cash
Proceeds thereof as provided herein) is equal to or greater than 5.50 to
1 or (B) an amount equal to 50% of such aggregate Net Cash Proceeds
received in excess of $300,000,000 within six months after the Agreement
Date (but not to exceed $250,000,000) at any time that the Leverage Ratio
for the fiscal quarter immediately preceding such sale or issuance (but
computed after giving effect on a pro forma basis to the application of
the Net Cash Proceeds thereof as provided herein) is less than 5.50 to 1
to prepay, at the Borrower's option, Revolving Credit Advances or the
Facility A Term Loan Advances, the Facility B Term Loan Advances or the
Facility C Term Loan Advances, and (iii)(A) an amount equal to 100% of
all other such Net Cash Proceeds received at any time that the Leverage
Ratio for the fiscal quarter immediately preceding such sale or issuance
(but computed after giving effect on a pro forma basis to the application
of the Net Cash Proceeds thereof as provided herein) is equal to or
greater than 5.50 to 1 or (B) an amount equal to 50% of all other such
Net Cash Proceeds (excluding, however, any amount of such Net Cash
Proceeds which are used within 180 days of such sale or issuance to
purchase assets to be used in the business of the Borrower and its
Restricted Subsidiaries described in SECTION 4.1(d) hereof) received at
any time that the Leverage Ratio for the fiscal quarter immediately
preceding such sale or issuance (but computed after giving effect on a
pro forma basis to the application of the Net Cash Proceeds thereof as
provided herein) is less than 5.50 to 1 to prepay, at the Borrower's
option, the Revolving Credit Advances or the Facility A Term Loan
Advances, the Facility B Term Loan Advances and the Facility C Term Loan
Advances. Each such prepayment of the Facility A Term Loan Advances, the
Facility B Term Loan Advances, and the Facility C Term Loan Advances
shall be applied PRO RATA to all of the unpaid scheduled installment
payments of the Facility A Term Loan Advances, Facility B Term Loan
Advances and Facility C Term Loan Advances, in each case PRO RATA based
upon the respective principal amounts of such installment payments then
unpaid. Any prepayment of Revolving Credit Advances pursuant to SECTION
2.5(d)(i)(A) above shall permanently reduce the Revolving Credit
Commitment by the amount of such prepayment.
(s) SECTION 2.5(e) of the Credit Agreement is hereby amended in its
entirety to read as follows:
(e) PREPAYMENT FROM ISSUANCE OF INSTITUTIONAL DEBT. Concurrently
with the receipt of Net Cash Proceeds from the issuance of Institutional
Debt by the Borrower or any Restricted Subsidiary of the Borrower, the
Borrower shall apply (i) an amount equal to 100% of such aggregate Net Cash
Proceeds at any time that the Leverage Ratio for the fiscal quarter
immediately preceding such issuance (but computed after giving effect on a
pro forma basis to the application of the Net Cash Proceeds thereof as
provided herein) is equal to or greater than 5.50 to 1 or (ii) an amount
equal to 50% of such aggregate Net Cash Proceeds (excluding, however, any
amount of such Net Cash Proceeds which are used within 180 days of such
issuance to purchase assets to be used in the business of the Borrower and
its Restricted Subsidiaries described in SECTION 4.1(d) hereof) at any time
- 12 -
that the Leverage Ratio for the fiscal quarter immediately preceding such
issuance (but computed after giving effect on a pro forma basis to the
application of the Net Cash Proceeds thereof as provided herein) is less
than 5.50 to 1 to prepay the Facility A Term Loan Advances, the Facility B
Term Loan Advances and the Facility C Term Loan Advances (and, thereafter,
Revolving Credit Advances (or provide cash collateral in the amount of such
Net Cash Proceeds for the outstanding Reimbursement Obligations to the
extent that Revolving Credit Advances are not outstanding) when there are
no Facility A Term Loan Advances, Facility B Term Loan Advances, and
Facility C Term Loan Advances outstanding). Each such prepayment of the
Facility A Term Loan Advances, the Facility B Term Loan Advances, and the
Facility C Term Loan Advances shall be applied PRO RATA to all of the
unpaid scheduled installment payments of the Facility A Term Loan Advances,
Facility B Term Loan Advances, and Facility C Term Loan Advances, in each
case PRO RATA based upon the respective principal amounts of such
installment payments then unpaid. Any prepayment of Revolving Credit
Advances pursuant to this SECTION 2.5(e) shall permanently reduce the
Revolving Credit Commitment by the amount of such prepayment.
(t) SECTION 2.5(f) of the Credit Agreement is hereby amended by amending
the last sentence thereof in its entirety to read as follows:
Any voluntary prepayment of any Term Loan Advance shall be applied PRO RATA
to all of the unpaid scheduled installment payments of the Facility A Term
Loan Advances, Facility B Term Loan Advances and Facility C Term Loan
Advances, in each case PRO RATA based upon the respective principal amounts
of such installment payments then unpaid.
(u) Section 2.5 of the Credit Agreement is hereby amended by adding a new
SECTION 2.5(g) thereto to read as follows:
(g) PREPAYMENTS FROM EXCESS CASH FLOW. Commencing on April 15, 1999
and on each April 15 thereafter in which the Leverage Ratio as of the
immediately preceding December 31 is equal to or greater than 5.50 to 1,
the Borrower shall prepay the Facility A Term Loan Advances, the Facility B
Term Loan Advances, and the Facility C Term Loan Advances (and, thereafter,
Revolving Credit Advances (or provide cash collateral in the amount of such
Net Cash Proceeds for the outstanding Reimbursement Obligations to the
extent that Revolving Credit Advances are not outstanding) when there are
no Facility A Term Loan Advances, Facility B Term Loan Advances, and
Facility C Term Loan Advances outstanding) in an aggregate principal amount
equal to 75% of Excess Cash Flow, if any, for the fiscal year ending
immediately preceding each such April 15. Each such prepayment of
Facility A Term Loan Advances, Facility B Term Loan Advances, and
Facility C Term Loan Advances shall be applied PRO RATA to all of the
unpaid scheduled installment payments of the Facility A Term Loan Advances,
the Facility B Term Loan Advances, and Facility C Term Loan Advances, in
each case PRO RATA based upon the respective principal amounts of such
installment payments then unpaid.
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Any prepayment of Revolving Credit Advances pursuant to this SECTION 2.5(g)
shall permanently reduce the Revolving Credit Commitment by the amount of
such prepayment.
(v) SECTION 2.6(b) of the Credit Agreement is hereby amended in its
entirety to read as follows:
(b) MANDATORY REDUCTION. On the Revolving Commitment Maturity Date,
the Revolving Credit Commitment shall automatically reduce to zero. In
addition, the Revolving Credit Commitment shall be permanently reduced by
the amount of any prepayment of the Revolving Credit Advances (or cash
collateral provided in respect of Reimbursement Obligations) pursuant to
SECTIONS 2.5(c), 2.5(d)(i)(A) 2.5(e) and 2.5(g) hereof.
(w) SECTION 2.8 of the Credit Agreement is hereby amended in its entirety
to read as follows:
Section 2.8 PAYMENT OF PRINCIPAL OF ADVANCES.
(a) REVOLVING CREDIT ADVANCES. To the extent not otherwise required
to be paid earlier as provided herein, the principal amount of the
Revolving Credit Advances shall be due and payable on the Revolving
Commitment Maturity Date.
(b) FACILITY A TERM LOAN ADVANCES. To the extent not otherwise
required to be paid earlier as provided herein, the principal amount of the
Facility A Term Loan Advances shall be repaid on each Quarterly Date and on
the Facility A Term Loan Maturity Date in such amounts as set forth next to
each such date below:
Amount of Reduction of Facility A
Quarterly Date Term Loan Advances as of each Date
-------------- ----------------------------------
March 31, 1999 $5,000,000
June 30, 1999 $5,000,000
September 30, 1999 $5,000,000
December 31, 1999 $5,000,000
March 31, 2000 $7,500,000
June 30, 2000 $7,500,000
September 30, 2000 $7,500,000
December 31, 2000 $7,500,000
March 31, 2001 $10,000,000
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June 30, 2001 $10,000,000
September 30, 2001 $10,000,000
December 31, 2001 $10,000,000
March 31, 2002 $12,500,000
June 30, 2002 $12,500,000
September 30, 2002 $12,500,000
December 31, 2002 $12,500,000
March 31, 2003 $15,000,000
June 30, 2003 $15,000,000
September 30, 2003 $15,000,000
November 12, 2003 $15,000,000
(c) FACILITY B TERM LOAN ADVANCES. To the extent not otherwise
required to be paid earlier as provided herein, the principal amount of the
Facility B Term Loan Advances shall be repaid on each Quarterly Date and on
the Facility B Term Loan Maturity Date in such amounts as set forth next to
each such date below:
Amount of Reduction of Facility B
Quarterly Date Term Loan Advances as of each Date
-------------- -----------------------------------
March 31, 1998 $625,000
June 30, 1998 $625,000
September 30, 1998 $625,000
December 31, 1998 $625,000
March 31, 1999 $625,000
June 30, 1999 $625,000
September 30, 1999 $625,000
December 31, 1999 $625,000
March 31, 2000 $625,000
June 30, 2000 $625,000
September 30, 2000 $625,000
December 31, 2000 $625,000
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March 31, 2001 $625,000
June 30, 2001 $625,000
September 30, 2001 $625,000
December 31, 2001 $625,000
March 31, 2002 $625,000
June 30, 2002 $625,000
September 30, 2002 $625,000
December 31, 2002 $625,000
March 31, 2003 $625,000
June 30, 2003 $625,000
September 30, 2003 $625,000
December 31, 2003 $625,000
March 31, 2004 $625,000
June 30, 2004 $625,000
September 30, 2004 $625,000
November 12, 2004 $233,125,000
(d) FACILITY C TERM LOAN ADVANCES. To the extent not otherwise
required to be paid earlier as provided herein, the principal amount of the
Facility C Term Loan Advances shall be repaid on each Quarterly Date and on
the Facility C Term Loan Maturity Date in such amounts as set forth next to
each such date below:
Amount of Reduction of Facility C
Quarterly Date Term Loan Advances as of each Date
-------------- ----------------------------------
March 31, 1998 $625,000
June 30, 1998 $625,000
September 30, 1998 $625,000
December 31, 1998 $625,000
March 31, 1999 $625,000
June 30, 1999 $625,000
September 30, 1999 $625,000
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December 31, 1999 $625,000
March 31, 2000 $625,000
June 30, 2000 $625,000
September 30, 2000 $625,000
December 31, 2000 $625,000
March 31, 2001 $625,000
June 30, 2001 $625,000
September 30, 2001 $625,000
December 31, 2001 $625,000
March 31, 2002 $625,000
June 30, 2002 $625,000
September 30, 2002 $625,000
December 31, 2002 $625,000
March 31, 2003 $625,000
June 30, 2003 $625,000
September 30, 2003 $625,000
December 31, 2003 $625,000
March 31, 2004 $625,000
June 30, 2004 $625,000
September 30, 2004 $625,000
December 31, 2004 $625,000
March 31, 2005 $625,000
June 30, 2005 $625,000
September 30, 2005 $625,000
November 12, 2005 $230,625,000
(x) SECTION 2.16(a) of the Credit Agreement is hereby amended by amending
the first two sentences thereof in their entirety to read as follows:
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The Borrower may request the Issuing Bank, on the terms and conditions
hereinafter set forth, to issue, and the Issuing Bank shall, if so
requested, issue, letters of credit (the "LETTERS OF CREDIT") for the
account of the Borrower or the joint account of the Borrower and any of its
Restricted Subsidiaries, from time to time on any Business Day from the
date of the initial Advance until the Revolving Commitment Maturity Date in
an aggregate maximum amount (assuming compliance with all conditions to
drawing) not to exceed at any time outstanding the lesser of
(i) $75,000,000, and (ii) the sum of (A) the Revolving Credit Commitment
MINUS (B) the aggregate principal amount of Revolving Credit Advances then
outstanding (the "LETTER OF CREDIT FACILITY"). No Letter of Credit shall
have an expiration date (including all rights of renewal) later than the
earlier of (i) the date which is five Business Days immediately preceding
the Revolving Commitment Maturity Date or (ii) one year after the date of
issuance thereof.
(y) SECTION 2.16(f)(i) of the Credit Agreement is hereby amended in its
entirety to read as follows:
(f)(i) CREDIT FEES. Subject to SECTION 11.9 hereof, the Borrower
shall pay to the Administrative Agent for the account of each Lender a
credit fee (which shall be payable in arrears on the Revolving Commitment
Maturity Date) equal to the product of the Applicable LIBOR Rate Margin in
effect from time to time for Revolving Credit Advances multiplied by the
average daily amount available for drawing under all outstanding Letters of
Credit, computed, subject to SECTION 11.9 hereof, on the basis of a 360-day
year for the actual number of days elapsed.
(z) SECTION 2.16(g) of the Credit Agreement is hereby amended by deleting
the reference to "Maturity Date" in subsections (i) and (iii) thereof and
inserting "Revolving Commitment Maturity Date" in lieu thereof.
(aa) SECTION 4.1(m) of the Credit Agreement is hereby amended by amending
the first sentence thereof in its entirety to read as follows:
None of the Borrower and its Restricted Subsidiaries is engaged principally
or as one of its important activities in the business of extending credit
for the purpose of purchasing or carrying any margin stock within the
meaning of Regulations G, T, U and X of the Board of Governors of the
Federal Reserve System.
(bb) SECTION 4.1(p) of the Credit Agreement is hereby amended in its
entirety to read as follows:
(p) INVESTMENT COMPANY ACT. None of the Borrower and its Restricted
Subsidiaries is required to register under the provisions of the Investment
Company Act of 1940, as amended. Neither the entering into or performance
by the Borrower or any of its Restricted Subsidiaries of any of the Loan
Documents nor the issuance of the Notes
- 18 -
violate any provision of such act or requires any consent, approval, or
authorization of, or registration with, the Securities and Exchange
Commission or any other governmental or public body of authority
pursuant to any provisions of such act.
(cc) Article 6 of the Credit Agreement is hereby amended by (i) renumbering
existing SECTIONS 6.2, 6.3, 6.4, 6.5 and all references to such Sections in the
Credit Agreement and the other Loan Documents to SECTIONS 6.3, 6.4, 6.5 and 6.6,
respectively, and (ii) adding "or SECTION 6.2" after the reference to
SECTION 6.1 on the second line of renumbered SECTION 6.3.
(dd) The Credit Agreement is hereby amended by adding a new SECTION 6.2
thereto to read as follows:
Section 6.2 ANNUAL FINANCIAL STATEMENTS AND INFORMATION; CERTIFICATE OF
NO DEFAULT.
(a) Within 105 days after the end of each fiscal year, a copy of
(i) the consolidated and consolidating balance sheets of the Borrower and
its Restricted Subsidiaries, as of the end of the current and prior fiscal
years and (ii) consolidated and consolidating statements of earnings,
consolidated statements of changes in shareholders' equity, and
consolidated and consolidating statements of changes in cash as of and
through the end of such fiscal year, all of which (A) consolidated and
consolidating statements are prepared in accordance with GAAP and
(B) consolidated statements are certified by independent certified public
accountants acceptable to the Lenders (the Lenders agree that ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ & Co. is acceptable to the Lenders), whose opinion shall be in
scope and substance in accordance with generally accepted auditing
standards and shall be unqualified.
(b) Simultaneously with the delivery of the statements required by
this SECTION 6.2, a letter from the Borrower's public accountants
certifying that no Default was detected during the examination of the
Borrower and its Restricted Subsidiaries, and authorizing the Borrower to
deliver such financial statements and opinion thereon to the Administrative
Agent and Lenders pursuant to this Agreement.
(c) As soon as available, but in any event within 105 days following
the end of each fiscal year, a copy of an annual consolidated and
consolidating operating budget of the Borrower and its Restricted
Subsidiaries for the succeeding fiscal year.
(ee) SECTION 6.3(a) of the Credit Agreement is hereby amended in its
entirety to read as follows:
(a) setting forth at the end of such period, certifications and
arithmetical calculations required to establish whether the Borrower and
its Restricted Subsidiaries were in compliance with the requirements of
SECTIONS 7.1(i), 7.1(j), 7.1(k), 7.3(j), 7.5,
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7.9, 7.10, 7.11, 7.12 and 7.18 hereof, which shall be substantially in
the form of EXHIBIT G hereto;
(ff) Section 7.1(i) of the Credit Agreement is hereby amended in its
entirety to read as follows:
(i) Guaranties by the Borrower and Indebtedness pursuant to letters
of credit in respect of obligations of Foreign Subsidiaries as lessees
under Operating Leases (such Guaranty obligation to be calculated as an
amount of equal to the product of rental expense for the four fiscal
quarters immediately preceding the date of calculation subject to the terms
of the Guaranty multiplied by eight) (i) prior to and including
December 31, 1997, (A) as set forth on SCHEDULE 11 hereto, and (B) such
other Guaranties and Indebtedness pursuant to such letters of credit,
together with Investments made pursuant to SECTION 7.3(j) which are in
Foreign Entities and Acquisition Consideration for all Foreign Subsidiaries
pursuant to SECTION 7.5(b)(ii), not to exceed $5,000,000 in aggregate
principal amount, and (ii) for each fiscal year thereafter, such other
Guaranties and Indebtedness pursuant to such letters of credit, together
with net Investments pursuant to SECTION 7.3(j) which are in Foreign
Entities and Acquisition Consideration for all Foreign Subsidiaries
pursuant to SECTION 7.5(b)(ii) hereof, not to exceed (A) $60,000,000 or
(B) $75,000,000 if the Leverage Ratio as of the end of any fiscal quarter
during such fiscal year is less than 5.50 to 1; PROVIDED, HOWEVER, the
aggregate amount of any such Individual Guaranty shall not exceed
$30,000,000;
(gg) SECTION 7.1(j) of the Credit Agreement is hereby amended in its
entirety to read as follows:
(j) mortgage Indebtedness and sale and leaseback transactions in
respect of real property, improvements and related personal property owned
or leased by the Borrower and its Restricted Subsidiaries (i) prior to and
including December 31, 1997, (A) as set forth on SCHEDULE 12 hereto and
(B) other mortgage Indebtedness and such sale and leaseback transactions in
an aggregate principal amount not in excess of $5,000,000 and (ii) during
each fiscal year thereafter, together with the book value of assets sold
and leased back by the Borrower and its Restricted Subsidiaries during such
fiscal year other than pursuant to clauses (a) and (b) of SECTION 7.16
hereof, not to exceed $60,000,000 in aggregate amount; and
(hh) SECTION 7.1(k) of the Credit Agreement is hereby amended in its
entirety to read as follows:
(k) other Indebtedness not to exceed in aggregate principal amount
outstanding at any time (i) prior to and including December 31, 1997,
(A) $5,000,000 and (B) provided such Indebtedness is related to an
Acquisition permitted by SECTION 7.5, $15,000,000, and (ii) at any time
thereafter, (A) 3% of the Total Assets of the Borrower
- 20 -
and its Restricted Subsidiaries on a consolidated basis, or (B) if the
Leverage Ratio at the end of any fiscal quarter is less than 5.50 to 1,
5% of the Total Assets of the Borrower and its Restricted Subsidiaries on
a consolidated basis.
(ii) SECTION 7.3(i) of Credit Agreement is hereby amended in its entirety
to read as follows:
(i) Assisted Living Investments made after November 12, 1997 not to
exceed $50,000,000 in aggregate amount; and
(jj) SECTION 7.3(j) of the Credit Agreement is hereby amended in its
entirety to read as follows:
(j) other Investments primarily related to the business of providing
healthcare services, including nursing care, rehabilitation therapy and
other specialized healthcare services (i) in Domestic Entities (A) prior to
and including December 31, 1997, (1) as set forth on SCHEDULE 13 hereto,
and (2) such other Investments not to exceed $5,000,000 in aggregate
principal amount, and (B) thereafter, not to exceed $50,000,000 in
aggregate principal amount, and (ii) in Foreign Entities (A) prior to and
including December 31, 1997, (1) as set forth on SCHEDULE 11 hereto and
(2) such other Investments, together with the aggregate Acquisition
Consideration for all Foreign Subsidiaries acquired pursuant to
SECTION 7.5(b)(ii) hereof and obligations incurred in respect of Guaranties
and letters of credit pursuant to SECTION 7.1(i) hereof which are not set
forth on SCHEDULE 11 hereto, not to exceed $5,000,000 in aggregate
principal amount, and (B) for each fiscal year thereafter, such other
Investments (calculated net of any repayment of loans and advances by
Foreign Entities) together with the Aggregate Consideration for all Foreign
Subsidiaries acquired pursuant to SECTION 7.5(b)(ii) hereof and obligations
in request of Guaranties and letters of credit pursuant to SECTION 7.1(i)
hereof, not to exceed in aggregate amount (1) $60,000,000 or
(2) $75,000,000 if the Leverage Ratio as of the end of any fiscal quarter
during such fiscal year is less than 5.50 to 1; PROVIDED, HOWEVER, that no
individual Investment in any Foreign Entity shall exceed $30,000,000.
(kk) SECTION 7.4(a) of the Credit Agreement is hereby amended in its
entirety to read as follows:
(a) liquidate or dissolve itself (or suffer any liquidation or
dissolution) or otherwise wind up, or sell, lease, abandon, transfer or
otherwise dispose of all or any part of its assets, properties or business,
other than (i) immaterial assets sold or otherwise disposed of in the
ordinary course of business, (ii) sales by the Borrower or any of its
Restricted Subsidiaries of assets to the Borrower or any other of its
Restricted Subsidiaries, (iii) liquidations or dissolutions of Foreign
Subsidiaries or Inactive Subsidiaries, (iv) sales of assets occurring
during any fiscal quarter that the Leverage Ratio for the fiscal quarter
immediately preceding such sale is less than 5.50 to 1 and in which
- 21 -
the Net Cash Proceeds thereof are used within 180 days of such sale to
purchase assets to be used in the business of the Borrower and its
Restricted Subsidiaries described in SECTION 4.1(d) hereof, (v) sales
of the facilities set forth on SCHEDULES 8 and 9 hereto, (vi) sales of
assets permitted by SECTION 7.16 hereof, (vii) voluntary dissolutions or
liquidations of CareerStaff Subsidiaries, or (viii) other sales, leases,
transfers or other dispositions of assets for full and fair consideration
pursuant to arm's-length transactions, except that to the extent that the
aggregate book value of assets sold during any fiscal year exceeds
$1,000,000, the Net Cash Proceeds of such excess sales are applied as
required pursuant to SECTION 2.5(c) hereof.
(ll) SECTION 7.5 of the Credit Agreement is hereby amended in its entirety
to read as follows:
SECTION 7.5 ACQUISITIONS. The Borrower shall not, and shall not
permit any of its Restricted Subsidiaries to, make, in one or more
transactions, any (a) Acquisition (i) during the fiscal year ending on
December 31, 1997 (excluding the Regency Tender and the Regency Merger),
unless (A) the Acquisition is of a Restricted Subsidiary or of the assets
of a Domestic Entity, (B) the Acquisition (1) is set forth on SCHEDULE 14
hereto or (2) the aggregate Acquisition Consideration for all Acquisitions
not set forth on SCHEDULE 14 hereto does not exceed $5,000,000 in principal
amount, and (C) such Restricted Subsidiary and its Restricted Subsidiaries,
if any, becomes a party to a Subsidiary Guaranty and the Intercompany Line
of Credit and all the capital stock of, or other equity interest in, such
Restricted Subsidiary (other than CareerStaff Subsidiaries unless otherwise
required by SECTION 5.11) and its Restricted Subsidiaries, if any, (other
than CareerStaff Subsidiaries unless otherwise required by SECTION 5.11)
shall be pledged pursuant to a Pledge Agreement, or (ii) during any fiscal
year thereafter, unless (A) the Acquisition is set forth on SCHEDULE 14
hereto or (B)(1) the Acquisition is of a Restricted Subsidiary or of the
assets of a Domestic Entity, (2) the Acquisition Consideration therefor is
less than (y) $75,000,000 or (z) $100,000,000 if the Leverage Ratio as of
the end of any fiscal quarter during such fiscal year is less than 5.50 to
1, (3) the sum of the Acquisition Consideration therefor, together with the
Acquisition Consideration given for all other such Acquisitions during such
fiscal year, is less than (y) $125,000,000 or (z) $200,000,000 if the
Leverage Ratio as of the end of any fiscal quarter during such fiscal year
is less than 5.50 to 1 and (4) such Restricted Subsidiary and its
Restricted Subsidiaries, if any, becomes a party to a Subsidiary Guaranty
and the Intercompany Line of Credit and all the capital stock of, or equity
interest in, such Restricted Subsidiary (other than CareerStaff
Subsidiaries unless otherwise required by SECTION 5.11) and its Restricted
Subsidiaries, if any (other than CareerStaff Subsidiaries unless otherwise
required by SECTION 5.11) shall be pledged pursuant to a Pledge Agreement;
or (b) Acquisition of a Foreign Subsidiary, during (i) the fiscal year
ending December 31, 1997, unless (A) the Acquisition is set forth on
SCHEDULE 11 hereto or (B) if the Acquisition Consideration for all
Acquisitions not set forth on SCHEDULE 11 hereto, together with the
aggregate amount of obligations incurred in respect of Guaranties and
letters of
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credit pursuant to SECTION 7.1(i) hereof and Investments made pursuant to
SECTION 7.3(j) which are in Foreign Entities, does not exceed $5,000,000,
and (C) to the extent such Foreign Subsidiary is not a Subsidiary of a
Foreign Subsidiary, an amount of the capital stock of such Foreign
Subsidiary necessary to cause the Administrative Agent to have a security
interest in, and pledge of, all of the capital stock of, or other equity
interest in, such Foreign Subsidiary owned by the pledgor or such lesser
amount such that in any case not more than 66% of all of the capital stock
of, or other equity interest in, such Foreign Subsidiary, shall be pledged
pursuant to a Foreign Subsidiary Pledge Agreement, or (ii) any fiscal year
thereafter, unless (A) the Acquisition Consideration for all such
Acquisitions, together with the aggregate amount of obligations incurred in
respect of Guaranties and letters of credit pursuant to SECTION 7.1(i) and
Investments made pursuant to SECTION 7.3(j) which are in Foreign Entities,
does not exceed (1) $60,000,000 or (2) $75,000,000 if the Leverage Ratio as
of the end of any fiscal quarter during such fiscal year is less than 5.50
to 1, (B) the Acquisition Consideration for any single Acquisition or series
of related Acquisitions does not exceed $30,000,000 and (C) to the extent
such Foreign Subsidiary is not a Subsidiary of a Foreign Subsidiary, an
amount of the capital stock of such Foreign Subsidiary necessary to cause
the Administrative Agent to have a security interest in, and pledge of, all
of the capital stock of, or other equity interest in, such Foreign
Subsidiary owned by the pledgor or such lesser amount such that in any
case not more than 66% of all of the capital stock of, or other equity
interest in, such Foreign Subsidiary, shall be pledged pursuant to a
Foreign Subsidiary Pledge Agreement.
(mm) SECTION 7.9 of the Credit Agreement is hereby amended in its entirety
to read as follows:
SECTION 7.9 FIXED CHARGE COVERAGE RATIO. The Borrower shall not
permit the Fixed Charge Coverage Ratio to be less than (a) 1.50 to 1 at the
end of the fiscal quarter ending September 30, 1997, (b) 1.40 to 1 at the
end of any fiscal quarter thereafter through and including September 30,
1998, (c) 1.50 to 1 at the end of any fiscal quarter thereafter through and
including September 30, 2001, and (d) 1.60 to 1 at the end of any fiscal
quarter thereafter.
(nn) SECTION 7.10 of the Credit Agreement is hereby amended in its entirety
to read as follows:
SECTION 7.10 LEVERAGE RATIO. The Borrower shall not permit the
Leverage Ratio to be greater than (a) 6.25 to 1 at the end of the fiscal
quarter ending September 30, 1997, (b) 6.75 to 1 at the end of the fiscal
quarters ending December 31, 1997, and March 31, 1998, respectively,
(c) 6.50 to 1 at the end of the fiscal quarters ending June 30, 1998 and
September 30, 1998, respectively, (d) 6.00 to 1 at the end of any fiscal
quarter thereafter through and including September 30, 1999, (e) 5.75 to 1
at the end of any fiscal quarter thereafter through and including
September 30, 2000, (f) 5.50 to 1 at the end of any fiscal quarter
thereafter through and including September 30, 2001, (g) 5.25 to 1 at the
end of
- 23 -
any fiscal quarter thereafter through and including September 30,
2002, and (h) 5.00 to 1 at the end of any fiscal quarter thereafter;
PROVIDED, HOWEVER, to the extent that at any time prior to and including
September 30, 1998 the Borrower or any Restricted Subsidiary receives
aggregate Net Cash Proceeds from the issuance of Equity in an aggregate
amount equal to or greater than $300,000,000, the ratio(s) set forth in
clause (b) and/or (c) above shall be reduced by 0.25 commencing with the
fiscal quarter immediately succeeding the date on which the aggregate
amount of such Net Cash Proceeds equals or exceeds $300,000,000.
(oo) SECTION 7.11 of the Credit Agreement is hereby amended in its entirety
to read as follows:
SECTION 7.11 TOTAL DEBT TO CAPITALIZATION RATIO. The Borrower shall
not permit the Total Debt to Capitalization Ratio to be greater than
(a) 0.75 to 1 at the end of the fiscal quarter ending September 30, 1997,
(b) 0.85 to 1 at the end of any fiscal quarter thereafter through and
including September 30, 1998, (c) 0.83 to 1 at the end of any fiscal
quarter thereafter through and including September 30, 1999, (d) 0.82 to 1
at the end of any fiscal quarter thereafter through and including
September 30, 2000, (e) 0.80 to 1 at the end of any fiscal quarter
thereafter through and including September 30, 2001, (f) 0.78 to 1 at the
end of any fiscal quarter thereafter through and including September 30,
2002, and (g) 0.75 to 1 at the end of any fiscal quarter thereafter.
(pp) SECTION 7.16 of the Credit Agreement is hereby amended in its entirety
to read as follows:
SECTION 7.16 SALE AND LEASEBACK. Except for (a) the sale and
leaseback of those facilities set forth on SCHEDULE 8 hereto and (b) sale
and leaseback transactions entered into in connection with Assisted Living
Investments permitted pursuant to SECTION 7.3(i) hereof and subject to the
limitations thereof, the Borrower shall not, and shall not permit any of
its Restricted Subsidiaries to, enter into any arrangement whereby it sells
or transfers any of its assets, and thereafter rents or leases such assets
except (i) prior to and including December 31, 1997, (A) as set forth on
SCHEDULE 8 hereto, and (B) other sale and leaseback transactions and
mortgage Indebtedness incurred pursuant to SECTION 7.1(j) hereof not to
exceed $5,000,000 in aggregate amount, and (ii) during each fiscal year
thereafter, together with the aggregate principal amount of Indebtedness in
respect of mortgage Indebtedness incurred during such year and permitted
pursuant to SECTION 7.1(j) hereof, not to exceed $60,000,000 in aggregate
amount.
(qq) ARTICLE 7 of the Credit Agreement is further amended by renumbering
existing SECTION 7.18 thereto as SECTION 7.17.
(rr) ARTICLE 7 of the Credit Agreement is further amended by adding
SECTION 7.18 thereto to read as follows:
- 24 -
SECTION 7.18 SENIOR DEBT TO EBITDAR RATIO. The Borrower shall not
permit the Senior Debt to EBITDAR Ratio to be greater than (a) 6.00 to 1 at
the end of the fiscal quarters ending December 31, 1997 and March 31, 1998,
respectively, (b) 5.75 to 1 at the end of the fiscal quarters ending
June 30, 1998 and September 30, 1998, respectively, (c) 5.50 to 1 at the
end of any fiscal quarter thereafter through and including September 30,
1999, (d) 5.25 to 1 at the end of any fiscal quarter thereafter through and
including September 30, 2000, (e) 5.00 to 1 at the end of any fiscal
quarter thereafter through and including September 30, 2001, (f) 4.75 to 1
at the end of any fiscal quarter thereafter through and including
September 30, 2002, and (g) 4.50 to 1 at the end of any fiscal quarter
thereafter; PROVIDED, HOWEVER, to the extent that at any time prior to and
including September 30, 1998 the Borrower or any Restricted Subsidiary
receives aggregate Net Cash Proceeds from the issuance of Equity in an
aggregate amount equal to or greater than $300,000,000, the ratio(s) set
forth in clause (a) and/or (b) above shall be reduced by 0.25 commencing
with the fiscal quarter immediately succeeding the date on which the
aggregate amount of such Net Cash Proceeds equals or exceeds $300,000,000.
(ss) SECTION 8.1(d) of the Credit Agreement is hereby amended by deleting
the second "notice" appearing on the fourth line thereof and inserting
"knowledge" in lieu thereof.
(tt) SECTION 8.1(k) of the Credit Agreement is hereby amended in its
entirety to read as follows:
(k) The Borrower or any of its Restricted Subsidiaries shall fail to
make any payment when due (whether by scheduled maturity, required
prepayment, acceleration, demand or otherwise) with respect to any
Indebtedness which is outstanding in a principal amount of at least
$3,000,000 in the aggregate beyond any grace period with respect thereto,
or shall default in the performance of any agreement or instrument under
which such Indebtedness is created or evidenced beyond any applicable grace
period (or any event thereunder shall occur and be continuing), if the
effect of such default or event is to permit or cause the holder of such
Indebtedness (or a trustee on behalf of any such holder) to (i) cause such
Indebtedness to become due or prepaid prior to its date of maturity or
(ii) require the Borrower or any of its Restricted Subsidiaries to purchase
or redeem such Indebtedness;
(uu) SECTION 10.1(b) of the Credit Agreement is hereby amended by amending
the parenthetical clause that begins on the fourth line of page 76 of the Credit
Agreement in its entirety to read as follows:
(provided that no Event of Default has occurred and is continuing, with the
consent of the Borrower, which consent shall not be unreasonably withheld)
- 25 -
(vv) SECTION 11.6(D) of the Credit Agreement is hereby amended in its
entirety to read as follows:
Each Lender may assign to one or more Eligible Assignees its rights
and obligations under this Agreement and the other Loan Documents;
PROVIDED, HOWEVER, that (i) each such assignment shall be subject to the
prior written consent of the Administrative Agent and the Borrower, which
consent shall not be unreasonably withheld (provided, however,
notwithstanding anything herein to the contrary, no consent of the
(A) Borrower shall be required for any assignment (1) during any time that
an Event of Default has occurred and is continuing, (2) to an Affiliate of
a Lender, or (3) to an existing Lender hereunder and (B) Administrative
Agent shall be required for any assignment to an existing Lender
hereunder), (ii) no such assignment shall be in an amount of Commitments
less than $10,000,000, unless (A) the portion of the Commitments of the
assigning Lender are less than $10,000,000, in which case such assignment
may be in an aggregate amount of such Lender's portion of the Commitments
or (B) the assignment is to an Affiliate of a Lender or to an existing
Lender hereunder, in which case such assignment may be in an amount of
Commitments not less than $5,000,000, (iii) the assigning Lender,
Administrative Agent and the Eligible Assignee shall execute and deliver to
the Administrative Agent an Assignment and Acceptance Agreement (an
"ASSIGNMENT AGREEMENT") in substantially the form of EXHIBIT H hereto
together with the Notes subject to such assignment, (iv) the Eligible
Assignee or the assigning Lender, as the case may be, shall deliver to the
Administrative Agent a processing fee of $3,500, and (v) except as
otherwise waived by the Borrower, the Administrative Agent shall give the
Borrower notice of any proposed assignment no later than 10 days prior to
any assignment. Upon such execution, delivery and acceptance from and
after the effective date specified in each Assignment, which effective date
shall be at least three Business Days after the execution thereof and the
recordation of the information therein in the Register pursuant to
SECTION 11.6(j) hereof, (A) the Eligible Assignee thereunder shall be a
party hereto and, to the extent that rights and obligations hereunder have
been assigned to it pursuant to such Assignment, have the rights and
obligations of a Lender hereunder and (B) the Administrative Agent shall,
to the extent that rights and obligations hereunder have been assigned by
it pursuant to such Assignment, relinquish such rights and be released from
such obligations under this Agreement.
(ww) SECTION 11.6(j) of the Credit Agreement is hereby amended in its
entirety to read as follows:
(j) THE REGISTER. The Administrative Agent shall maintain at its
address referred to in SECTION 11.1 a copy of each Assignment Agreement
delivered to and accepted by it and a register (the "Register") for the
recordation of the names and addresses of the Lenders, any U.S. taxpayer
identification number, the Specified Percentages of the Lenders (the
"Ownership Information") whether such Lender is an original Lender or the
assignee of another Lender pursuant to an Assignment Agreement
- 26 -
and the effective date and amount of each Assignment Agreement delivered to
and accepted by it and the parties thereto. Any transfer of an ownership
interest in any Advance, including any right to principal or interest
payable with respect to the Advance, shall be subject to and conditioned
upon the due recordation of such transfer and the Ownership Information
with respect to the transferee in the Register and such transfer shall be
effective only upon such recordation (and not prior thereto). The
entries in the Register shall be conclusive and binding for all purposes,
absent manifest error, and the Borrower, the Administrative Agent and the
Lenders may treat each Person whose name is recorded in the Register as a
Lender hereunder for all purposes hereof. The Register shall be
available for inspection by the Borrower or any lender at any reasonable
time and from time to time upon reasonable prior notice.
(xx) SECTION 11.11 of the Credit Agreement is hereby amended by amending
clauses (b)(viii) thereof in its entirety to read as follows:
(viii) amend the definition of "Revolving Commitment Maturity
Date", "Facility A Term Loan Maturity Date", "Facility B Term Loan Maturity
Date" or "Facility C Term Loan Maturity Date" or otherwise extend the
"Revolving Commitment Maturity Date", the "Facility A Term Loan Maturity
Date", the "Facility B Term Loan Maturity Date" or the "Facility C Term
Loan Maturity Date";
(yy) SECTION 11.11 of the Credit Agreement is hereby further amended by
amending clause (b) of the penultimate sentence thereof in its entirety to read
as follows:
(b) with respect to SECTION 2.5(c), 2.5(d), 2.5(e) or 2.5(g), shall be
made without the consent of any combination of Lenders whose Total
Specified Percentages aggregate at least 66-2/3%.
(zz) SCHEDULE 1 to the Credit Agreement is hereby amended to be in the form
of SCHEDULE 1 hereto, and the applicable Specified Percentages of the New
Lenders are established and the applicable Specified Percentages of certain of
the Existing Lenders are amended as provided therein.
(aaa) SCHEDULES 2, 3, 5, 6, 7, 8, 9, 11, 13 and 14 to the Credit
Agreement are hereby amended to be in the form of SCHEDULES 2, 3, 5, 6, 7, 8, 9,
11, 13 and 14 hereto.
(bbb) The Compliance Certificate is hereby amended to be in the form of
EXHIBIT G hereto.
2. REPRESENTATIONS AND WARRANTIES TRUE; NO EVENT OF DEFAULT. By its
execution and delivery hereof, the Borrower represents and warrants that, as of
the date hereof and after giving effect to the amendments contemplated by the
foregoing Section 1:
- 27 -
(a) the representations and warranties contained in the Credit Agreement
and the other Loan Documents are true and correct on and as of the date hereof
as if made on and as of such date;
(b) no event has occurred and is continuing which constitutes a Default or
an Event of Default;
(c) the Borrower has full power and authority to execute and deliver this
First Amendment, the Notes referred to in SECTION 3(c) of this First Amendment
(the "REPLACEMENT NOTES"), and the Credit Agreement, as amended hereby, the
execution, delivery and performance of this First Amendment, the Replacement
Notes and the Credit Agreement, as amended hereby, has been duly authorized by
all corporate action of the Borrower, and this First Amendment, the Replacement
Notes, and the Credit Agreement, as amended hereby, constitute the legal, valid
and binding obligations of the Borrower, enforceable in accordance with their
respective terms, except as enforceability may be limited by applicable Debtor
Relief Laws and by general principles of equity (regardless of whether
enforcement is sought in a proceeding in equity or at law) and except as rights
to indemnity may be limited by federal or state securities laws;
(d) neither the execution, delivery and performance of this First
Amendment, the Replacement Notes or the Credit Agreement, as amended hereby, nor
the consummation of any transactions contemplated herein or therein, will
contravene or conflict with any law, rule or regulation to which the Borrower or
any of its Subsidiaries is subject, or any indenture, agreement or other
instrument to which the Borrower or any of its Subsidiaries or any of their
respective property is subject; and
(e) no authorization, approval, consent, or other action by, notice to, or
filing with, any governmental authority or other Person (including the Board of
Directors of the Borrower or any Guarantor), is required for the (i) execution,
delivery or performance by the Borrower of this First Amendment, the Replacement
Notes, and the Credit Agreement, as amended hereby, or (ii) acknowledgement of
this First Amendment by each Guarantor.
3. CONDITIONS OF EFFECTIVENESS. This First Amendment shall be effective
as of November 13, 1997, subject to the following:
(a) the Administrative Agent shall have received counterparts of this
First Amendment executed by each Co-Agent and each Lender;
(b) the Administrative Agent shall have received counterparts of this
First Amendment executed by the Borrower and acknowledged by each Guarantor;
(c) the Administrative Agent shall have received, for each New Lender and
each Existing Lender whose Revolving Credit Specified Percentage, Facility A
Term Loan Specified Percentage, Facility B Term Loan Specified Percentage,
and/or Facility C Term Loan Specified
- 28 -
Percentage is being revised pursuant to this First Amendment, a Revolving Credit
Note, a Facility A Term Loan Note, a Facility B Term Loan Note, and/or a
Facility C Term Loan Note, as appropriate, in the amount of its applicable
Specified Percentage, as established or amended by this First Amendment;
(d) the representations and warranties set forth in Section 2 of this
First Amendment shall be true and correct; and
(e) the Administrative Agent shall have received, in form and substance
satisfactory to the Administrative Agent and its counsel, such other documents,
certificates and instruments as Administrative Agent shall require.
4. REFERENCE TO THE CREDIT AGREEMENT.
(a) Upon the effectiveness of this First Amendment, each reference in the
Credit Agreement to "this Agreement", "hereunder", or words of like import shall
mean and be a reference to the Credit Agreement, as amended by this First
Amendment.
(b) The Credit Agreement, as amended by this First Amendment, and all
other Loan Documents shall remain in full force and effect and are hereby
ratified and confirmed.
5. ADVANCES. Upon the effectiveness of this Agreement, each of the New
Lenders and each of the Existing Lenders whose Revolving Credit Specified
Percentage, Facility A Term Loan Specified Percentage, Facility B Term Loan
Specified Percentage and/or Facility C Term Loan Specified Percentage is amended
by this First Amendment, through the Administrative Agent, by assignments,
purchases and adjustments (which shall occur and shall be deemed to occur
automatically upon such effectiveness), shall have purchased or sold such
Advances so that after giving effect to such assignments, purchases and
adjustments, each Lender shall hold, as appropriate, (a) Revolving Credit
Advances and Reimbursement Obligations ratably in accordance with its Revolving
Credit Specified Percentage, as established or amended hereby, (b) Facility A
Term Loan Advances ratably in accordance with its Facility A Term Loan Specified
Percentage, as established or amended hereby, (c) Facility B Term Loan Advances
ratably in accordance with its Facility B Term Loan Specified Percentage, as
established or amended hereby, and/or (d) Facility C Term Loan Advances ratably
in accordance with its Facility C Term Loan Specified Percentage, as established
or amended hereby. The parties hereto agree that the requirements of
SECTION 11.6 of the Credit Agreement with respect to the Assignments are hereby
waived for purposes of this First Amendment only. Each Lender selling and
assigning all or any portion of an Advance as a result of this First Amendment
hereby represents and warrants that such interest being sold and assigned is
free and clear of any Lien or advance claim. Each Lender purchasing all or any
portion of an Advance as a result of this First Amendment assumes no obligations
of any Lender incurred or as a result of action or inaction by any Lender prior
to the effectiveness of this First Amendment other than in respect of
Reimbursement Obligations outstanding as of the effectiveness of this First
Amendment.
- 29 -
6. GUARANTOR'S ACKNOWLEDGEMENT. By signing below, each of the Guarantors
(a) acknowledges, consents and agrees to the execution, delivery and performance
by the Borrower of this First Amendment and the Replacement Notes, and
(b) acknowledges and agrees that its obligations in respect of its Subsidiary
Guaranty or any other Loan Documents executed by it are (i) not released,
diminished, waived, modified, impaired or affected in any manner by this First
Amendment, (ii) hereby ratified and confirmed and (iii) not subject to any
claims, offsets, defenses or counterclaims.
7. CONDITIONS SATISFIED. The Administrative Agent hereby represents and
warrants that each of the conditions to the initial Advance set forth in
SECTION 3.1 of the Credit Agreement were satisfied prior to or simultaneously
with the initial Advance under the Credit Agreement.
8. COSTS, EXPENSES AND TAXES. The Borrower agrees to pay on demand all
costs and expenses of the Administrative Agent in connection with the
preparation, reproduction, execution and delivery of this First Amendment and
the other instruments and documents to be delivered hereunder (including the
reasonable fees and out-of-pocket expenses of counsel for the Administrative
Agent with respect thereto and with respect to advising the Administrative Agent
as to its rights and responsibilities under the Credit Agreement, as amended by
this First Amendment).
9. EXECUTION IN COUNTERPARTS. This First Amendment may be executed in
any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed and delivered shall be deemed to be
an original and all of which taken together shall constitute but one and the
same instrument.
10. GOVERNING LAW; BINDING EFFECT. This First Amendment shall be governed
by and construed in accordance with the laws of the State of Texas and shall be
binding upon the Borrower, the Co-Agents, the Administrative Agent and each
Lender and their respective successors and assigns.
11. HEADINGS. Section headings in this First Amendment are included
herein for convenience of reference only and shall not constitute a part of this
First Amendment for any other purpose.
12. ENTIRE AGREEMENT. THE CREDIT AGREEMENT, AS AMENDED BY THIS FIRST
AMENDMENT, AND THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN
THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS,
OR SUBSEQUENT ORAL AGREEMENTS BETWEEN THE PARTIES.
- 30 -
IN WITNESS WHEREOF, the parties hereto have executed this First Amendment
as the date first above written.
SUN HEALTHCARE GROUP, INC.
By:
-----------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Chief Financial Officer
NATIONSBANK OF TEXAS, N.A., as Administrative
Agent and as a Lender
By:
-----------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Senior Vice President
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Senior Vice President
BANK OF AMERICA NATIONAL TRUST & SAVINGS
ASSOCIATION, as a Co-Agent and as a Lender
By:
-----------------------------------
Name:
-----------------------------
Title:
-----------------------------
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇
SCOTIABANC INC., as a Co-Agent and as a Lender
By:
-----------------------------------
Name:
-----------------------------
Title:
-----------------------------
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇
- 31 -
BANK OF TOKYO-MITSUBISHI TRUST COMPANY,
as a Co-Agent and as a Lender
By:
-----------------------------------
Name:
-----------------------------
Title:
-----------------------------
US Corporate Banking Division
1251 Avenue of the Americas, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇
CREDIT LYONNAIS NEW YORK BRANCH,
as a Co-Agent and as a Lender
By:
-----------------------------------
Farboud Tavangar
First Vice President
1301 Avenue of the Americas, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Vice President
CREDIT SUISSE FIRST BOSTON,
as a Co-Agent and as a Lender
By:
-----------------------------------
Name:
-----------------------------
Title:
-----------------------------
By:
-----------------------------------
Name:
-----------------------------
Title:
-----------------------------
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
THE LONG-TERM CREDIT BANK OF JAPAN, LTD., LOS
ANGELES AGENCY, as a Co-Agent and as a Lender
By:
-----------------------------------
Name:
-----------------------------
Title:
-----------------------------
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇
- 32 -
▇▇▇▇▇▇ GUARANTY TRUST COMPANY OF NEW YORK,
as a Co-Agent and as a Lender
By:
-----------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Vice President
▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
PNC BANK, NATIONAL ASSOCIATION,
as a Co-Agent and as a Lender
By:
-----------------------------------
Name:
-----------------------------
Title:
-----------------------------
▇ ▇▇▇ ▇▇▇▇▇ - ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇
COOPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK
B.A., "RABOBANK NEDERLAND", NEW YORK BRANCH, as a
Co-Agent and as a Lender
By:
-----------------------------------
Name:
-----------------------------
Title:
-----------------------------
By:
-----------------------------------
Name:
-----------------------------
Title:
-----------------------------
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: Corporate Services Department
with a copy to:
13355 ▇▇▇▇ Road
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇
THE SUMITOMO BANK, LIMITED,
as a Co-Agent and as a Lender
By:
-----------------------------------
Name:
-----------------------------
Title:
-----------------------------
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇
- 33 -
BANQUE PARIBAS
By:
-----------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇
Director
By:
-----------------------------------
Name:
-----------------------------
Title:
-----------------------------
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇
Director
BHF-BANK AKTIENGESELLSCHAFT
By:
-----------------------------------
Name:
-----------------------------
Title:
-----------------------------
By:
-----------------------------------
Name:
-----------------------------
Title:
-----------------------------
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: L. ▇▇▇▇ ▇▇▇▇▇▇▇
Vice President
with a copy to:
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Assistant Vice President
DRESDNER BANK AG, NEW YORK BRANCH AND
GRAND CAYMAN BRANCH
By:
-----------------------------------
Name:
-----------------------------
Title:
-----------------------------
By:
-----------------------------------
Name:
-----------------------------
Title:
-----------------------------
▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn:
----------------------------------
- 34 -
FINOVA
By:
-----------------------------------
Name:
-----------------------------
Title:
-----------------------------
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn:
----------------------------------
THE FUJI BANK LIMITED, LOS ANGELES AGENCY
By:
-----------------------------------
Name:
-----------------------------
Title:
-----------------------------
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Vice President
THE INDUSTRIAL BANK OF JAPAN, LIMITED
By:
-----------------------------------
Name:
-----------------------------
Title:
-----------------------------
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn:
----------------------------------
THE MITSUBISHI TRUST AND BANKING CORPORATION,
LOS ANGELES AGENCY
By:
----------------------------------------
Yasushi Satomi
Senior Vice President and Chief Manager
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇
Vice President
▇▇▇▇▇ FARGO BANK (TEXAS), NATIONAL ASSOCIATION
By:
-----------------------------------
Name:
-----------------------------
Title:
-----------------------------
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Vice President
- 35 -
AMSOUTH BANK
By:
-----------------------------------
Name:
-----------------------------
Title:
-----------------------------
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn:
-----------------------------------
GENERAL ELECTRIC CAPITAL CORPORATION
By:
-----------------------------------
Name:
-----------------------------
Title:
-----------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇.▇., ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn:
----------------------------------
NATEXIS BANQUE BFCE
By:
-----------------------------------
Name:
-----------------------------
Title:
-----------------------------
By:
-----------------------------------
Name:
-----------------------------
Title:
-----------------------------
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn:
----------------------------------
with a copy to:
Natexis Banque BFCE, New York Branch
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇
THE ROYAL BANK OF SCOTLAND, plc
By:
-----------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇
Vice President
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇
- 36 -
THE SANWA BANK, LIMITED, DALLAS AGENCY
By:
-----------------------------------
Name:
-----------------------------
Title:
-----------------------------
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Vice President
SUMMIT BANK
By:
-----------------------------------
▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Vice President
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Healthcare Financial Services
TORONTO DOMINION (TEXAS), INC.
By:
-----------------------------------
Name:
-----------------------------
Title:
-----------------------------
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Manager, Credit Administration
with a copy to:
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Senior Associate
▇▇▇▇▇▇ COMMERCIAL PAPER, INC.
By:
-----------------------------------
Name:
-----------------------------
Title:
-----------------------------
3 World Financial Center, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇
- 37 -
MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY
By:
-----------------------------------
Name:
-----------------------------
Title:
-----------------------------
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇
METROPOLITAN LIFE INSURANCE COMPANY
By:
-----------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇
Director
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
with a copy to:
Metropolitan Life Insurance Company
▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇, Esq.
OCTAGON CREDIT INVESTORS LOAN PORTFOLIO
(a unit of The Chase Manhattan Bank)
By:
-----------------------------------
Name:
-----------------------------
Title:
-----------------------------
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
KZH HOLDING CORPORATION III
By:
-----------------------------------
Name:
-----------------------------
Title:
-----------------------------
▇/▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Bank
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
- 38 -
PARIBAS CAPITAL FUNDING LLC
By:
-----------------------------------
Name:
-----------------------------
Title:
-----------------------------
▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
with a copy to:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
State Street Bank & Trust Co.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇/67/68
▇▇▇▇▇▇▇ NATIONAL LIFE INSURANCE COMPANY
By: PPM America, Inc., as Attorney-in-Fact, on
behalf of ▇▇▇▇▇▇▇ National Life Insurance
Company
By:
-----------------------------------
Name:
-----------------------------
Title:
-----------------------------
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ DiRe or ▇▇▇ ▇▇▇▇▇▇▇▇
Private Placements
▇▇▇ ▇▇▇▇▇▇ AMERICAN CAPITAL PRIME RATE
INCOME TRUST
By:
-----------------------------------
Name:
-----------------------------
Title:
-----------------------------
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
PFL LIFE INSURANCE COMPANY
By:
-----------------------------------
Name:
-----------------------------
Title:
-----------------------------
c/o AEGON USA Investment Management, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇
- 39 -
PEOPLES SECURITY LIFE INSURANCE COMPANY
By:
-----------------------------------
Name:
-----------------------------
Title:
-----------------------------
Peoples Security Life Insurance Company
c/o AEGON USA Investment Management, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Securities Department - 10th Floor
THE NORTHWESTERN MUTUAL LIFE INSURANCE COMPANY
By:
-----------------------------------
Name:
-----------------------------
Title:
-----------------------------
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Securities Department
ROYALTON COMPANY
By: Pacific Investment Management Company, as its
Investment Advisor
By:
-----------------------------------
Name:
-----------------------------
Title:
-----------------------------
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ SENIOR FLOATING RATE FUND, INC.
By:
-----------------------------------
Name:
-----------------------------
Title:
-----------------------------
c/o Merrill ▇▇▇▇▇ Asset Management
800 Scudders Mill Road - Area 1B
▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
- 40 -
SENIOR HIGH INCOME PORTFOLIO, INC.
By:
-----------------------------------
Name:
-----------------------------
Title:
-----------------------------
c/o Merrill ▇▇▇▇▇ Asset Management
800 Scudders Mill Road - Area 1B
▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
DEBT STRATEGIES FUND, INC.
By:
-----------------------------------
Name:
-----------------------------
Title:
-----------------------------
c/o Merrill ▇▇▇▇▇ Asset Management
800 Scudders Mill Road - Area 1B
▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
CANADIAN IMPERIAL BANK OF COMMERCE
By:
-----------------------------------
Name:
-----------------------------
Title:
-----------------------------
▇▇ ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attn:
-----------------------------------
BANKBOSTON, N.A.
By:
-----------------------------------
Name:
-----------------------------
Title:
-----------------------------
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Mail Stop: 01-08-05
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn:
----------------------------------
- 41 -
CYPRESSTREE INVESTMENT MANAGEMENT COMPANY, INC.,
as Attorney-In-Fact and on behalf of FAFLIC
By:
-----------------------------------
Name:
-----------------------------
Title:
-----------------------------
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
with a copy to:
State Street Bank & Trust
Corporate Trust Department
Two International Place
Boston, Massachusetts 02110
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇, for the account of FAFLIC
PRIME INCOME TRUST
By:
-----------------------------------
Name:
-----------------------------
Title:
-----------------------------
c/o ▇▇▇▇ ▇▇▇▇▇▇ InterCapital, Inc.
Two World Trade Center, 72nd Floor
New York, New York 10048
Attn: ▇▇▇▇▇ ▇. Pistecchia
DEEPROCK & CO.
By: ▇▇▇▇▇ ▇▇▇▇▇ Management, as Investment Advisor
By:
-----------------------------------
Name:
-----------------------------
Title:
-----------------------------
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn:
-----------------------------------
FRANKLIN FLOATING RATE TRUST
By:
-----------------------------------
Name:
-----------------------------
Title:
-----------------------------
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn:
-----------------------------------
- 42 -
ORIX USA CORPORATION
By:
-----------------------------------
Name:
-----------------------------
Title:
-----------------------------
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Vice President
PILGRIM AMERICA PRIME RATE TRUST
By:
-----------------------------------
Name:
-----------------------------
Title:
-----------------------------
c/o Pilgrim America Investments, Inc.
Two Renaissance Square
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn:
----------------------------------
NORTHERN LIFE INSURANCE COMPANY
By:
-----------------------------------
Name:
-----------------------------
Title:
-----------------------------
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ SENIOR FUNDING, INC.
By:
-----------------------------------
Name:
-----------------------------
Title:
-----------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇
- 43 -
ING HIGH INCOME PRINCIPAL PRESERVATION OFFERING,
L.P.
By: ING Capital Advisors, Inc., as Investment
Advisor
By:
-----------------------------------
Name:
-----------------------------
Title:
-----------------------------
c/o ING Capital Advisors, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn:
----------------------------------
PARAMOUNT COMPANY
By: Pilgrim America Investments, Inc., as its
Investment Manager
By:
-----------------------------------
Name:
-----------------------------
Title:
-----------------------------
c/o Pilgrim America Investments, Inc.
Two Renaissance Square
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
Phoenix, Arizona 85004-3444
with a faxed copy to:
State Street Bank and Trust Company
Corporate Trust Department
Attn: ▇▇▇ ▇▇▇▇▇▇▇▇
Ref: Paramount Company
Fax: (▇▇▇) ▇▇▇-▇▇▇▇/5367/5368
SENIOR DEBT PORTFOLIO
By: Boston Management and Research, as Investment
Advisor
By:
-----------------------------------
Name:
-----------------------------
Title:
-----------------------------
c/o Boston Management and Research, as Investment
Advisor
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
- 44 -
CYPRESSTREE INVESTMENT PARTNERS I, LTD.
By: CypressTree Investment Management Company,
Inc., as Portfolio Manager
By:
-----------------------------------
Name:
-----------------------------
Title:
-----------------------------
CypressTree Investment Management Company, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
ML CBO IV (CAYMAN) LTD.
By: Protective Asset Management Company, as
Collateral Manager
By:
-----------------------------------
Name:
----------------------------------
Title:
----------------------------------
Protective Asset Management, L.L.C.
1150 Two Galleria Tower
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇ #▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇
PAMCO CAYMAN LTD.
By: Protective Asset Management Company, as
Collateral Manager
By:
-----------------------------------
Name:
----------------------------------
Title:
----------------------------------
Protective Asset Management, L.L.C.
1150 Two Galleria Tower
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇ #▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ DEBT STRATEGIES PORTFOLIO
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇ Asset Management, L.P., as
Investment Advisor
By:
---------------------------------------
Name:
--------------------------------------
Title:
--------------------------------------
Debt Strategies Fund, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ - ▇▇▇▇ ▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇▇
- 45 -
▇▇▇▇▇▇▇ ▇▇▇▇▇ PRIME RATE PORTFOLIO
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇ Asset Management, L.P., as
Investment Advisor
By:
----------------------------------------
Name:
----------------------------------------
Title:
---------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇ Prime Rate Portfolio
800 Scudders Mill Road - Area 1B
▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇ INCORPORATED
By:
-----------------------------------
Name:
-----------------------------
Title:
-----------------------------
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
World Financial Center
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇
INDOSUEZ CAPITAL FUNDING II, LIMITED
By: Indosuez Capital Luxembourg, as Collateral
Manager
By:
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▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Authorized Signatory
P.O. Box 309
▇▇▇▇▇▇ House
▇▇▇▇▇▇ Town
Grand Cayman, Cayman Islands
British West Indies
with a copy to:
Indosuez Capital Funding II, Limited
c/o Texas Commerce Bank N.A.
Attn: ▇▇▇ ▇▇▇▇▇▇, Asset Backed Group
A/C 17499
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
and
Indosuez Capital
1211 Avenue of the Americas, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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TCW LEVERAGED INCOME TRUST, L.P.
By: TCW Advisers (Bermuda), Ltd., as General
Partner
By:
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▇▇▇▇ ▇. Gold
Managing Director
By: TCW Investment Management Company, as
Investment Adviser
By:
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Senior Vice President
TCW Leveraged Income Trust, L.P.
▇/▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ & Trust Company
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇
and
Trust Company of the West
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇
with a copy to:
TCW Asset Management Company
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇ ▇. Gold/▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇/▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
- 47 -
ARES LEVERAGED INVESTMENT FUND, L.P.
By:
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Name:
-----------------------------
Title:
-----------------------------
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇
Principal
ARCHIMEDES FUNDING, L.L.C.
By: ING Capital Advisors, Inc., as Collateral
Manager
By:
-----------------------------------
Name:
-----------------------------
Title:
-----------------------------
c/o ING Capital Advisors, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn:
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- 48 -
ACKNOWLEDGED AND AGREED:
Sundance Rehabilitation Corporation, a Connecticut corporation
SunQuest Consulting, Inc., a New Mexico corporation
Sunrise Healthcare Corporation, a New Mexico corporation
SunScript Pharmacy Corporation, a New Mexico corporation
Sunrise Rehab of Colorado, Inc., a Colorado corporation
Sunrise Healthcare of Colorado, Inc., a Colorado corporation
Sunrise Healthcare of Florida, Inc., a Florida corporation
LTC Staffinders, Inc., a Connecticut corporation
SunSpectrum Outpatient Rehabilitation-Concord, Inc., a Massachusetts corporation
Nursing Home Inc., a Washington corporation
Living Services, Inc., a Washington corporation
Bay Colony Health Service, Inc., a Massachusetts corporation
Bergen Eldercare, Inc., a New Jersey corporation
Community Re-Entry Services of Cortland, Inc., a Delaware corporation
G-WZ of Stamford, Inc., a Connecticut corporation
Manatee Springs Nursing Center, Inc., a Florida corporation
Mediplex Management, Inc., a Massachusetts corporation
Mediplex Management of Palm Beach County, Inc., a Florida corporation
Mediplex Management of Texas, Inc., a Texas corporation
Sun Healthcare Inc., a Colorado corporation
Mediplex of Concord, Inc., a Massachusetts corporation
Mediplex of Connecticut, Inc., a Connecticut corporation
Mediplex of Kentucky, Inc., a Kentucky corporation
Mediplex of Maryland, Inc., a Maryland corporation
Mediplex of Massachusetts, Inc., a Massachusetts corporation
Mediplex of New Hampshire, Inc., a New Hampshire corporation
Mediplex of New Jersey, Inc., a New Jersey corporation
Mediplex of New York, Inc., a New York corporation
Mediplex of Ohio, Inc., an Ohio corporation
Mediplex of Tennessee, Inc., a Tennessee corporation
Mediplex Atlanta Rehabilitation Institute, Inc., a Georgia corporation
Mediplex Rehabilitation of Massachusetts, Inc., a Massachusetts corporation
P.M.N.F. Management, Inc., a New Jersey corporation
Quality Care Holding Corp., a Massachusetts corporation
Quality Nursing Care of Massachusetts, Inc., a Massachusetts corporation
▇▇▇▇▇▇▇▇ Land, Inc., a New Hampshire corporation
Sun Care Corp., a Delaware corporation
HSR Management, Inc., a Delaware corporation
CareerStaff Management, Inc., a Delaware corporation
- 49 -
PRI, Inc., a Texas corporation
CareerStaff Unlimited, Inc., a Delaware corporation
CareerStaff HSR, Inc., a Delaware corporation
Healthcare Staff Resources, Inc., a Texas corporation
SunBridge, Inc., a New Mexico corporation
SunMark of New Mexico, a New Mexico corporation
SunChoice Medical Supply, Inc., a New Mexico corporation
HTA of New Jersey, Inc., a New Jersey corporation
New Bedford Acquisition Corp., a Massachusetts corporation
New Bedford Nursing Center, Inc., a Massachusetts corporation
Worcester Nursing Center, Inc., a Massachusetts corporation.
Cal-Med, Inc., a California corporation
Clipper Home Affiliates, Inc., a New Hampshire corporation
Clipper Home of North ▇▇▇▇▇▇, Inc., a New Hampshire corporation
Clipper Home of Portsmouth, Inc., a New Hampshire corporation
Clipper Home of Rochester, Inc., a New Hampshire corporation
Clipper Home of Wolfeboro, Inc., a New Hampshire corporation
Golan Healthcare Group, Inc., a Massachusetts corporation
▇▇▇▇▇▇▇ Nursing Home, Inc., a New Hampshire corporation
HC, Inc., a Kansas corporation
▇▇▇▇▇▇▇ Place of Dover, Inc., a New Hampshire corporation
▇▇▇▇▇▇▇ Place of Exeter, Inc., a New Hampshire corporation
▇▇▇▇▇▇▇ Place of Nashua, Inc., a New Hampshire corporation
Masthead Corporation, a New Mexico corporation
Mediplex of Virginia, Inc., a Virginia corporation
Oakview Treatment Centers of Kansas, Inc., a Kansas corporation
Pharmacy Factors of California, Inc., a California corporation
Pharmacy Factors of Florida, Inc., a Florida corporation
Pharmacy Factors of Texas, Inc., a Texas corporation
PHS Continuing Education, Inc., a Texas corporation
Premier Health Staff, Inc., a Texas corporation
SHG International Holdings, Inc., a Delaware corporation
Special Medical Services, Inc., a Texas corporation
SunAlliance Health care Services, Inc., a Delaware corporation
SunCare Respiratory Services, Inc., an Indiana corporation
SunFactors, Inc., a Florida corporation
Sun Lane Purchase Corporation, a New Mexico corporation
SunSolution, Inc., a Delaware corporation
The Mediplex Group, Inc., a Massachusetts corporation
Hospital Therapy Service of Texas, Inc., a Texas corporation
Regency Health Services, Inc, a Delaware corporation
▇▇▇▇▇▇▇▇ Enterprises, Inc., a California corporation
Brittany Rehabilitation Center, Inc., a California corporation
Carmichael Rehabilitation Center, a California corporation
- 50 -
Coalinga Rehabilitation Center, a California corporation
Covina Rehabilitation Center, a California corporation
Evergreen Rehabilitation Center, a California corporation
Fairfield Rehabilitation Center, a California corporation
Fullerton Rehabilitation Center, a California corporation
Glendora Rehabilitation Center, a California corporation
Grand Terrace Rehabilitation, a California corporation
Hallmark Health Services, Inc., a California corporation
Harbor View Rehabilitation Center, a California corporation
Hawthorne Rehabilitation Center, a California corporation
Heritage Rehabilitation Center, a California corporation
Huntington Beach Convalescent Hospital, a California corporation
▇▇▇▇▇▇▇ Rehabilitation Center, Inc., a California corporation
▇▇▇▇▇-Mar Rehabilitation Center, a California corporation
Meadowbrook Rehabilitation Center, a California corporation
Newport Beach Rehabilitation Center, a California corporation
North State Home Health Care, Inc., a California corporation
Paradise Rehabilitation Center, Inc., a California corporation
Paso ▇▇▇▇▇▇ Rehabilitation Center, a California corporation
Regency-North Carolina, Inc., a North Carolina corporation
Regency Rehab Properties, Inc., a California corporation
Regency-Tennessee, Inc., a Tennessee corporation
RHS Management Corporation, a California corporation
Rosewood Rehabilitation Center, Inc., a California corporation
Shandin Hills Rehabilitation Center, a California corporation
Stockton Rehabilitation Center, Inc., a California corporation
Vista ▇▇▇▇▇ Rehabilitation Center, Inc., a California corporation
Willowview Rehabilitation Center, a California corporation
First Class Pharmacy, Inc., a California corporation
Care Enterprises, Inc., a Delaware corporation
Americare Homecare, Inc., an Ohio corporation
Care Finance, Inc., a California corporation
Circleville Health Care Corp., an Ohio corporation
Glenville Health Care Corp., a West Virginia corporation
▇▇▇▇▇▇ Health Care Corp., an Ohio corporation
New Lexington Health Care Corp., an Ohio corporation
Americare of West Virginia, Inc., a West Virginia corporation
▇▇▇▇▇▇ Health Care Corp., a West Virginia corporation
▇▇▇▇▇▇▇ Health Care Corp., a West Virginia corporation
▇▇▇▇▇▇ Health Care Corp., a West Virginia corporation
Salem Health Care Corp., a West Virginia corporation
Care Enterprises West, a Utah corporation
Care Home Health Services, a California corporation
SCRS & Communicology Inc., of Ohio, an Ohio corporation
- 51 -
Regency Rehab Hospitals, Inc., a California corporation
Orange Rehabilitation Hospital, Inc., a Delaware corporation
San Bernadino Rehabilitation Hospital, Inc., a Delaware corporation
Regency Outpatient Services, Inc., a California corporation
Heritage-Torrance Rehabilitation Center
Oasis Mental Health Treatment Center, Inc.
Regency High School, Inc.
Pacific Beach Physical Therapy, Inc.
Peachwood Physical Therapy, Inc.
Regency Rehabilitation Management and Consulting Services, Inc.
By:
-------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Chief Financial Officer
Accelerated Care Plus, LLC, a Delaware limited liability company
By: Cal-Med, Inc., a California corporation and HC, Inc., a Kansas corporation,
members
By:
----------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Chief Financial Officer
Hospital Therapy Service of Michigan, LLC, a Michigan limited liability company
By: SunCare Respiratory Services, Inc., an Indiana corporation, member
By:
----------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Chief Financial Officer
Therapists Unlimited-Baltimore/Washington, D.C., L.P., a Texas limited
partnership
Therapists Unlimited-Chicago II, L.P., a Texas limited partnership
Therapists Unlimited-Detroit II, L.P., a Texas limited partnership
- 52 -
Therapists Unlimited-Fresno, L.P., a Texas limited partnership
Therapists Unlimited-Indianapolis, L.P., a Texas limited partnership
Therapists Unlimited-New Orleans, L.P., a Texas limited partnership
Therapists Unlimited-Philadelphia, L.P., a Texas limited partnership
Therapists Unlimited-San Francisco, L.P., a Texas limited partnership
Therapists Unlimited-Seattle, L.P., a Texas limited partnership
Therapists Unlimited-Travelers, L.P., a Texas limited partnership
HSR Partners, L.P.
By: CareerStaff Management, Inc., a Delaware corporation and the general
partner of the above-listed limited partnership Guarantors
By:
----------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Chief Financial Officer
West Jersey/Mediplex Rehabilitation, L.P.
By: Mediplex of New Jersey, Inc., a New Jersey corporation and its general
partner
By:
----------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Chief Financial Officer
Address for all Guarantors:
▇▇▇ ▇▇▇ ▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Chief Financial Officer
- 53 -