Exhibit 10.9
SECOND AMENDMENT TO DEBTOR-IN-POSSESSION CREDIT AGREEMENT
November 19, 1999
Reference is made to that certain Debtor-In-Possession Credit
Agreement dated as of September 13, 1999 (as heretofore amended, supplemented or
otherwise modified, the "DIP Credit Agreement"), by and among Vencor, Inc., a
Delaware corporation ("Vencor"), and Vencor Operating, Inc., a Delaware
corporation ("Vencor Opco"), each as debtor and debtor-in-possession, and each
of Vencor's subsidiaries listed on the signature pages thereof, each as debtor
and debtor-in-possession (each such subsidiary, Vencor and Vencor Opco
individually referred to herein as a "Borrower" and, collectively, on a joint
and several basis, as the "Borrowers"); the Lenders listed on the signature
pages thereof; and ▇▇▇▇▇▇ Guaranty Trust Company of New York, as arranger,
collateral agent and administrative agent (in such capacity, "Administrative
Agent") for the Lenders, and as an issuing bank for Letters of Credit
thereunder. Capitalized terms used herein without definition herein shall have
the meanings assigned to such terms in the DIP Credit Agreement.
The Borrowers and the undersigned Lenders hereby agree to amend the
DIP Credit Agreement as follows:
1. Section 1.01 of the DIP Credit Agreement is hereby amended by
inserting therein the following definitions in alphabetical order:
"Dixfield Note" means a promissory note issued by the
purchaser of the Dixfield Property in the principal amount of
$197,500, which promissory note shall bear interest at the rate
of 9.0% per annum, shall mature and be due and payable in full
not later than one year from the date of issuance thereof and
shall be in the form delivered to the Administrative Agent in
connection with the execution of the Second Amendment, with no
modifications thereto which are deemed material by the
Administrative Agent other than those approved by Required
Lenders.
"Dixfield Property" means the land and related improvements
owned by Vencor Nursing Centers East, LLC at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇▇▇▇.
"Government Settlement Term Sheet" means the term sheet
contained in Schedule 14.
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"Second Amendment" means that certain Second Amendment to
Debtor-In-Possession Credit Agreement dated as of November 19,
1999, by and among the Borrowers, the Collateral Agent, the
Administrative Agent and the Lenders party thereto.
2. Section 1.01 of the DIP Credit Agreement is hereby further amended
by adding at the end of the definition of "Net Cash Proceeds" contained therein
the following sentence:
"Anything contained herein to the contrary notwithstanding, (i)
the Borrowers shall be deemed to receive Net Cash Proceeds from
the sale of the Dixfield Property in the principal amount of the
Dixfield Note at the time of such sale (and the amount of such
Net Cash Proceeds shall be applied as Net Cash Proceeds from an
Asset Sale of a Property Held For Sale in accordance with Section
2.08(a)), and (ii) no payments on the Dixfeld Note thereafter
received by any of the Borrowers shall be deemed Net Cash
Proceeds hereunder."
3. Section 5.10 of the DIP Credit Agreement is hereby amended by
deleting the reference contained therein to "three months" and substituting
therefor "four months".
4. Section 5.13 of the DIP Credit Agreement is hereby amended by
deleting it in its entirety therefrom.
5. Section 7.03(b) of the DIP Credit Agreement is hereby amended by
adding at the end thereof the following sentence:
"Anything contained herein to the contrary notwithstanding, the
Borrowers may receive a portion of the consideration for the sale
of the Dixfield Property in the form of the Dixfield Note,
provided that (i) the Dixfield Note shall be pledged pursuant to
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the Collateral Documents promptly after the issuance thereof, and
delivered to the Collateral Agent with appropriate instruments of
transfer relating thereto, and (ii) the obligations of the issuer
of the Dixfield Note shall be secured by a mortgage on such
issuer's interest in the Dixfield Property in favor of Vencor
Nursing Centers East, LLC."
6. Section 8.01 of the DIP Credit Agreement is hereby amended by
adding "or" at the end of subdivision (p) thereof and adding immediately after
subdivision (p) a new subdivision (q) as follows:
"(q) the disputes with the United States with respect to Medicare
and/or under the False Claims Act shall be settled on terms less
favorable (in any respect deemed material by Determining Lenders)
with respect to the interests of the Borrowers or the Lenders
than the terms set forth in the Government Settlement Term Sheet;
or the United States shall assert against any of the Borrowers or
any Subsidiary Guarantor any claim deemed material by Determining
Lenders other than those claims which are described in paragraphs
2.a and 2.b of the Government Settlement Term Sheet;"
7. The DIP Credit Agreement is hereby amended by adding a new
Schedule 14 thereto in the form of Annex A attached hereto.
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The amendment to Section 5.13 of the DIP Credit Agreement contained in
numbered paragraph 4 above shall not be deemed or construed in any respect as a
determination
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by the Lenders or Determining Lenders that the terms set forth in the Government
Settlement Term Sheet represent a settlement of the claims of the United States
against the Borrowers and Subsidiary Guarantor which is or would be satisfactory
in form or substance to the Lenders or Determining Lenders.
The undersigned Lenders hereby also approve, pursuant to Section
7.03(b)(i) of the DIP Credit Agreement, the Asset Sale or Asset Sales of any
equipment and related items used in connection with the Borrowers' in-patient
and out-patient respiratory care services provided at third-party acute care
hospitals; provided, that (i) the consideration received from such Asset Sale or
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Asset Sales shall be in an amount at least equal to the fair market value of the
property sold, which shall not exceed $255,000, (ii) such property shall be sold
solely for cash consideration, and (iii) the Borrowers shall comply with all
applicable provisions of the DIP Credit Agreement with respect to such Asset
Sale or Asset Sales.
On and after the Second Amendment Effective Date (as defined below),
each reference in the DIP Credit Agreement to "this Agreement", "hereunder",
"hereof", "herein" or words of like import referring to the DIP Credit
Agreement, and each reference in the other Financing Documents to the "DIP
Credit Agreement", "thereunder", "thereof" or words of like import referring to
the DIP Credit Agreement, shall mean and be a reference to the DIP Credit
Agreement as amended by this Second Amendment to Debtor-In-Possession Credit
Agreement (this "Amendment"; the DIP Credit Agreement, as so amended, being the
"Amended Agreement"). Except as specifically amended by this Amendment, the DIP
Credit Agreement and such other Financing Documents shall remain in full force
and effect and are hereby ratified and confirmed. The execution, delivery and
performance of this Amendment shall not, except as expressly provided herein,
constitute a waiver of any provision of, or operate as a waiver of any right,
power or remedy of any Agent or any Lender under, the DIP Credit Agreement or
any of such other Financing Documents, and nothing in this Amendment shall be
deemed to constitute approval by any Lender of any Asset Sale not expressly
approved herein.
In order to induce Lenders to enter into this Amendment, each
Borrower, by its execution of a counterpart of this Amendment, represents and
warrants that (a) such Borrower has the corporate or other power and authority
and all material Governmental Approvals required to enter into this Amendment
and to carry out the transactions contemplated by, and perform its obligations
under, the Amended Agreement, (b) the execution and delivery of this Amendment
and the performance of the Amended Agreement have been duly authorized by all
necessary corporate or other action on the part of such Borrower, (c) the
execution and delivery by such Borrower of this Amendment and the performance by
such Borrower of the Amended Agreement do not and will not contravene, or
constitute a default under, any Applicable Laws (including an applicable order
of the Court) or any provision of its Organizational Documents, or of any
agreement or other instrument binding upon it or result in or require the
imposition of any Liens (other than the Liens created by the Collateral
Documents) on any of its assets, (d) the execution and delivery by such Borrower
of this Amendment and the performance by such Borrower of the Amended Agreement
do not and will not require any action by or in respect of, or filing with, any
governmental body, agency or official (except for the Court and such as shall
have been made at or before the time required and shall be in full force and
effect on and after the date when made), (e) this Amendment and the Amended
Agreement have been duly executed and delivered by such Borrower and constitute
the valid and binding obligations of such
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Borrower, enforceable in accordance with their respective terms, except as may
be limited by general principles of equity, (f) for purposes of the Borrowing
Order (i) this Amendment constitutes a non-material modification of the DIP
Credit Agreement and the Financing Documents, and (ii) notice of this Amendment
has been given to and received by counsel to the Committee (as defined in the
Borrowing Order), (g) after giving effect to this Amendment, the representations
and warranties contained in Article 4 of the DIP Credit Agreement are and will
be true, correct and complete in all material respects on and as of the Second
Amendment Effective Date to the same extent as though made on and as of that
date, except to the extent such representations and warranties specifically
relate to an earlier date, in which case they were true, correct and complete in
all material respects on and as of such earlier date, and (h) after giving
effect to this Amendment, no event has occurred and is continuing or will result
from the consummation of the transactions contemplated by this Amendment that
would constitute a Default or an Event of Default.
This 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 an original, but all such counterparts
together shall constitute but one and the same instrument. This Amendment shall
become effective (the date of such effectiveness being the "Second Amendment
Effective Date") upon satisfaction of the following conditions: (i) the
Borrowers and Required Lenders shall have executed counterparts of this
Amendment, and the Borrowers and the Administrative Agent shall have received
written or telephonic notification of such execution and authorization of
delivery thereof; and (ii) the Administrative Agent shall have received from the
Borrowers an amendment fee in the aggregate amount of $200,000 for ratable
distribution on the Second Amendment Effective Date to each Lender that has
executed and delivered this Amendment on or prior to November 29, 1999 according
to the ratio of (x) the Commitment of such executing Lender to (y) the aggregate
Commitments of all such executing Lenders. Anything contained herein to the
contrary notwithstanding, the amendments to Section 5.13 and Section 8.01 of the
DIP Credit Agreement set forth in numbered paragraphs 4 and 6 above shall become
effective only upon satisfaction of the conditions set forth in the immediately
preceding sentence and the execution and delivery of a counterpart hereof by the
Borrowers and Determining Lenders
THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER
SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH,
THE INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING WITHOUT LIMITATION SECTION
5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK), WITHOUT REGARD
TO CONFLICTS OF LAWS PRINCIPLES.
[Remainder of page intentionally left blank]
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BORROWERS:
Advanced Infusion Systems, Inc.
American X-Rays, Inc.
C.P.C. of Louisiana, Inc.
Community Behavioral Health System, Inc.
Community Psychiatric Centers of Arkansas, Inc.
Community Psychiatric Centers of California
Community Psychiatric Centers of Florida, Inc.
Community Psychiatric Centers of Idaho, Inc.
Community Psychiatric Centers of Indiana, Inc.
Community Psychiatric Centers of Kansas, Inc.
Community Psychiatric Centers of Mississippi, Inc.
Community Psychiatric Centers of Missouri, Inc.
Community Psychiatric Centers of North Carolina, Inc.
Community Psychiatric Centers of Oklahoma, Inc.
Community Psychiatric Centers of Utah, Inc.
Community Psychiatric Centers Properties Incorporated
Community Psychiatric Centers Properties of Oklahoma, Inc.
Community Psychiatric Centers Properties of Texas, Inc.
Community Psychiatric Centers Properties of Utah, Inc.
Courtland Gardens Health Center, Inc.
CPC Investment Corp.
CPC Managed Care Health Services, Inc.
CPC of Georgia, Inc.
CPC Properties of Arkansas, Inc.
CPC Properties of Illinois, Inc.
CPC Properties of Indiana, Inc.
CPC Properties of Kansas, Inc.
CPC Properties of Louisiana, Inc.
CPC Properties of Mississippi, Inc.
CPC Properties of Missouri, Inc.
CPC Properties of North Carolina, Inc.
First Rehab, Inc.
Florida Hospital Properties, Inc.
Health Care Holdings, Inc.
Health Care Technology, Inc.
Helian ASC of Northridge, Inc.
Helian Health Group, Inc.
Helian Recovery Corporation
Homestead Health Center, Inc.
Horizon Healthcare Services, Inc.
Interamericana Health Care Group
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▇.▇. ▇▇▇▇▇▇ Hospital, Inc.
Lafayette Health Care Center, Inc.
MedEquities, Inc.
Medisave of Tennessee, Inc.
Medisave Pharmacies, Inc.
Old Orchard Hospital, Inc.
Palo Alto Surgecenter Corporation
Peachtree-Parkwood Hospital, Inc.
PersonaCare, Inc.
PersonaCare Living Center of Clearwater, Inc.
PersonaCare of Bradenton, Inc.
PersonaCare of Clearwater, Inc.
PersonaCare of Connecticut, Inc.
PersonaCare of Georgia, Inc.
PersonaCare of Huntsville, Inc.
PersonaCare of Little Rock, Inc.
PersonaCare of Ohio, Inc.
PersonaCare of Owensboro, Inc.
PersonaCare of Pennsylvania, Inc.
PersonaCare of Pompano East, Inc.
PersonaCare of Pompano West, Inc.
PersonaCare of Reading, Inc.
PersonaCare of San Antonio, Inc.
PersonaCare of San ▇▇▇▇▇, Inc.
PersonaCare of Shreveport, Inc.
PersonaCare of St. Petersburg, Inc.
PersonaCare of Warner ▇▇▇▇▇▇▇, Inc.
PersonaCare of Wisconsin, Inc.
PersonaCare Properties, Inc.
ProData Systems, Inc.
Recovery Inns of America, Inc.
Respiratory Care Services, Inc.
Stamford Health Facilities, Inc.
THC-Chicago, Inc.
THC-Hollywood, Inc.
THC-Houston, Inc.
THC-Minneapolis, Inc.
THC-North Shore, Inc.
THC-Orange County, Inc.
THC-San Diego, Inc.
THC-Seattle, Inc.
TheraTx Healthcare Management, Inc.
TheraTx Health Services, Inc.
TheraTx Management Services, Inc.
TheraTx Medical Supplies, Inc.
TheraTx Rehabilitation Services, Inc.
TheraTx Staffing, Inc.
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Transitional Hospitals Corporation, a Delaware Corporation
Transitional Hospitals Corporation, a Nevada Corporation
Transitional Hospitals Corporation of Indiana, Inc.
Transitional Hospitals Corporation of Louisiana, Inc.
Transitional Hospitals Corporation of Michigan, Inc.
Transitional Hospitals Corporation of Nevada, Inc.
Transitional Hospitals Corporation of New Mexico, Inc.
Transitional Hospitals Corporation of Tampa, Inc.
Transitional Hospitals Corporation of Texas, Inc.
Transitional Hospitals Corporation of Wisconsin, Inc.
▇▇▇▇▇▇ Nursing Center, Inc.
▇▇▇▇▇▇▇▇ Enterprises, Inc.
VC-OIA, Inc.
VC-TOHC, Inc.
▇▇-▇▇, Inc.
Vencare, Inc.
Vencare Rehab Services, Inc.
Vencor Facility Services, Inc.
Vencor Holdings, L.L.C.
Vencor Home Care Services, Inc.
Vencor Hospice, Inc.
Vencor Hospitals East, L.L.C.
Vencor Hospitals West, L.L.C.
Vencor, Inc.
Vencor Insurance Holdings, Inc.
Vencor Investment Company
Vencor Nevada, L.L.C.
Vencor Nursing Centers East, L.L.C.
Vencor Nursing Centers Central L.L.C.
Vencor Nursing Centers North, L.L.C.
Vencor Nursing Centers South, L.L.C.
Vencor Nursing Centers West, L.L.C.
Vencor Operating, Inc.
Vencor Pediatric Care, Inc.
Vencor Provider Network, Inc.
Ventech Systems, Inc.
By: Vencor Operating, Inc., as agent and attorney-in-
fact for each of the foregoing entities
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
Title: Chief Financial Officer
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Stamford Health Associates, L.P.
By: Stamford Health Facilities, Inc., Its General
Partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
Title: Chief Financial Officer
Vencor Home Care and Hospice Indiana Partnership
By: Vencor Home Care Services, Inc., Its General
Partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
Title: Chief Financial Officer
By: Vencor Hospice, Inc., Its General Partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
--------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
Title: Chief Financial Officer
Vencor Hospitals Limited Partnership
By: Vencor Operating, Inc., Its General Partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
Title: Chief Financial Officer
By: Vencor Nursing Centers Limited Partnership,
Its General Partner
By: Vencor Operating, Inc., Its General
Partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
--------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
Title: Chief Financial Officer
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Vencor Nursing Centers Central Limited
Partnership
By: Vencor Operating, Inc., Its General Partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
--------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
Title: Chief Financial Officer
By: Vencor Nursing Centers Limited Partnership,
Its General Partner
By: Vencor Operating, Inc., Its General
Partner
By:/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
--------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
Title: Chief Financial Officer
Vencor Nursing Centers Limited Partnership
By: Vencor Operating, Inc., Its General Partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
--------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
Title: Chief Financial Officer
By: Vencor Hospitals Limited Partnership, Its
General Partner
By: Vencor Operating, Inc., Its General
Partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
--------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
Title: Chief Financial Officer
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AGENTS AND LENDERS:
▇▇▇▇▇▇ GUARANTY TRUST COMPANY OF NEW YORK, as Arranger,
Collateral Agent and Administrative Agent and as a
Lender
By: /s/ Houston ▇. ▇▇▇▇▇▇▇▇
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Name: Houston ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
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ABLECO FINANCE LLC, as a Lender
By:_____________________________________
Name:
Title:
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APPALOOSA INVESTMENT LIMITED
PARTNERSHIP I, as a Lender
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
--------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Chief Financial Officer
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BANKERS TRUST COMPANY, as a Lender
By:_____________________________________
Name:
Title:
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CHASE SECURITIES INC, AS AGENT FOR THE
CHASE MANHATTAN BANK, as a Lender
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Authorized Signatory
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▇▇▇▇▇▇▇ ▇▇▇▇▇ CREDIT PARTNERS L.P., as a
Lender
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Authorized Signatory
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PARIBAS, as a Lender
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
Title: Director
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Managing Director
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▇▇▇ ▇▇▇▇▇▇ PRIME RATE INCOME TRUST, as a
Lender
By: ▇▇▇ ▇▇▇▇▇▇ INVESTMENT ADVISORY CORP.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
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FRANKLIN MUTUAL ADVISERS LLC, as a Lender
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President
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FRANKLIN FLOATING RATE TRUST, as a Lender
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
