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EXHIBIT 10.1
AMENDMENT AND WAIVER NO. 1 TO THE LOAN DOCUMENTS
AMENDMENT AND WAIVER dated as of December 4, 1998 to the
Amended and Restated Credit Agreement dated as of June 9, 1998 (the "CREDIT
AGREEMENT") among MedPartners, Inc., a Delaware corporation (the "BORROWER"),
the Lenders party thereto, NationsBank, N.A., as the Initial Issuing Bank and
the Swing Line Bank thereunder, Credit Lyonnais New York Branch, The First
National Bank of Chicago and Xxxxxx Guaranty Trust Company of New York, as the
Syndication Agents therefor, NationsBanc Xxxxxxxxxx Securities LLC, as the
Arranger therefor, and NationsBank, N.A., as the Administrative Agent for the
Lender Parties thereunder. Capitalized terms not otherwise defined in this
Amendment and Waiver have the same meanings as specified therefor in the Credit
Agreement.
PRELIMINARY STATEMENTS
(1) The Borrower has requested that the Lender Parties agree
to amend the Credit Agreement in order, among other things, (a) to permit the
sale and assignment from time to time on a limited recourse basis by Caremark
Inc., a wholly owned Domestic Subsidiary of the Borrower, of its accounts
receivable to MP Receivables Company, a Delaware corporation and a wholly owned
Subsidiary of Caremark Inc. ("MP RECEIVABLES"), and, in turn, by MP Receivables
of such accounts receivables or interests therein to Park Avenue Receivables
Corporation and one or more financial institutions for an aggregate Net
Investment (as defined in the Caremark Receivables Securitization Documents (as
hereinafter defined)) of not more than $75,000,000, the proceeds of which would
be retained by the Borrower and its Subsidiaries for use in their businesses and
operations in the ordinary course, (b) to permit the sale for Fair Market Value
of all of the Equity Interests in, or all of the property and assets of, Team
Health and Government Services (each as hereinafter defined), to permit the sale
for Fair Market Value, in one or more transactions, of any or all of the
property and assets of the physician practice management businesses of the
Borrower and its Subsidiaries, and to permit a portion of the Net Cash Proceeds
from such asset sales to also be retained by the Borrower and its Subsidiaries
for use in their businesses and operations in the ordinary course, and (c) to
waive the requirements of the financial covenants set forth in Section 5.04 of
the Credit Agreement for the Measurement Period ending December 31, 1998 and for
a period of time thereafter to be agreed so that the independent public
accountants of the Borrower can determine the necessary cash and noncash charges
to be taken by the Borrower and its Subsidiaries in accordance with GAAP during
the Fiscal Quarters ending December 31, 1998 and March 31, 1999 for the
discontinuation of their physician practice management businesses.
(2) The Lender Parties have indicated their willingness to
agree to amend the Credit Agreement in order, among other things, to permit the
consummation of the transactions described above in Preliminary Statement (1) on
the terms and subject to the satisfaction of the conditions set forth herein.
NOW, THEREFORE, in consideration of the premises and of the
mutual covenants and agreements contained herein and in the Loan Documents, the
parties hereto hereby agree as follows:
SECTION 1. Amendments of Certain Provisions of the Credit
Agreement. The Credit Agreement is, upon the occurrence of the Amendment
Effective Date (as hereinafter defined), hereby amended to read as follows:
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(a) Section 1.01 of the Credit Agreement is hereby
amended to restate the following definitions set forth therein in their
entirety to read as follows:
"CONSOLIDATED INTEREST EXPENSE" means, with respect
to any Person for any period, the gross interest expense
accrued on all Indebtedness of such Person and its
Subsidiaries during such period, determined on a Consolidated
basis and in accordance with GAAP for such period, including,
without limitation, (a) in the case of the Borrower, (i)
interest expense accrued in respect of Indebtedness resulting
from Advances, (ii) all fees paid or payable pursuant to
Section 2.08(a) and (iii) all interest accrued with respect to
the Eligible Subordinated Indebtedness and all subordinated
yield enhancement payments made to the TAPS Investors pursuant
to the TAPS Purchase Contract, (b) the interest component of
all Obligations in respect of Capitalized Leases, (c)
commissions, discounts and other fees and charges paid or
payable in connection with letters of credit (including,
without limitation, the Letters of Credit), (d) all
amortization of original issue discount in respect of all
Indebtedness of such Person and its Subsidiaries, (e) the net
payment, if any, paid or payable in connection with Hedge
Agreements less the net credit, if any, received in connection
with Hedge Agreements, (f) the aggregate Discount on all
Transferred Interests (each as defined in Schedule A to the
Caremark Receivables Securitization Documents) purchased under
the Caremark Receivables Securitization on or prior to such
date and (g) all Placement Agent Fees (as defined in Schedule
A to the Caremark Receivables Securitization Documents) and
all other program fees, facility fees, commitment fees and
other similar fees paid or payable under or in respect of the
Caremark Receivables Securitization.
"LEVERAGE RATIO" means, with respect to the Borrower
and its Subsidiaries at any date of determination, the ratio
of (a) (i) all Indebtedness of the Borrower and its
Subsidiaries outstanding on such date that would (or would be
required to) appear on the Consolidated balance sheet of the
Borrower and its Subsidiaries plus (ii) to the extent not
otherwise included in subclause (a)(i) of this definition, (A)
the face amount of all letters of credit (including, without
limitation, all Letters of Credit) issued for the account of
the Borrower or any of its Subsidiaries and (B) the aggregate
Net Investment in respect of all Transferred Interests (each
as defined in Schedule A to the Caremark Receivables
Securitization Documents) purchased under the Caremark
Receivables Securitization on or prior to such date less (iii)
the aggregate principal amount of all Eligible Subordinated
Indebtedness outstanding on such date, to (b) Consolidated
EBITDA of the Borrower and its Subsidiaries for the most
recently completed Measurement Period prior to such date.
"NET CASH PROCEEDS" means, with respect to any sale,
lease, transfer or other disposition of any property or
assets, or the incurrence or issuance of any Indebtedness, or
the sale or issuance of any Equity Interests in any Person, or
any Extraordinary Receipt received by or paid to or for the
account of any Person, as the case may be, the aggregate
amount of cash received from time to time (whether as initial
consideration or through payment or disposition of deferred
consideration) by or on behalf of such Person for its own
account in connection with any such transaction, after
deducting therefrom (without duplication) only:
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(a) reasonable and customary brokerage
commissions, underwriting fees and discounts, legal
fees, accounting fees, finder's fees and other
similar fees and commissions and reasonable and
customary printing expenses and, solely in the case
of any sale, lease, transfer or other disposition of
any property or assets, other reasonable and
customary costs and expenses incurred in connection
with such sale, lease, transfer or other disposition,
in each case under this clause (a) to the extent, but
only to the extent, that the amounts so deducted are
actually paid (i) at the time of the receipt of such
cash or (ii) if later, within 30 days after the
consummation of such transaction (based on such
Person's reasonable estimate of the aggregate amount
of all such commissions, discounts, fees, costs and
expenses therefor at the time of the consummation of
such transaction);
(b) the amount of taxes payable in
connection with or as a result of such transaction to
the extent, but only to the extent, that the amounts
so deducted are actually paid at the time of receipt
of such cash or, so long as such Person is not
otherwise indemnified therefor, are reserved for in
accordance with GAAP at the time of receipt of such
cash based upon such Person's reasonable estimate of
such taxes;
(c) in the case of the sale, lease, transfer
or other disposition of any property or asset, the
outstanding principal amount of, the premium or
penalty, if any, on, and any accrued and unpaid
interest on, any Indebtedness (other than the
Indebtedness under or in respect of the Loan
Documents) that is secured by a Lien on the property
and assets subject to such sale, lease, transfer or
other disposition and is required to be repaid under
the terms thereof as a result of such sale, lease,
transfer or other disposition, in each case under
this clause (c) to the extent, but only to the
extent, that the amounts so deducted are actually
paid at the time of the receipt of such cash;
(d) in the case of the sale, lease, transfer
or other disposition of any property or asset, the
amount required to be reserved, in accordance with
GAAP as in effect on the date on which the Net Cash
Proceeds from such sale, lease, transfer or other
disposition are determined, and so reserved, against
liabilities related to environmental matters or
employee matters or other similar contingent
liabilities associated with the property, assets and
businesses subject to such sale, lease, transfer or
other disposition that are required to be assumed,
retained or indemnified for by such Person as
consideration for, and under the terms of the
documentation for, such sale, lease, transfer or
other disposition; provided that the aggregate amount
of all such reserves established in connection with
all sales, leases, transfers and other dispositions
of property, assets and businesses of the Borrower
and its Subsidiaries and so deducted from the
determination of Net Cash Proceeds pursuant to this
clause (d) shall not exceed $20,000,000; and provided
further that, in each case under this clause (d), (i)
the amounts so reserved shall be based upon such
Person's reasonable estimate of all such contingent
liabilities at the time of the consummation of such
sale, lease, transfer or other disposition and (ii)
neither the person effecting such sale, lease,
transfer or other disposition nor any of its
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Affiliates shall be otherwise indemnified for the
contingent liabilities giving rise to such reserve;
and
(e) in the case of the sale, lease, transfer
or other disposition of Team Health or Government
Services, the aggregate amount of all insurance
premiums payable by the Borrower or any of its
Subsidiaries for one or more policies of insurance
covering medical malpractice liabilities of Team
Health or Government Services, as the case may be,
arising prior to the date of consummation of the
sale, lease, transfer or other disposition thereof in
accordance with Section 5.02(d)(vii) or 5.02(d)(viii)
and assumed or retained by the Borrower and its
Subsidiaries in consideration for, and under the
terms of, such sale, lease, transfer or other
disposition; provided that the aggregate amount of
all such insurance premiums, together with the
aggregate principal amount of all Indebtedness
incurred by the Borrower and its Subsidiaries under
Section 5.02(b)(xv), shall not exceed $40,000,000;
and provided further that all such insurance premiums
shall be actually paid at the time of, or within ten
days after, the receipt of such cash;
provided, however, that, notwithstanding any of the foregoing
provision of this definition, (A) any and all amounts so
deducted by any such Person pursuant to clauses (a) through
(e) of this definition shall be properly attributable to the
transaction or to the property or assets that are the subject
thereof and shall be payable solely to one or more Persons
that are not Affiliates of such Person or of any of the Loan
Parties or any Affiliate of any of the Loan Parties and (B)
if, at the time any of the commissions, discounts, fees,
costs, expenses, taxes, contingent liabilities or insurance
premiums referred to in clauses (a), (b), (d) or (e) of this
definition are actually paid or otherwise satisfied, the
reserve therefor or the amount otherwise retained by such
Person for the payment or satisfaction thereof exceeds the
amount so paid or otherwise satisfied, then the amount of such
excess reserve or retained amount, as the case may be, shall
constitute "Net Cash Proceeds" on and as of the date of such
payment or other satisfaction for all purposes of this
Agreement and, to the extent required under Sections
2.05(b)(vi) and 2.06(b), the Borrower shall reduce the
Commitments on such date in accordance with the terms of
Section 2.05(b)(vi), and shall prepay the outstanding Advances
on such date in accordance with the terms of Section 2.06(b),
in an amount equal to the amount of such excess reserve or
retained amount.
"PERFORMANCE LEVEL DETERMINATION DATE" means the date
of receipt of the Required Financial Information for the
Measurement Period ending June 30, 1999.
"PERMITTED RECEIVABLES SECURITIZATIONS" means (a) the
Caremark Receivables Securitization (with the maximum face
amount of accounts receivable which may be sold and the
minimum price which may be paid for such accounts receivables
pursuant to the Caremark Receivables Securitization being such
face amount as may be sold from time to time and such price as
may be paid from time to time pursuant to the Caremark
Receivables Securitization Documents, as in effect on the
Amendment No. 1 Effective Date) and (b) one or more other
limited recourse or nonrecourse sales and assignments of
accounts receivable of the Borrower or any of its Subsidiaries
to a Special Purpose Vehicle or any other Person that is not
an Affiliate of the Borrower or any of its Subsidiaries that,
in the case of such sales and assignments effected pursuant to
this clause (b), are consummated after the
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Amendment No. 1 Effective Date and have an aggregate maximum
face amount of all accounts receivable so sold and assigned of
not more than $10,000,000 and a minimum price paid for any
such accounts receivable of not less than 70% of the face
amount thereof; provided that, in the case of this clause (b),
any recourse of the purchasers of any such accounts receivable
to the Borrower or any of its Subsidiaries shall be on terms
reasonably satisfactory to the Required Lenders.
"SPECIAL PURPOSE VEHICLE" means (a) in the case of
the Caremark Receivables Securitization, MP Receivables and
(b) in the case of any other Permitted Receivables
Securitization, any Person that is not a Material Subsidiary
(i) which has been organized for the sole purpose of effecting
one or more Permitted Receivables Securitizations, (ii) which
has no property, assets or liabilities other than those
directly acquired or incurred in connection with such
Permitted Receivables Securitizations, (iii) all of the
liabilities and other Obligations of which are nonrecourse for
the payment or performance thereof to the Borrower or any of
its Subsidiaries other than reasonable and customary
liabilities for the breach of representations and warranties
of the Borrower or any of its Subsidiaries that are not
related to the creditworthiness of the accounts receivable of
the Borrower or any of its Subsidiaries and (iv) the legal
structure (if other than a corporation, limited partnership or
limited liability company organized under the laws of any
state of the United States of America) and the capitalization
of which have been approved by the Administrative Agent, such
approval not to be unreasonably withheld or delayed."
(b) Section 1.01 of the Credit Agreement is hereby
further amended to add the following new definitions in their
appropriate alphabetical order:
"AMENDMENT NO. 1 EFFECTIVE DATE" means the first
date on which all of the conditions precedent to the
effectiveness of Amendment No. 1 to the Loan Documents were
satisfied.
"CAREMARK RECEIVABLES PURCHASE AGREEMENT" means the
Receivables Purchase Agreement dated as of December 4, 1998
between Caremark Inc., as seller, and MP Receivables, as
buyer, as such agreement may be amended, supplemented or
otherwise modified hereafter from time to time in accordance
with the terms thereof, but solely to the extent permitted
under the terms of the Loan Documents.
"CAREMARK RECEIVABLES SECURITIZATION" means limited
recourse sales and assignments from time to time by Caremark
Inc. of its accounts receivable to MP Receivables and by MP
Receivables of such accounts receivables or interests therein
to Park Avenue Receivables Corporation and one or more
financial institutions; provided, however, that (a) the
aggregate principal amount paid by Park Avenue Receivables
Corporation and such financial institutions for all such
accounts receivable or interests therein and to be recovered
from all such accounts receivable or interests therein shall
not exceed $75,000,000 at any time outstanding, (b) the price
paid for any such accounts receivable shall be as set forth in
the Caremark Receivables Securitization Documents, as in
effect on the Amendment No. 1 Effective Date, and (c) each
such sale and assignment of such accounts receivable or
interests therein shall otherwise be effected on the terms and
conditions set forth in the Caremark Receivables
Securitization Documents.
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"CAREMARK RECEIVABLES SECURITIZATION DOCUMENTS"
means, collectively, the Caremark Receivables Purchase
Agreement, the Caremark Receivables Transfer Agreement and all
of the other agreements, instruments and other documents
evidencing or otherwise setting forth the terms of the
Caremark Receivables Securitization, in each case as such
agreement, instrument or other document may be amended,
supplemented or otherwise modified hereafter from time to time
in accordance with the terms thereof, but solely to the extent
permitted under the terms of the Loan Documents.
"CAREMARK RECEIVABLES TRANSFER AGREEMENT" means the
Receivables Transfer Agreement dated as of December 4, 1998
among MP Receivables, as transferor thereunder, Caremark Inc.,
as originator and collection agent of the accounts receivable
sold and assigned as part of the Caremark Receivables
Securitization, Park Avenue Receivables Corporation and The
Chase Manhattan Bank, as agent for Park Avenue Receivables
Corporation and the APA Banks (as defined therein), as such
agreement may be amended, supplemented or otherwise modified
hereafter from time to time in accordance with the terms
thereof, but solely to the extent permitted under the terms of
the Loan Documents.
"GOVERNMENT SERVICES" means EMSA Government Services,
Inc. (formerly known as Inphynet Government Services, Inc.)
and each of its Subsidiaries comprising part of the Government
Services Division of the Borrower.
"MP RECEIVABLES" means MP Receivables Company, a
Delaware corporation and a wholly owned Subsidiary of Caremark
Inc. organized by the Borrower in connection with the Caremark
Receivables Securitization.
"TEAM HEALTH" means Team Health, Inc. and each of its
Subsidiaries comprising part of the Contract Services Division
of the Borrower."
(c) The definition of "Affiliate" set forth in Section
1.01 of the Credit Agreement is hereby amended to add the following
proviso clause at the end of the first sentence thereof:
"; provided, however, that, solely for purposes of the
definition of "Net Cash Proceeds" set forth below in this
Section 1.01, any Person in which the Borrower or any of its
Subsidiaries maintains a minority common Equity Interest
pursuant to Section 5.02(e)(v)(A) shall not constitute an
Affiliate of the Borrower or any of its Subsidiaries."
(d) The definition of "Applicable Margin" set forth in
Section 1.01 of the Credit Agreement is hereby amended to restate
clause (a) thereof in its entirety to read as follows:
"(a) at any time during the period from the date of Amendment
No.1 to the Loan Documents through the Performance Level
Determination Date, (i) 2.25% per annum for Base Rate Advances
and 3.25% per annum for Eurodollar Rate Advances outstanding
under the Term A Facility and the Revolving Credit Facility
and (ii) 2.50% per annum for Base Rate Advances and 3.50% per
annum for Eurodollar Rate Advances outstanding under the Term
B Facility and".
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(e) The definition of "Fair Market Value" set forth in
Section 1.01 of the Credit Agreement is hereby amended to delete the
amount "15,000,000" in the last line of clause (c) thereof and to
substitute therefor the new amount "50,000,000".
(f) The definition of "Restricted Subsidiary" set forth
in Section 1.01 of the Credit Agreement is hereby amended to add at the
end of the parenthetical in the second line thereof after the words
"other than MPN" the phrase "or any Special Purpose Vehicle".
(g) Section 2.05(b) of the Credit Agreement is hereby
amended (i) to restate the parenthetical to subclause (vi)(A) thereof
in its entirety to read as follows:
"(other than any property or assets expressly permitted to be
sold, leased, transferred or disposed of under clause (i),
(ii), (iii), (iv), (vi) or (x) of Section 5.02(d) and, except
to the extent such reduction is expressly required thereunder,
under clause (v) of Section 5.02(d) and, except to the extent
such reduction is expressly required pursuant to the last
sentence of Section 5.02(d), under clause (vii), (viii) or
(xi) of Section 5.02(d) and , except to the extent such
reduction is expressly required thereunder, under clause (f)
of the definition of "Permitted Sale-Leaseback Transaction"
set forth in Section 1.01)",
(ii) to add at the end of the parenthetical to subclause (vi)(B)
thereof after the words "of Section 5.02(b)" the new language "and,
solely in the case of the Caremark Receivables Securitization, clause
(x) of Section 5.02(b)" and (iii) to restate the final proviso clause
to Section 2.05(b) in its entirety to read as follows:
"provided, however, that, notwithstanding anything to the
contrary set forth in Section 5.02(d), so long as no Default
under Section 6.01(a) or 6.01(f) or Event of Default shall
have occurred and be continuing, if on any date on which a
reduction of the Term Facilities would otherwise be required
to be made pursuant to subclause (vi)(A) of this Section
2.05(b) and the applicable clause of Section 5.02(d), the
aggregate Net Cash Proceeds or other amounts otherwise
required thereunder to reduce the Term Commitments (and to
prepay the Term Advances with a corresponding amount) on such
date are less than $10,000,000, such reduction of the Term
Commitments may be deferred (and the Borrower shall not be
obligated to make the corresponding prepayment of the
outstanding Term Advances) until the earlier of (1) two
Business Days after the end of the calendar month in which any
such Net Cash Proceeds or other amounts are received by the
Borrower or any of its Subsidiaries and (2) two Business Days
after the aggregate Net Cash Proceeds or other amounts
otherwise required thereunder to reduce the Term Commitments
(and to prepay the Term Advances with a corresponding amount)
and not previously so applied equals at least $10,000,000."
(h) Section 5.02(a) of the Credit Agreement is hereby
amended (i) to delete the word "and" at the end of clause (vi) thereof,
(ii) to add the following new clause (vii) thereto:
"(vii) Liens on the accounts receivables of Caremark Inc. and
MP Receivables, on the contracts and other property and assets
related thereto and on the proceeds thereof arising solely in
connection with the Caremark Receivables Securitization; and",
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and (iii) to renumber the existing clause (vii) of Section 5.02(a) of
the Credit Agreement as clause (viii) thereof.
(i) Section 5.02(b) of the Credit Agreement is hereby
amended (i) to delete the cross-reference "or 5.02(e)(iii)(D)" at the
end of subclause (iv) thereof and to substitute therefor the new
cross-references ", 5.02(e)(iii)(D) or 5.02(e)(iii)(E)(2)", (ii) to
delete the word "and" at the end of clause (xii) thereof, (iii) to add
the following new clauses (xiii), (xiv) and (xv) thereto:
"(xiii) Indebtedness comprised of reasonable and
customary indemnities given by the Borrower or any of its
Subsidiaries, or guarantees or other similar undertakings by
the Borrower entered into in lieu thereof, in favor of the
purchaser of property and assets of the Borrower and its
Subsidiaries being sold, leased transferred or otherwise
disposed of in accordance with Section 5.02(d)(vii) or
5.02(d)(viii) and covering liabilities incurred by the
Borrower or its applicable Subsidiary in respect of such
property and assets prior to the date of consummation of the
sale, lease, transfer or other disposition thereof, which
indemnities, guarantees or undertakings are required under the
terms of the documentation for such sale, lease, transfer or
other disposition;
(xiv) Indebtedness comprised of liabilities or
other Obligations assumed or retained by the Borrower or any
of its Subsidiaries from Subsidiaries of the Borrower that
are, or all or substantially all of the property and assets of
which are, sold, leased, transferred or otherwise disposed of
pursuant to Section 5.02(d)(vii) or 5.02(d)(viii); provided
that such liabilities or other Obligations were not created or
incurred in contemplation of the related sale, lease, transfer
or other disposition; and provided further that the assumption
or retention of such liabilities or other Obligations was
agreed to by management of the Borrower in good faith and in
connection with determining the Fair Market Value of the
related property and assets at the time of the sale, lease,
transfer or other disposition thereof;
(xv) Indebtedness comprised of insurance premiums
payable in installments by the Borrower or any of its
Subsidiaries under one or more policies of insurance covering
the medical malpractice liabilities of Team Health or
Government Services, as the case may be, arising prior to the
date of consummation of the sale, lease, transfer or other
disposition thereof in accordance with Section 5.02(d)(vii) or
5.02(d)(viii), which medical malpractice liabilities shall
have been assumed or retained by the Borrower and its
Subsidiaries in consideration for, and under the terms of,
such sale, lease, transfer or other disposition; provided that
the aggregate amount of all such insurance premiums, together
with the aggregate amount deducted from the determination of
Net Cash Proceeds for the payment of similar insurance
premiums pursuant to clause (e) of the definition of "Net Cash
Proceeds" set forth in Section 1.01 at or prior to such time,
shall not exceed $40,000,000; and",
and (iv) to renumber the existing clause (xiii) of Section 5.02(b) of
the Credit Agreement as clause (xvi) thereof.
(j) Section 5.02(d) of the Credit Agreement is hereby
amended (i) to delete clauses (vii), (viii), (ix), (x) and (xi) thereof
in their entirety and to substitute therefor the following:
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"(vii) the Borrower and its Subsidiaries may sell,
lease, transfer or otherwise dispose of all (but not less than
all) of their Equity Interests in, or all of the property and
assets (other than an immaterial portion) of, any of the
Subsidiaries of the Borrower, and any of the other property
and assets, identified on Schedule 5.02(d) hereto; provided
that:
(A) the gross proceeds received from any
such sale, lease, transfer or other disposition shall
be at least equal to the Fair Market Value of the
property and assets so sold, leased, transferred or
otherwise disposed of, determined at the time of such
sale, lease, transfer or other disposition;
(B) at least 90% of the value of the
aggregate consideration received from any such sale,
lease, transfer or other disposition shall be in
cash; provided, however, that the percentage of
noncash consideration that the Borrower or any of its
Subsidiaries is permitted to receive in connection
with any sale, lease, transfer or other disposition
of its property or assets pursuant to this subclause
(vii)(B) may be further increased so long as the
aggregate amount of all such additional noncash
consideration (i.e., the amount of noncash
consideration in excess of the percentage set forth
above in this subclause (vii)(B)) received in
connection with one or more sales, leases, transfers
or other dispositions of property and assets of the
Borrower and its Subsidiaries effected pursuant to
this clause (vii) does not exceed $20,000,000; and
(C) immediately before and immediately after
giving pro forma effect to any such sale, lease,
transfer or other disposition, no Default shall have
occurred and be continuing;
(viii) the Borrower and its Subsidiaries may sell,
lease, transfer or otherwise dispose of property and assets
not otherwise permitted to be sold, leased, transferred or
disposed of pursuant to this Section 5.02(d) (other than
Equity Interests in Restricted Subsidiaries, bulk sales of
Inventory and sales of accounts or notes receivable) so long
as the aggregate book value of all of the property and assets
of the Borrower and its Subsidiaries sold, leased, transferred
or otherwise disposed of pursuant to this clause (viii) does
not exceed $50,000,000; provided that:
(A) the gross proceeds received from any
such sale, lease, transfer or other disposition shall
be at least equal to the Fair Market Value of the
property and assets so sold, leased, transferred or
otherwise disposed of, determined at the time of such
sale, lease, transfer or other disposition;
(B) at least 90% of the value of the
aggregate consideration received from any such sale,
lease, transfer or other disposition shall be in
cash; and
(C) immediately before and immediately after
giving pro forma effect to any such sale, lease,
transfer or other disposition, no Default shall have
occurred and be continuing;
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(ix) the Borrower and its Subsidiaries may
consummate one or more Permitted Sale-Leaseback Transactions;
(x) the Borrower and its Subsidiaries may
consummate the Caremark Receivables Securitization;
(xi) the Borrower and its Subsidiaries may sell,
transfer or otherwise dispose of property and assets to any
health care provider or provider group, or any Person formed
thereby, upon the disassociation of such health care provider
or provider group from the businesses and operations of the
Borrower and its Subsidiaries in a manner that is consistent
with the past business practices of the Borrower and its
Subsidiaries, and so long as such property and assets are used
solely in the business and operation of such health care
provider or provider group; provided that immediately before
and immediately after giving pro forma effect to any such
sale, transfer or other disposition, no Default shall have
occurred and be continuing; and
(xii) so long as no Default has occurred and is
continuing, the Borrower and its Subsidiaries may grant any
option or other right to purchase any property or asset in a
transaction that is otherwise permitted under clause (vii),
(viii) or (xi) of this Section 5.02(d).
Notwithstanding any of the other provisions of this Section 5.02(d),
the Borrower and its Subsidiaries may retain up to 25% of the Net Cash
Proceeds received from time to time on or after the Amendment No. 1
Effective Date from one or more sales, leases, transfers or other
dispositions expressly permitted under clauses (vii), (viii) or (xi) of
this Section 5.02(d) for use in their businesses and operations in the
ordinary course so long as the aggregate amount of all such Net Cash
Proceeds so retained by the Borrower and its Subsidiaries does not
exceed $75,000,000. All of the Net Cash Proceeds received by the
Borrower or any of its Subsidiaries from any sale, lease, transfer or
other disposition of their respective property and assets pursuant to
clause (vii), (viii) or (xi) of this Section 5.02(d) and not otherwise
permitted to be retained by the Borrower and its Subsidiaries under the
immediately preceding sentence shall be applied to reduce the Term
Commitments in accordance with, and to the extent required under,
Section 2.05(b)(vi) and to prepay the Term Advances outstanding at such
time in accordance with, and to the extent required under, Section
2.06(b)."
(k) Section 5.02(e) of the Credit Agreement is hereby
amended (i) to add the following new subclause (iii)(E) thereto:
", (E) Caremark Inc. in MP Receivables (1) constituting
capital contributions of its accounts receivables and related
property and assets to MP Receivables pursuant to, and in
accordance with the requirements of, the Caremark Receivables
Securitization Documents or (2) evidenced by the Subordinated
Note (as defined in Section 3.2(b) of the Caremark Receivables
Purchase Agreement)",
(ii) to reletter the existing subclause (iii)(E) of Section 5.02(e) of
the Credit Agreement as subclause (iii)(F) thereof and (iii) to restate
clause (v) thereof in its entirety to read as follows:
11
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"(v) (A) the acceptance of promissory notes, contingent
payment obligations and other noncash consideration received
as partial payment of the purchase price of any property or
assets sold, leased, transferred or otherwise disposed of in
accordance with Section 5.02(d)(vii) or 5.02(d)(viii) and (B)
the maintenance of common Equity Interests in Subsidiaries of
the Borrower that cease to constitute Subsidiaries thereof as
a result of the sale, lease, transfer or other disposition of
at least 85% of the common Equity Interests in such Subsidiary
pursuant to, and in accordance with the terms of, Section
5.02(d)(vii) or 5.02(d)(viii) or the redemption and issuance
and sale of at least 85% of the common Equity Interests in
such Subsidiary to a Person other than the Borrower or any of
its Affiliates pursuant to, and in accordance with the terms
of, Section 5.02(f)(iv);".
(l) Section 5.02(f) of the Credit Agreement is hereby
amended (i) to delete the word "and" at the end of clause (ii) thereof,
(ii) to delete the punctuation "." at the end of clause (iii) thereof
and to substitute therefor the new language "; and" and (iii) to add
the following new clause (iv) thereto:
"(iv) any of the Subsidiaries of the Borrower may redeem
its outstanding common Equity Interests and promptly
thereafter issue and sell at least 85% of its common Equity
Interests to a Person other than the Borrower or any of its
Affiliates for at least the Fair Market Value thereof in order
to effect the sale, lease, transfer or other disposition of
such property and assets pursuant to, and in accordance with
the terms of, Section 5.02(d)(vii) or 5.02(d)(viii)."
(m) Section 5.02(h) of the Credit Agreement is hereby
amended (i) to restate subclause (i)(B) thereof in its entirety to read
as follows:
"(B) so long as no Default under Section 6.01(a) or 6.01
(f) or Event of Default shall have occurred and be continuing
or shall occur as a result thereof, (1) any regularly
scheduled or required redemption, repurchase or repayment of
Surviving Indebtedness or (2) any required payment of Deemed
Collections (as defined in Schedule A to the Caremark
Receivables Securitization Documents) pursuant to, and in
accordance with the terms of, the Caremark Receivables
Securitization Documents, as in effect on the Amendment No.1
Effective Date;",
(ii) to delete the word "and" at the end of subclause (i)(D) thereof,
(iii) to add the word "and" at the end of subclause (i)(E) thereof,
(iii) to add the following new subclause (i)(F) thereto:
"(F) the required payment from time to time by MP
Receivables of amounts owing to Park Avenue Receivables
Corporation under, and in accordance with the terms of, the
Caremark Receivables Transfer Agreement;",
and (iv) to restate clause (ii) thereof in its entirety to read as
follows:
"(ii) Amend, modify or change in any manner any of
the terms or conditions of (A) the Senior Notes Documents, the
TAPS Indenture or the TAPS Purchase Contract, (B) any of the
other Surviving Indebtedness, except (1) as otherwise
permitted under Section 5.02(b)(xiii) or (2) on terms and
conditions no less favorable to the Borrower and its
12
-12-
Subsidiaries or to the Lender Parties than the terms of the
Loan Documents, or (C) the Caremark Receivables Securitization
Documents, except as, either individually or in the aggregate,
is not reasonably expected to have a Material Adverse Effect
or to adversely affect the rights or interest of the
Guaranteed Parties; or".
(n) Section 5.02(i) of the Credit Agreement is hereby
amended (i) to delete the word "and" at the end of clause (iv) thereof,
(ii) to delete the punctuation "." at the end of clause (v) thereof and
to substitute therefor the new language "; and" and (iii) to add the
following new clause (vi) thereto:
"(vi) any such agreement set forth in Section 2.1(d) or
Section 4.2(j) of the Caremark Receivables Purchase Agreement
or Section 5.2(a) or Section 9.10 of the Caremark Receivables
Transfer Agreement, as in effect on the Amendment No. 1
Effective Date."
(o) Section 5.02(j) of the Credit Agreement is hereby
amended (i) to delete the word "and" at the end of subclause (F)
thereof, (ii) to delete the punctuation "." at the end of subclause (G)
thereof and to substitute therefor the new language "; and" and (iii)
to add the following new subclause (H) thereto:
"(H) any such agreements of Caremark Inc. or MP
Receivables set forth in the Caremark Receivables
Securitization Documents, as in effect on the Amendment No.1
Effective Date."
(p) Section 5.02(k) of the Credit Agreement is hereby
amended to add in the first line thereof after the phrase "or acquire
any Subsidiary" the new language "other than a Special Purpose
Vehicle".
(q) Section 5.03 of the Credit Agreement is hereby
amended (i) to add the following new subsections (q) and (r) thereto:
"(q) Permitted Receivables Securitizations. As
soon as possible and in any event within five Business Days
after:
(i) a Responsible Officer of the
Borrower or any of its Subsidiaries knows or has
reason to know of the occurrence of each Termination
Event or Potential Termination Event (each as defined
in the Caremark Receivables Securitization Documents)
(or any similar event or circumstance under any
instrument, agreement or other document evidencing or
otherwise setting forth the terms and conditions of
any other Permitted Receivables Securitization),
continuing on the date of such statement, a statement
of such Responsible Officer or a Responsible Officer
of the Borrower setting forth the details of such
Termination Event, Potential Termination Event or
similar event or circumstance (including, without
limitation, the anticipated effect thereof), the
period of time such Termination Event, Potential
Termination Event or similar event or circumstance
has existed and been continuing and the actions that
the Borrower and/or any of its Subsidiaries have
taken and/or propose to take with respect thereto;
and
13
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(ii) the furnishing or receipt thereof,
copies of any statement or report furnished to or
received from the agent, originator or servicer for,
or any purchaser under, the Caremark Receivables
Securitization (or any similar Person under or
related to any other Permitted Receivables
Securitization) pursuant to the terms of any of the
Caremark Receivables Securitization Documents (or any
similar instruments, agreements or other documents
evidencing or otherwise setting forth the terms and
conditions of any other Permitted Receivables
Securitization) (including, without limitation, any
amendments, waivers or consents given or requested in
respect thereof, but excluding any statements or
reports regarding the aging of, or collection on, any
of the accounts receivable subject thereto or any
interests therein, the ordinary course application of
proceeds therefrom (including any Settlement
Statements and Deposit Reports (each as defined in
the Caremark Receivables Securitization Documents)),
the selection, conversion or continuation of tranche
periods or tranche rates and other statements and
reports regarding the ongoing administration of the
Caremark Receivables Securitization in the ordinary
course of business) and not otherwise required to be
furnished to the Administrative Agent and the Lender
Parties pursuant to any other clause of this Section
5.03.
(r) Asset Sales. As soon as possible and in any
event within two Business Days after the consummation of each
sale, lease, transfer or other disposition of any property or
assets of the Borrower or any of its Subsidiaries that is
required to reduce the Commitments of the Lender Parties under
Section 2.05(b)(vi) or to prepay any outstanding Advances
under Section 2.06(b), a certificate of a Responsible Officer
of the Borrower, in form and substance reasonably satisfactory
to the Administrative Agent, setting forth in reasonable
detail (A) the aggregate consideration received for, and the
calculation of the Net Cash Proceeds received from, such sale,
lease, transfer or other disposition, (B) a description
(including, without limitation, the amount) of all noncash
consideration comprising part of the aggregate consideration
for such sale, lease, transfer or other disposition, (C) a
description (including, without limitation, the amount) of all
amounts deducted in determining the Net Cash Proceeds received
from such sale, lease, transfer or other disposition pursuant
to the terms of the definition of "Net Cash Proceeds" set
forth in Section 1.01 and, to the extent reasonably
ascertainable, the estimated date for the actual payment of
all amounts so deducted from such Net Cash Proceeds and not
paid on the date of receipt thereof and (D) the aggregate
amount of Net Cash Proceeds from such sale, lease, transfer or
other disposition permitted to be retained by the Borrower and
its Subsidiaries under the terms of the Loan Documents.",
and (ii) to reletter the existing subsection (q) of Section 5.03 of the
Credit Agreement as subsection (s) thereof.
(r) Section 6.01 of the Credit Agreement is hereby
amended (i) to add the word "or" at the end of subsection (o) thereof
and (ii) to add the following new subsection (p) thereto:
"(p) a "Termination Event" (as defined in the
Caremark Receivables Securitization Documents (or any similar
event or circumstance under any instrument, agreement or other
document evidencing or otherwise setting forth the terms and
conditions of any other Permitted Receivables Securitization))
shall have occurred and be continuing
14
-14-
under the Caremark Receivables Securitization Documents (or
any such similar instruments, agreements or other
documents);".
(s) All cross-references in the Credit Agreement to the
existing Sections 5.02(a)(vii), 5.02(b)(iii), 5.02(d)(x),
5.02(e)(iii)(E) and 5.03(q) thereof are, upon the occurrence of the
Amendment Effective Date, hereby deleted in their entirety and replaced
with new references to Sections 5.02(a)(viii), 5.02(b)(xvi),
5.02(d)(xi), 5.02(e)(iii)(F) and 5.03(s) thereof, respectively.
(t) Schedule 5.02(d) to the Credit Agreement is, upon the
occurrence of the Amendment Effective Date, hereby deleted in its
entirety and replaced with the new Schedule 5.02(d) to the Credit
Agreement attached hereto as Annex A.
SECTION 2. Conditional Waiver of Certain Provisions of the
Credit Agreement. Any and all requirements of the Borrower to comply with
Section 5.04 of the Credit Agreement for the Measurement Period ending on
December 31, 1998 and at any time thereafter until January 15, 1999 are, solely
for the period commencing on the Amendment Effective Date and ending on January
15, 1999 (the "WAIVER TERMINATION DATE"), waived by the Lender Parties. On the
Waiver Termination Date, without any further action by or notice to or from any
Agent or any Lender Party, all of the terms and provisions set forth in the Loan
Documents with respect to the requirements of Section 5.04 that are waived under
this Section 2 and not modified or further waived prior to such time shall be
and become in full force and effect, and the Agents and the other Guaranteed
Parties shall have all of the rights and remedies afforded to them under the
Loan Documents with respect to any and all such requirements as though no waiver
had been granted under this Section 2.
SECTION 3. Conditions Precedent to the Effectiveness of this
Amendment and Waiver. This Amendment and Waiver shall become effective as of the
first date (the "AMENDMENT EFFECTIVE DATE") on which, and only if, each of the
following conditions precedent shall have been satisfied:
(a) The Administrative Agent shall have received (i)
counterparts of this Amendment and Waiver executed by the Borrower and
the Required Lenders or, as to any of the Lender Parties, advice
satisfactory to the Administrative Agent that such Lender Party has
executed this Amendment and Waiver and (ii) the Consent attached hereto
shall have been executed and delivered by each of the Restricted
Subsidiaries.
(b) The Lender Parties shall have received a copy,
certified by a Responsible Officer of the Borrower or Caremark Inc., of
a summary of terms setting forth all material terms and conditions of
the Caremark Receivables Securitization. The Caremark Receivables
Securitization shall have been consummated or shall be consummated
concurrently with the effectiveness of this Amendment and Waiver in
accordance with the terms of the Caremark Receivables Securitization
Documents, without the inclusion therein or omission therefrom of, or
any waiver or amendment of, any material term or condition thereof not
consented to by the Required Lenders and in compliance with all
applicable Requirements of Law.
15
-15-
(c) All of the Governmental Authorizations, and all of
the consents, approvals and authorizations of, and notices and filings
to or with, and other actions by, any other Person necessary in
connection with the Caremark Receivables Securitization, any of the
Loan Documents or the Caremark Receivables Securitization Documents or
any of the other transactions contemplated hereby or thereby shall have
been obtained (without the imposition of any conditions that are not
reasonably acceptable to the Required Lenders) and shall remain in full
force and effect.
(d) The representations and warranties set forth in each
of the Loan Documents shall be correct in all material respects on and
as of the Amendment Effective Date, before and after giving effect to
this Amendment and Waiver, as though made on and as of such date
(except (i) for any such representation and warranty that, by its
terms, refers to a specific date other than the Amendment Effective
Date, in which case as of such specific date, (ii) that the
Consolidated financial statements of the Borrower and its Subsidiaries
referred to in Sections 4.01(f) and 4.01(g) of the Credit Agreement
shall be deemed to refer to the Consolidated financial statements of
the Borrower and its Subsidiaries comprising part of the Required
Financial Information most recently delivered to the Administrative
Agent and the Lender Parties pursuant to Sections 5.03(b) and 5.03(c),
respectively, on or prior to the Amendment Effective Date and (iii)
that the forecasted Consolidated financial statements of the Borrower
and its Subsidiaries referred to in Section 4.01(h) of the Credit
Agreement shall be deemed to refer to the forecasted Consolidated
financial statements of the Borrower and its Subsidiaries most recently
delivered to the Administrative Agent and the Lender Parties prior to
the Amendment Effective Date).
(e) No event shall have occurred and be continuing, or
shall result from the effectiveness of this Amendment and Waiver, that
constitutes a Default.
(f) The Administrative Agent shall have received on or
before the Amendment Effective Date a favorable opinion of King &
Spalding, special counsel for the Loan Parties, dated the Amendment
Effective Date and in form and substance reasonably satisfactory to the
Required Lenders.
(g) The Borrower shall have paid to the Administrative
Agent, for the account of each of the Lenders that has executed and
delivered a counterpart of this Amendment and Waiver to the
Administrative Agent on or prior to the Amendment Effective Date (or
advised the Administrative Agent in a manner satisfactory to it that
such Lender has executed this Amendment and Waiver on or prior to the
Amendment Effective Date), an amendment fee of 0.25% on the aggregate
Commitments of such Lender.
(h) All of the accrued fees and expenses of the
Administrative Agent, the Arranger and the Lender Parties (including
the accrued fees and expenses of counsel for the Administrative Agent)
shall have been paid in full.
The effectiveness of this Amendment and Waiver is further conditioned upon the
accuracy of all of the factual matters described herein. This Amendment and
Waiver is subject to the provisions of Section 8.01 of the Credit Agreement.
16
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SECTION 4. Reference to and Effect on the Loan Documents. (a) On and
after the Amendment Effective Date, each reference in the Credit Agreement to
"this Agreement", "hereunder", "hereof" or words of like import referring to the
Credit Agreement, and each reference in the Notes and each of the other Loan
Documents to "the Credit Agreement", "thereunder", "thereof" or words of like
import referring to the Credit Agreement, shall mean and be a reference to the
Credit Agreement, as amended and otherwise modified by this Amendment and
Waiver.
(b) The Credit Agreement, the Notes and each of the other
Loan Documents, except to the extent of the amendments and waivers specifically
provided above, are and shall continue to be in full force and effect and are
hereby in all respects ratified and confirmed. The execution, delivery and
effectiveness of this Amendment and Waiver shall not, except as expressly
provided herein, operate as a waiver of any right, power or remedy of any of the
Guaranteed Parties or the Administrative Agent under any of the Loan Documents,
nor constitute a waiver of any provision of any of the Loan Documents.
SECTION 5. Costs and Expenses. The Borrower hereby agrees to
pay, upon demand, all of the reasonable costs and expenses of the Administrative
Agent and the Arranger (including, without limitation, the reasonable fees and
expenses of counsel for the Administrative Agent) in connection with the
preparation, execution, delivery, administration, modification and amendment of
this Amendment and Waiver and all of the agreements, instruments and other
documents delivered or to be delivered in connection herewith, all in accordance
with the terms of Section 8.04 of the Credit Agreement.
SECTION 6. Execution in Counterparts. This Amendment and
Waiver may be executed in any number of counterparts and by different parties
hereto in separate counterparts, each of which when so executed shall be deemed
to be an original and all of which taken together shall constitute one and the
same agreement. Delivery of an executed counterpart of a signature page to this
Amendment and Waiver by telecopier shall be effective as delivery of a manually
executed counterpart of this Amendment and Waiver.
SECTION 7. Governing Law. This Amendment and Waiver shall be
governed by, and construed in accordance with, the laws of the State of New
York.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment and Waiver to be executed by their respective officers, thereunto duly
authorized, as of the date first written above.
THE BORROWER
MEDPARTNERS, INC.
By /s/ Xxxxx X. Xxxxxxx, XX
------------------------------
Name:
Title:
17
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THE ADMINISTRATIVE AGENT
NATIONSBANK, N.A.
By /s/ Xxxxxx Xxxxxx
---------------------------------
Name:
Title: VP
THE LENDER PARTIES
NATIONSBANK, N.A., as a Lender,
the Swing Line Bank and the Issuing
Bank
By /s/ Xxxxxx Xxxxxx
---------------------------------
Name:
Title: VP
AMSOUTH BANK
By /s/ Xxxxxxx X. Xxxxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION
By /s/ Xxxxxx Xxxxxx
---------------------------------
Name:
Title: VP
THE CHASE MANHATTAN BANK
By /s/ Xxxx Xxx Xxx
---------------------------------
Name: Xxxx Xxx Xxx
Title: Vice President
CREDIT LYONNAIS NEW YORK BRANCH
By /s/ X. Xxxxxxxx
---------------------------------
Name: Farboud Tavangar
Title: First Vice President
18
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DEBT STRATEGIES FUND, INC.
By/s/ Xxxxxxx X. Xxxxxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Authorized Signatory
THE FIRST NATIONAL BANK OF CHICAGO
By /s/ L. Xxxxxxx Xxxxxxxx
---------------------------------
Name: L. Xxxxxxx Xxxxxxxx
Title: Vice President
FIRST UNION NATIONAL BANK
By /s/ M Xxxxx
---------------------------------
Name: X. Xxxxx
Title: Sr. V.P.
FLOATING RATE PORTFOLIO
BY: INVESCO Senior Secured
Management, Inc., as
attorney in fact
By /s/ Xxxxxxxx Xxxxxxxx
---------------------------------
Name: Xxxxxxxx X. Xxxxxxxx
Title:Authorized Signatory
XXXXXXX LYNCH, PIERCE, XXXXXX &
XXXXX INCORPORATED
By /s/ Xxxx Xxxxxxx
---------------------------------
Name: Xxxx Xxxxxxx
Title:Director
19
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XXXXXXX XXXXX DEBT STRATEGIES
PORTFOLIO, INC.
BY: XXXXXXX XXXXX ASSET
MANAGEMENT L.P., as Investment
Advisor
By /s/ Xxxxxxx X. Xxxxxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Authorized Signatory
XXXXXXX XXXXX GLOBAL INVESTMENT
SERIES:INCOME STRATEGIES PORTFOLIO
BY: XXXXXXX XXXXX ASSET
MANAGEMENT, L.P., as Investment
Advisor
By /s/ Xxxxxxx X. Xxxxxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Authorized Signatory
ML CBO IV (CAYMAN) LTD.
BY: HIGHLAND CAPITAL MANAGEMENT,
L.P., as Collateral Manager
By
---------------------------------
Name:
Title:
XXXXXX GUARANTY TRUST COMPANY OF
NEW YORK
By
---------------------------------
Name:
Title:
XXX CAPITAL FUNDING, LP
BY: HIGHLAND CAPITAL MANAGEMENT,
L.P.,
as Collateral Manager
By
---------------------------------
Name:
Title:
20
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PAMCO CAYMAN, LTD.
BY: HIGHLAND CAPITAL MANAGEMENT,
L.P.,
as Collateral Manager
By
---------------------------------
Name:
Title:
SALOMON BROTHERS HOLDING
COMPANY, INC.
By /s/ Xxxxx Xxxxxxx
---------------------------------
Name Xxxxx Xxxxxxx
Title: Managing Director
SCOTIABANC INC.
By /s/ Xxxx Xxxxxxx
---------------------------------
Name: Xxxx Xxxxxxx
Title: Relationship Manager
XXXXX XXX & XXXXXXX INCORPORATED,
as Agent for KEYPORT LIFE
INSURANCE COMPANY
By /s/ Xxxxx X. Good
---------------------------------
Name: Xxxxx X. Good
Title: Vice President &
Portfolio Manager
XXX XXXXXX AMERICAN CAPITAL PRIME
RATE INCOME TRUST
By /s/Xxxxxxx X. Xxxxxxx
---------------------------------
Name:Xxxxxxx X. Xxxxxxx
Title: Senior Vice President &
Director
21
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XXX XXXXXX AMERICAN CAPITAL
SENIOR INCOME TRUST
By /s/Xxxxxxx X. Xxxxxxx
---------------------------------
Name:Xxxxxxx X. Xxxxxxx
Title: Senior Vice President
& Director
XXX XXXXXX CLO II, LIMITED
BY: XXX XXXXXX AMERICAN CAPITAL
MANAGEMENT, INC.,
as Collateral Manager
By /s/Xxxxxxx X. Xxxxxxx
---------------------------------
Name:Xxxxxxx X. Xxxxxxx
Title: Senior Vice President
& Director
WACHOVIA BANK, N.A.
By /s/ Xxxx X. Xxxxx
---------------------------------
Name: Xxxx X. Xxxxx
Title: Assistant Vice President
00
-00-
XXXXXXX XXXXXXXX (XXXXX), INC.
By /s/ Xxxx X. Xxxxxxxx
---------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Vice President
23
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PILGRIM PRIME RATE TRUST
BY: PILGRIM INVESTMENTS, INC., as
Investment Manager
By /s/ Xxxxxxx X. XxXxxxx
---------------------------------
Name: Xxxxxxx X. XxXxxxx, CFA
Title: Assistant Vice President
ML CLO XX PILGRIM AMERICA
(CAYMAN) LTD.
BY: PILGRIM INVESTMENTS, INC., as
Investment Manager
By /s/ Xxxxxxx X. XxXxxxx
---------------------------------
Name: Xxxxxxx X. XxXxxxx, CFA
Title: Assistant Vice President
