FOURTH AMENDMENT TO CREDIT AGREEMENT
THIS FOURTH AMENDMENT TO CREDIT AGREEMENT (this "Fourth Amendment"), dated
as of October 30, 1998, 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, N.A. (successor by merger to NationsBank of Texas, N.A.), as
Administrative Agent (in said capacity, "the Administrative Agent").
BACKGROUND
1. The Borrower, the Lenders, the Co-Agents and the Administrative Agent
are parties to that certain Credit Agreement, dated as of October 8, 1997, as
amended by that certain First Amendment to Credit Agreement, dated as of
November 12, 1997, that certain Second Amendment to Credit Agreement, dated as
of March 27, 1998, and that certain Third Amendment to Credit Agreement, dated
as of May 29, 1998 (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)
2. The Borrower, the Lenders, the Co-Agents and the Administrative Agent
desire to (a) amend the Credit Agreement to make certain changes therein and (b)
provide a waiver with respect to the Acquisition by the Borrower of all of the
issued and outstanding capital stock of Alpha Healthcare Limited, which stock is
not owned by the Borrower on October 30, 1998, whereby Alpha Healthcare Limited
shall become a wholly-owned Subsidiary of the Borrower, for an Acquisition
Consideration not to exceed $60,000,000 (the "Alpha Acquisition").
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.
(1) The definition of "APPLICABLE LIBOR RATE MARGIN" set forth in
SECTION 1.1 of the Credit Agreement is hereby amended to read as follows:
"'APPLICABLE LIBOR 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 2.50% 2.75% 3.00%
(b) SUBSEQUENT PRICING PERIOD
(i) The Leverage Ratio is equal 2.75% 3.00% 3.25%
to or greater than
6.50 to 1
(ii) The Leverage Ratio is less 2.50% 2.75% 3.00%
than 6.50 to 1 but is
equal to or greater
than 6.00 to 1
(iii) 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
(iv) The Leverage Ratio is less 2.00% 2.75% 3.00%
than 5.50 to 1 but is
equal to or greater
than 5.00 to 1
(v) 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
(vi) 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
(vii) 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
(viii) The Leverage Ratio is less 1.00% 2.25% 2.50%
than 3.50 to 1 but is
equal to or greater
than 3.00 to 1
(ix) The Leverage Ratio is less 0.75% 2.25% 2.50%
than 3.00 to 1
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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 (A) 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 and (B) from and including October 30, 1998 until any
adjustment in the Applicable LIBOR Rate Margin as provided in clause (A)
immediately preceding, the Applicable LIBOR Rate Margin shall be determined
as if the Leverage Ratio is equal to or greater than 6.50 to 1. 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 6.50 to 1
until such time as such financial statements and Compliance Certificate are
received."
(2) The definition of "COMPLIANCE CERTIFICATE" set forth in SECTION 1.1 of
the Credit Agreement is hereby amended to read as follows:
"'COMPLIANCE CERTIFICATE' means a certificate, signed by the Chief
Financial Officer, Vice President-Finance or Treasurer of the Borrower in
substantially the form of EXHIBIT G hereto, appropriately completed. For
purposes hereof, all references in this Agreement to chief financial officer as
related to the Compliance Certificate shall also mean and include the Vice
President-Finance or the Treasurer of the Borrower."
(3) The definition of "DOMESTIC EBITDA" set forth in SECTION 1.1 of the
Credit Agreement is hereby amended 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
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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, plus (c) to the extent included in
determining pre-tax net income, Dividends paid in respect of the Sun
Financing Preferred Securities, in each case for the four fiscal quarters
immediately preceding the date of determination. 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 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."
(4) The definition of "EBITDA" set forth in SECTION 1.1 of the Credit
Agreement is hereby amended 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 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
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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, plus (c) to the extent included in
determining pre-tax net income, Dividends paid in respect of the Sun
Financing Preferred Securities, 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."
(5) The definition of "NET WORTH" set forth in SECTION 1.1 of the Credit
Agreement is hereby amended to read as follows:
"'NET WORTH' means, for the Borrower and its Subsidiaries, on a
consolidated basis (provided that if Non-Guaranteeing Subsidiary EBITDAR
shall ever equal or exceed 15% of EBITDAR, Net Worth shall be calculated
for the Borrower and its Restricted Subsidiaries on a consolidated basis,
but adjusted to exclude (i), (ii) and (iii) immediately following for
Non-Guaranteeing Restricted Subsidiaries), determined in accordance with
GAAP, the sum of (i) capital stock taken at par value, plus (ii) capital
surplus, plus (iii) retained earnings less treasury stock; provided,
however, notwithstanding the above, for purposes of calculation of Net
Worth (but without duplication) there shall be added to Net Worth an amount
equal to 50% of the aggregate liquidation amount of the outstanding Sun
Financing Preferred Securities."
(6) The definition of "PERMITTED LIENS" set forth in SECTION 1.1 of the
Credit Agreement is hereby amended by deleting all references to "Section
7.1(k)" in clause (f) thereof and inserting "Section 7.1(l)" in lieu thereof.
(7) SECTION 1.1 of the Credit Agreement is hereby amended by adding the
following defined term thereto in proper alphabetical order:
"'ISRAEL INVESTMENT' means the direct or indirect Investment by the
Borrower in the capital stock of a Company located in Israel not to exceed
$5,000,000 in aggregate amount."
(8) SECTION 2.5(c) of the Credit Agreement is hereby amended to read as
follows:
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"(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 Subsidiary, whether through the conversion of Indebtedness or
otherwise (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 (viii) during any fiscal year does not
exceed $5,000,000, (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 set forth
in the Compliance Certificate received by the Lenders immediately preceding
such sale or disposition (as adjusted to give effect, on a pro forma basis,
to the application of the Net Cash Proceeds thereof as provided herein and
as certified to the Lenders by the chief financial officer of the Borrower
prior to such application of such Net Cash Proceeds) 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 Borrower and its Restricted Subsidiaries
described in SECTION 4.1(d) hereof) at any time that the Leverage Ratio set
forth in the Compliance Certificate received by the Lenders immediately
preceding such sale or disposition (as adjusted to give effect, on a pro
forma basis, to the application of the Net Cash Proceeds thereof as
provided herein and as certified to the Lenders by the chief financial
officer of the Borrower prior to such application of such Net Cash
Proceeds) 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 (or cash collateral provided in respect of Reimbursement
Obligations) pursuant to this SECTION 2.5(c) shall permanently reduce the
Revolving Credit Commitment by the amount of such prepayment or cash
collateral."
(9) SECTION 7.1(i) of the Credit Agreement is hereby amended to read as
follows:
"(i) Guaranties by the Borrower of obligations of Foreign Subsidiaries
(including Indebtedness pursuant to letters of credit in respect of
obligations of Foreign Subsidiaries, and to the extent that such Guaranty
relates to Operating Leases, such Guaranty to be calculated as an amount
equal to the product of rental expense for the four fiscal quarters
immediately preceding the date of calculation subject to the terms of such
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Guaranty multiplied by eight), 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) hereof, not to
exceed (i) for fiscal year 1998, the sum of (A) $55,000,000 plus (B) the
Israel Investment, and (ii) for each fiscal year thereafter, (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;"
(10) SECTION 7.1(l) of the Credit Agreement is hereby amended to read as
follows:
"(l) other Indebtedness not to exceed in aggregate principal amount
outstanding at any time 5% of the Total Assets of the Borrower and its
Restricted Subsidiaries on a consolidated basis; PROVIDED, HOWEVER, the
aggregate amount of such Indebtedness which is not used to finance existing
Indebtedness or finance as a Synthetic Lease the obligations with respect
to which were previously classified as an Operating Lease may not exceed 3%
of the Total Assets of the Borrower and its Restricted Subsidiaries on a
consolidated basis."
(11) SECTION 7.3(j) of the Credit Agreement is hereby amended 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 (including
Non-Guaranteeing Restricted Subsidiaries), not to exceed, together with the
aggregate Acquisition Consideration for all Non-Guaranteeing Restricted
Subsidiaries (other than Sun Financing) acquired pursuant to SECTION
7.5(a)(ii) hereof, $50,000,000 in aggregate principal amount, and (ii) in
Foreign Entities (calculated net of any repayment of loans and advances by
Foreign Entities) together with the Acquisition Consideration for all
Foreign Subsidiaries acquired pursuant to SECTION 7.5(b) hereof and
obligations in respect of Guaranties pursuant to SECTION 7.1(i) hereof, not
to exceed (A) for fiscal year 1998, the sum of (y) $55,000,000 plus (z) the
Israel Investment, and (B) for each fiscal year thereafter, (y) $60,000,000
or (z) $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."
(12) SECTION 7.4(a) of the Credit Agreement is hereby amended by deleting
"$1,000,000" from the penultimate line thereof and inserting "$5,000,000" in
lieu thereof.
(13) SECTION 7.5 of the Credit Agreement is hereby amended 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 during any fiscal year, unless (i) the
Acquisition is set forth on SCHEDULE 14 hereto or
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(ii)(A) the Acquisition is of a Restricted Subsidiary or of the assets of a
Domestic Entity, (B) 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, (C) 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) $100,000,000 or (z) $150,000,000 if the
Leverage Ratio as of the end of any fiscal quarter during such fiscal year
is less than 5.50 to 1, (D) each of such Restricted Subsidiary and its
Restricted Subsidiaries (in each case other than a Non-Guaranteeing
Restricted Subsidiary), 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,
and (E) notwithstanding clauses (B) and (C) immediately above, if the
Acquisition is of a Restricted Subsidiary which is a Non-Guaranteeing
Restricted Subsidiary, the aggregate Acquisition Consideration for all
Non-Guaranteeing Restricted Subsidiaries (other than Sun Financing),
together with the aggregate Investments made pursuant to SECTION 7.3(j)(i)
hereof, is less than or equal to $50,000,000 in aggregate amount at all
times; or (b) Acquisition of a Foreign Subsidiary, during any fiscal year,
unless (i) the Acquisition Consideration for all such Acquisitions,
together with the aggregate amount of obligations incurred in respect of
Guaranties pursuant to SECTION 7.1(i) and Investments made pursuant to
SECTION 7.3(j) which are in Foreign Entities, does not exceed (A) for
fiscal year 1998, the sum of (y) $55,000,000 plus (z) the Israel
Investment, and (B) for each fiscal year thereafter, (y) $60,000,000 or (z)
$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; (ii) the Acquisition
Consideration for any single Acquisition or series of related Acquisitions
does not exceed $30,000,000 and (iii) to the extent such Foreign Subsidiary
is not an Inactive Subsidiary or 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."
(14) SECTION 7.9 of the Credit Agreement is hereby amended 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) 1.25 to 1 at the
end of the fiscal quarter ending September 30, 1998 and at the end of any
fiscal quarter thereafter through and including September 30, 2000, (b)
1.35 to 1 at the end of any fiscal quarter thereafter through and including
September 30, 2001, (c) 1.40 to 1 at the end of any fiscal quarter
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thereafter through and including September 30, 2003, and (d) 1.50 to 1 at the
end of any fiscal quarter thereafter."
(15) SECTION 7.10 of the Credit Agreement is hereby amended to read as
follows:
"Section 7.10 LEVERAGE RATIO. The Borrower shall not permit the
Leverage Ratio to be greater than (a) 6.90 to 1 at the end of the fiscal
quarter ending September 30, 1998 and at the end of any fiscal quarter
thereafter through and including Xxxxx 00, 0000, (x) 6.75 to 1 at the end
of the fiscal quarters ending June 30, 1999 and September 30, 1999, (c)
6.50 to 1 at the end of any fiscal quarter thereafter through and including
September 30, 2000, (d) 6.25 to the end of any fiscal quarter thereafter
through and including September 30, 2001, (e) 6.00 to 1 at the end of any
fiscal quarter thereafter through and including September 30, 2002, (f)
5.50 at the end of any fiscal quarter thereafter through and including
September 30, 2003, (g) 5.25 to 1 at the end of any fiscal quarter
thereafter through and including September 30, 2004 and (h) 5.00 to 1 at
the end of any fiscal quarter thereafter."
(16) SECTION 7.11 of the Credit Agreement is hereby amended to read as
follows:
"Section 7.11 NET WORTH. The Borrower shall not permit Net Worth at
the end of any fiscal quarter to be less than $491,000,000, plus (a) an
amount equal to 50% of the aggregate liquidation amount of the outstanding
Sun Financing Preferred Securities, plus (b) an amount equal to 75% of
cumulative Net Income for the period from July 1, 1998 through the end of
such fiscal quarter (but excluding from the calculation of such cumulative
Net Income the effect of any fiscal quarter for which Net Income was a
negative number), plus (c) an amount equal to 100% of the net worth of any
Person that becomes a Subsidiary of the Borrower or is merged into or
consolidated with the Borrower or any of its Subsidiaries or substantially
all of the assets of which are acquired by the Borrower or any of its
Subsidiaries to the extent the purchase price therefor is paid in equity
securities of the Borrower or any of its Subsidiaries, plus (d) 75% of the
increase in shareholders' equity of the Borrower pursuant to offerings of
equity securities of the Borrower or any of its Subsidiaries or pursuant to
the conversion or exchange of any convertible subordinated debt or
redeemable preferred stock into equity securities of the Borrower or any of
its Subsidiaries."
(17) SECTION 7.18 of the Credit Agreement is hereby amended to read as
follows:
"Section 7.18 SENIOR DEBT TO EBITDAR RATIO. The Borrower shall not
permit the Senior Debt to EBITDAR Ratio to be greater than (a) 5.75 to 1 at
the end of the fiscal quarter ending September 30, 1998 and at the end of
any fiscal quarter thereafter through and including September 30, 1999, (b)
5.50 to 1 at the end of any fiscal quarter thereafter through and including
September 30, 2000, (c) 5.25 to 1 at the end of any fiscal quarter
thereafter through and including September 30, 2001, (d) 5.00 to 1 at the
end of any fiscal
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quarter thereafter through and including September 30, 2002, and (e) 4.50
to 1 at the end of any fiscal quarter thereafter."
(18) The Compliance Certificate is hereby amended to be in the form of
EXHIBIT G hereto.
2. WAIVER. Subject to the terms hereof, the Lenders hereby agree that
the Alpha Acquisition shall be excluded from the restrictions set forth in
SECTIONS 7.1(i), 7.3(j) and 7.5(b) hereof.
3. 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 and the waiver contemplated by the foregoing Section 2:
(1) 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;
(2) no event has occurred and is continuing which constitutes a Default or
an Event of Default;
(3) the Borrower has full power and authority to execute and deliver this
Fourth Amendment, and the Credit Agreement, as amended hereby, the execution,
delivery and performance of this Fourth Amendment and the Credit Agreement, as
amended hereby, has been duly authorized by all corporate action of the
Borrower, and this Fourth Amendment 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;
(4) neither the execution, delivery and performance of this Fourth
Amendment 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
(5) 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 Fourth Amendment and the Credit
Agreement, as amended hereby, or (ii) acknowledgment of this Fourth Amendment by
each Guarantor.
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4. CONDITIONS OF EFFECTIVENESS. This Fourth Amendment shall be effective
(and the adjustment of the Applicable LIBOR Rate Margin provided herein) as of
October 30, 1998, subject to the following:
(1) the Administrative Agent shall have received counterparts of this
Fourth Amendment executed by the Determining Lenders; provided, however,
notwithstanding this Section 4, the amendment of SECTION 2.5(c) of the Credit
Agreement provided for in SECTION 1(h) of this Fourth Amendment shall not be
effective unless and until Lenders whose Total Specified Percentages aggregate
at least 66-2/3% shall have executed counterparts of this Fourth Amendment;
(2) the Administrative Agent shall have received counterparts of this
Fourth Amendment executed by the Borrower and acknowledged by each Guarantor;
(3) the representations and warranties set forth in Section 3 of this
Fourth Amendment shall be true and correct; and
(4) 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.
5. AMENDMENT FEE. The Borrower covenants and agrees to pay an amendment
fee to the Lenders which execute and deliver this Fourth Amendment to the
Administrative Agent (or its counsel) not later than 5:00 p.m., Dallas time,
October 28, 1998 in an amount equal to the product of (a) 0.25% multiplied by
(b)(i) with respect to each Lender having a portion of the Revolving Credit
Commitment, an amount equal to such Lender's portion of the Revolving Credit
Commitment and (ii) with respect to each Lender which is owed Facility A Term
Loan Advances, Facility B Term Loan Advances or Facility C Term Loan Advances,
the aggregate principal amount of Facility A Term Loan Advances, Facility B Term
Loan Advances and Facility C Term Loan Advances owed to such Lender. Such
amendment fee shall be paid in immediately available funds and shall be due and
payable to each Lender no later than one Business Day after the date which this
Fourth Amendment becomes effective. The Borrower agrees that the failure to pay
the amendment fee provided in this Section 5 shall be an Event of Default under
SECTION 8.1(b)(i) of the Credit Agreement.
6. REFERENCE TO THE CREDIT AGREEMENT.
(1) Upon the effectiveness of this Fourth 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 Fourth
Amendment.
-11-
(2) The Credit Agreement, as amended by this Fourth Amendment, and all
other Loan Documents shall remain in full force and effect and are hereby
ratified and confirmed.
7. GUARANTOR'S ACKNOWLEDGMENT. By signing below, each of the Guarantors
(a) acknowledges, consents and agrees to the execution, delivery and performance
by the Borrower of this Fourth Amendment, 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 Fourth Amendment, (ii) hereby
ratified and confirmed and (iii) not subject to any claims, offsets, defenses or
counterclaims.
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 Fourth 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 Fourth Amendment).
9. EXECUTION IN COUNTERPARTS. This Fourth 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 Fourth 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 Fourth Amendment are included
herein for convenience of reference only and shall not constitute a part of this
Fourth Amendment for any other purpose.
12. ENTIRE AGREEMENT. THE CREDIT AGREEMENT, AS AMENDED BY THIS FOURTH
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.
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
REMAINDER OF PAGE LEFT INTENTIONALLY BLANK
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
-12-
IN WITNESS WHEREOF, the parties hereto have executed this Fourth Amendment as
the date first above written.
SUN HEALTHCARE GROUP, INC.
By:
-------------------------------------
Xxxxxx X. Xxxxxx
Chief Financial Officer
NATIONSBANK, N.A., as Administrative
Agent and as a Lender
By:
-------------------------------------
F. Xxxxx Xxxxxxxx
Senior Vice President
000 Xxxxxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxx, Xxxxx 00000
Attn: F. Xxxxx Xxxxxxxx
Senior Vice President
BANK OF AMERICA NATIONAL TRUST & SAVINGS
ASSOCIATION, as a Co-Agent and as a Lender
By:
-------------------------------------
Name:
--------------------------------
Title:
-------------------------------
000 Xxxxx Xxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxx X. Xxxxx
-13-
SCOTIABANC INC., as a Co-Agent and as a
Lender
By:
-------------------------------------
Name:
--------------------------------
Title:
-------------------------------
000 Xxxxxxxxx Xxxxxx, X.X., Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000-0000
Attn: Xxxx Xxxxxxx
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, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attn: Xxxxxxx X. Xxxx
CREDIT LYONNAIS NEW YORK BRANCH, as a
Co-Agent and as a Lender
By:
-------------------------------------
Farboud Tavangar
First Vice President
1301 Avenue of the Americas, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attn: Farboud Tavangar
First Vice President
-14-
CREDIT SUISSE FIRST BOSTON, as a Co-Agent and
as a Lender
By:
-------------------------------------
Name:
--------------------------------
Title:
-------------------------------
By:
-------------------------------------
Name:
--------------------------------
Title:
-------------------------------
00 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx X. Xxxxxx
THE LONG-TERM CREDIT BANK OF JAPAN, LTD., LOS
ANGELES AGENCY, as a Co-Agent and as a Lender
By:
-------------------------------------
Name:
--------------------------------
Title:
-------------------------------
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Yoshiaki Kozano
XXXXXX GUARANTY TRUST COMPANY OF NEW YORK, as
a Co-Agent and as a Lender
By:
-------------------------------------
Xxxxxxx X. Xxxxx
Vice President
-15-
00 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn:
-------------------------------------
PNC BANK, NATIONAL ASSOCIATION, as a Co-Agent
and as a Lender
By:
-------------------------------------
Name:
--------------------------------
Title:
-------------------------------
0 XXX Xxxxx - 0xx Xxxxx
Mail Stop P1-XXXX-06-7
000 Xxxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
Attn: Xxxx Tsludis
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:
-------------------------------
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attn: Corporate Services Department
with a copy to:
-16-
00000 Xxxx Xxxx
Xxx Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attn: Xxxxx Xxxxxx
THE SUMITOMO BANK, LIMITED, as a Co-Agent and
as a Lender
By:
-------------------------------------
Name:
--------------------------------
Title:
-------------------------------
000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxx Xxxxxxx
PARIBAS
By:
-------------------------------------
Xxxxx Xxxxxx
Director
By:
-------------------------------------
Name:
--------------------------------
Title:
-------------------------------
0000 Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attn: Xxxxx Xxxxxx
Director
BHF-BANK AKTIENGESELLSCHAFT
-17-
By:
-------------------------------------
Name:
--------------------------------
Title:
-------------------------------
By:
-------------------------------------
Name:
--------------------------------
Title:
-------------------------------
000 Xxxx Xxxxx Xxxxxxxxx, Xxxxx 0000
Xxxx Xxxxx, Xxxxxxxxxx 00000
Attn: L. Xxxx Xxxxxxx
Vice President
with a copy to:
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attn: Xxx Xxxxxxxxxxx
Assistant Vice President
DRESDNER BANK AG, NEW YORK BRANCH AND GRAND
CAYMAN BRANCH
By:
-------------------------------------
Name:
--------------------------------
Title:
-------------------------------
By:
-------------------------------------
Name:
--------------------------------
Title:
-------------------------------
00 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn:
---------------------------------------
FINOVA CAPITAL CORPORATION
-18-
By:
-------------------------------------
Name:
--------------------------------
Title:
-------------------------------
000 Xxxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxx X. Xxxxxxxxxx
THE INDUSTRIAL BANK OF JAPAN, LIMITED
By:
-------------------------------------
Name:
--------------------------------
Title:
-------------------------------
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attn: Xxxxxxxx XxXxxxxx
THE MITSUBISHI TRUST AND BANKING CORPORATION,
LOS ANGELES AGENCY
By:
-------------------------------------
Yasushi Satomi
Senior Vice President and Chief
Manager
000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxx Xxxxx
Vice President
-19-
XXXXX FARGO BANK (TEXAS), NATIONAL
ASSOCIATION
By:
-------------------------------------
Name:
--------------------------------
Title:
-------------------------------
000 Xxxx Xxxxxx, Xxxxx 000
Xxxx Xxxxx, Xxxxx 00000
Attn: Xxxxx Xxxxxxxxx
Vice President
AMSOUTH BANK
By:
-------------------------------------
Name:
--------------------------------
Title:
-------------------------------
0000 Xxxxx Xxxxxx Xxxxx, XXX0XX
Xxxxxxxxxx, Xxxxxxx 00000
Attn: Xxxxxxx X. Xxxxx
Assistant Vice President
GENERAL ELECTRIC CAPITAL CORPORATION
By:
-------------------------------------
Name:
--------------------------------
Title:
-------------------------------
0000 Xxxxxxxxx Xxxx X.X., Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxxx Xxxxxxxxxxx
-20-
NATEXIS BANQUE BFCE
By:
-------------------------------------
Name:
--------------------------------
Title:
-------------------------------
By:
-------------------------------------
Name:
--------------------------------
Title:
-------------------------------
000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attn:
-------------------------------------
with a copy to:
Natexis Banque BFCE, New York Branch
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxx Xxxxxxx
THE ROYAL BANK OF SCOTLAND, plc
By:
-------------------------------------
Xxxxx Xxxxxx
Vice President
Xxxx Xxxxxx Xxxxx, 00xx Xxxxx
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attn: Xxxxx Xxxxxx
THE SANWA BANK, LIMITED
-21-
By:
-------------------------------------
Name:
--------------------------------
Title:
-------------------------------
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxx Xxxxxx
Vice President
SUMMIT BANK
By:
-------------------------------------
Xxxxxx X. Xxxxxxxx
Vice President
000 Xxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
Attn: Healthcare Financial Services
TORONTO DOMINION (TEXAS), INC.
By:
-------------------------------------
Name:
--------------------------------
Title:
-------------------------------
000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attn: Xxxxx X. Xxxxxx
Manager, Credit Administration
with a copy to:
00 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxx Xxxxxxx
Senior Associate
-22-
MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY
By:
-------------------------------------
Name:
--------------------------------
Title:
-------------------------------
0000 Xxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxxxxx, Xxxxxxxxxxxxx 00000
Attn: Xxxxxx X. Xxxx
METROPOLITAN LIFE INSURANCE COMPANY
By:
-------------------------------------
Xxxxx Xxxxxxx
Director
000 Xxxxxxx Xxxxxx
Xxxxxxx Xxxxxxx, Xxx Xxxxxx 00000-0000
Attn: Xxxxx Xxxxxxxxxx
with a copy to:
Metropolitan Life Insurance Company
0 Xxxxxxx Xxxxxx, Xxxx 0X
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxx Xxxx, Esq.
KZH III LLC (formerly known as KZH HOLDING
CORPORATION III)
By:
-------------------------------------
Name:
--------------------------------
Title:
-------------------------------
x/x Xxx Xxxxx Xxxxxxxxx Bank
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
-00-
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxxx Xxxxxx
KZH XXXXXXXX LLC
By:
-------------------------------------
Name:
--------------------------------
Title:
-------------------------------
x/x Xxx Xxxxx Xxxxxxxxx Bank
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxxx Xxxxxx
PARIBAS CAPITAL FUNDING LLC
By:
-------------------------------------
Name:
--------------------------------
Title:
-------------------------------
000 0xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxxx Xxxxxx
with a copy to:
Xxxxxxx Xxxxxx
State Street Bank & Trust Co.
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Telephone: (000) 000-0000
Fax: (000) 000-0000/67/68
XXX XXXXXX AMERICAN CAPITAL PRIME RATE INCOME
TRUST
-24-
By:
-------------------------------------
Name:
--------------------------------
Title:
-------------------------------
Xxx Xxxxxxxx Xxxxx
Xxxxxxxx Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxxx
PFL LIFE INSURANCE COMPANY
By:
-------------------------------------
Name:
--------------------------------
Title:
-------------------------------
c/o AEGON USA Investment Management, Inc.
0000 Xxxxxxxx Xxxx XX
Xxxxx Xxxxxx, Xxxx 00000-0000
Attn: Xxxx Xxxxxx
PEOPLES SECURITY LIFE INSURANCE COMPANY
By:
-------------------------------------
Name:
--------------------------------
Title:
-------------------------------
Peoples Security Life Insurance Company
c/o AEGON USA Investment Management, Inc.
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attn: Securities Department - 10th Floor
THE NORTHWESTERN MUTUAL LIFE INSURANCE
COMPANY
-25-
By:
-------------------------------------
Name:
--------------------------------
Title:
-------------------------------
000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Attn: Securities Department
ROYALTON COMPANY
By: Pacific Investment Management Company,
as its Investment Advisor
By:
-------------------------------------
Name:
--------------------------------
Title:
-------------------------------
000 Xxxxxxx Xxxxxx Xxxxx
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxxx Xxxxxxx
XXXXXXX XXXXX SENIOR FLOATING RATE
FUND, INC.
By:
-------------------------------------
Name:
--------------------------------
Title:
-------------------------------
c/o Merrill Xxxxx Asset Management
800 Scudders Mill Road - Area 1B
Xxxxxxxxxx, Xxx Xxxxxx 00000
Attn: Xxxxxx Xxxxxxxx
SENIOR HIGH INCOME PORTFOLIO, INC.
-26-
By:
-------------------------------------
Name:
--------------------------------
Title:
-------------------------------
c/o Merrill Xxxxx Asset Management
800 Scudders Mill Road - Area 1B
Xxxxxxxxxx, Xxx Xxxxxx 00000
Attn: Xxxxxx Xxxxxxxx
DEBT STRATEGIES FUND, INC.
By:
-------------------------------------
Name:
--------------------------------
Title:
-------------------------------
c/o Merrill Xxxxx Asset Management
800 Scudders Mill Road - Area 1B
Xxxxxxxxxx, Xxx Xxxxxx 00000
Attn: Xxxxxx Xxxxxxxx
BANKBOSTON, N.A.
By:
-------------------------------------
Name:
--------------------------------
Title:
-------------------------------
000 Xxxxxxx Xxxxxx, Mail Stop: 01-08-05
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn:
-------------------------------------
CYPRESSTREE INVESTMENT PARTNERS I, LTD.
By: CypressTree Investment Management
Company, Inc., as Portfolio Manager
-27-
By:
-------------------------------------
Name:
--------------------------------
Title:
-------------------------------
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Xxxxxx Xxxxxxx
with a copy to:
State Street Bank & Trust
Corporate Trust Department
Two International Place
Boston, Massachusetts 02110
Attn: Xxxx Xxxxxxx, for the account of
FAFLIC
DEEPROCK & CO.
By: Xxxxx Xxxxx Management, as Investment
Advisor
By:
-------------------------------------
Name:
--------------------------------
Title:
-------------------------------
00 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn:
------------------------------------
FRANKLIN FLOATING RATE TRUST
By:
-------------------------------------
Name:
--------------------------------
Title:
-------------------------------
-28-
000 Xxxxxxxx Xxxxxx Xxxxxxxxx, 0xx Xxxxx
Xxx Xxxxx, Xxxxxxxxxx 00000
Attn:
-------------------------------------
ORIX USA CORPORATION
By:
-------------------------------------
Name:
--------------------------------
Title:
-------------------------------
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attn: Xxxxxx Xxxxxx
Vice President
PILGRIM AMERICA PRIME RATE TRUST
By:
-------------------------------------
Name:
--------------------------------
Title:
-------------------------------
c/o Pilgrim America Investments, Inc.
Two Renaissance Square
00 Xxxxx Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000-0000
Attn:
-------------------------------------
NORTHERN LIFE INSURANCE COMPANY
By:
-------------------------------------
Name:
--------------------------------
Title:
-------------------------------
000 Xxxxxxxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attn: Xxx Xxxxxxx
-29-
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.
000 Xxxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxx Xxxxxx Xxxxxx
Portfolio Manager
ML CLO XII PILGRIM AMERICA (CAYMAN) LTD.
By: Pilgrim America Investments, Inc., as
its Investment Manager
By:
-------------------------------------
Name:
--------------------------------
Title:
-------------------------------
c/o Pilgrim America Investments, Inc.
Two Renaissance Square
00 Xxxxx Xxxxxxx Xxxxxx, Xxxxx 0000
Phoenix, Arizona 85004-3444
with a faxed copy to:
State Street Bank and Trust Company
Corporate Trust Department
Attn: Xxx Xxxxxxxx
Ref: Paramount Company
Fax: (000) 000-0000/5367/5368
-30-
SENIOR DEBT PORTFOLIO
By: Boston Management and Research, as
Investment Advisor
By:
-------------------------------------
Name:
--------------------------------
Title:
-------------------------------
c/o Boston Management and Research, as
Investment Advisor
00 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
CYPRESSTREE INVESTMENT FUND, LLC
By: CypressTree Investment Management
Company, Inc., as Portfolio Manager
By:
-------------------------------------
Name:
--------------------------------
Title:
-------------------------------
CypressTree Investment Management Company,
Inc.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
ML CBO IV (CAYMAN) LTD.
By: Highland Capital Management, L.P., as
Collateral Manager
By:
-------------------------------------
Name:
--------------------------------
Title:
-------------------------------
-31-
Highland Capital Management, L.P.
1150 Two Galleria Tower
00000 Xxxx Xxxx, XX #00
Xxxxxx, Xxxxx 00000
Attn: Xxxx Xxxxx
PAMCO CAYMAN LTD.
By: Highland Capital Management, L.P., as
Collateral Manager
By:
-------------------------------------
Name:
--------------------------------
Title:
-------------------------------
Highland Capital Management, L.P.
1150 Two Galleria Tower
00000 Xxxx Xxxx, XX #00
Xxxxxx, Xxxxx 00000
Attn: Xxxx Xxxxx
XXXXXXX XXXXX PRIME RATE PORTFOLIO
By: Xxxxxxx Xxxxx Asset Management, L.P., as
Investment Advisor
By:
-------------------------------------
Name:
--------------------------------
Title:
-------------------------------
Xxxxxxx Xxxxx Prime Rate Portfolio
800 Scudders Mill Road - Area 1B
Xxxxxxxxxx, Xxx Xxxxxx 00000
Attn: Xxxx Xxxxxxxx
-32-
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By:
-------------------------------------
Name:
--------------------------------
Title:
-------------------------------
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
000 Xxxxx Xxxxxx
World Financial Center
00xx Xxxxx, Xxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxx Xxxxxx
INDOSUEZ CAPITAL FUNDING III, LIMITED
By: Indosuez Capital Luxembourg, as
Collateral Manager
By:
-------------------------------------
Name:
--------------------------------
Title:
-------------------------------
c/o Queensgate Bank & Trust Company Limited
X.X. Xxx 00000 XXX/Xxxxx Xxxxxx Xxxxxx
Xxxxxx House, 5th Floor
Xxxxxx Town
Grand Cayman, Cayman Islands
British West Indies
with copies to:
Indosuez Capital Funding III, Limited
c/o Texas Commerce Bank N.A.
Attn: Xxx Xxxxxx, Asset Backed Group
A/C 17499
000 Xxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxx, Xxxxx 00000-0000
-33-
and
Indosuez Capital
1211 Avenue of the Americas, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attn: Xxxxxxxxx Xxxxxxxxx
ARES LEVERAGED INVESTMENT FUND, L.P.
By:
-------------------------------------
Name:
--------------------------------
Title:
-------------------------------
0000 Xxxxxx xx xxx Xxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxx Xxxxx
Principal
ARCHIMEDES FUNDING, L.L.C.
By: ING Capital Advisors, Inc., as
Collateral Manager
By:
-------------------------------------
Name:
--------------------------------
Title:
-------------------------------
c/o ING Capital Advisors, Inc.
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxx Xxxxxx Xxxxxx
Portfolio Manager
BANK POLSKA KASA OPIEKI, S.A.
PEKAO S.A. GROUP, NEW YORK BRANCH
-34-
By:
-------------------------------------
Name:
--------------------------------
Title:
-------------------------------
000 Xxxx Xxxxxx Xxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
ERSTE BANK DER OESTERREICHISCHEN SPARKASSEN
AG - NEW YORK
By:
-------------------------------------
Name:
--------------------------------
Title:
-------------------------------
By:
-------------------------------------
Name:
--------------------------------
Title:
-------------------------------
000 Xxxx Xxxxxx
Xxxx Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 10017
ROYAL BANK OF CANADA
By:
-------------------------------------
Name:
--------------------------------
Title:
-------------------------------
Xxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxx Xxxxxxxx
-35-
XXX XXXXXX CLO I, LIMITED
By: XXX XXXXXX AMERICAN CAPITAL MANAGEMENT,
INC., as Collateral Manager
By:
-------------------------------------
Name:
--------------------------------
Title:
-------------------------------
c/o Xxx Xxxxxx American Capital
Xxx Xxxxxxxx Xxxxx
Xxxxxxxx Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx Xxxxxx
with a copy to:
Texas Commerce Bank N.A.
Trust Clearing Account
000 Xxxxxx, 0xx Xxxxx
Xxxxxxx, Xxxxx 00000
Attention: Xxxxxx Xxx
BALANCED HIGH-YIELD FUND I LTD.
By: BHF-BANK AKTIENGESELLSCHAFT, acting
through its New York Branch, as
attorney-in-fact
By:
-------------------------------------
Name:
--------------------------------
Title:
-------------------------------
-36-
By:
-------------------------------------
Name:
--------------------------------
Title:
-------------------------------
x/x Xxxxx Xxxxxx Xxxx & Trust Company
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxx X'Xxxxx
with a copy to:
Balanced High-Yield Fund I Ltd.
c/o BHF-Bank Aktiengesellschaft
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxx Xxxxxxxxxxx
XXXXXX COMPANY
By: Pacific Investment Management Company,
as its Investment Advisor
By:
-------------------------------------
Name:
--------------------------------
Title:
-------------------------------
c/o Pacific Investment Management Co.
000 Xxxxxxx Xxxxxx Xxxxx
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
with a copy to:
Chase Bank of Texas National Association
000 Xxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxx, Xxxxx 00000
Attention: Delano Company
XXXXXXX XXXXX GLOBAL INVESTMENT SERIES:
INCOME STRATEGIES PORTFOLIO
-37-
By: Xxxxxxx Xxxxx Asset Management, L.P., as
Investment Advisor
By:
-------------------------------------
Name:
--------------------------------
Title:
-------------------------------
c/o Merrill Xxxxx Asset Management
800 Scudders Mill Road - Area 1B
Xxxxxxxxxx, Xxx Xxxxxx 00000
Attention: Xxx Xxxxx Xxxxx - Trade Closing
Xxxxxxx Xxxx - Daily Loan
Activity
with a copy to:
Xxxxx Xxxxx
MLAS Accounting
00-00 Xxxxxxxxx xx xx Xxxxxxxxx
X-0000 Xxxxxxxxxx
DEBT STRATEGIES FUND II, INC.
By:
-------------------------------------
Name:
--------------------------------
Title:
-------------------------------
XXX CAPITAL FUNDING LP
By: Highland Capital Management, L.P., as
Collateral Manager
By:
-------------------------------------
Name:
--------------------------------
Title:
-------------------------------
-38-
Highland Capital Management, L.P.
1150 Two Galleria tower
00000 Xxxx Xxxx, XX #00
Xxxxxx, Xxxxx 00000
Attn: Xxxx Xxxxx
XXX XXXXXX AMERICAN CAPITAL SENIOR INCOME
TRUST
By:
-------------------------------------
Name:
--------------------------------
Title:
-------------------------------
Xxx Xxxxxx American Capital
Xxx Xxxxxxxx Xxxxx
Xxxxxxxx Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxx Xxxxxx
FRANKLIN FLOATING RATE FUND
By:
-------------------------------------
Name:
--------------------------------
Title:
-------------------------------
000 Xxxxxxxx Xxxxxx Xxxxxxxxx, 0xx Xxxxx
Xxx Xxxxx, Xxxxxxxxxx 00000
Attn:
-------------------------------
BARCLAYS BANK PLC
By:
-------------------------------------
Name:
--------------------------------
Title:
-------------------------------
-00-
Xxxxxxxx Xxxx PLC
000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxx XxXxxxx
CAPTIVA III FINANCE, LTD., as advised by
Pacific Investment Management Company
By:
-------------------------------------
Name:
--------------------------------
Title:
-------------------------------
State Street Bank and Trust Co.
0 Xxxxxxxxxxxxx Xxxxx, 0xx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Xxxx Xxxxx
with a copy to:
Xxxxxx Xxxx
Captiva III Finance, Ltd.
c/o Pacific Investment Management Co.
000 Xxxxxxx Xxxxxx Xxxxx
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
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
-00-
Xxxxxxx Xxxxxxx 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
Xxxxxxxx Land, Inc., a New Hampshire corporation
Sun Care Corp., a Delaware corporation
HSR Management, Inc., a Delaware corporation
CareerStaff Management, Inc., a Delaware corporation
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 Xxxxxx, 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
Xxxxxxx Nursing Home, Inc., a New Hampshire corporation
HC, Inc., a Kansas corporation
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Xxxxxxx Xxxxx of Dover, Inc., a New Hampshire corporation
Xxxxxxx Place of Exeter, Inc., a New Hampshire corporation
Xxxxxxx 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
Xxxxxxxx Enterprises, Inc., a California corporation
Brittany Rehabilitation Center, Inc., a California corporation
Carmichael Rehabilitation Center, a California corporation
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
Xxxxxxx Rehabilitation Center, Inc., a California corporation
Xxxxx-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 Xxxxxx Rehabilitation Center, a California corporation
Regency-North Carolina, Inc., a North Carolina corporation
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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 Xxxxx 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
Xxxxxx Health Care Corp., an Ohio corporation
New Lexington Health Care Corp., an Ohio corporation
Americare of West Virginia, Inc., a West Virginia corporation
Xxxxxx Health Care Corp., a West Virginia corporation
Xxxxxxx Health Care Corp., a West Virginia corporation
Xxxxxx 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
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:
--------------------------------------------------
Xxxxxx X. Xxxxxx
Chief Financial Officer
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Accelerated Care Plus, LLC, a Delaware limited liability company
By: Cal-Med, Inc., a California corporation and HC, Inc., a Kansas corporation,
members
By:
----------------------------------------
Xxxxxx X. Xxxxxx
Chief Financial Officer
Hospital Therapy Service of Michigan, LLC, a Michigan limited liability company
By: SunCare Respiratory Services, Inc., an Indiana corporation, member
By:
----------------------------------------
Xxxxxx X. Xxxxxx
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
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:
----------------------------------------
Xxxxxx X. Xxxxxx
Chief Financial Officer
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West Jersey/Mediplex Rehabilitation, L.P.
By: Mediplex of New Jersey, Inc., a New Jersey corporation and its general
partner
By:
---------------------------------------------
Xxxxxx X. Xxxxxx
Chief Financial Officer
Address for all Guarantors:
000 Xxx Xxxx, X.X.
Xxxxxxxxxxx, Xxx Xxxxxx 00000
Attn: Chief Financial Officer
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