AMENDMENT NO. 1 DATED AS OF DECEMBER 1, 1997, TO THE REVOLVING
CREDIT AND TERM LOAN AGREEMENT among Integrated Health Services, Inc., a
Delaware corporation (the "Borrower"), the lenders parties to the Credit
Agreement referred to below (the "Lenders") and Citibank, N.A., as
administrative agent (the "Agent") for the Lenders.
PRELIMINARY STATEMENTS:
(1) The Borrower, the Lenders and the Agent have entered into
a Revolving Credit and Term Loan Agreement dated as of September 15, 1997 (such
Credit Agreement, the "Credit Agreement"). Capitalized terms not otherwise
defined in this Amendment have the same meanings as specified in the Credit
Agreement.
(2) The Borrower will acquire certain assets from HEALTHSOUTH
Corporation for $1,360,000,000 in cash (including the assumption of liabilities
and the payment of related transaction fees and expenses) (the "HEALTHSOUTH
Acquisition") pursuant to a Purchase and Sale Agreement entered into on November
3, 1997 (the "Purchase Agreement"). In connection therewith, the Borrower has
requested that the Lenders agree to amend the Credit Agreement to add an
additional $400,000,000 of term advances thereunder and to amend certain
covenants in Article V of the Credit Agreement to permit the HEALTHSOUTH
Acquisition.
(3) The Lenders are, on the terms and conditions stated below,
willing to grant the request of the Borrower and the Borrower and the Lenders
have agreed to amend the Credit Agreement as hereinafter set forth.
SECTION 1. Amendments to Credit Agreement. The Credit
Agreement is, effective as of the date hereof and subject to the satisfaction of
the conditions precedent set forth in Section 2, hereby amended as follows:
(a) The following definitions are added to Section 1.01 in the
appropriate alphabetical order:
"'ACQUIRED ASSETS' means the assets acquired from HEALTHSOUTH
Corporation pursuant to the Purchase and Sale Agreement entered into on
November 3, 1997 among the Borrower, HEALTHSOUTH Corporation and
Horizon/CMS Healthcare Corporation.
'FIRST AMENDMENT' means Amendment No. 1 to this Agreement,
dated as of December 1, 1997.
'REQUISITE TERM LOAN C LENDERS' means Term Loan C Lenders at
the time in the aggregate holding more than 50.1% of the Term Loan C Pro
Rata Shares.
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'TERM LOAN C BORROWING' means the loan made by the Term Loan C
Lenders pursuant to Section 2.01(a)(iv) hereof in the aggregate principal
amount of $400,000,000 and which can bear interest by reference to the
Base Rate or the Eurodollar Rate.
'TERM LOAN C BORROWING BASE RATE MARGIN' means, for any
Pricing Period, the rate per annum set forth below opposite the Pricing
Ratio determined for that Pricing Period:
Pricing Ratio Margin
------------- ------
greater than 5.25 1.25%
less than or equal
to 5.25 1.00%
'TERM LOAN C EURODOLLAR RATE MARGIN' means, for any Pricing
Period, the rate per annum set forth below opposite the Pricing Ratio
determined for that Pricing Period:
Pricing Ratio Margin
------------- ------
greater than 5.25 2.50%
less than or equal
to 5.25 2.25%
'TERM LOAN C LENDER' means each financial institution
signatory to the First Amendment to this Agreement listed thereto as a
Term Loan C Lender which has committed to participate in the term credit
under Section 2.01(a)(iv) hereof as set forth in Schedule I to such First
Amendment, and any financial institution that pursuant to Section 8.07
becomes a party to this Agreement for the purpose of participating in the
term credit under Section 2.01(a)(iv) hereof.
'TERM LOAN C PRO RATA SHARE' means, in respect of any Term
Loan C Lender, the ratio of (i) on the Effective Date of the First
Amendment such Term Loan C Lender's commitment to participate in the term
credit under Section 2.01(a)(iv) hereof and thereafter the outstanding
principal amount of its Advances hereunder to (ii) on such Effective Date
the aggregate of all such commitments by the Term Loan C Lenders and
thereafter the aggregate outstanding amount of the Advances by all Term
Loan C Lenders hereunder."
(b) The following definitions in Section 1.01 are amended in
full to read as follows:
"'ADVANCE' means a revolving loan or term loan, as the case
may be, by a Revolving Lender, Term Lender or Term Loan C Lender,
respectively, or a Swing Line Advance, in each case pursuant to Article
II.
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'BORROWING DATE' means (i) in the case of the Term Borrowing,
the Closing Date, (ii) in the case of any Revolving Borrowing, any
subsequent Business Day on which a Revolving Borrowing is requested from
the Lenders and (iii) in the case of the Term Loan C Borrowing, the
Effective Date of the First Amendment (as defined therein).
'DEBT/EBITDAR RATIO' means the ratio, as of the last day of
any Quarter, of (i) the sum of (A) the difference, if any, between (x) the
sum of (1) Funded Debt and (2) eight times the Specified Lease Expense of
the Borrower and its Subsidiaries for the 12-month period then ending,
less (y) Quarter-End Excess Cash, and (B) the Purchasers' Aggregate Net
Investment outstanding on such day; to (ii) EBITDAR of the Borrower and
such Subsidiaries for the 12-month period then ending, after pro forma (1)
adding to Specified Lease Expense of the Borrower and such Subsidiaries,
all amounts that would constitute additional Specified Lease Expense of
the Borrower and such Subsidiaries for such period if any acquisition of a
company that was made at any time during such period by the Borrower or
any of its Subsidiaries had been consummated at the commencement of such
period; (2) adding to Specified Lease Expense of the Borrower and such
Subsidiaries, all amounts that would constitute additional Specified Lease
Expense of the Borrower and such Subsidiaries for such period if any lease
of a Health Care Facility that was entered into by the Borrower or any of
its Subsidiaries at any time during such period had been so entered into
at the commencement of such period; (3) adding to EBITDAR of the Borrower
and such Subsidiaries, the EBITDAR and Non-Recurring Charges determined
solely for any such acquired company or Health Care Facility, for the
portion of such period that preceded the acquisition; provided, however,
that for Quarters ending during the 12-month period immediately following
the closing of the acquisition of CCA, EBITDAR of CCA for the period from
the closing to the date of determination, annualized for the 12-month
period then ended shall be added to EBITDAR of the Borrower and such
Subsidiaries; provided, further, that for the Quarter ending December 31,
1997, the EBITDAR and Specified Lease Expense of the Acquired Assets and
the indebtedness incurred or assumed (in an aggregate amount not in excess
of $1,360,000,000) to acquire the Acquired Assets shall be excluded in
calculating the Debt/EBITDAR Ratio, and for the Quarters ending March 31,
1998, June 30, 1998 and September 30, 1998, EBITDAR and Specified Lease
Expense of the Acquired Assets for the period from the closing when the
Borrower acquired the Acquired Assets to the date of determination,
annualized for the 12-month period then ended, shall be added to EBITDAR
and Specified Lease Expense, as the case may be, of the Borrower and such
Subsidiaries; (4) subtracting from Specified Lease Expense of the Borrower
and such Subsidiaries, the Specified Lease Expense for such period
attributable to any business or facility that was sold or closed and (5)
subtracting from EBITDAR of the Borrower and such Subsidiaries, the
EBITDAR for such period of any business or facility that was so sold or
closed.
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'DOMESTIC LENDING OFFICE' means, with respect to any Revolving
Lender or Term Lender, the office of such Lender specified as its
"Domestic Lending Office" opposite its name on Schedule I hereto or, with
respect to any Term Loan C Lender, the office of such Lender specified as
its "Domestic Lending Office" opposite its name on Schedule I to the First
Amendment or in each case in the Assignment and Acceptance by which it
became a Lender or such other office of such Lender as such Lender may
from time to time specify to the Borrower and the Agent.
'EURODOLLAR LENDING OFFICE' means, with respect to any
Revolving Lender or Term Lender, the office of such Lender specified as
its "Eurodollar Lending Office" opposite its name on Schedule I hereto or,
with respect to any Term Loan C Lender, the office of such Lender
specified as its "Eurodollar Lending Office" opposite its name on Schedule
I to the First Amendment or in each case in the Assignment and Acceptance
by which it became a Lender (or, if no such office is specified, its
Domestic Lending Office) or such other office of such Lender as such
Lender may from time to time specify to the Borrower and the Agent as its
Eurodollar Lending Office.
'EURODOLLAR RATE' means, for any Interest Period for each
Eurodollar Rate Advance comprising part of the same Revolving Borrowing,
Term Borrowing or Term Loan C Borrowing, as the case may be, an interest
rate per annum equal to the displayed rate at 11:00 AM (London time) two
Business Days before the first day of such Interest Period on Telerate
page 3750 (or such other page as may replace such page on the Telerate
Service for the purpose of displaying interest rates in the London
interbank markets) for deposits in U.S. dollars in an amount substantially
equal to such Revolving Borrowing, Term Borrowing or Term Loan C
Borrowing, as the case may be, and for a period equal to such Interest
Period. To the extent that such interest rate is unavailable on the
Telerate Service, the Eurodollar Rate for any Interest Period for each
Eurodollar Rate Advance comprising part of the same Revolving Borrowing,
Term Borrowing or Term Loan C Borrowing, as the case may be, shall be an
interest rate per annum equal to the average (rounded upward to the
nearest whole multiple of 1/16 of 1% per annum, if such average is not
such a multiple) of the rate per annum at which deposits in U.S. dollars
are offered by the principal office of each of the Reference Banks in
London to prime banks in the interbank market for U.S. Dollar Deposits at
11:00 a.m. (London time) two Business Days before the first day of such
Interest Period in an amount substantially equal to such Reference Bank's
Eurodollar Rate Advance comprising part of such Borrowing (or, if such
Reference Bank is not a Lender, 10% of such Borrowing) and for a period
equal to such Interest Period.
'INTEREST PERIOD' means, for each Eurodollar Rate Advance
comprising part of the same Revolving Borrowing, Term Borrowing or Term
Loan C Borrowing, as the case may be, the period commencing on the date of
such Advance
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or the date of the conversion of any Advance into such an Advance and
ending on the last day of the period selected by the Borrower pursuant to
the provisions below and, thereafter, each subsequent period commencing on
the last day of the immediately preceding Interest Period and ending on
the last day of the period selected by the Borrower pursuant to the
provisions below. The duration of each such Interest Period shall be 1, 2,
3 or 6 months, as the Borrower may select by notice received by the Agent
not later than 11:00 a.m. (New York City time) three Business Days prior
to the first day of such Interest Period; provided, however, that:
(a) the Borrower may not select any Interest Period in respect
of any Revolving Borrowings which ends after the Maturity Date or in
respect of the Term Borrowing or Term Loan C Borrowing which ends after
the scheduled maturity date therefor;
(b) the Borrower may not select any Interest Period which ends
after any date on which any payment on the respective Advances (including
any payment of the Revolving Borrowing which may result from a Revolving
Facility Reduction) is due unless, after giving effect to such selection,
the aggregate unpaid principal amount of Base Rate Advances and Eurodollar
Rate Advances in respect of Revolving Borrowings, the Term Borrowing or
the Term Loan C Borrowing, as the case may be, having Interest Periods
which end on or prior to such date is at least equal to the principal
amount of Advances due and payable on and prior to such date;
(c) Interest Periods commencing on the same date for Advances
comprising part of the same Revolving Borrowing, Term Borrowing or Term
Loan C Borrowing shall be of the same duration;
(d) whenever the last day of any Interest Period would
otherwise occur on a day that is not a Business Day, the last day of such
Interest Period shall be extended to the next succeeding Business Day,
except that if such extension would cause the last day of such Interest
Period to occur in the next following calendar month, the last day of such
Interest Period shall be the next preceding Business Day; and
(e) the Borrower may not have more than 15 Interest Periods in
effect at any one time.
'LENDER' means each Revolving Lender, each Term Loan C Lender
and each Term Lender.
'MINIMUM NET WORTH' means the sum, as of the last day of any
Quarter, of (i) $1,120,000,000, less up to $25,000,000 of extraordinary
losses (determined in accordance with GAAP) of the Borrower and its
Subsidiaries on a consolidated basis incurred at any time after December
31, 1997, plus (ii) 75% of the aggregate net income (determined in
accordance with GAAP) of the Borrower and its Subsidiaries on a
consolidated basis earned in the
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Quarter ended December 31, 1997 and in each Quarter thereafter, if net
income was earned in such Quarter (and not reduced for a net loss in any
Quarter), plus (iii) 100% of all additions to Adjusted Stockholders'
Equity resulting at any time after December 31, 1997 from the sale or
issuance of any common or preferred stock of the Borrower or from the
conversion of any Convertible Subordinated Debt.
'PRO RATA SHARE' means, in respect of any Lender on any date
of determination, the ratio of (i) in the case of a Term Lender or a Term
Loan C Lender, the outstanding principal amount of Advances by such Lender
hereunder on such date and, in the case of a Revolving Lender, such
Revolving Lender's commitment hereunder to participate in the revolving
credit hereunder as set forth on Schedule I (or if such Revolving Lender
has entered into one or more Assignments and Acceptances, in the Register)
as it may have been reduced as provided herein or if such Revolving
Lender's commitment has terminated, the outstanding principal amount of
Advances by such Revolving Lender hereunder, as of such date, to (ii) the
sum of the aggregate outstanding principal amount of Advances by all Term
Lenders and Term Loan C Lenders hereunder on such date and the aggregate
of the commitments of all Revolving Lenders as set forth on Schedule I (or
if any such Revolving Lender has entered into one or more Assignments and
Acceptances, in the Register) as they may have been reduced as provided
herein or if such commitments have terminated, the aggregate outstanding
principal amount of Advances by all Revolving Lenders, as of such date.
'TERM LENDER' means each financial institution signatory
hereto listed as a Term Lender which has committed to participate in the
term credit under Section 2.01(a)(ii) hereof as set forth in Schedule I,
and any financial institution that pursuant to Section 8.07 becomes a
party to this Agreement for the purpose of participating in such term
credit."
(c) Section 2.01 is amended by adding a new subsection (a)(iv)
to read as follows:
"(iv) Term Loan C. Subject to the terms and conditions
herein, each Term Loan C Lender severally agrees to lend to the Borrower
on the Effective Date (as defined in the First Amendment) an amount in
Dollars equal to such Term Loan C Lender's Term Loan C Pro Rata Share of
the Term Loan C Borrowing. Not later than 11:00 a.m. New York City time
(A) three Business Days prior to such Effective Date if the Borrower
requests that the Term Loan C Borrowing initially bear interest by
reference to the Eurodollar Rate and (B) one Business Day prior to such
Effective Date if the Borrower requests that the Term Loan C Borrowing
initially bear interest by reference to the Base Rate, the Borrower shall
deliver a notice to the Agent, which notice shall specify whether the Term
Loan C Borrowing initially shall bear interest by reference to the
Eurodollar Rate or the Base Rate, and if at the Eurodollar Rate, the
initial Interest Period therefor. The Agent shall give
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each Term Loan C Lender prompt notice thereof by telecopier. Upon
fulfillment of the applicable conditions set forth in the First Amendment,
each Term Loan C Lender shall, before 12:00 noon New York City time on the
Effective Date of the First Amendment, make available for the account of
its Applicable Lending Office to the Agent at its address referred to in
Section 8.02, in same day funds, such Term Loan C Lender's Term Loan C Pro
Rata Share of the Term Loan C Borrowing. After the Agent receives such
funds, the Agent will, not later than 5:00 p.m. New York City time on such
Effective Date, make such funds available to the Borrower at the Agent's
aforesaid address. Unless the Agent receives notice from a Term Loan C
Lender prior to such Effective Date that such Lender will not make
available to the Agent such Lender's Term Loan C Pro Rata Share of the
Term Loan C Borrowing to be made on such Effective Date, the Agent may
assume that such Lender has made its respective share available to the
Agent on such Effective Date in accordance herewith and the Agent may, in
reliance upon such assumption, make available to the Borrower on such
Effective Date a corresponding amount. If and to the extent that such
Lender fails to make its respective share available to the Agent, such
Lender and the Borrower severally agree to repay to the Agent forthwith on
demand such corresponding amount together with interest thereon, for each
day from the date such amount is made available to the Borrower until the
date such amount is repaid to the Agent, at (a) in the case of the
Borrower, the interest rate applicable at the time to such Borrowing and
(b) in the case of such Lender, the Federal Funds Rate until the third
Business Day after demand by the Agent to such Lender for such repayment
and thereafter at the rate applicable at the time to such Term Loan C
Borrowing. If such Lender shall repay to the Agent such corresponding
amount, such amount so repaid shall constitute such Lender's Advance as
part of such Term Loan C Borrowing for purposes of this Agreement and the
Borrower shall thereupon be excused from making the repayment described in
the preceding sentence. All obligations of the Lenders hereunder shall be
several, but not joint. The failure of any Lender to make the Advance to
be made by it as part of any Term Loan C Borrowing shall not relieve any
other Lender of its obligation, if any, hereunder to make its Advance as
part of such Term Loan C Borrowing, but no Lender shall be responsible for
the failure of any other Lender to make any such Advance on such Effective
Date."
(d) Section 2.06 is amended by adding a new subsection
(a)(iii) to read as follows:
"(iii) The principal amount of the Term Loan C Borrowing shall
be repaid quarterly on the last day of each March, June, September and
December, commencing December 31, 1998, in equal installments in each year
commencing in 1999 and with the payment on December 31, 1998 to be equal
to $4,000,000. The principal amount to be repaid in each of 1999, 2000,
2001, 2002 and 2003 shall be equal to $4,000,000; the principal amount to
be repaid in 2004 shall be equal to $176,000,000 and the principal amount
to be repaid
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in 2005 shall be equal to $200,000,000 with the aggregate unpaid principal
amount of the Term Loan C Borrowing to be payable on December 31, 2005."
(e) Section 2.07 is amended in full to read as follows:
"SECTION 2.07 Interest. The Borrower agrees to pay interest on
the unpaid principal amount of each Advance made by each Lender comprising
part of the same Revolving Borrowing (or, in the case of an Advance made
pursuant to Section 2.02(c), by the LC Bank), each Advance comprising part
of the Term Borrowing, each Advance comprising part of the Term Loan C
Borrowing and each Swing Line Advance from the date of such Advance until
such principal amount shall be repaid in full, at the following rates per
annum:
(a) Base Rate Advances. Whenever such Advance is a Base Rate
Advance, a rate per annum equal on each day to the sum of the Base
Rate as in effect on such day plus the Revolving Borrowing Base Rate
Margin, Term Borrowing Base Rate Margin or Term Loan C Borrowing Base
Rate Margin, as the case may be, determined for such day (provided
that at all times during the period commencing on the Closing Date
until the date of the Term Loan C Borrowing, the Revolving Borrowing
Base Rate Margin shall be zero and the Term Borrowing Base Rate Margin
shall be 0.50%, during the period commencing on the date of the Term
Loan C Borrowing until the Pricing Certificate is delivered for the
Pricing Period ending on May 25, 1998 the Revolving Borrowing Base
Rate Margin shall be 0.50% and the Term Borrowing Base Rate Margin
shall be 0.75% and thereafter shall be determined as otherwise
provided herein, and that at all times during the period commencing on
the date of the Term Loan C Borrowing until the Pricing Certificate is
delivered for the Pricing Period ending on May 25, 1998 the Term Loan
C Borrowing Base Rate margin shall be 1.25% and thereafter shall be
determined as otherwise provided herein), with all such interest
accrued in any one month payable monthly on the first day of the next
following month and, in the case of the Revolving Borrowings, when the
Revolving Facility Amount has been reduced to zero and all Advances
comprising Revolving Borrowings are repaid in full, in the case of the
Term Borrowing, when all Advances comprising the Term Borrowing are
repaid in full and in the case of the Term Loan C Borrowing, when all
Advances comprising the Term Loan C Borrowing are repaid in full.
Interest shall be paid in cash for any Swing Line Advance at a rate
per annum equal on each day to the sum of the Base Rate as in effect
on such day plus the Revolving Borrowing Base Rate Margin with all
such interest payable on the date of payment when such Swing Line
Advance is due.
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(b) Eurodollar Rate Advances. Whenever such Advance is a
Eurodollar Rate Advance, a rate per annum equal on each day during the
Interest Period for such Eurodollar Rate Advance to the sum of the
Eurodollar Rate for such Interest Period plus the Revolving Borrowing
Eurodollar Rate Margin, Term Borrowing Eurodollar Rate Margin or Term
Loan C Borrowing Eurodollar Rate Margin, as the case may be,
determined for such day (provided that at all times during the period
commencing on the Closing Date until the date of the Term Loan C
Borrowing, the Revolving Borrowing Eurodollar Rate Margin shall be
1.25% and the Term Borrowing Eurodollar Rate Margin shall be 1.75%,
during the period commencing on the date of the Term Loan C Borrowing
until the Pricing Certificate is delivered for the Pricing Period
ending on May 25, 1998 the Revolving Borrowing Eurodollar Rate Margin
shall be 1.75% and the Term Borrowing Eurodollar Rate Margin shall be
2.00% and thereafter shall be determined as otherwise provided herein,
and that at all times during the period commencing on the date of the
Term Loan C Borrowing until the Pricing Certificate is delivered for
the Pricing Period ending on May 25, 1998 the Term Loan C Borrowing
Eurodollar Rate Margin shall be 2.50% and thereafter shall be
determined as otherwise provided herein) with all interest so accrued
payable on the last day of such Interest Period and, if such Interest
Period has a duration of more than three months, on the day which
occurs three months after the first day of such Interest Period.
(c) Default Interest. For any period of time during which an
Event of Default under Section 6.01(a), (b), (c), (d), (e), (f), (g),
(h), (i), (j), (k), (l), (m) (with respect to the Borrower or any
Material Subsidiary only) or (n) has occurred and is continuing, (i)
the principal amount of all Advances then outstanding shall bear
interest payable upon demand at a rate per annum equal to the sum of
(A) 2.0% per annum and (B) the rate otherwise payable pursuant to
subsection (a) or (b) above, but not to exceed the maximum rate
permitted by applicable law and (ii) the amount of any interest, fee
or other amount payable hereunder which is not paid when due, shall
bear interest from the date such amount shall be due until such amount
shall be paid in full, payable in arrears on the date such amount
shall be paid in full and on demand, at a rate per annum equal at all
times to 2% per annum above the Base Rate as in effect from time to
time plus the Revolving Borrowing Base Rate Margin."
(f) Section 2.09(a) is amended by adding the words "or Term
Loan C Borrowing" after the words "Term Borrowing" therein.
(g) Section 2.09(d) is amended by adding the words "or the
Requisite Term Loan C Lenders" after the words "Requisite Revolving
Lenders" in the second line thereof.
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(h) Section 2.10(a) is amended by adding the words "or the
Term Loan C Borrowing" after the words "Term Borrowing" each place such
words appear therein.
(i) The first sentence of Section 2.11 is amended by deleting
the word "and" before subclause (iv) therein and adding to the end thereof
the following provisions; ", (v) each partial payment is made in the case
of the Term Loan C Borrowing, in an aggregate principal amount of
$15,000,000 or an integral multiple of $1,000,000 in excess thereof , (vi)
each partial payment, in the case of the Term Borrowing or the Term Loan C
Borrowing, shall be applied to the respective installments thereof in the
order of maturity, and (vii) all partial prepayments hereunder in respect
of the Revolving Borrowing, the Term Borrowing or the Term Loan C
Borrowing shall be applied, in the case of each such prepayment, ratably
to the respective Advances of the Lenders and shall be applied between
Eurodollar Advances and Base Rate Advances in the case of each such
prepayment as directed by the Borrower."
(j) Section 2.12(ii) is amended by adding the words ", a
notice of a Term Loan C Borrowing" after the words "Term Borrowing"
therein.
(k) Section 5.01(b) is amended by deleting in the table
therein all entries from March 31, 2003 and thereafter and substituting
therefor the following:
"March 31, 2003 1.00
June 30, 2003 1.00
September 30, 2003 1.00
December 31, 2003 1.00
March 31, 2004 1.25
June 30, 2004 1.25
September 30, 2004 1.25
December 31, 2004 1.25
March 31, 2005 and
each Quarter thereafter 1.50"
(l) Section 5.02(m) is amended in full to read as follows:
"(m) Delivery of Promissory Note. If requested by any Lender,
execute and deliver a promissory note, in substantially the form of
Exhibit A-1, payable to the order of such Revolving Lender, if applicable,
in an original principal amount equal to such Lender's Revolving Pro Rata
Share of the Revolving Facility Amount, duly executed by the Borrower, a
promissory note, in substantially the form of Exhibit A-2 payable to the
order of such Term Lender, if applicable, in an original principal amount
equal to such Lender's Term Pro Rata Share of the Term Borrowing, duly
executed by the Borrower, and a promissory note, in substantially the form
of Exhibit A-3, payable to
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the order of such Term Loan C Lender, if applicable, in an original
principal amount equal to such Lender's Term Loan C Pro Rata Share of the
Term Loan C Borrowing, duly executed by the Borrower."
(m) Section 5.03(b) is amended by deleting the semicolon at
the end of subsection (v) thereof and substituting thereof ";and" and
adding a new subsection (vi) after such subsection (v) to read as follows:
"(vi) the sale of any of the Acquired Assets listed on Schedule
II to the First Amendment which is made for fair market value, so long as
(A) at least 50% of the total consideration for any such Asset Sale
consists of cash received at the closing thereof, (B) the Agent
concurrently acquires, on the terms set forth in the Pledge and Security
Agreements, a legal, valid and perfected security interest in any and all
non-cash consideration received in such Asset Sale, (C) at the time of or
after giving effect to any such Asset Sale, no Event of Default or
Potential Default exists and (D) if such Asset Sale is a Retained Interest
Sale, then, after giving effect to such transaction and related
transactions, either (a) the Retained Interest Criteria shall be met with
respect to such transactions at the time of consummation thereof, or (b)
the Partial Disposition Limit shall not be exceeded."
(n) Section 5.03(c)(viii) is amended by adding the words "or
Section 5.03(b)(vi)" at the end of such subsection.
(o) Section 5.03(c) is further amended by deleting the period
at the end of subsection (xvi) thereof and replacing it with "; and" and
adding a new subsection (xvii) after such subsection (xvi) to read as
follows:
"(xvii) The acquisition of the Acquired Assets, provided that
(A) at the time of or after giving effect to such acquisition, no Event of
Default or Potential Default shall exist or result, (B) the Borrower shall
comply with the provisions of Section 5.02(e), and neither the Borrower
nor any of its Subsidiaries nor any of their properties shall be or become
bound by or subject to any contractual obligation that is or would be
violated or put in default by reason of such compliance or by reason of
the enforcement of the claims and Liens of the Agent and Lenders arising
from such compliance, (C) the total consideration (including assumption of
liabilities and the payment of related transaction fees and expenses) paid
by the Borrower for such assets does not exceed $1,360,000,000 and (D) the
EBITDA (as hereinafter defined) of such assets on a pro forma basis for
the twelve-month period ending August 31, 1997 is not less than
$100,000,000. 'EBITDA'means the sum of (i) net income after taxes minus
any extraordinary gain and any non-recurring gain on any divestiture plus
any extraordinary loss and any non-recurring loss on any divestiture; (ii)
depreciation, amortization, and other noncash charges deducted in
determining net income, (iii) Interest Expense, and (iv) all charges for
taxes counted in determining consolidated net income for such period."
12
(p) Section 5.03(d) is amended by deleting the period at the
end of subsection (vii) thereof and replacing it with "; and" and adding a
new subsection (viii) after such subsection (vii) to read as follows:
"(viii) Debt in an aggregate amount not in excess of
$110,000,000 assumed by the Borrower or any of its Subsidiaries in
connection with the acquisition provided in subsection 5.03(c)(xvii)."
(q) Section 8.01(v) is amended in full to read as follows:
(v) Amend the definition of 'Revolving Facility Amount,' 'Pro
Rata Share,' 'Requisite Lenders,' 'Term Pro Rata Share,' 'Requisite Term
Lenders,' 'Revolving Pro Rata Share,' 'Requisite Revolving Lenders,' 'Term
Loan C Pro Rata Share' or 'Requisite Term Loan C Lenders.'"
(r) Section 8.01 is further amended by adding the words "or
any Term Loan C Lender" after the words "Term Lender" in the last line
thereof.
(s) A new Exhibit A-3 is added to the Credit Agreement in the
form of Exhibit A hereto.
(t) Exhibit E-2 to the Credit Agreement is amended in full to
read as set forth in Exhibit B hereto.
(u) Sections 5.02(e)(C), 5.02(e)(D) and 5.02(e)(E) are amended
by adding the words ", except such Subsidiaries listed on Schedule III to
the First Amendment." at the end of such subsections.
SECTION 2. Conditions of Effectiveness. This Amendment shall
become effective as of the date hereof (the "Effective Date") if on or before
January 31, 1998 the Agent shall have received (i) counterparts of this
Amendment executed by the Borrower and all of the Lenders or, as to any of the
Lenders, advice satisfactory to the Agent that such Lender has executed this
Amendment; (ii) evidence that (a) all fees due under the letter dated November
7, 1997 between the Agent and the Borrower have been paid, (b) the Borrower has
paid to the Agent, for the account of the Revolving Lenders and Term Lenders, a
fee in an aggregate amount equal to 0.125% of the sum of the aggregate
commitments of the Revolving Lenders and the aggregate outstanding principal
amount of Advances by the Term Lenders, in each case as of the Business Day
immediately prior to the Effective Date, which amount will be distributed
ratably to the Revolving Lenders and the Term Lenders no later then the Business
Day immediately succeeding the Effective Date and (c) the Borrower has paid all
fees due under Section 8.04 of the Credit Agreement, and (iii) all of the
following documents, each such document in form and substance satisfactory to
the Agent and in sufficient copies for each Lender:
13
(a) Certified copies of (i) the resolutions of the Board of
Directors of (A) the Borrower approving this Amendment and the matters
contemplated hereby and (B) each other Loan Party evidencing approval of
the Consent and the matters contemplated thereby and (ii) all documents
evidencing other necessary corporate action and governmental approvals, if
any, with respect to this Amendment and the Consent and the matters
contemplated hereby and thereby.
(b) A certificate of the Secretary or an Assistant Secretary
of the Borrower and each other Loan Party certifying the names and true
signatures of the officers of the Borrower and such other Loan Party
authorized to sign this Amendment and the Consent and the other documents
to be delivered hereunder and thereunder.
(c) Counterparts of the Consent appended hereto (the
"Consent"), executed by each of the Loan Parties (other than the
Borrower).
(d) An opinion of LeBoeuf, Lamb, Greene & MacRae, L.L.P.,
counsel for the Borrower and the Guarantors, in substantially the form of
Exhibit C hereto and opinions of counsel for each Guarantor not
incorporated in Delaware as to such matters as any Lender through the
Agent may reasonably request.
(e) A certificate from an Authorized Officer of the Borrower
as to compliance, after giving effect to the incurrence of all
indebtedness under the Credit Agreement with respect to the HEALTHSOUTH
Acquisition, with covenants relating to the incurrence of indebtedness in
the Subordinated Debt Indentures.
(f) A certificate from an Authorized Officer of the Borrower
that all conditions precedent to the closing by the Borrower under the
HEALTHSOUTH Acquisition have been satisfied, the Purchase Agreement is in
full force and effect, no provision of the Purchase Agreement (including
the schedules and exhibits thereto) has been waived, amended, supplemented
or otherwise modified in any respect, and immediately upon receipt of the
proceeds of the Term Loan C Borrowing the HEALTHSOUTH Acquisition will be
consummated.
(g) An executed amendment to the Intercreditor Agreement, in
substantially the form of Exhibit D.
(h) A complete, executed copy of the Purchase Agreement
(including all schedules and exhibits referred to therein or delivered
pursuant thereto) and all amendments thereto, waivers relating thereto and
other side letters or agreements affecting the terms thereof in any
respect.
14
(i) A certificate from an Authorized Officer of the Borrower
that (i) the representations and warranties contained in Section 3 of this
Amendment, in Article IV of the Credit Agreement and in Article III of the
Pledge and Security Agreements are correct on and as of such date as
though made on and as of such date and (ii) no event has occurred and is
continuing, or would result from such extension of credit or from the
application of the proceeds therefrom, which constitutes an Event of
Default or a Potential Default.
SECTION 3. Representations and Warranties of the Borrower. The
Borrower represents and warrants as follows:
(a) Each Loan Party is a corporation or partnership duly
organized, validly existing and in good standing (except where the failure
of one or more Loan Parties, other than the Borrower and its Material
Subsidiaries, to be in good standing could not reasonably be expected to
result in a Material Adverse Change) under the laws of the jurisdiction in
which it is organized and is duly qualified to do business in each
jurisdiction where the character of its properties or the nature of its
activities makes such qualification necessary.
(b) Each Loan Party has the corporate or partnership power (i)
to carry on its business as now being conducted and as proposed to be
conducted by it, (ii) to execute, deliver and perform this Amendment and
the Credit Agreement, as amended hereby, and (iii) to take all action
necessary to consummate the transactions contemplated under this Amendment
and the Credit Agreement, as amended hereby.
(c) The execution, delivery and performance by each Loan Party
of this Amendment, the Credit Agreement, as amended hereby, and the
Consent, as applicable, have been duly authorized by all necessary action
of its board of directors (or, in the case of a partnership, of its
governing authority), and do not contravene (i) its certificate or
articles of incorporation (or, in the case of a partnership, governing
agreements) or (ii) any law or any indenture, lease or written agreement
binding on or affecting it and do not result in or require the creation of
any Lien (other than pursuant to the Collateral Documents) upon any of its
property or assets.
(d) No authorization or approval or other action by, and no
notice to or filing with, any Governmental Authority is required for the
due execution, delivery and performance by any Loan Party of this
Amendment, the Credit Agreement, as amended hereby, or the Consent, as
applicable.
(e) This Amendment and the Consent have been duly executed and
delivered by the respective Loan Party. This Amendment, the Credit
Agreement, as amended hereby, and the Consent are legal, valid and binding
obligations of the respective
15
Loan Party, enforceable against the respective Loan Party in accordance
with their respective terms, subject to laws generally affecting the
enforcement of creditors' rights.
(f) There is no pending or overtly threatened action or
proceeding affecting any Loan Party before any court, governmental agency
or arbitrator which would, if adversely determined, result in a Material
Adverse Change or which relates to or could reasonably be expected to
affect the legality, validity or enforceability of this Amendment, the
Credit Agreement, as amended hereby, or the Consent or the consummation of
any of the transactions contemplated hereby.
(g) The execution, delivery and performance of this Amendment,
the Consent and the Credit Agreement, as amended hereby, do not and will
not (i) conflict with, result in a breach of, or constitute (with or
without notice or the lapse of time or both) a default under, any
instrument, lease, indenture, agreement or other contractual obligation
issued by any Loan Party or enforceable against it or any of its property
or assets, except under immaterial agreements for supplies or services
which are readily replaceable without any adverse effect on such Loan
Party or its business or (ii) require any approval of its stockholders.
(h) On the date of the Term Loan C Borrowing, both before and
after giving effect thereto and the application of the proceeds therefrom,
(i) the representations and warranties contained in Section 3 of this
Amendment, in Article IV of the Credit Agreement and in Article III of the
Pledge and Security Agreements are correct on and as of such date as
though made on and as of such date and (ii) no event has occurred and is
continuing, or would result from such extension of credit or from the
application of the proceeds therefrom, which constitutes an Event of
Default or a Potential Default.
SECTION 4. Reference to and Effect on the Credit Agreement and
the Loan Documents. (a) On and after the effectiveness of this Amendment, 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 by
this Amendment.
(b) The Credit Agreement, as specifically amended by this
Amendment, is and shall continue to be in full force and effect and is hereby in
all respects ratified and confirmed. Without limiting the generality of the
foregoing, the Collateral Documents and all of the Collateral described therein
do and shall continue to secure the payment of all Obligations of the Loan
Parties under the Loan Documents, in each case as amended by this Amendment.
16
(c) The execution, delivery and effectiveness of this
Amendment shall not, except as expressly provided herein, operate as a waiver of
any right, power or remedy of any Lender or the Agent under the Credit
Agreement, nor constitute a waiver of any provision of the Credit Agreement.
SECTION 5. Costs, Expenses and Taxes. The Borrower agrees to
pay on demand all reasonable and documented costs and expenses of the Agent in
connection with the preparation, execution, delivery and administration,
modification and amendment of this Amendment and the other instruments and
documents to be delivered hereunder (including, without limitation, the
reasonable and documented fees and expenses of counsel for the Agent) in
accordance with the terms of Section 8.04 of the Credit Agreement. In addition,
the Borrower shall pay any and all stamp and other taxes payable or determined
to be payable in connection with the execution and delivery of this Amendment
and the other instruments and documents to be delivered hereunder, and agrees to
save the Agent and each Lender harmless from and against any and all liabilities
with respect to or resulting from any delay in paying or omission to pay such
taxes.
SECTION 6. Execution in Counterparts. This Amendment 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 but one and the same
agreement. Delivery of an executed counterpart of a signature page to this
Amendment by telecopier shall be effective as delivery of a manually executed
counterpart of this Amendment.
SECTION 7. Governing Law. This Amendment shall be governed by,
and construed in accordance with, the laws of the State of New York.
17
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be executed by their respective officers thereunto duly authorized,
as of the date first above written.
INTEGRATED HEALTH SERVICES, INC.
By /s/
----------------------------------------
Name:
Title:
18
CITIBANK, N.A.,
as Administrative Agent and as a Lender
By /s/
----------------------------------------
Name:
Title:
CITIBANK, N.A.,
as Administrative Agent an as a Term Loan C
By /s/
----------------------------------------
Name:
Title:
19
TORONTO DOMINION (NEW YORK), INC.
as a Lender
By /s/
----------------------------------------
Name:
Title:
20
BANK OF AMERICA N.T. & S.A.
as a Lender
By /s/
----------------------------------------
Name:
Title:
BANK OF AMERICA N.T. & S.A.
as a Term Loan C Lender
By /s/
----------------------------------------
Name:
Title:
21
CREDIT LYONNAIS,
NEW YORK BRANCH,
as a Lender
By /s/
----------------------------------------
Name:
Title:
22
FIRST UNION NATIONAL BANK,
as a Lender
By /s/
----------------------------------------
Name:
Title:
FIRST UNION NATIONAL BANK,
as a Term Loan C Lender
By /s/
----------------------------------------
Name:
Title:
23
NATIONSBANK, N.A.,
as a Lender
By /s/
----------------------------------------
Name:
Title:
24
THE BANK OF NOVA SCOTIA,
as LC Bank and a Lender
By /s/
----------------------------------------
Name:
Title:
25
CORESTATES BANK, N.A.,
as a Lender
By /s/
----------------------------------------
Name:
Title:
26
DEUTSCHE BANK, A.G., NEW YORK
AND/OR CAYMAN ISLANDS BRANCH,
as a Lender
By /s/
----------------------------------------
Name:
Title:
By /s/
----------------------------------------
Name:
Title:
DEUTSCHE BANK, A.G., NEW YORK
AND/OR CAYMAN ISLANDS BRANCH,
as a Term Loan C Lender
By /s/
----------------------------------------
Name:
Title:
By /s/
----------------------------------------
Name:
Title:
27
FLEET NATIONAL BANK,
as a Lender
By /s/
----------------------------------------
Name:
Title:
28
AMSOUTH BANK,
as a Lender
By /s/
----------------------------------------
Name:
Title:
29
THE BANK OF TOKYO-MITSUBISHI
TRUST COMPANY,
as a Lender
By /s/
----------------------------------------
Name:
Title:
30
CREDITANSTALT BANKVEREIN,
as a Lender
By /s/
----------------------------------------
Name:
Title:
By /s/
----------------------------------------
Name:
Title:
CREDITANSTALT BANKVEREIN,
as a Term Loan C Lender
By /s/
----------------------------------------
Name:
Title:
By /s/
----------------------------------------
Name:
Title:
31
CRESTAR BANK,
as a Lender
By /s/
----------------------------------------
Name:
Title:
32
FIRST AMERICAN NATIONAL BANK,
as a Lender
By /s/
----------------------------------------
Name:
Title:
33
GENERAL ELECTRIC CAPITAL
CORPORATION,
as a Lender
By /s/
----------------------------------------
Name:
Title:
GENERAL ELECTRIC CAPITAL
CORPORATION,
as a Term Loan C Lender
By /s/
----------------------------------------
Name:
Title:
34
HIBERNIA NATIONAL BANK,
as a Lender
By /s/
----------------------------------------
Name:
Title:
35
PROVIDENT BANK OF MARYLAND,
as a Lender
By /s/
----------------------------------------
Name:
Title:
36
THE SANWA BANK, LIMITED,
NEW YORK BRANCH
as a Lender
By /s/
----------------------------------------
Name:
Title:
37
SUMMIT BANK,
as a Lender
By /s/
----------------------------------------
Name:
Title:
38
BANK ONE, TEXAS, N.A.,
as a Lender
By /s/
----------------------------------------
Name:
Title:
39
BANKERS TRUST COMPANY
as a Lender
By /s/
----------------------------------------
Name:
Title:
40
CIBC WOOD GUNDY SECURITIES CORP.
as a Lender
By /s/
----------------------------------------
Name:
Title:
CIBC, INC.,
as a Lender
By /s/
----------------------------------------
Name:
Title:
41
DAI-ICHI KANGYO BANK, LIMITED, NEW
YORK BRANCH
as a Lender
By /s/
----------------------------------------
Name:
Title:
42
DRESDNER BANK, AG, NEW YORK AND
GRAND CAYMAN BRANCHES,
as a Lender
By /s/
----------------------------------------
Name:
Title:
By /s/
----------------------------------------
Name:
Title:
43
SUNTRUST BANK, CENTRAL FLORIDA,
NATIONAL ASSOCIATION,
as a Lender
By /s/
----------------------------------------
Name:
Title:
44
BARNETT BANK, N.A.
as a Lender
By /s/
----------------------------------------
Name:
Title:
45
THE INDUSTRIAL BANK OF JAPAN,
LIMITED
as a Lender
By /s/
----------------------------------------
Name:
Title:
46
COOPERATIEVE CENTRALE
RAIFFEISEN-BOERENLEENBANK B.A.,
"RABOBANK NEDERLAND", NEW YORK
BRANCH,
as a Lender
By /s/
----------------------------------------
Name:
Title:
By /s/
----------------------------------------
Name:
Title:
47
THE TOYO TRUST AND BANKING
CO., LTD.,
as a Lender
By /s/
----------------------------------------
Name:
Title:
48
SOCIETE GENERALE,
as a Lender
By /s/
----------------------------------------
Name:
Title:
SOCIETE GENERALE,
as a Term Loan C Lender
By /s/
----------------------------------------
Name:
Title:
49
CHIAO TUNG BANK CO. LTD,
as a Lender
By /s/
----------------------------------------
Name:
Title:
50
FIRST COMMERCIAL BANK,
as a Lender
By /s/
----------------------------------------
Name:
Title:
51
THE SUMITOMO BANK, LIMITED,
as a Lender
By /s/
----------------------------------------
Name:
Title:
THE SUMITOMO BANK, LIMITED, NEW YORK BRANCH
as a Term Loan C Lender
By /s/
----------------------------------------
Name:
Title:
52
CHASE SECURITIES, INC.,
as agent for The Chase Manahttan Bank,
as a Lender
By /s/
----------------------------------------
Name:
Title:
CHASE SECURITIES, INC.,
as agent for The Chase Manahttan Bank,
as a Term Loan C Lender
By /s/
----------------------------------------
Name:
Title:
53
COMMERZBANK AG,
as a Lender
By /s/
----------------------------------------
Name:
Title:
54
ROYAL BANK OF CANADA,
as a Lender
By /s/
----------------------------------------
Name:
Title:
ROYAL BANK OF CANADA,
as a Term Loan C Lender
By /s/
----------------------------------------
Name:
Title:
55
ALLSTATE INSURANCE COMPANY,
as a Lender
By /s/
----------------------------------------
Name:
Title:
By /s/
----------------------------------------
Name:
Title:
56
PRIME INCOME TRUST,
as a Lender
By /s/
----------------------------------------
Name:
Title:
PRIME INCOME TRUST,
as a Term Loan C Lender
By /s/
----------------------------------------
Name:
Title:
57
DEEPROCK & COMPANY
By: EATON VANCE MANAGEMENT, as
Investment Manager,
as a Lender
By /s/
----------------------------------------
Name:
Title:
EATON VANCE PRIME RATE
By: EATON VANCE MANAGEMENT, as
Investment Advisor,
as a Term Loan C Lender
By /s/
----------------------------------------
Name:
Title:
58
MASSACHUSETTS MUTUAL LIFE
INSURANCE COMPANY,
as a Lender
By /s/
----------------------------------------
Name:
Title:
59
DEBT STRATEGIES FUND, INC.,
as a Lender
By /s/
----------------------------------------
Name:
Title:
MERRILL LYNCH DEBT STRATEGIES
PORTFOLIO
as a Lender
by: MERRILL LYNCH ASSET MANAGEMENT
L.P., as Investment Advisor
By /s/
----------------------------------------
Name:
Title:
MERRILL LYNCH PRIME RATE PORTFOLIO,
as a Lender,
by: MERRILL LYNCH ASSET MANAGEMENT
L.P., as Investment Advisor
By /s/
----------------------------------------
Name:
Title:
60
MERRILL LYNCH SENIOR FLOATING
RATE FUND, INC.
as a Lender
By /s/
----------------------------------------
Name:
Title:
SENIOR HIGH INCOME PORTFOLIO, INC.
as a Lender
By /s/
----------------------------------------
Name:
Title:
61
METROPOLITAN LIFE INSURANCE COMPANY,
as a Lender
By /s/
----------------------------------------
Name:
Title:
METROPOLITAN LIFE INSURANCE COMPANY,
as a Term Loan C Lender
By /s/
----------------------------------------
Name:
Title:
62
OCTAGON CREDIT INVESTORS LOAN PORTFOLIO (a
unit of The Chase Manhattan Bank),
as a Lender
By /s/
----------------------------------------
Name:
Title:
OCTAGON CREDIT INVESTORS LOAN PORTFOLIO (a
unit of The Chase Manhattan Bank),
as a Term Loan C Lender
By /s/
----------------------------------------
Name:
Title:
63
PARIBAS CAPTIAL FUNDING LLC,
as a Lender
By /s/
----------------------------------------
Name:
Title:
64
PILGRIM AMERICA PRIME RATE TRUST,
as a Term Loan C Lender
By /s/
----------------------------------------
Name:
Title:
65
TCW Leveraged Income Trust, L.P.
by: TCW Advisers (Bermuda), Ltd.,
as General Partner,
as a Lender
By /s/
----------------------------------------
Name:
Title:
By /s/
----------------------------------------
Name:
Title:
TCW Leveraged Income Trust, L.P.
by: TCW Investment Management Company,
as Investment Adviser,
as a Lender
By /s/
----------------------------------------
Name:
Title:
66
VAN KAMPEN AMERICAN CAPITAL
PRIME RATE INCOME TRUST,
as a Lender
By /s/
----------------------------------------
Name:
Title:
VAN KAMPEN AMERICAN CAPITAL
PRIME RATE INCOME TRUST,
as a Term Loan C Lender
By /s/
----------------------------------------
Name:
Title:
67
STOCKSPLUS L.P. SUBFUND B (Acct 400)
By: Pacific Investment Management Company,
as Investment Advisor, acting through
Investors Fiduciary Trust Company in the
Nominee Name of IFTCO.
as a Lender
By /s/
----------------------------------------
Name:
Title:
PIMCO TOTAL RETURN FUND (Acct 700)
By: Pacific Investment Management Company,
as Investment Advisor, acting through
Investors Fiduciary Trust Company in the
Nominee Name of IFTCO.
as a Lender
By /s/
----------------------------------------
Name:
Title:
ROYALTON COMPANY
By: Pacific Investment Management Company,
as Investment Advisor,
as a Term Loan C Lender
By /s/
----------------------------------------
Name:
Title:
68
KZH-CRESCENT CORPORATION,
as a Lender
By /s/
----------------------------------------
Name:
Title:
KZH-ING-1 CORPORATION,
as a Lender
By /s/
----------------------------------------
Name:
Title:
KZH-SOLEIL CORPORATION,
as a Lender
By /s/
----------------------------------------
Name:
Title:
KZH-ING-2 CORPORATION,
as a Lender
By /s/
----------------------------------------
Name:
Title:
69
KZH-SOLEIL CORPORATION,
as a Term Loan C Lender
By /s/
----------------------------------------
Name:
Title:
KZH HOLDING CORPORATION III,
as a Term Loan C Lender
By /s/
----------------------------------------
Name:
Title:
ING HIGH INCOME PRINCIPAL
PRESERVATION FUND HOLDINGS, LDC,
as a Lender
By: ING CAPITAL ADVISORS INC.,
as Investment Advisor
By /s/
----------------------------------------
Name:
Title:
GOLDMAN SACHS CREDIT PARTNERS LP
as a Lender
By /s/
----------------------------------------
Name:
Title:
INDOSUEZ CAPITAL FUNDING III, LIMITED
By: Indosuez Capital, as portfolio advisor
as Lender
By /s/
----------------------------------------
Name:
Title:
LEHMAN COMMERCIAL PAPER,
as a Lender
By /s/
----------------------------------------
Name:
Title:
LEHMAN COMMERCIAL PAPER,
as a Term Loan C Lender
By /s/
----------------------------------------
Name:
Title:
CYPRESSTREE INVESTMENT PARTNERS I, LTD.
By: CYPRESSTREE INVESTMENT
MANAGEMENT COMPANY, INC., as portfolio
manager,
as a Lender
By /s/
----------------------------------------
Name:
Title:
SENIOR DEBT PORTFOLIO
By: BOSTON MANAGEMENT AND
RESEARCH, as Investment Advisor,
as a Lender
By /s/
----------------------------------------
Name:
Title:
PFL LIFE INSURANCE COMPANY,
as a Lender
By /s/
----------------------------------------
Name:
Title:
PFL LIFE INSURANCE COMPANY,
as a Term Loan C Lender
By /s/
----------------------------------------
Name:
Title:
BANQUE WORMS CAPITAL CORPORATION,
as a Lender
By /s/
----------------------------------------
Name:
Title: