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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-K
[X] ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE SECURITIES EXCHANGE
ACT OF 1934
For the fiscal year ended July 31, 1997
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the transition period from to
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Commission File Number 0-14003
ROTECH MEDICAL CORPORATION
(Exact name of Registrant as specified in its charter)
Florida 59-2115892
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(State or other jurisdiction of (I.R.S. Employer Identification Number)
incorporation or organization)
4506 L.B. McLeod Road, Suite F
Orlando, Florida 32811
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(Address of Principal Executive Offices)
Registrant's telephone number, including area code: (407) 841-2115
Securities registered pursuant to Section 12(g) of the Act:
Title of Class: Common Stock, par value $.0002 per share
5-1/4% Convertible Subordinated Debentures Due 2003
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Indicate by check mark whether the Registrant: (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
Registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days. YES X NO
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Indicated by check mark, if disclosure of delinquent filers pursuant to Item 405
of Regulation S-K is not contained herein, and will not be contained, to the
best of Registrant's knowledge, in definitive proxy or information statements
incorporated by reference in Part III of this Form 10-K or any amendment to this
Form 10-K. [ ]
Aggregate market value of the Registrant's Common Stock held by non-affiliates:
N/A (On October 21, 1997, a wholly-owned subsidiary of Integrated Health
Services, Inc. ("IHS") was merged with and into Registrant with Registrant
becoming a wholly-owned subsidiary of HIS and each share of Registrant's Common
Stock was converted into .5806 shares of HIS Common Stock) Documents
incorporated by reference:
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ROTECH MEDICAL CORPORATION
FORM 10-K ANNUAL REPORT
FISCAL YEAR ENDED JULY 31, 1997
PART I: PAGE
Item 1 Business............................................... 3
Item 2 Properties............................................. 9
Item 3 Legal Proceedings...................................... 9
Item 4 Submission of Matters to a Vote of Security Holders.... 9
PART II:
Item 5 Market for Registrant's Common Equity and Related
Stockholder Matters.................................... 10
Item 6 Selected Financial Data................................ 10
Item 7 Management's Discussion and Analysis of Financial
Condition and Results of Operations.................... 10
Item 8 Financial Statements and Supplementary Data............ 13
Item 9 Changes in and Disagreements with Accountants on
Accounting and Financial Disclosure.................... 14
ITEM III:
Item 10 Directors and Executive Officers of the Registrant..... 14
Item 11 Executive Compensation................................. 17
Item 12 Security Ownership of Certain Beneficial Owners and
Management............................................. 18
Item 13 Certain Relationships and Related Transactions......... 18
PART IV:
Item 14 Exhibits, Financial Statement Schedules, and Reports on
Form 8-K............................................... 19
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PART I
Item 1. Business
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GENERAL
RoTech Medical Corporation ("RoTech" or the "Company") provides
comprehensive home health care and primary care physician services, principally
to patients in non-urban areas. RoTech operates 631 home health care locations
in 36 states. The Company's home health care business provides a diversified
range of products and services, with emphasis on home respiratory, home medical
equipment and infusion therapies. RoTech has pursued an aggressive acquisition
strategy since 1988 which included in fiscal 1997 acquisitions of 174 locations
of smaller home health care companies and the opening of 49 new locations.
Current industry estimates indicate that approximately half of the nation's home
health care industry remains fragmented and is run by either single operators or
small, local chains. These smaller providers are RoTech's main competition and
main acquisition opportunities. The Company plans to continue to enter new home
health care markets through acquisition or start-up as competitive and pricing
pressures encourage consolidation and economies of scale.
On October 21, 1997 the shareholders of RoTech approved a merger agreement
pursuant to which Integrated Health Services, Inc. acquired RoTech. The merger
transaction closed on October 21, 1997. See Item 4.
Recent data suggests that there is a shortage of health care services in non-
urban markets. According to the United States Census Bureau, in 1990 non-urban
areas of the United States accounted for roughly 25% of the national population,
or approximately 62 million people. However, according to the American Medical
Association, just 11% of physicians, or approximately 75,000 physicians,
practice in non-metropolitan markets. This data indicates that rural markets are
underserved, and suggests that there may be opportunities for improvement in
access to primary care physicians, as well as specialty services. The Company
believes that these needs result in significant opportunities for companies such
as RoTech, which can attract, retain and network physicians in non-urban
settings while offering ancillary services such as home health care, to become a
full-service non-institutional based primary health care provider.
OPERATING AND EXPANSION STRATEGY
RoTech was founded in 1981 to provide home respiratory and home medical
equipment products and services to patients in Florida. With its founders' roots
in pharmacy and pharmaceutical sales, the Company's marketing directive has
always been to provide information to primary care physicians regarding the
utilization of home health care techniques, products and services for their
patient base. Providing information to these physicians as to disease
management leads to earlier identification and treatment of patients, enhancing
the patient's quality of life and longevity. The Company has not targeted
specialists, as their patients are more acute and since specialists have
historically been tied to the hospital systems which results in higher
hospitalizations. RoTech's marketing is directed at identifying patients of
primary care physicians prior to hospitalization and prior to an acuity level
that would require utilizing a specialist.
The Company's strategy is to develop integrated health care delivery systems
through the acquisition of smaller local home health care companies in non-urban
areas. The Company targets non-urban markets of smaller cities and rural areas,
due to the dominance of primary care physicians in these markets, reduced
competition and a tendency to care for patients in the home setting. The Company
believes that acquisitions of home health care companies will continue to expand
the base of relationships with primary care physicians in these markets. Primary
care physicians in these markets typically have long-standing relationships with
loyal patient bases. These physicians are usually solo practitioners and are the
key decision makers in the treatment of their patients. The Company believes
that making home health care products and services available to these physicians
will result in better, less expensive health care that provides an improved
quality of life for the patients and their caregivers in these communities.
SALES AND MARKETING
RoTech believes that the sales and marketing skills of its employees have been
instrumental in its growth to date and are critical to its future success.
RoTech emphasizes to its employees the importance of patient base growth and
retention by providing quality service to physicians and their patients.
Approximately 28% of RoTech's employees are actively involved in sales and
marketing. The sales representatives employed by the Company
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include registered or certified respiratory therapists, registered pharmacists
and registered nurses who market all of the Company's services and products and
are responsible for maintaining and expanding the Company's relationships with
physicians, targeting primary care physicians in non-urban areas.
RoTech provides formal marketing, training, product and service information to
all of its technical and sales personnel so they can communicate effectively
with physicians about the Company's services and products. These personnel are
instructed on methods of serving the physicians by counseling them on new
procedures and medical technologies. Each technical and sales person must attend
periodic seminars conducted on a Company-wide basis. The Company emphasizes the
cross-marketing of all its products to physicians with which its salespeople
have already developed professional relationships. The Company believes its
marketing approach allows the primary care physician to identify acute and
chronic patients earlier in the disease process. Treatment is done at the
primary care level and accordingly at less cost than the advanced treatment of
the disease by specialists or in a hospital setting.
REIMBURSEMENT FOR SERVICES
A substantial percentage of RoTech's revenue is attributable to third-party
payors, including private insurers, Medicare and, to a lesser extent, Medicaid.
The Company has substantial expertise at processing claims and continues to
create and improve systems to manage third-party reimbursements, to produce
clean claims and obtain timely reimbursements by third-party payors. The Company
has developed distinct billing and collection departments for Medicare and
Medicaid reimbursements and for private insurance company claims which are
supported by customized computer systems. These departments work closely with
reimbursement officers at branch locations and third-party payors and are
responsible for the review of patient coverage, the adequacy and timeliness of
documentation and the follow-up with third-party payors to expedite
reimbursement payments. Reimbursement from the Medicare program as a percentage
of RoTech's total operating revenue approximated 51% for fiscal 1997, 48% for
fiscal 1996, 49% for fiscal 1995.
RoTech has achieved increased operating revenue in home respiratory and other
medical equipment operations despite increased regulation and corresponding
reimbursement reductions. While the increased regulation tends to reduce the
amount of reimbursement from government sources for individual cases, the
Company believes the continued increased regulation also benefits the Company by
reducing the competition from joint ventures and fee revenue sharing
arrangements, which the Company has historically avoided.
The Company's levels of operating revenue and profitability of the Company,
like those of other health care companies, are affected by the continuing
efforts of third-party payors to contain or reduce the costs of health care by
lowering reimbursement rates, increasing case management review of services and
negotiating reduced contract pricing. Home health care, which is generally less
costly to third-party payors than hospital-based care, has benefitted from those
cost containment objectives. However, as expenditures in the home health care
market continue to grow, initiatives aimed at reducing the costs of health care
delivery at non-hospital sites are increasing. Changes in reimbursement policies
by third-party payors, or the reduction in or elimination of such reimbursement
programs, could have a material adverse impact on the Company's revenues.
Various state and federal health reform initiatives may lead to additional
changes in reimbursement programs.
PRODUCTS AND SERVICES
HOME HEALTH CARE PRODUCTS AND SERVICES
HOME RESPIRATORY THERAPY AND EQUIPMENT
RoTech provides a variety of home respiratory therapy products and services on
a monthly rental or sale basis. Home respiratory therapy and equipment
represented 50%, 42% and 42% of the Company's revenues for the years ended July
1997, 1996 and 1995, respectively. RoTech focuses on serving patients of
primary care physicians with chronic pulmonary diseases in their pre-acute
stages. Early identification and retention of these patients at the
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primary care level reduces the cost of health care and should improve the
quality of life of the patients and their families. RoTech also enjoys patient
retention post-hospitalization at the patient's or physician's request and does
not rely on referrals of patients by hospital discharge planners or case
managers. Overall home respiratory market revenues were approximately $1.6
billion in 1993.
The Company's home respiratory care product line includes oxygen
concentrators, portable liquid oxygen systems, nebulizers, and ventilator care.
Oxygen concentrators extract oxygen from room air and generally provide the
least expensive supply of oxygen for patients who require a continuous supply of
oxygen, are not ambulatory and who do not require excessive flow rates. Liquid
oxygen systems store oxygen under pressure in a liquid form. The liquid oxygen
is stored in a stationary unit that can be easily refilled at the patient's home
and can be used to fill a portable device that permits greatly enhanced patient
mobility. Nebulizers are devices which aerosolize medications, allowing them to
be inhaled directly into the patient's lungs. Ventilator therapy is used for the
individual that suffers from respiratory failure by mechanically assisting the
individual to breathe. The Company provides technicians who deliver and/or
install the respiratory care equipment, instruct the patient in its use, refill
the high pressure and liquid oxygen systems as necessary and provide continuing
maintenance of the equipment.
HOME MEDICAL EQUIPMENT AND SUPPLIES
RoTech provides a full line of equipment and supplies of home medical
equipment and supplies for convalescents, including custom pieces required for
rehabilitation patients. Home medical equipment and supplies represented 29%,
35%, and 24% of the Company's revenues for the years ended July 31, 1997, 1996
and 1995 respectively. Provision of home medical equipment enables the Company
to provide a "one-stop shopping" presence in its non-urban markets, which is
required for full patient service satisfaction. These products are provided on a
monthly rental or sale basis and include wheelchairs, hospital beds, walkers,
patient lifts, orthopedic supplies, catheters, syringes and bathroom aids.
HOME INFUSION THERAPY AND OTHER PHARMACY RELATED PRODUCTS AND SERVICES
Home infusion therapy involves the administration of antibiotics, nutrients or
other medications intravenously, intramuscularly, subcutaneously or through a
feeding tube. The Company focuses on providing home infusion therapy to patients
prior to or in lieu of hospitalization, which generally offers significant cost
savings and preferable logistics for patients, their families and caregivers
over hospital-based treatments. RoTech believes that its marketing methods of
consulting with primary care physicians on home infusion therapies and the
continuing evolution of related technological advances should enable further
growth of this portion of the business. Focus on the referring primary care
physician facilitates the identification of patients requiring sub-acute
antibiotic treatments, which constitute 39% of the home infusion therapy market.
Home infusion therapies and other pharmacy products accounted for 14%, 16% and
25% of RoTech's revenues for the years ended July 31, 1997, 1996, and 1995,
respectively which includes the following types:
Antibiotic Therapy (The majority of the Company's home infusion therapy
revenues)--Antibiotic therapy requires the infusion of antibiotic drugs into the
patient's bloodstream to treat infections and diseases, such as osteomyelitis
(bone infections), bacterial endocarditis (infection of the lining around the
heart), wound infections, infections associated with HIV/AIDS, and infections of
the kidneys and urinary tract. Antibiotics are generally believed to be more
effective when infused directly into the bloodstream than when taken orally.
These treatments can be prescribed by primary care physicians, are short-term in
nature and recur occasionally.
Enteral Nutrition Therapy--Enteral nutrition therapy is administered to
patients who cannot eat as a result of an obstruction to the upper
gastrointestinal tract or because they are otherwise unable to be fed orally. As
with total parenteral nutrition therapy, enteral nutrition therapy is often
administered over a long period.
Pain Management and Chemotherapy--Pain management therapy is the
administration of pain controlling drugs to terminally or chronically ill
patients and is often administered in conjunction with intravenous chemotherapy.
Chemotherapy is the continuous or intermittent intravenous administration of
anti-cancer drugs. Chemotherapy generally is administered periodically for
several weeks or months.
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Total Parenteral Nutrition Therapy--Total parenteral nutrition (TPN) therapy
involves the intravenous feeding of nutrients to patients with impaired
digestive tracts due to gastrointestinal illnesses or conditions, due to
underlying conditions including cancer or HIV/AIDS. TPN is usually longer in
duration than other forms of infusion therapy, and can be lifelong.
Other Therapies. Other therapies and services include therapies such as
congestive heart failure therapy, hydration therapy and related nursing
services.
The Company's home infusion therapy business is dependent in large measure
upon physicians continuing to prescribe the administration of drugs and
nutrients through intravenous and other infusion methods. Orally administered
drugs and alternative drug delivery systems may have an effect upon the demand
for certain infusion therapies. The Company can predict neither the ultimate
impact of these treatments on the Company's business nor the nature of future
medical advances or their eventual impact on the Company's business.
PRIMARY CARE PHYSICIANS' PRACTICES
RoTech has acquired primary care physician practices in the States of Florida
and Mississippi. The Company believes that it will be able to increase the
profitability of the individual practices through economies of scale and greater
efficiencies, and that its centralized billing and reimbursement functions will
typically result in lower costs per claim and quicker reimbursement. Physician
practices represented 7%, 7% and 9% of the Company's revenues for the years
ended July 31, 1997, 1996 and 1995, respectively.
GOVERNMENT REGULATION
The home care industry is subject to extensive government regulation at the
federal level through the Medicare program and at the state level through the
Medicaid program. Medicare is a federally funded health insurance program which
provides health insurance coverage for persons age 65 and older and certain
disabled persons, and generally provides reimbursement at specified rates for
sales and rentals of specified medical equipment and supplies, provided such
equipment and supplies are determined to be medically necessary by the treating
physician. Medicaid is a health insurance program administered by state
governments which provides reimbursements for health care for certain
financially or medically needy persons regardless of age.
The Company is subject to government audits of its Medicare and Medicaid
reimbursement claims and has not, to date, experienced any material loss as a
result of any such government audits. Under existing federal law, the knowing
and willful offer or payment of any remuneration (including any kickback, bribe
or rebate) of any kind to another person to induce the referral of Medicare or
Medicaid beneficiaries for whom medical supplies and services may be reimbursed
by the Medicare or Medicaid programs is prohibited and could subject the parties
to such an arrangement to substantial criminal and civil penalties, including
exclusion from participation in these programs, for Medicare or Medicaid fraud.
The Office of Inspector General of the Department of Health and Human Services
("OIG") has promulgated regulatory "safe harbors" that describe certain
practices and business arrangements that comply with Medicare and Medicaid
regulations. The OIG and law enforcement authorities have recently increased
their investigatory efforts to determine whether various business practices
constitute remuneration for, or to induce, referrals. Certain states have also
passed statutes and regulations that prohibit payments for referral of patients.
These laws vary significantly from state to state. The result of legislative and
regulatory efforts is an extra compliance challenge and, therefore, risk.
RoTech reached a settlement with the U.S. Attorney for the Middle District of
Florida in a civil action related to Medicare claims the government believes it
erroneously paid between 1987 and 1989. RoTech remains confident that it was in
compliance with all material Medicare and other legal requirements related to
this matter. However, in an effort to reduce legal defense costs and to
preserve internal resources, RoTech paid $612,500 (approximately $380,000 on an
after tax basis) to resolve the matter. These monies represent a repayment of a
portion of the estimated disputed claims and related interest over approximately
ten years.
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The Company received an inquiry from the Medicaid Department of the State of
Mississippi and subsequently received two subpoenas from the OIG concerning the
Company's 1994 cost report for its Mississippi Rural Health Clinics. The Company
is cooperating fully with such inquiries. There has been no statement of issues
or particular concerns giving the Company sufficient information to permit the
Company to determine the extent of financial exposure, if any. The Company is
not aware of any material error in the one year's cost report under inquiry,
following consultation with its outside consultant, who also assisted in the
preparation and filing of the original report. If any adjustments occur, such
would likely relate only to Mississippi physician clinics for 1994. However,
medicaid and OIG have the right to audit years subsequent to 1994 and RoTech can
not predict the outcome of any such audit.
The types of services and products delivered by the Company, the required
quality of such services and products and the manner in which such services and
products are delivered and billed are each subject to significant and complex
regulations promulgated, interpreted and administered by the appropriate federal
or state governmental agency. Although the Company believes that its products,
services and procedures comply in all respects with such regulations applicable
to reimbursement eligibility, the unavailability of advance formal
administrative rulings in most regulated areas subjects the Company to possible
subsequent adverse interpretations and rulings which may affect the eligibility
of some or all of the Company's services and products for reimbursement. Such an
adverse interpretation or ruling could have a substantial adverse impact on the
Company's business.
In addition, the Company is required to obtain federal and state licenses and
permits relating to the distribution of pharmaceutical products, including a
federal Controlled Dangerous Substance Registration Certificate and Florida
State Wholesaler License. The Company is required to obtain similar licenses
from each state in which it does business.
The Company's acquisitions of primary care physician practices are structured
to attempt to comply with federal and state law restrictions on business
relationships between the Company and persons who may be in a position to refer
patients to the Company for the provision of health care related items or
services. Accordingly, the Company endeavors to undertake such acquisitions in a
manner where the consideration offered and paid is consistent with fair market
value in arms-length transactions and is not determined in a manner that takes
into account the volume or value of any referrals or business that might
otherwise be generated between the Company and the physician whose practice is
to be acquired and for which payment may be made under Medicare or Medicaid.
While the Company believes that its acquisitions do not entail any form of
unlawful remuneration, there can be no assurances that enforcement authorities
will not attempt to construe the consideration exchanged in certain acquisition
transactions as entailing unlawful remuneration and to challenge such
transactions on such basis.
In many states, the "corporate practice of medicine doctrine" prohibits
business corporations from providing, or holding themselves out as providers of,
medical care through the employment of physicians. Although the two states in
which the Company has acquired practices of primary care physicians, Florida and
Mississippi, have not adopted this prohibition, there can be no assurance that
either state will not adopt this doctrine in the future. Enforcement of such
doctrine could require divestiture of acquired practices or restructuring of
physician relationships.
Health care is an area of extensive and dynamic regulatory change. Changes in
the law or new interpretations of existing laws can have a dramatic effect on
permissible activities, the relative costs associated with doing business, and
the amount of reimbursement by government and third-party payors. The Omnibus
Budget Reconciliation Act of 1987 ("OBRA 1987") created six categories of
durable medical equipment for purposes of reimbursement under the Medicare Part
B program. There is a separate fee schedule for each category. OBRA 1987 also
controls whether durable medical equipment products will be paid for on a rental
or sale basis and established fixed payment rates for oxygen service as well as
a 15-month rental ceiling on certain medical equipment. An interim final rule
implementing the payment methodology under the fee schedules recently was
published in the Federal Register. Payment based on the fee schedules is
effective with covered items furnished on or after January 1, 1989. Generally,
Medicare pays 80% of the lower of the supplier's actual charge for the item or
the fee schedule amount, after adjustment for the annual deductible amount. OBRA
1990 made changes to Medicare Part B reimbursement that were implemented in
1991. The substantive change was the standardization of Medicare rates for
certain equipment categories. Laws and regulations often are adopted to regulate
new products, services and
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industries. The Balanced Budget Act of 1997, enacted in August 1997, reduces the
Medicare national payment limits for oxygen and oxygen equipment used in home
respiratory therapy by 25% in 1998 and 30% (from 1997 levels) in 1999 and each
subsequent year. Approximately 22% of RoTech's total revenues for the year ended
July 31, 1997 were derived from the provision of oxygen services to Medicare
patients. There can be no assurances that either the states or the federal
government will not impose additional regulations upon the Company's activities
which might adversely affect the Company's business.
Political, economic and regulatory influences are subjecting the health care
industry in the United States to fundamental change. Although Congress has
failed to pass comprehensive health care reform legislation thus far, the
Company anticipates that Congress and state legislatures will continue to review
and assess alternative health care delivery and payment systems and may in the
future propose and adopt legislation effecting fundamental changes in the health
care delivery system. Further, each area of medical care is subject to scrutiny
and revision as to the amount of reimbursement which is reasonable. Any
reduction in reimbursement in those goods and services provided by the Company
would have a direct effect on gross revenues of the Company. Legislative debate
is expected to continue in the future, and the Company cannot predict what
impact the adoption of any federal or state health care reform measures or
future private sector reform may have on its industry or business.
Pursuant to federal legislation (commonly known as "Stark II") enacted as
part of The Omnibus Budget Reconciliation Act of 1993, and effective January 1,
1995, physicians are prohibited from making referrals to entities in which they
(or immediate family members) have an investment interest or compensation
arrangement, where such referral is for any "designated health service"
covered by Medicare/Medicaid, including parenteral and enteral nutrients,
equipment and supplies, and home health services. Ownership by a physician of
investment securities in a publicly-held corporation with stockholders' equity
exceeding $75 million at the end of the corporation's most recent fiscal year or
on average during the previous three fiscal years is exempt from the investment
prohibition if the securities are traded on the New York, American or a regional
stock exchange, or The Nasdaq National Market. Exemptions from the compensation
arrangement prohibition include (i) amounts paid by an employer to a physician
pursuant to a bona fide employment relationship meeting specified requirements,
including payments being unrelated to referrals and consistent with the fair
market value of the services provided and (ii) other personal service
arrangements if certain requirements are met, including that compensation be
paid over the term of a written agreement with a term of one year or more, be
set in advance, not exceed fair market value, and be unrelated to referrals.
While RoTech intends to structure its acquisitions and operations to comply with
Stark II, there can be no assurance that future interpretations of that law will
not require structural and organizational modifications of the Company's
existing relationships with physicians, nor can assurance be given that present
or future relationships between the Company and physicians will be found to be
in compliance with such law.
Competition
The home healthcare market is highly competitive and is divided among a large
number of providers, some of which are national providers but most of which are
either regional or local providers. RoTech believes that the primary
competitive factors in this market are the ability of a company to provide
prompt and reliable service, the expertise and availability of personnel, the
range of products and services offered and, to a limited extent, the price of
the product or service. RoTech's current and potential competitors include
several national providers which have significantly greater financial and other
resources than RoTech. There can be no assurance that RoTech will not encounter
increased competition which could adversely affect its business, results of
operations or financial condition.
RoTech also competes with other home healthcare companies for acquisitions and
managed care contracts (deriving approximately 5% of its revenues from managed
care contracts). There can be no assurance that additional acquisitions can be
made and managed care contracts can be obtained on favorable terms or at all.
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INSURANCE
In recent years, participants in the health care market have become subject to
an increasing number of malpractice and product liability lawsuits, many of
which involve large claims and significant defense costs. As a result of the
liability risks inherent in the Company's lines of business, including the risk
of liability due to the negligence of physicians or other health care
professionals employed by or otherwise under contract to the Company, the
Company maintains liability insurance intended to cover such claims. There can
be no assurance that the coverage limits of the Company's insurance policies
will be adequate, or that the Company can obtain liability insurance in the
future on acceptable terms or at all.
The Company currently has in force various liability insurance policies, with
total coverage limits of $26 million per occurrence and in the aggregate
annually. These policies contain various levels of deductibles and self-insured
retentions. They provide the Company protection against claims alleging bodily
injury or property damage arising out of the Company's operations, including
home health care, but excluding the Company's employed physicians. The Company
has in force, with respect to physicians employed by the Company, individual
professional liability insurance policies, with coverage limits ranging from
$250,000 per occurrence to $1 million per occurrence, and ranging from $750,000
in the aggregate annually to $3 million in the aggregate annually. The Company's
insurance policies are subject to annual renewal.
ITEM 2. PROPERTIES
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The Company leases all of its offices and facilities. The Company's corporate
headquarters is currently located in a 25,300 square foot warehouse/office
building located at 4506 L.B. McLeod Road, Suite F, Orlando, Florida 32811,
leased by the Company for a 5 year period ending September 30, 2000 at a current
rate of $3.40 per square foot with utilities, taxes and insurance being the
financial responsibility of the Company.
In addition to its corporate headquarters, the Company leases office
facilities for its 613 locations. These facilities are primarily used for
general office work and the dispatching of registered respiratory therapists,
registered nurses, registered pharmacists and delivery personnel.
The Company's office facilities vary in size from approximately 200 to 6,000
square feet. The total space leased for these offices is approximately
1.5 million square feet at an average price of $8.11 per square foot. All of
such office space is leased pursuant to operating leases.
Management believes that its office and warehouse facilities are suitable and
adequate for its planned needs.
ITEM 3. LEGAL PROCEEDINGS
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The Company is from time to time involved in various legal proceedings.
Although the Company does not believe that any currently pending proceeding will
materially and adversely affect the Company, there can be no assurance that any
current or future proceeding will not have a material adverse affect on the
Company's financial position or results of operations.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
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On October 21, 1997 a special meeting of shareholders was held. At that
meeting, shareholders approved a proposal to approve and adopt the Agreement and
Plan of Merger dated July 6, 1997 between the Company and Integrated Health
Services, Inc. ("IHS"). As a result of this approval, the Company became a
wholly-owned subsidiary of IHS on October 21, 1997. Each outstanding share of
RoTech Common Stock was converted into the right to receive and each report to
acquire a share of RoTech Common Stock was converted into the right to purchase,
.5806 of a share of common stock of IHS.
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PART II
Item 5. Market for the Registrant's Common Equity and Related Stockholder
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Matters
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On October 21, 1997 a special meeting of shareholders was held. At that
meeting, shareholders approved a proposal to approve and adopt the Agreement and
Plan of Merger dated July 6, 1997 between the Company and Integrated Health
Services, Inc. ("IHS"). As a result of this approval, the Company became a
wholly-owned subsidiary of IHS on October 21, 1997 (the "Merger"). Each
outstanding share of RoTech Common Stock was converted into the right to receive
and each report to acquire a share of RoTech Common Stock was converted into the
right to purchase, .5806 of a share of common stock of IHS. As a result,
RoTech's Common Stock is no longer publicly traded.
ITEM 6. SELECTED FINANCIAL DATA
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The information required by this item is set forth under the heading "Selected
Consolidated Financial Data" on Page 22 of the Company's Annual Report to the
Shareholders for the fiscal year ended July 31, 1997, and is hereby incorporated
by reference.
ITEM 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
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OF OPERATION
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Statements in this Annual Report on Form 10-K concerning the Company's business
outlook or future economic performance; anticipated profitability, revenues,
expenses or other financial items; and product line growth, together with other
statements that are not historical facts, are "forward-looking statements" as
that term is defined under Federal Securities Laws. Forward-looking statements
are subject stated in such statements. Such risks, uncertainties and factors
include, but are not limited to, the Company's substantial indebtedness, growth
strategy, capital requirements and recent acquisitions as well as competition,
government regulation, general economic conditions and the other risks detailed
in the Company's filings with the Securities and Exchange Commission, including
this Annual Report on Form 10-K.
RESULTS OF OPERATIONS
The following table presents the percentage of certain items relative to total
operating revenue:
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Year Ended July 31
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1997 1996 1995
------------------- ---------------- ------------------
<S> <C> <C> <C>
Operating Revenue:
Home respiratory therapy and equipment............ 50% 42% 42%
Home medical equipment and supplies............... 29 35 24
Home infusion therapy and other pharmacy
related products and services.................... 14 16 25
Physician practices............................... 7 7 9
---- ---- ----
Total Operating Revenue............................ 100% 100% 100%
COST AND EXPENSES:
Cost of revenue................................... 25% 27 27
Selling, general and administrative............... 49 48 49
Depreciation and amortization..................... 10 10 7
Interest.......................................... 4 2 1
---- ---- ----
Total Cost and Expenses............................ 88 88 84
---- ---- ----
Income before income taxes......................... 12 12 16
Income tax expense................................. 5 5 6
---- ---- ----
Net Income......................................... 7% 8% 10%
==== ==== ====
</TABLE>
10
<PAGE>
FOR THE FISCAL YEARS ENDED JULY 31, 1997 AND 1996
Operating revenue increased 61% to $423 million for the fiscal year ended
July 31, 1997 ("fiscal 1997") from $263 million for the fiscal year ended July
31, 1996 ("fiscal 1996"). The increase in operating revenue is attributable to
acquisitions and expanded product and service lines in existing areas of
operation. Revenue from acquisitions in fiscal 1997 totaled $59 million.
During fiscal 1997, the Company added 174 home care locations and operated 589
home care locations in 35 states as of July 31, 1997. The Company continues to
employ a single sales force to maintain and develop both the home respiratory
therapy, other medical equipment, home infusion therapy and other pharmacy
related lines of business.
Operating revenue from home respiratory therapy and equipment increased 92%
to $211.3 million for fiscal 1997 from $110.1 million for fiscal 1996.
Operating revenue from home medical equipment and supplies increased 33% to
$122.6 million for fiscal 1997 from $92.1 million for fiscal 1996. The
increases in these two product lines were due mainly to increases in patient
bases throughout the Company's locations and increased marketing efforts in
certain locations acquired during fiscal year 1997 and 1996. The majority of
the Company's acquisitions are of businesses that operate primarily in these two
product lines.
Operating revenue from home infusion therapy and pharmacy related services
increased 43% to $59.2 million for fiscal 1997 from $41.5 million for fiscal
1996. The Company anticipated growth in this line of business to continue as the
Company expands its service areas.
Operating revenue from physician and other services increased 53% to $29.6
million for fiscal 1997, from $19.4 million for fiscal 1996. The Company
currently owns 24 physician practices and employs 29 primary care physicians.
These practices are clustered in two rural marketplaces. The Company anticipated
growth in this line of business to continue yet decline as a percentage of
operating revenue as the Company continues to acquire home health care
operations.
Cost of revenue as a percentage of operating revenue decreased to 25.0% for
fiscal 1997 from 27.0% for fiscal 1996 due to changes in the product mix in the
last year resulting from mid-year fiscal 1996 and fiscal 1997 acquisitions.
Selling, general and administrative expenses as a percentage of operating
revenue increased to 49.4% for fiscal 1997 from 48.4% for fiscal 1996 due to an
increase in bad debt expense. Changes in the Company's mix of business also
affect these categories. For example, physician practices have no cost of
revenue and all expenses are of a selling, general and administrative nature.
Depreciation and amortization expense increased 66% to $44.0 million for
fiscal 1997 from $26.5 million for fiscal 1996. Depreciation and amortization
expense as a percentage of operating revenue was 10.4% for fiscal 1997 and 10.1%
for fiscal 1996. The dollar increase was attributable to the Company's purchase
of fixed and intangible assets resulting from various acquisitions and the fixed
assets needed for the increased rentals of equipment. All acquisitions in
fiscal 1997 were accounted for by the purchase method.
Interest expense, net of interest income, increased to $13.6 million for
fiscal 1997 from $5.2 million for fiscal 1996. This increase resulted from the
Company borrowing monies to fund certain acquisitions along with the issuance of
the Convertible Subordinated Debentures on June 1, 1996.
Income tax expense was provided at a 39.1% effective rate, compared to
37.5% the prior fiscal 1996.
Net income for fiscal 1997 was $30.8 million, a 50% increase over the $20.6
million for fiscal year 1996. Net income per share on a fully diluted basis
increased 37% to $1.12 for fiscal 1997 compared to $0.82 for fiscal 1995. The
weighted average number of shares on a fully diluted basis increased 23% to 30.9
million at July 31, 1997 from 25.2 million at July 31, 1996, primarily as a
result of shares issued in conjunction with certain acquisitions.
11
<PAGE>
FOR THE FISCAL YEARS ENDED JULY 31, 1996 AND 1995
Operating revenue increased 96% to $263.0 million for the fiscal year ended
July 31, 1996 ("fiscal 1996") from $134.1 million for the fiscal year ended July
31, 1995 ("fiscal 1995"). The increase in operating revenue is attributable to
acquisitions and expanded product and service lines in existing areas of
operation. During fiscal 1996, the Company added 165 home care locations and
operated 366 home care locations in 28 states as of July 31, 1996. The Company
continues to employ a single sales force to maintain and develop both the home
respiratory therapy, other medical equipment, home infusion therapy and other
pharmacy related lines of business.
Operating revenue from home respiratory therapy and equipment increased 95%
to $110.1 million for fiscal 1996 from $56.5 million for fiscal 1995. Operating
revenue from home medical equipment and supplies increased 185% to $92.1 million
for fiscal 1996 from $32.3 million for fiscal 1995. The increases in these two
product lines were due mainly to increases in patient bases throughout the
Company's locations and increased marketing efforts in certain locations
acquired during fiscal year 1995 and 1996. The majority of the Company's
acquisitions are of businesses that operate primarily in these two product
lines.
Operating revenue from home infusion therapy and pharmacy related services
increased 24% to $41.5 million for fiscal 1996 from $33.6 million for fiscal
1995.
Operating revenue from physician practices increased 65% to $19.4 million
for fiscal 1996, from $11.7 million for fiscal 1995. The Company currently owns
24 physician practices and employs 29 primary care physicians. These practices
are clustered in two rural marketplaces.
Cost of revenue as a percentage of operating revenue decreased to 27.0% for
fiscal 1996 from 27.1% for fiscal 1995 due to changes in the product mix in the
last year resulting from mid-year fiscal 1995 and fiscal 1996 acquisitions.
Selling, general and administrative expenses as a percentage of operating
revenue reduced to 48.4% for fiscal 1996 from 49.6% for fiscal 1995, as the
revenue base has grown faster than the Company's costs. Changes in the Company's
mix of business also affect these categories. For example, physician practices
have no cost of revenue and all expenses are of a selling, general and
administrative nature.
Depreciation and amortization expense increased 177% to $26.5 million for
fiscal 1996 from $9.6 million for fiscal 1995. Depreciation and amortization
expense as a percentage of operating revenue was 10.1% for fiscal 1996 and 7.1%
for fiscal 1995. The dollar increase was attributable to the Company's purchase
of fixed and intangible assets resulting from various acquisitions and the fixed
assets needed for the increased rentals of equipment. All acquisitions in
fiscal 1996 were accounted for by the purchase method for acquisitions.
Interest expense, net of interest income, increased to $5.2 million for
fiscal 1996 from $835,000 for fiscal 1995. This increase resulted from the
Company borrowing monies to fund certain acquisitions along with the issuance of
the convertible subordinated debentures on June 1, 1996.
Income tax expense was provided at a 37.5% effective rate, compared to
37.2% the prior fiscal 1995.
12
<PAGE>
Net income for fiscal 1996 was $20.6 million, a 56.4% increase over the
$13.1 million for fiscal year 1995. Net income per share on a fully diluted
basis increased 30.2% to $0.82 for fiscal 1996 compared to $0.63 for fiscal
1995. The weighted average number of shares on a fully diluted basis increased
20.1% to 25.2 million at July 31, 1996 from 21.0 million at July 31, 1995,
primarily as a result of the May 1995 public stock offering and shares issued in
conjunction with certain acquisitions.
LIQUIDITY AND CAPITAL RESOURCES
At July 31, 1997, total current assets were $152.1 million and total
current liabilities were $212.0 million, resulting in a working capital deficit
of $59.8 million. This deficit results from the classification of the Company's
line of credit as a current liability. The Company's current ratio was 0.72 to
1 at July 31, 1997 compared to 1.47 to 1 at July 31, 1996. Net trade accounts
receivable increased $28.9 million in fiscal 1997, or 35%. This increase is
attributable to acquisitions of the net assets of many home health care
companies during the year and the 61% increase in operating revenue over the
prior year. The Company's days revenue outstanding on net accounts receivable
decreased to 81 days at July 31, 1997 from 92 days at July 31, 1996. Acquired
receivables remaining outstanding account for approximately 11 days revenue
outstanding at July 31, 1997 compared to 16 days revenue outstanding at July 31,
1996.
Current liabilities increased $135.5 million in fiscal 1997, as an
additional $129 million was borrowed on the syndicated bank line of credit. The
balance of the change was due to income taxes payable.
During fiscal 1997, the Company generated cash of $70 million from
operating activities primarily as a result of net income of $30.8 million along
with non-cash expenses of $73 million. Advances on the syndicated bank line of
credit were utilized to fund acquisitions and internal expansion. During fiscal
1997, the Company spent $137 million to acquire various home health care
companies and $56 million to purchase property and equipment, primarily rental
equipment, for operational needs. The Company has been financing its revenue
growth and increased working capital requirements with positive net cash
provided by operating activities and short-term borrowings.
On June 1, 1996, the Company issued $110 million aggregate principal amount
of 5 1/4% convertible subordinated debentures ("debentures"). Upon receipt, the
proceeds were used to reduce the syndicated bank line of credit. The debentures
are due 2003 with interest payable on June 1 and December 1, commencing December
1, 1996. The debentures do not provide for a sinking fund. The Debentures were
converted into Common Stock of the Company at any time after the 60/th/ day
following the date of original issuance of the debentures and at or before
maturity at a conversion price of $26.25 per share, subject to adjustment in
certain events, plus accrued interest. As a result of the Merger, the debentures
are converted into IHS Common Stock at a conversion price of $45.21 per share,
subject to adjustments in certain circumstances. The Debentures are redeemable
at the option of the Company, in whole or in part, but not before June 4, 1999.
The Company's ability to repurchase the Debentures is dependent upon the
Company's having sufficient funds and may be limited by the terms of the
Company's senior indebtedness or the subordination provisions of the related
indenture.
As of July 31, 1997, the Company had a syndicated bank line of credit of
$300 million, with approximately $113.5 million available for future
borrowing, as of September 16, 1997. The syndicated bank line of credit carries
a negative pledge on all Company assets, is payable on demand and provides for
interest rates, at the Company's election, of LIBOR plus .75%. The syndicated
bank line of credit requires compliance by the Company with certain financial
and negative covenants, including a restriction on dividends. As of July 31,
1997, the Company was in compliance with all covenants contained in the credit
facility. In connection with the Merger, the credit facility was paid in full
and terminated. Management believes that its credit capacity and cash flow from
operations, will be sufficient for the Company's projected growth in the near
future.
ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA
- ----------------------------------------------------
Financial Statements:
- ---------------------
The information required by this item is set forth on page 1 through 20 in the
Company's Annual Report to Shareholders for the fiscal year ended July 31, 1997,
and is hereby incorporated by reference.
13
<PAGE>
Selected Quarterly Consolidated Financial Data:
- -----------------------------------------------
The supplementary financial information is set forth on page __ on the Company's
Annual Report to Shareholders for the fiscal year ended July 31, 1997, and is
hereby incorporated by reference.
ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND
- -----------------------------------------------------------------------
FINANCIAL DISCLOSURE
- --------------------
Not Applicable
PART III
--------
ITEM 10. DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT
- ------------------------------------------------------------
As of July 31, 1997, the following were directors of the Company:
<TABLE>
<CAPTION>
NAME OF NOMINEE AND POSITION
WITH THE COMPANY AGE DIRECTOR SINCE PRINCIPAL OCCUPATION LAST FIVE YEARS
- ---------------------------- --- -------------- ------------------------------------
<S> <C> <C> <C>
William P. Kennedy, 53 1981 Chairman, Board of Directors and Chief
Chairman, Board of directors Executive Officer of the company;
and Chief Executive Officer Chairman, Board of Directors and
President of Thayers
Stephen P. Griggs, Director, 39 1991 Director, Chief Operating Officer,
Chief Operating Officer, President and Assistant Secretary of the
President and Assistant Company.
Secretary
William A. Walker II, Director 56 1984 Director and Secretary of the Company;
and Secretary Practicing attorney in Winter Park and
Orlando, Florida as a shareholder in the
law firm of Windeweedle, Haines,
Ward and Woodman, P.A.
Leonard E. Williams, Director 66 1988 Director of the Company; President and
Chief Executive Officer of Wayne
Densch, Inc.; President of Wayne
Densch Charities; previously District
Sales Manager for Tom's Foods, Inc.;
Director of Orlando Board of Directors,
First Union National Bank of Florida;
President of Leonard E. Williams
Company.
Jack T. Weaver, D.O., Director 64 1992 Director of the company; Osteopathy
Physician; Chairman, Board of Trustees
at the University of Health Sciences,
College of osteopathie Medicine,
Kansas City, Missouri.
</TABLE>
14
<PAGE>
The company has established an Executive Committee consisting of William P.
Kennedy, Stephen P. Griggs and William A. Walker, II; a Stock Option Plan
Committee consisting of William A. Walker II, a Compensation Committee
consisting of William A. Walker II and Leonard E. Williams; an Audit Committee
consisting of William A. Walker II, Leonard E. Williams and Jack T. Weaver, D.O.
and a Nominating Committee consisting of William A. Walker II and Leonard E.
Williams. During the company's fiscal year ended July 31, 1997, its Audit
Committee held two (2) meetings and each committee member attended such meeting.
Also, during the Company's fiscal year ended July 31, 1997, the Company's Board
of Directors held four meetings, and a quorum of directors was present at each
meeting.
The following persons are executive officers (but not directors) of the Company:
<TABLE>
<CAPTION>
NAME OF OFFICER AND POSITION EXECUTIVE PRINCIPAL OCCUPATION LAST FIVE
WITH THE COMPANY AGE OFFICER SINCE YEARS
- ---------------------------- --- ------------- ------------------------------
<S> <C> <C> <C>
Rebecca R. Irish, Chief 35 1991 Chief Financial Officer, Treasurer
Financial Officer, Treasurer and and Assistant Secretary of the
Assistant Secretary Company.
Janet L. Ziomek 40 1996 Vice President - Finance of the
Company, previously Chief
Financial Officer and Treasurer of
Designed Furniture Associates,
Inc., Orlando, Florida.
N. Scott Novell 44 1997 Chief Legal Officer, previously
practicing attorney in Orlando,
Florida at Gray, Harris & Robinson
law firm.
</TABLE>
On October 21, 1997, the shareholders of the Company approved a merger with
Integrated Health Services, Inc. see Item 4. As a result, the following are the
executive officers and directors of RoTech Medical Corporation as of October 21,
1997:
<TABLE>
<CAPTION>
Directors:
- ----------
<S> <C> <C> <C>
Marc B. Levin 42 1989 Executive Vice President-Investor
Relations, previously Senior Vice
President-Investor Relations and Vice
President of Investor Relations with
Integrated Health Services, Inc.
Marshall A. Elkins 49 1990 Executive Vice President and General
Counsel, previously Senior Vice President
and General Counsel of Integrated Health
Services, Inc.
Stephen P. Griggs 39 1997 President of RoTech Medical Corporation
subsidiary of Integrated Health
Services. Previously President and
Chief Operating Officer of RoTech
Medical Corporation.
Officers:
C. Christian Winkle 34 1990 Executive Vice President - Field
Operations, previously Senior Vice
President-Operations with Integrated
Health Services, Inc.
Lawrence P. Cirka 45 1994 Executive Vice President, previously
President and Chief Operating Officer
of Company.
</TABLE>
15
<PAGE>
<TABLE>
<CAPTION>
Directors:
- ----------
<S> <C> <C> <C>
Brian K. Davidson 39 1991 Executive Vice President - Development, previously
Senior Vice President - Development and Senior Vice
President-Managed Operations of the Company.
Anthony R. Masso 55 1994 Executive Vice President - Managed Care of the
Company, previously, Senior Vice President of
American MedCenters, and HMO company in
Minneapolis.
John Heller 38 1991 Executive Vice President - Facility Operations; Eastern
Division, previously Senior Vice President - Facility
Operations, Senior Vice President - Northern
Operations and Senior Vice President - MSU Operations
for the Company.
W. Bradley Bennett 31 1991 Executive Vice President - Chief Accounting Officer,
previously Senior Vice President-Chief Accounting
Officer, Senior Vice President-Corporate Controller,
Vice President - Controller and as Assistant Corporate
Controller.
Eleanor C. Harding 47 1993 Executive Vice President - Finance, previously Senior
Vice President - Finance and Treasurer and Vice
President - Finance and Treasurer of the Company.
Prior to joining company served as Senior Vice President,
Chief Financial Officer and Treasurer of Marcor Company.
Virgina Dollard 45 1995 Executive Vice President - Post-Acute Network
Operations, previously Senior Vice President, Southeast
Division of the company. Prior to joining the Company
served as Executive Vice President and Chief Operating
Officer of HealthPlus-New York Life Health Plan.
C. Taylor Pickett 35 1993 Executive Vice President, previously Senior Vice
President-Symphony Health Services and Vice
President of Acquisitions and Taxes. Prior to joining
the Company he served as Director of Taxes for PHH
Corporation.
</TABLE>
16
<PAGE>
ITEM 11. EXECUTIVE COMPENSATION
- --------------------------------
The following table sets forth the annual and long-term compensation for the
Company's Chief Executive Officer at July 31, 1997 and the only executive
officers at July 31,1997 whose aggregate salary and bonus compensation exceeded
$100,000, as well as the total compensation paid to each individual for the
Company's previous two fiscal years:
<TABLE>
<CAPTION>
COMPENSATION LONG-TERM
NAME AND PRINCIPAL POSITION YEAR ANNUAL SALARY BONUS & OTHER COMPENSATION
- --------------------------- ---- ------------- ------------- ------------
<S> <C> <C> <C> <C>
William P. Kennedy, Chairman 1997 $200,000 --- ---
of the Board of Directors and 1996 $153,137 --- ---
Chief Executive Officer 1995 $151,289 --- ---
Stephen P. Griggs, Director, 1997 $150,000 --- ---
Chief Operating Officer, 1996 $112,263 --- ---
President and Assistant 1995 $110,784 --- ---
Secretary
</TABLE>
See "Item 13. Certain Relationships and Related Transactions" for information
with respect to payments to companies wholly or partially owned by Mssrs. Griggs
and Kennedy.
17
<PAGE>
In connection with and as a condition to the Merger, Mr. Griggs will enter into
a five-year agreement with RoTech whereby he will serve as President of RoTech
at a base salary of $500,000 per annum. Under his employment agreement, Mr.
Griggs will receive a $500,000 bonus in each year in which RoTech's net income
contribution to IHS equals or exceeds specified targets, with an additional
bonus determined by IHS to be paid if the net income contribution target is
exceeded. In addition, in connection with the Merger Mr. Griggs will receive a
one-time cash sign-on bonus of $3.5 million, payable at Closing, and be issued
warrants to purchase 750,000 shares of IHS Common Stock on the NYSE for the 15
business days prior to the Closing Date (subject to acceleration upon Mr.
Grigg's death or the occurrence of a change in control of IHS). Pursuant to a
related agreement, RoTech will also be obligated to pay to Mr. Griggs the amount
of any excise tax payable by him under Section 4999 of the Code (or any
corresponding provisions of state or local tax law) as a result of any payments
to him pursuant to his employment agreement or in connection with the Merger, as
well as the income tax and excise tax on such additional compensation such that,
after the payment of income and excise taxes, Mr. Griggs is in the same economic
position in which he would have been if the provisions of Section 4999 of the
Code (or any corresponding provisions of state of local tax) had not been
applicable.
On October 21, 1997, the shareholders of the Company approved a merger with
Integrated Health Services, Inc. whereby each share of common stock and each
stock option was converted to .5806 shares of IHS stock. Therefore, further
information regarding executive stock options is considered not applicable.
1996 Key Employee Stock Option Plan
On April 1, 1996, the Board of Directors adopted a non-qualified stock option
plan under the name "1996 Key Employee Stock Option Plan". The provisions of
this plan are identical to the 1993 stock option plan, except that the total
number of shares subject to the 1996 plan, post stock split, is 1,000,000
shares. The 1996 Key Employee Stock Option Plan is intended to not qualify as
an "Incentive Stock Option Plan" as that term is described in the Federal
Internal Revenue Code of 1986, as amended.
Key Man Life Insurance
The Company currently maintains a split dollar key life insurance policy on the
life of Mr. Kennedy in the face amount of $10,000,000. The beneficiaries of the
policy are Mr. & Mrs. Kennedy's designated heirs pursuant to an irrevocable
trust established by Mr. Kennedy. The company shall have the unqualified right
to receive a portion of the death benefit equal to the greater of the total
amount of premiums paid by the Company or the cash surrender value of the policy
reduced by any outstanding indebtedness on the policy.
ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
- ------------------------------------------------------------------------
As of October 21, 1997, RoTech was acquired by Integrated Health Services, Inc.
and all shares of RoTech common stock were converted to .5806 of Integrated
Health Services, Inc. common stock. All shares of RoTech Common Stock are now
owned by IHS.
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
- --------------------------------------------------------
The Company leases office space in a building located at 942 S.E. 17th Street,
Ocala, Florida, a building in which Mr. Kennedy owns an undivided one-half
interest. Such lease is a month-to month lease providing for monthly rental
payments of approximately $1,500. Aggregate payments made by the Company under
such lease during fiscal 1997 were approximately $18,000.
The Company purchased approximately $711,000 of products from companies owned by
Mr. Kennedy in fiscal 1997. Companies owned by Mr. Kennedy purchased
approximately $11,000 of products from the Company.
A & C Business Services, Inc., a Florida corporation, of which Mr. Kennedy is
the sole shareholder, provides certain business services to the Company. The
cost of such services to the Company during fiscal year 1996 amounted to
approximately $203,000.
L&G of Orlando, Inc., a Florida corporation, of which Mr. Griggs is a
shareholder, provides certain business services to the Company. The cost of
such services to the Company during fiscal year 1997 amounted to approximately
$301,000.
Mr. Walker, the former Secretary and a former Director of the Company, is a
shareholder, director, assistant secretary, assistant treasurer and a member of
the Executive Committee of Winderweedle, Haines, Ward & Woodman, P.A. ("WHWW"),
a law firm with offices in Winter Park and Orlando, Florida. This law firm is
general counsel to the Company and each of its subsidiaries and was paid
approximately $362,000 in fiscal 1997. WHWW entered into a stock option
agreement ("Agreement") with the Company on July 1, 1995. The Agreement grants
WHWW the unassignable and non-transferable right and option to purchase from the
Company up to, but not exceeding in the aggregate, 20,000 shares of the
Company's common stock, par value $.0002, at an option price of $13.88. Any
options not exercised on or before June 30, 2000 terminate on such date and are
null and void.
As a result of the Merger, the options represent the right to purchase 11,612
shares of IHS Common Stock at $23.91 per share and 11,612 shares of IHS Common
Stock at $33.59 per share.
18
<PAGE>
In the opinion of management, each of the foregoing transactions with officers,
directors, principal shareholders or affiliates were on terms no less favorable
to the Company than terms available from persons not affiliated with the
Company. The terms of any future transactions with officers, directors,
principal shareholders or affiliates will be no less favorable to the Company
than those which could be obtained from unaffiliated parties, and any future
transactions with affiliated parties, including loans to Company officers, will
be approved by a majority of the independent and disinterested members of the
Company's Board of Directors.
PART IV
-------
ITEM 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES, AND REPORTS ON FORM 8-K
- --------------------------------------------------------------------------
(a) Documents filed as part of this report:
1. Financial Statements: The audited consolidated balance
--------------------
sheets of the Registrant and subsidiaries as of July 31, 1997 and July
31, 1996, and the related consolidated statements of income, changes
in stockholders' equity and cash flows of the Registrant and
subsidiaries for the three fiscal years ended July 31, 1997, are set
forth on pages 1 through 20 of the Registrant's Annual Report to
Shareholders for the fiscal year ended July 31, 1997, which statements
are incorporated in this report by reference.
2. Financial Statement Schedules. The following Financial Statement
-----------------------------
Schedule for the fiscal years ended July 31, 1997, 1996, and 1995 is
set forth under the heading "Financial Statement Schedule" on page 21
of the Company's Annual Report to Shareholders for the fiscal year
ended July 31, 1997 and is hereby incorporated by reference.
19
<PAGE>
Schedule II Valuation and Qualifying Accounts for
the fiscal years ended July 31, 1997,
1996 and 1995
All other schedules are omitted because they are not required,
are not applicable, or the required information is included in the
Consolidated Financial Statements or notes thereto.
(a) 3. Exhibits. The exhibits filed as a part of this Report are listed in
--------
the attached Index to Exhibits.
(b) Reports on Form 8-K filed in the fourth quarter of fiscal 1997.
--------------------------------------------------------------
Current Report on Form 8-K dated May 28, 1997 reporting the settlement with the
U.S. Attorney for the Middle District of Florida in a civil action relating to
Medicare claims the United States Government believes it erroneously paid
between 1987 and 1989;
Current Report on Form 8-K dated July 6, 1997 reporting the execution of the
Merger Agreement; and
Current Report on 8-K dated September 17, 1997 reporting earnings for the fourth
quarter and year ended July 31, 1997; and
Current Report on 8-K dated October 21, 1997 reporting the completion of the
merger with Integrated Health Services.
Index to Exhibits
Except as otherwise indicated, the following Exhibits are incorporated by
reference as a part of this Report on Form 10-K:
<TABLE>
<CAPTION>
Exhibit Sequentially
Number Description Numbered Page
- ------- ----------- ---------------
<S> <C> <C>
2.1 Agreement and Plan of Merger with IHS
3.1 Articles of Incorporation of RoTech Medical Corporation (F/K/A
Southern Oxygen Systems, Inc.) filed with the Florida Department of
State on September 1, 1981. (Incorporated by reference to Exhibit 3.1
to the Company's Registration Statement No. 33-8711 on Form S-1).
3.2 Amendment to Articles of Incorporation of Southern Oxygen Systems,
Inc., changing its name to RoTech Medical Corporation and restating
its Articles of Incorporation, filed with the Florida Department of
Sate on March 29, 1984. (Incorporated by reference to Exhibit 3.2 to
the Company's Registration Statement No. 33-8711 on Form S-1.)
3.3 Amendment to Articles of Incorporation of RoTech Medical Corporation,
changing the authorized capital stock to 1,500,000 shares of Common
Stock having a par value of $1.00 per share, filed with the Florida
Department of State on June 13, 1984. (Incorporated by reference to
Exhibit 3.3 to the Company's Registration Statement No. 33-8711 of
Form S-1.)
3.4 Amendment to Articles of Incorporation of RoTech Medical Corporation,
changing the authorized capital stock to 50,000,000 shares of Common
Stock having a par value of $.0002 per share, filed with the Florida
Department of State on June 15, 1984. (Incorporated by reference to
Exhibit 3.4 to the Company's Registration Statement No. 33-8711 of
Form S-1.)
3.5 By-Laws of RoTech Medical Corporation (F/K/A Southern Oxygen
Systems, Inc.) (Incorporated by reference to Exhibit 3.5 to the
Company's Registration Statement No. 33-8711 of Form S-1.)
3.6 Amended and Restated By-Laws of RoTech Medical Corporation, as
amended. (Incorporated by reference to Exhibit 3.6 to the Company's
Registration Statement No. 33-8711 of Form S-1.)
</TABLE>
20
<PAGE>
4.1 Form of Stock Certificate. (Incorporated by reference to Exhibit 4.1
to the Company's Registration Statement No. 33-8711 of Form S-1.)
4.2 Indenture dated as of June 1, 1996, between the Company and PNC
Bank, Kentucky, Inc. (Incorporated by reference to Exhibit 4.1 to the
Company's Registration Statement No. 333-10915 on Form S-3).
10.1 Form of Registrant's 1986 Incentive Stock Option Plan. (Incorporated
by reference to Exhibit 10.5 to the Company's Registration Statement
No. 33-8711 of Form S-1.)
10.2 Amended and Restated Revolving Credit and Line of Credit Agreement,
dated June 4, 1996, by and among RoTech Medical Corporation, and
SunTrust Bank, Central Florida, National Association, individually as
an Agent, Nationsbank of Florida, N.A., NBD Bank, PNC Bank, Kentucky,
Inc., Barnett Bank of Central Florida, N.A. and Cooperatieve to be
Centrale Raiffeisen-Boerenleenbank B.A., "Rabobank Nederland", New
York Branch, filed herewith.
10.3 Form of Registrant's Incentive Compensation Plan (Incorporated by
reference to Exhibit 10.3 to the Company's Registration Statement No.
33-41097 of Form S-2.)
10.4 Form of Registrant's Restricted Stock Plan for Non-Employee Directors
(Incorporated by reference to Exhibit 10.4 to the Company's Annual
Report on Form 10-K for the fiscal year ended July 31, 1992.)
10.5 Form of Registrant's July 9, 1993 Stock Option Plan, (Incorporated by
reference to Exhibit 10.5 to the Company's Annual Report on Form 10-K
for the fiscal year ended July 31, 1994.)
10.6 Form of Registrant's Amended Restricted Stock Plan for Non-Employee
Directors (Incorporated by reference to Exhibit 10.6 to the Company's
Annual Report on Form 10-K for the fiscal year ended July 31, 1995.)
10.7 RoTech Medical Corporation 1996 Key Employee Stock Option Plan
(Incorporated by reference to Exhibit 10.7 to the Company's Annual
Report on Form 10-K for the fiscal year ended July 31, 1996.)
11.0 Computation of Earnings Per Share (Incorporated by reference to
Exhibit 11.0 to the Company's Annual Report on Form 10-K for the
fiscal year ended July 31, 1996.)
13.1 Annual report to security holders, filed herewith.
22.1 Subsidiaries of Registrant (Incorporated by reference to Exhibit 22.1
to the Company's Annual Report on Form 10-K for the fiscal year ended
July 31, 1996.)
Joint Proxy Statement of Integrated Health Services, Inc. and RoTech
Medical Corporation for the Special Meeting of Shareholders to be
held on October 21, 1997.
21
<PAGE>
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange
Act of 1934, RoTech Medical Corporation has duly caused this Report to be signed
on its behalf by the undersigned, thereunto duly authorized.
ROTECH MEDICAL CORPORATION,
a Florida corporation
By: /s/ Stephen P. Griggs
-----------------------
Stephen P. Griggs,
President
Date:
Pursuant to the requirements of the Securities Exchange Act of 1934, this Report
has been signed below by the following persons on behalf of the Registrant and
in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- --------- ----- ----
<S> <C> <C>
/s/ Stephen P. Griggs President, Assistant Secretary, October 29, 1997
- --------------------------- Chief Operating Officer; and
STEPHEN P. GRIGGS Director
/s/ Marc B. Levin Executive Vice President-Investeor October 29, 1997
- --------------------------- Relations and Director
MARC B. LEVIN
/s/ Marshall A. Elkins Executive Vice President and General October 29, 1997
- --------------------------- Counsel and Director
MARSHALL A. ELKINS
</TABLE>
22
<PAGE>
SECOND AMENDED AND RESTATED
REVOLVING CREDIT AND LINE OF CREDIT AGREEMENT
Dated as of June 3, 1997
By And Among
ROTECH MEDICAL CORPORATION
(the "Borrower")
and
SUNTRUST BANK, CENTRAL FLORIDA, NATIONAL ASSOCIATION,
individually and as Agent,
NATIONSBANK, N.A.,
BARNETT BANK, N.A.,
BANK OF AMERICA, FSB
AMSOUTH BANK OF FLORIDA,
COOPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK B.A.,
"RABOBANK NEDERLAND", NEW YORK BRANCH,
THE SUMITOMO BANK, LIMITED,
MELLON BANK, N.A. and
BANK ONE KENTUCKY, N.A.
(collectively the "Lenders")
================================================================================
1. Second Amended and Restated Revolving Credit and Line of Credit Agreement
dated as of June 3, 1997, by and among the Borrower and the Lenders.
2. Revolving Credit Notes, from the Borrower, dated June 3, 1997, with
attached acknowledgements and Affidavits of Out-of-State Delivery, in favor
of each of the Lenders, as follows:
(a) In favor of SunTrust Bank, Central Florida, National Association in
the face amount of $65,000,000.00 (which renews and replaces that
certain Revolving Credit Note dated December 29, 1995 in the face
amount of $55,000,000.00);
(b) In favor of NationsBank, N.A. in the face amount of $50,000,000.00
(which renews and replaces that certain Revolving Credit Note dated
June 4, 1996 in the face amount of $40,000,000.00);
(c) In favor of Barnett Bank, N.A., in the face amount of $50,000,000.00
(which renews and replaces that certain Revolving Credit Note dated
June 4, 1996 in the face
<PAGE>
amount of $30,000.00);
(d) In favor of Bank of America, FSB, in the face amount of
$40,000,000.00;
(e) In favor of AmSouth Bank of Florida, in the face amount of
$25,000,000.00;
(f) In favor of Cooperatieve Centrale Raiffeisen-Boerenleenbank B.A.,
"Rabobank Nederland", New York Branch, in the face amount of
$20,000,000.00 (which renews and replaces that certain Revolving
Credit Note dated June 4, 1996 in the face amount of $20,000.00);
(g) In favor of The Sumitomo Bank, Limited, in the face amount of
$15,000,000,000.00;
(h) In favor of Mellon Bank, N.A., in the face amount of
$15,000,000.00; and
(i) In favor of Bank One Kentucky, N.A., in the face amount of
$10,000,000.00.
3. Line of Credit Note from the Borrower in favor of SunTrust in the face
amount of $10,000,000.00 with attached acknowledgment and Affidavit of
Out-of-State Delivery.
4. Second Supplement to Contribution Agreement, dated as of June 3, 1997,
by and among the Borrower, each of the subsidiaries of Borrower (the
"Guarantors") and SunTrust Bank, Central Florida National Association,
as Agent (the "Agent").
5. Second Supplement to Guaranty Agreement, dated as of June 4, 1996, by
and among the Additional Guarantors (as defined therein) and the
Agent.
6. Agreement Not to Sell or Encumber Assets, dated as of June 3, 1997, by
and among the Companies (as defined therein) and the Agent.
7. Certificate of the Secretary of the Borrower, dated June 3, 1997.
8. Certificate of the Secretary of the Subsidiaries of the Borrower,
dated June 3, 1997. (NOTE: copies of Articles of Incorporation and
Bylaws of the Additional Subsidiaries, as defined therein, are
maintained in the Agent's file. )
9. Closing Certificate dated June 3, 1997.
10. Certificate of Good Standing of the Borrower.
11. Opinion of Counsel of the Borrower and the Subsidiaries (as defined
therein) dated as of June 3, 1997, issued by Winderweedle, Haines,
Ward & Woodman, P.A.
<PAGE>
================================================================================
SECOND AMENDED AND RESTATED
REVOLVING CREDIT AND LINE OF CREDIT AGREEMENT
Dated as of June 3, 1997
By And Among
ROTECH MEDICAL CORPORATION
and
SUNTRUST BANK, CENTRAL FLORIDA, NATIONAL ASSOCIATION,
individually and as Agent,
NATIONSBANK, N.A.,
BARNETT BANK, N.A.,
BANK OF AMERICA, FSB
AMSOUTH BANK OF FLORIDA,
COOPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANKB.A.,
"RABOBANK NEDERLAND", NEW YORK BRANCH,
THE SUMITOMO BANK, LIMITED,
MELLON BANK, N.A. and
BANK ONE KENTUCKY, N.A.
================================================================================
<PAGE>
TABLE OF CONTENTS
-----------------
<TABLE>
<CAPTION>
Page
----
<S> <C>
ARTICLE I
DEFINITIONS; CONSTRUCTION.............................................. 2
Section 1.1 Definitions............................................................ 2
Section 1.2 Accounting Terms and Determination..................................... 15
Section 1.3 Other Definitional Provisions.......................................... 15
Section 1.4 Exhibits and Schedules................................................. 16
ARTICLE II REVOLVING LOANS................................................... 16
Section 2.1 Commitment; Use of Proceeds............................................ 16
Section 2.2 Notes; Repayment of Principal.......................................... 17
Section 2.3 Voluntary Reduction of Revolving Loan Commitments...................... 17
ARTICLE III LINE OF CREDIT LOANS................................................ 17
Section 3.1 Line of Credit Commitment; Use of Proceeds............................. 17
Section 3.2 Notes; Repayment of Principal.......................................... 18
Section 3.3 Voluntary Reduction of Line of Credit Loan Commitment.................. 18
Section 3.4 Mandatory LIBOR Advance................................................ 18
ARTICLE IV GENERAL LOAN TERMS................................................. 19
Section 4.1 Funding Notices........................................................ 19
Section 4.2 Disbursement of Funds.................................................. 20
Section 4.3 Interest............................................................... 21
Section 4.4 Interest Periods....................................................... 22
Section 4.5 Fees................................................................... 23
Section 4.6 Voluntary Prepayments of Borrowings.................................... 23
Section 4.7 Payments, etc.......................................................... 24
Section 4.8 Interest Rate Not Ascertainable, etc................................... 26
Section 4.9 Illegality............................................................. 26
Section 4.10 Increased Costs........................................................ 27
Section 4.11 Lending Offices........................................................ 29
Section 4.12 Funding Losses......................................................... 29
Section 4.13 Assumptions Concerning Funding of LIBOR Advances....................... 30
Section 4.14 Apportionment of Payments.............................................. 30
Section 4.15 Sharing of Payments, Etc............................................... 30
Section 4.16 Capital Adequacy....................................................... 30
Section 4.17 Benefits to Guarantors................................................. 31
Section 4.18 Return of Payments..................................................... 31
</TABLE>
i
<PAGE>
<TABLE>
<S> <C>
ARTICLE V CONDITIONS TO BORROWINGS.............................................. 31
Section 5.1 Conditions Precedent to Initial Loans................................. 31
Section 5.2 Conditions to All Loans............................................... 34
ARTICLE VI REPRESENTATIONS AND WARRANTIES........................................... 35
Section 6.1 Organization and Qualification........................................ 35
Section 6.2 Corporate Authority................................................... 35
Section 6.3 Financial Statements.................................................. 36
Section 6.4 Tax Returns........................................................... 36
Section 6.5 Actions Pending....................................................... 36
Section 6.6 Representations; No Defaults.......................................... 36
Section 6.7 Title to Properties; Capitalized Leases............................... 37
Section 6.8 Enforceability of Agreement........................................... 37
Section 6.9 Consent............................................................... 38
Section 6.10 Federal Reserve Regulations........................................... 38
Section 6.11 ERISA................................................................. 38
Section 6.12 Subsidiaries.......................................................... 39
Section 6.13 Outstanding Debt...................................................... 39
Section 6.14 Conflicting Agreements................................................ 39
Section 6.15 Environmental Matters................................................. 40
Section 6.16 Possession of Franchises, Licenses, Etc............................... 40
Section 6.17 Patents, Trademarks, Etc.............................................. 41
Section 6.18 Governmental Consent.................................................. 41
Section 6.19 Disclosure............................................................ 42
Section 6.20 Insurance Coverage.................................................... 42
Section 6.21 Labor Matters......................................................... 42
Section 6.22 Intercompany Loans; Dividends......................................... 42
Section 6.23 Securities Acts....................................................... 43
Section 6.24 Investment Company Act; Holding Company............................... 43
Section 6.25 Regulation G, Etc..................................................... 43
Section 6.26 Changes in Financial Condition; Adverse Developments.................. 43
ARTICLE VII AFFIRMATIVE COVENANTS................................................ 43
Section 7.1 Corporate Existence, Etc.............................................. 43
Section 7.2 Compliance with Laws, Etc............................................. 44
Section 7.3 Payment of Taxes and Claims, Etc...................................... 44
Section 7.4 Keeping of Books...................................................... 44
Section 7.5 Visitation, Inspection, Etc........................................... 44
Section 7.6 Insurance; Maintenance of Properties.................................. 44
Section 7.7 Reporting Covenants................................................... 45
Section 7.8 Financial Covenants................................................... 49
Section 7.9 Notices Under Certain Other Indebtedness.............................. 50
Section 7.10 Additional Guarantors................................................. 51
Section 7.11 Fiscal Year........................................................... 51
Section 7.12 Ownership of Guarantors............................................... 51
Section 7.13 Subordination of Intercompany Loans................................... 51
</TABLE>
ii
<PAGE>
<TABLE>
<S> <C>
ARTICLE VIII NEGATIVE COVENANTS................................................. 52
Section 8.1 Indebtedness.......................................................... 52
Section 8.2 Liens................................................................. 53
Section 8.3 Mergers, Acquisitions, Sales, Etc..................................... 53
Section 8.4 Investments, Loans, Etc............................................... 54
Section 8.5 Sale and Leaseback Transactions....................................... 55
Section 8.6 Transactions with Affiliates.......................................... 55
Section 8.7 Optional Prepayments.................................................. 56
Section 8.8 Changes in Business................................................... 56
Section 8.9 ERISA................................................................. 56
Section 8.10 Additional Negative Pledges........................................... 56
Section 8.11 Limitation on Payment Restrictions Affecting
Consolidated Companies................................................ 56
Section 8.12 Actions Under Certain Documents....................................... 57
Section 8.13 Dividends............................................................. 57
Section 8.14 Changes in Control or Ownership....................................... 57
ARTICLE IX EVENTS OF DEFAULT.................................................. 57
Section 9.1 Payments.............................................................. 57
Section 9.2 Covenants Without Notice.............................................. 58
Section 9.3 Other Covenants....................................................... 58
Section 9.4 Representations....................................................... 58
Section 9.5 Non-Payments of Other Indebtedness.................................... 58
Section 9.6 Defaults Under Other Agreements....................................... 58
Section 9.7 Bankruptcy............................................................ 58
Section 9.8 ERISA................................................................. 59
Section 9.9 Money Judgment........................................................ 60
Section 9.10 Ownership of Credit Parties........................................... 60
Section 9.11 Change in Control of Borrower......................................... 60
Section 9.12 Default Under Other Credit Documents.................................. 60
Section 9.13 Attachments........................................................... 60
ARTICLE X THE AGENT...................................................... 61
Section 10.1 Appointment of Agent.................................................. 61
Section 10.2 Nature of Duties of Agent............................................. 61
Section 10.3 Lack of Reliance on the Agent......................................... 62
Section 10.4 Certain Rights of the Agent........................................... 62
Section 10.5 Reliance by Agent..................................................... 63
Section 10.6 Indemnification of Agent.............................................. 63
Section 10.7 The Agent in its Individual Capacity.................................. 63
Section 10.8 Holders of Notes...................................................... 64
Section 10.9 Successor Agent....................................................... 64
ARTICLE XI MISCELLANEOUS.................................................... 65
Section 11.1 Notices............................................................... 65
Section 11.2 Amendments, Etc....................................................... 65
Section 11.3 No Waiver; Remedies Cumulative........................................ 65
Section 11.4 Payment of Expenses, Etc.............................................. 66
Section 11.5 Right of Setoff....................................................... 68
</TABLE>
iii
<PAGE>
<TABLE>
<S> <C>
Section 11.6 Benefit of Agreement.................................................. 68
Section 11.7 Governing Law; Submission to Jurisdiction............................. 71
Section 11.8 Independent Nature of Lenders' Rights................................. 71
Section 11.9 Counterparts.......................................................... 72
Section 11.10 Effectiveness; Survival............................................... 72
Section 11.11 Severability.......................................................... 72
Section 11.12 Independence of Covenants............................................. 72
Section 11.13 Change in Accounting Principles, Fiscal Year or Tax Laws.............. 72
Section 11.14 Headings Descriptive; Entire Agreement................................ 73
Section 11.15 Time is of the Essence................................................ 73
Section 11.16 Usury................................................................. 73
Section 11.17 Construction.......................................................... 73
</TABLE>
iv
<PAGE>
SCHEDULES
---------
Schedule 6.1 Organization and Ownership of Subsidiaries
Schedule 6.4 Tax Filings and Payments
Schedule 6.5 Certain Pending and Threatened Litigation
Schedule 6.7 Capitalized Lease Obligations
Schedule 6.11 Employee Benefit Matters
Schedule 6.13 Outstanding Debt, Defaults
Schedule 6.14 Conflicting Agreements
Schedule 6.15(a) Environmental Compliance
Schedule 6.15(b) Environmental Notices
Schedule 6.15(c) Environmental Permits
Schedule 6.15(d) Equal Employment and Employee Safety
Schedule 6.17 Patent, Trademark, License, and Other
Intellectual Property Matters
Schedule 6.21 Labor and Employment Matters
Schedule 6.22 Intercompany Loans
Schedule 8.1(b) Existing Indebtedness
Schedule 8.2 Existing Liens
EXHIBITS
--------
Exhibit A Form of Assignment and Acceptance
Exhibit B Copy of Existing Subsidiary Guaranty Agreement,
together with First Supplement thereto
Exhibit C Copy of Existing Contribution Agreement, together
with First Supplement thereto
Exhibit D Form of Line of Credit Note
Exhibit E Form of Revolving Credit Note
Exhibit F Form of Closing Certificate
Exhibit G Form of Opinion of Borrower's Counsel
Exhibit H Form of Joinder to this Agreement
Exhibit I Form of Supplement to Subsidiary Guaranty Agreement
Exhibit J Form of Negative Pledge
Exhibit K Form of Supplement to Contribution Agreement
Exhibit L Description of Redeemable Common Stock
v
<PAGE>
SECOND AMENDED AND RESTATED
REVOLVING CREDIT AND LINE OF CREDIT AGREEMENT
---------------------------------------------
THIS SECOND AMENDED AND RESTATED REVOLVING CREDIT AND LINE OF CREDIT
AGREEMENT, dated as of June 3, 1997 (the "Agreement") by and among ROTECH
MEDICAL CORPORATION ("Borrower"), a Florida corporation, SUNTRUST BANK, CENTRAL
FLORIDA, NATIONAL ASSOCIATION, ("SunTrust") a national banking association,
NATIONSBANK, N.A., BARNETT BANK, N.A., BANK OF AMERICA, FSB, AMSOUTH BANK OF
FLORIDA, COOPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK B.A., "RABOBANK
NEDERLAND", NEW YORK BRANCH, THE SUMITOMO BANK, LIMITED, MELLON BANK, N.A. AND
BANK ONE KENTUCKY, N.A. (collectively, the "Lenders" and, individually, a
"Lender"), and SunTrust as Agent for the Lenders.
W I T N E S S E T H:
-------------------
THAT the Borrower, the Guarantors, the Lenders signatories thereto and the
Agent previously entered into that certain Revolving Credit and Line of Credit
Agreement dated as of December 29, 1995, which was amended and restated by that
certain Amended and Restated Revolving Credit and Line of Credit Agreement dated
as of June 4, 1996 (as amended and restated, the "Original Credit Agreement");
and
THAT, the Borrower has requested that the total Commitment be increased by
$100,000,000.00 to $300,000,000.00 (which requires the addition of other Lenders
and the increase by certain of the original Lenders of the amounts of their
original Revolving Loan Commitments) and that certain of the financial covenants
and other terms and covenants of the Original Credit Agreement be revised; and
THAT certain additional Lenders have agreed to extend Revolving Loans to
the Borrower and certain of the original Lenders have agreed to increase the
amounts of their original Revolving Loan Commitments; and
THAT, the Lenders and the Agent have agreed to amend and restate the
Original Credit Agreement to provide for the foregoing subject to the terms and
condi tions set forth herein.
NOW, THEREFORE, for and in consideration of the mutual covenants made
herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto, intending to
be legally bound, hereby amend and restate the Original Credit Agreement in its
entirety and agree that the Original Credit Agreement shall be and
<PAGE>
hereby is superseded in its entirety by this Agreement and further covenant and
agree as follows:
ARTICLE I
DEFINITIONS; CONSTRUCTION
-------------------------
SECTION 1.1 DEFINITIONS . As used in this Agreement, and in any instrument,
-----------
certificate, document or report delivered pursuant thereto, the following
terms shall have the following meanings (to be equally applicable to both the
singular and plural forms of the term defined):
"ADVANCE" shall mean any principal amount advanced and remaining
-------
outstanding at any time under the Revolving Loans or the Line of Credit Loans,
which Advance shall be made or outstanding as a Base Rate Advance or LIBOR
Advance in the case of Revolving Loans.
"AFFILIATE" of any Person means any other Person directly or
---------
indirectly controlling, controlled by, or under common control with, such
Person, whether through the ownership of voting securities, by contract or
otherwise. For purposes of this definition, "control" (including with
correlative meanings, the terms "controlling", "controlled by", and "under
common control with") as applied to any Person, means the possession, directly
or indirectly, of the power to direct or cause the direction of the management
and policies of that Person.
"AGENT" shall mean SunTrust Bank, Central Florida, National
-----
Association, as agent for the Lenders hereunder and under the other Credit
Documents, and each successor Agent.
"AGREEMENT" shall mean this Second Amended and Restated Revolving
---------
Credit and Line of Credit Agreement, either as originally executed or as it may
be from time to time supplemented, amended, restated, renewed or extended and in
effect.
"ASSET VALUE" shall mean, with respect to any property or asset of any
-----------
Consolidated Company as of any particular date, an amount equal to the greater
of (i) the then book value of such property or asset as established in
accordance with GAAP, and (ii) the then fair market value of such property or
asset as determined in good faith by the board of directors of such Consolidated
Company.
"ASSIGNMENT AND ACCEPTANCE" shall mean an assignment and acceptance
-------------------------
entered into by a Lender and an Eligible Assignee in accordance with the terms
of this Agreement and substantially in the form of Exhibit A.
---------
2
<PAGE>
"BANKRUPTCY CODE" shall mean The Bankruptcy Code of 1978, as amended
---------------
and in effect from time to time (11 U.S.C. (S)5101 et seq.).
------
"BASE RATE" shall mean (with any change in the Base Rate to be
---------
effective as of the date of change of either of the following rates):
with respect to the Revolving Loans the higher of (a) the
rate which SunTrust Banks of Florida, Inc., ("SunTrust
Banks") announces from time to time as its prime lending
rate, as in effect from time to time (the "Prime Rate") or
(b) the Federal Funds Rate, as in effect from time to time,
plus one-half of one percent (0.50%) per annum. The Prime
----
Rate is a reference rate and does not necessarily represent
the lowest or best rate charged borrowing customers of any
subsidiary bank of SunTrust Banks; any subsidiary of
SunTrust Banks, including the Agent, may make commercial
loans or other loans at rates of interest at, above or below
the Prime Rate.
"BASE RATE ADVANCE" shall mean an Advance made or outstanding as a
-----------------
Revolving and bearing interest based on the Base Rate.
"BORROWING" shall mean the incurrence by Borrower under any Facility
---------
of Advances of one Type concurrently having the same Interest Period or the
continuation or conversion of an existing Borrowing or Borrowings in whole or
in part.
"BUSINESS DAY" shall mean any day other than Saturday, Sunday and a
------------
day on which commercial banks are required to be closed for business in
Orlando, Florida.
"CAPITALIZED LEASE OBLIGATIONS" shall mean all lease obligations which
-----------------------------
have been or are required to be, in accordance with GAAP, capitalized on the
books of the lessee.
"CERCLA" has the meaning set forth in Section 6.15 of this Agreement.
------
"CLOSING DATE" shall mean the date on or before June 3, 1997, on which
------------
the initial Loans are made and the conditions set forth in Section 5.1 are
satisfied or waived in accordance with Section 11.2.
"CODE" shall mean the Internal Revenue Code of 1986, as amended from
----
time to time.
3
<PAGE>
"COMMITMENT" shall mean, for any Lender at any time, its Revolving
----------
Loan Commitment and, in addition, for SunTrust, it shall also mean its Line of
Credit Commitment, as the case may be.
"CONSOLIDATED COMPANIES" shall mean, collectively, Borrower and all of
----------------------
its Subsidiaries.
"CONSOLIDATED EBIT" shall mean, for any fiscal period of the Borrower,
-----------------
an amount equal to the sum of its Consolidated Net Income (Loss), plus, (i)
----
Consolidated Interest Expense and (ii) Consolidated Income Tax Expense.
"CONSOLIDATED EBITDA" shall mean, for any fiscal period of the
-------------------
Borrower, an amount equal to the sum of its Consolidated EBIT, plus (i)
depreciation and (ii) amortization, for such period.
"CONSOLIDATED EBITR" shall mean, for any fiscal period of the
------------------
Borrower, an amount equal to the sum of its Consolidated EBIT plus Consolidated
Rental Expense.
"CONSOLIDATED FUNDED DEBT" shall mean the sum of Consolidated Senior
------------------------
Funded Debt and Subordinated Debt .
"CONSOLIDATED IR" shall mean, for any fiscal period of the Borrower,
---------------
an amount equal to the sum of its Consolidated Interest Expense plus
----
Consolidated Rental Expense.
"CONSOLIDATED INTEREST EXPENSE" shall mean, for any fiscal period of
-----------------------------
Borrower, total interest expense (including without limitation, interest expense
attributable to capitalized leases) of Borrower and its Subsidiaries on a
consolidated basis.
"CONSOLIDATED INCOME TAX EXPENSE" shall mean, for any fiscal period of
-------------------------------
the Borrower, the aggregate of (i) all taxes based upon or measured by the
income of the Borrower and its Subsidiaries on a consolidated basis and (ii)
franchise taxes payable by the Borrower and its Subsidiaries on a consolidated
basis, determined in accordance with GAAP.
"CONSOLIDATED NET INCOME (LOSS)" shall mean, for any fiscal period of
------------------------------
Borrower, the Consolidated Net Income (or loss) of Borrower and its Subsidiaries
for such period (taken as a single accounting period); provided that there shall
-------- ----
be excluded therefrom (i) any items of gain or loss resulting from the sale of
assets other than in the ordinary course of business; and (ii) the income (or
loss) of any party accrued prior to the date such party becomes a Subsidiary of
Borrower or is merged into or consolidated with Borrower or any of its
Subsidiaries, or such party's assets are acquired by the Borrower or any of its
Subsidiaries.
"CONSOLIDATED NET WORTH" shall mean, for any period of determination,
----------------------
the net worth of the Borrower and its Subsidiaries on a consolidated basis,
determined in accordance with GAAP.
4
<PAGE>
"CONSOLIDATED RENTAL EXPENSE" shall mean for any fiscal period of
---------------------------
Borrower, total rental expense and operating lease expense of Borrower and
its Subsidiaries on a consolidated basis.
"CONSOLIDATED SENIOR FUNDED DEBT" shall mean, without duplication, all
-------------------------------
Senior Funded Debt of the Borrower and its Subsidiaries on a consolidated basis.
"CONTRACTUAL OBLIGATION" of any Person shall mean any provision of any
----------------------
security issued by such Person or of any agreement, instrument or undertaking
under which such Person is obligated or by which it or any of the property owned
by it is bound.
"CREDIT DOCUMENTS" shall mean, collectively, the Agreement, as amended
----------------
from time to time, the Notes, the Guaranty Agreements, all other Guaranty
Documents, and the Negative Pledges, together with all other documents,
agreements, certificates, schedules, notes, statements and opinions, however
described, referenced herein or delivered pursuant hereto or in connection with
or arising out of the Loans or the transactions contemplated by this Agreement.
"CREDIT PARTIES" shall mean, collectively, each of Borrower, the
--------------
Guarantors, and every other Person who from time to time executes a Credit
Document with respect to all or any portion of the Obligations.
"DEFAULT" shall mean any condition or event which, with notice or
-------
lapse of or both, would constitute an Event of Default.
"DOLLAR" and the sign "$" shall mean lawful money of the United States
------
of America.
"ELIGIBLE ASSIGNEE" shall mean (i) a commercial bank organized under
-----------------
the laws the United States, or any state thereof, having total assets in excess
of $1,000,000,000 or any commercial finance or asset based lending Affiliate of
any such commercial bank and (ii) any Lender or any Affiliate of any Lender.
"ENVIRONMENTAL LAWS" shall mean all federal, state, local and foreign
------------------
statutes and codes or regulations, rules or ordinances issued, promulgated, or
approved thereunder, and having the force of laws, now or hereafter in effect
(including, without limitation, those with respect to asbestos or asbestos
containing material or exposure to asbestos or asbestos containing material),
relating to pollution or protection of the environment and relating to public
health and safety, including, without limitation, those imposing liability or
standards of conduct concerning (i) emissions, discharges, releases or
threatened releases of pollutants, contaminants, chemicals or industrial toxic
or hazardous materials, substances or wastes, including without limitation, any
Hazardous
5
<PAGE>
Substance, petroleum including crude oil or any fraction thereof, any
petroleum product or other waste, chemicals or substances regulated by any
Environmental Law into the environment (including without limitation, ambient
air, surface water, ground water, land surface or subsurface strata), or (ii)
the manufacture, processing, distribution, use, generation, treatment, storage,
disposal, transport or handling of any Hazardous Substance, petroleum including
crude oil or any fraction thereof, any petroleum product or other waste,
chemicals or substances regulated by any Environmental Law, and (iii)
underground storage tanks and related piping, and emissions, discharges and
releases or threatened releases therefrom, such Environmental Laws to include,
without limitation (i) the Clean Air Act (42 U.S.C. (S)7401 et seq.), (ii) the
------
Clean Water Act (33 U.S.C. (S)1251 et sec.), (iii) the Resource Conservation and
------
Recovery Act (42 U.S.C. (S)6901 et seq.), (iv) the Toxic Substances Control Act
------
(15 U.S.C. (S)2601 et seq.) and (v) the Comprehensive Environmental Response
------
Compensation and Liability Act, as amended by the Superfund Amendments and
Reauthorization Act (42 U.S.C. (S)9601 et seq.).
------
"ERISA" shall mean the Employee Retirement Income Security Act of
-----
1974, as amended and in effect from time to time.
"ERISA AFFILIATE" shall mean, with respect to any Person, each trade
---------------
or business (whether or not incorporated) which is a member of a group of which
that Person is a member and which is under common control within the meaning of
the regulations promulgated under Section 414 of the Tax Code.
"EVENT OF DEFAULT" shall have the meaning set forth in Article IX.
----------------
"EXCHANGE ACT" shall mean the Securities Exchange Act of 1934, as
------------
amended from time to time, and any successor statute thereto.
"EXECUTIVE OFFICER" shall mean with respect to any Person (other than
-----------------
a Guarantor), the President, Vice Presidents, Chief Financial Officer,
Treasurer, Secretary and any Person holding comparable offices or duties, and
with respect to a Guarantor, the President, Chief Financial Officer or Treasurer
and any Person holding comparable offices or duties.
"EXTENSION OF CREDIT" shall mean the making of a Loan or the
-------------------
conversion of a Loan of one Type into a Loan of another Type.
6
<PAGE>
"FACILITY" or "FACILITIES" shall mean the Revolving Loan Commitments
-------- ----------
and Loans or the Line of Credit Commitment and Loans as the context may
indicate.
"FEDERAL FUNDS RATE" shall mean for any period, a fluctuating interest
------------------
rate per annum equal for each day during such period to the weighted average of
the rates on overnight Federal funds transactions with member banks of the
Federal Reserve System arranged by Federal funds brokers, as published for such
day (or, if such day is not a Business Day, for the next preceding Business Day)
by the Federal Reserve Bank of Atlanta, or, if such rate is not so published for
any day which is a Business Day, the average of the quotations for such day on
such transactions received by the Agent from three Federal funds brokers of
recognized standing selected by the Agent.
"FEE LETTER" shall mean that certain engagement letter, dated May 8,
----------
1997, entered into by and among the Agent, the Borrower and SunTrust Capital
Markets, Inc.
"FINAL MATURITY DATE" shall mean the date on which all commitments
-------------------
have been terminated and all amounts outstanding under this Agreement have been
declared or have automatically become due and payable pursuant to the provisions
of Article IX.
"FOREIGN SUBSIDIARY" shall mean a Subsidiary not organized under the
------------------
laws of any of the fifty (50) states of the United States of America or the
District of Columbia, or that is operating entirely outside of the United
States.
"GAAP" shall mean generally accepted accounting principles set forth
----
in the opinions and pronouncements of the Accounting Principles Board of the
American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as may be approved by a significant segment of
the accounting profession, which are applicable to the circumstances as of the
date of determination.
"GUARANTEED INDEBTEDNESS" shall mean, as to any Person, any obligation
-----------------------
of such Per son guaranteeing any indebtedness, lease, dividend, or other
obligatio ("primary obligation") of any other Person (the "primary obligor") in
any manner including, without limitation, any obligation or arrangement of such
Person (a) to purchase or repurchase any such primary obligation, (b) to advance
or supply funds (i) for the purchase or payment of any such primary obligation
or (ii) to maintain working capital or equity capital of the primary obligor or
otherwise to maintain the net worth or solvency or any balance sheet condition
of the primary obligor, (c) to purchase property, securities or services
primarily for the purpose of assuring the owner of any such primary obligation
of the ability of the primary obligor to make payment of such primary
7
<PAGE>
obligation, or (d) to indemnify the owner of such primary obligation against
loss in respect thereof.
"GUARANTORS" shall mean each and all of the Borrower's Material
----------
Subsidiaries.
"GUARANTY AGREEMENT" shall mean, collectively, (i) the Subsidiary
------------------
Guaranty Agreement, as supplemented by the First Supplement thereto, executed by
each of the Guarantors in existence at the time of the Original Credit Agreement
in favor of the Lenders and the Agent, copies of which are attached hereto as
composite Exhibit B as the same may be amended, restated or supplemented from
---------
time to time, and (ii) the Contribution Agreement, as supplemented by the First
Supplement thereto, executed by each of the Guarantors in existence at the time
of the Original Credit Agreement, copies of which are attached hereto as
composite Exhibit C, as the same may be amended, restated or supplemented from
---------
time to time.
"GUARANTY DOCUMENTS" shall mean, collectively, the Guaranty
------------------
Agreements, and eac h other guaranty agreement, mortgage, deed of trust,
security agreement, pledge agreement, or other security or collateral document
guaranteeing or securing the Obligations, as the same may be amended, restated,
or supplemented from time to time, and the Contribution Agreements executed by
each of the Guarantors, as the same may be amended, restated or supplemented
from time to time.
"HAZARDOUS SUBSTANCES" has the meaning assigned to that term in
--------------------
CERCLA.
"INDEBTEDNESS" of any Person shall mean, without duplication (i) all
------------
obligations of such Person which in accordance with GAAP would be shown on the
balance sheet of such Person as a liability (including, without limitation,
obligations for borrowed money and for the deferred purchase price of property
or services, and obligations evidenced by bonds, debentures, notes or other
similar instruments); (ii) all rental obligations under leases required to be
capitalized under GAAP; (iii) all Guaranteed Indebtedness of such Person
(including contingent reimbursement obligations under undrawn letters of
credit); (iv) Indebtedness of others secured by any Lien upon property owned by
such Person, whether or not assumed; and (v) obligations or other liabilities
under currency contracts, interest rate hedging contracts, or similar agreements
or combinations thereof.
"INTERCOMPANY LOANS" shall mean, collectively, (i) the loans more
------------------
particularly described on Schedule 6.22 and (ii) those loans or other
-------------
extensions of credit made by any Consolidated Company to another Consolidated
Company satisfying the terms and conditions set forth in Section 8.1 or as may
otherwise be approved in writing by the Agent and the Required Lenders.
8
<PAGE>
"INTEREST PERIOD" shall mean (i) 1, 2, 3 or 6 months as selected by
---------------
the Borrower with respect to LIBOR Advances; (ii) thirty (30) days with respect
to Base Rate Advances; and (iii) such periods as may be mutually agreed upon
from time to time between the Borrower and SunTrust with respect to the Line of
Credit Loans; provided, that (a) the first day of an Interest Period must be a
Business Day, (b) any Interest Period that would otherwise end on a day that is
not a Business Day for LIBOR Loans shall be extended to the next succeeding
Business Day for LIBOR Loans, unless such Business Day falls in the next
calendar month, in which case the Interest Period shall end on the next
preceding Business Day for LIBOR Loans, and (c) Borrower may not elect an
Interest Period which would extend beyond the Termination Date.
"INVESTMENT" shall mean, when used with respect to any Person, any
----------
direct or indirect advance, loan or other extension of credit (other than the
creation of receivables in the ordinary course of business) or capital
contribution by such Person (by means of transfers of property to others or
payments for property or services for the account or use of others, or
otherwise) to any Person, or any direct or indirect purchase or other
acquisition by such Person of, or of a beneficial interest in, capital stock,
partnership interests, bonds, notes, debentures or other securities issued by
any other Person.
"LENDER" or "LENDERS" shall mean SunTrust, the other banks and lending
------ -------
institutions listed on the signature pages hereof, and each assignee thereof, if
any, pursuant to Section 11.6.
"LENDING OFFICE" shall mean for each Lender the office such Lender may
--------------
designate in writing from time to time to Borrower and the Agent with respect to
each Type of Loan.
"LIBOR" shall mean, for any Interest Period, the offered rates for
-----
deposits in U.S. dollars for a period comparable to the Interest Period
appearing on the Reuters Screen LIBOR Page as of 11:00 a.m., London time, on the
day that is two London banking days prior to the first day of the Interest
Period. If at least two such rates appear on the Reuters Screen LIBOR Page, the
rate for that Interest Period will be the arithmetic mean of such rates,
rounded, if necessary, to the next higher 1/16 of 1.0%; and in either case as
such rates may be adjusted for any applicable reserve requirements. If the
foregoing rate is unavailable from the Reuters Screen for any reason, then such
rate shall be determined by the Agent from Telerate or, if such rate is also
unavailable on such service, then on any other interest rate reporting service
of recognized standing designated in writing by the Agent to Borrower and the
Lenders; in any such case rounded, if necessary, to the next higher 1/16 of
1.0%, if the rate is not such a multiple.
9
<PAGE>
"LIBOR ADVANCE" shall mean an Advance made or outstanding as a
-------------
Revolving Loan and bearing interest based on LIBOR.
"LIBOR LOAN" shall mean any Loan hereunder which bears interest at a
----------
rate based on LIBOR.
"LIEN" shall mean Any mortgage, pledge, security interest,
----
encumbrance, lien or charge of any kind or description and shall include,
without limitation, any agreement to give any of the foregoing, any conditional
sale or other title retention agreement, any capitalized lease in the nature
thereof including any lease or similar arrangement with a public authority
executed in connection with the issuance of industrial development revenue bonds
or pollution control revenue bonds, and the filing of or agreement to give any
financing statement under the Uniform Commercial Code of any jurisdiction.
"LINE OF CREDIT COMMITMENT" shall mean at any time for SunTrust, Ten
-------------------------
Million Dollars ($10,000,000.00), as the same may be increased or decreased from
time to time as a result of any reduction thereof pursuant to Section 4.6, any
assignment thereof pursuant to Section 11.6, or any amendment thereof pursuant
to Section 11.2.
"LINE OF CREDIT LOANS" shall mean the line of credit loans made to
--------------------
Borrower by SunTrust pursuant to Section 3.1.
"LINE OF CREDIT NOTE" shall mean the promissory note issued by
-------------------
Borrower to SunTrust in the form of Exhibit D, either as originally executed
---------
or as the same may from time to time be supplemented, modified, amended,
renewed, extended or replaced.
"LOANS" shall mean, collectively, the Revolving Loans and the Line of
-----
Credit Loans.
"MATERIAL SUBSIDIARY" shall mean (i) each Credit Party other than
-------------------
Borrower and (ii ) each other Subsidiary of Borrower, now existing or hereafter
established or acquired, that at any time prior to the Final Maturity Date, (A)
has or acquires total assets in excess of $3,000,000.00 or (B) accounted for or
produced more than 5% of the Consolidated EBITR of Borrower on a consolidated
basis during any of the most recently completed fiscal years of the Borrower or
(C) for which the acquisition price paid or payable by or on behalf of the
Borrower was in excess of $3,000,000.00.
"MATERIALLY ADVERSE EFFECT" shall mean a material adverse effect upon,
-------------------------
or a material adverse change in, any of the (i) business, results of operations,
properties, or financial condition of the Consolidated Companies taken as a
whole, (ii) legality, validity, binding effect or enforceability of any Credit
Document, or (iii) ability of the Credit Parties to perform their obligations
under the Credit Documents.
10
<PAGE>
"MONETARY DEFAULT RATE" shall mean the higher of (i) the Base Rate
---------------------
two plus percent (2%), or (ii) the interest rate(s) otherwise applicable to each
particular Loan or other amount outstanding plus two percent (2%), but in no
event shall such interest rate exceed the highest lawful rate.
"MOODY'S" shall mean Moody's Investors Service, Inc. and its
-------
successors and assigns.
"MULTIEMPLOYER PLAN" shall have the meaning set forth in Section
------------------
4001(a)(3) of ERISA.
"NEGATIVE PLEDGES" shall mean the Agreements Not to Sell or Encumber
----------------
Assets executed by the Borrower and each Subsidiary in favor of the Agent and
the Lenders.
"NON-MONETARY DEFAULT RATE" shall mean the interest rate(s) otherwise
-------------------------
applicable to each particular Loan or other amount outstanding plus two percent
(2%), but in no event shall such interest rate exceed the highest lawful rate.
"NOTE" OR "NOTES" shall mean, individually, or collectively, as the
---- -----
context may require, any of the Revolving Credit Notes or the Line of Credit
Note, either as originally executed or as the same may be from time to time
supplemented, modified, amended, renewed, extended or replaced.
"NOTICE OF BORROWING" shall have the meaning provided in Section 4.1.
-------------------
"NOTICE OF CONVERSION/CONTINUATION" shall have the meaning provided
---------------------------------
in Section 4.1.
"OBLIGATIONS" shall mean all amounts owing to the Agent or any Lender
-----------
pursuant to the terms of this Agreement or any other Credit Document, including
without limitation, all Loans (including all principal and interest payments due
thereunder), fees, expenses, indemnification and reimbursement payments,
indebtedness, liabilities, and obligations of the Credit Parties, direct or
indirect, absolute or contingent, liquidated or unliquidated, now existing or
hereafter arising, together with all renewals, extensions, modifications or
refinancings thereof.
"ORIGINAL CREDIT AGREEMENT" shall mean the Revolving Credit and Line
-------------------------
of Credit Agreement dated as of December 29, 1995 by and among the Borrower, the
Agent and the Lenders signatory thereto and joined in by the Guarantors in
existence on the date thereof, as amended and restated by the Amended and
Restated Revolving Credit and Line of Credit Agreement dated as of June 4, 1996,
by and among the Borrower, the Agent and the Lenders signatory thereto and
joined in by the Guarantors in existence on the date thereof.
11
<PAGE>
"PAYMENT OFFICE" shall mean the office of the Agent located at 200 S.
--------------
Orange Avenue, Orlando, Florida; or such other location as may be designated by
the Agent from time to time in writing.
"PBGC" shall mean the Pension Benefit Guaranty Corporation, and any
----
successor thereto.
"PERSON" shall mean and shall include an individual, a partnership, a
------
joint venture, a corporation, a limited liability company, a trust, an
unincorporated association, a government or any department or agency thereof and
any other entity whatsoever.
"PLAN" shall mean any employee benefit plan, program, arrangement,
----
practice or contract, maintained by or on behalf of the Borrower or an ERISA
Affiliate, which provides benefits or compensation to or on behalf of employees
or former employees, whether formal or informal, whether or not written,
including but not limited to the following types of plans:
(i) Executive Arrangements - any bonus, incentive compensation,
----------------------
stock option, deferred compensation, commission, severance, "golden
parachute", "rabbi trust", or other executive compensation plan, program,
contract, arrangement or practice;
(ii) ERISA Plans - any "employee benefit plan" as defined in Section
-----------
3(3) of ERISA), including, but not limited to, any defined benefit pension
plan, sharing plan, money purchase pension plan, savings or thrift plan,
stock bonus plan, employee stock ownership plan, Multiemployer Plan, or any
plan, fund, program, arrangement or practice providing for medical
(including post-retirement medical), hospitalization, accident, sickness,
disability, or life insurance benefits;
(iii) Other Employee Fringe Benefits - any stock purchase, vacation,
------------------------------
scholarship, day care, prepaid legal services, severance pay or other
fringe benefit plan, program, arrangement, contract or practice.
"PRO RATA SHARE" shall mean, with respect to the Commitment of each
--------------
Lender, each Loan to be made by and each payment (including, without limitation,
any payment of principal, interest or fees) to be made to each Lender, the
percentage designated as such Lender's Pro Rata Share of such Commitment, such
Loans or such payments, as applicable, set forth under the name of such Lender
on the respective signature page for such Lender, in each case as such Pro Rata
Share may change from time to time as a result of assignments or amendments made
pursuant to this Agreement.
"REDEEMABLE COMMON STOCK" shall mean those shares of common stock of
-----------------------
the Borrower legally issued and outstanding which
12
<PAGE>
are subject to a put option(s) requiring the Borrower to repurchase such shares
pursuant to various agreements entered into between the Borrower and the holders
of such stock, subject to certain conditions, at specified prices and during
specified time frames, all as set forth in such agreements, until such
agreements expire, which stock is described on Exhibit L attached hereto.
---------
"REGULATION D" shall mean Regulation D of the Board of Governors of
------------
the Federal Reserve System, as the same may be in effect from time to time.
"REQUIRED LENDERS" shall mean, at any time, Lenders holding at least
----------------
fifty-one percent (51%) of the then aggregate amount of the Revolving Loan
Commitments, and the Line of Credit Commitments.
"REQUIREMENT OF LAW" for any Person shall mean the articles or
------------------
certificate of incorporation and by-laws or other organizational or governing
documents of such Person, and any law, treaty, rule or regulation, or
determination of an arbitrator or a court or other governmental authority, in
each case applicable to or binding upon such Person or any of its property or to
which such Person or any of its property is subject.
"REUTERS SCREEN" shall mean, when used in connection with any
--------------
designated page and LIBOR, the display page so designated on the Reuter Monitor
Money Rates Service (or such other page as may replace that page on that service
for the purpose of displaying rates comparable to LIBOR).
"REVOLVING CREDIT NOTES" shall mean, collectively, the promissory
----------------------
notes evidencing the Revolving Loans in substantially the form attached hereto
as Exhibit E, either as originally executed or as the same may from time to time
---------
be supplemented, modified, amended, renewed, extended or replaced.
"REVOLVING LOANS" shall mean, collectively, the revolving credit loan
---------------
made to Borrower by the Lenders pursuant to Section 2.1.
"REVOLVING LOAN COMMITMENT" shall mean, at any time for any Lender,
-------------------------
the amount of such commitment set forth opposite such Lender's name on the
signature pages hereof, as the same may be increased or decreased from time to
time as a result of any reduction thereof pursuant to Section 2.3, any
assignment thereof pursuant to Section 11.6, or any amendment thereof pursuant
to Section 11.2, which amount shall include such Lender's Revolving Loans.
"REVOLVING PERIOD" shall mean the period during the term of the
----------------
Revolving Loans, commencing on the date hereof and ending on the occurrence of
(i) an Event of Default (unless waived or cured) or (ii) the Termination Date,
whichever first occurs.
13
<PAGE>
"S & P" shall mean the Standard & Poor's Corporation and its
-----
successors and assigns.
"SENIOR FUNDED DEBT" shall mean, without duplication, all
------------------
Indebtedness, purchase money mortgages, capitalized leases, conditional sales
contracts and similar title retention debt instruments, including any current
maturities of such indebtedness, plus the present value of future operating
lease payments calculated using standard S&P methodology, plus the redemption
amount with respect to any stock of the Borrower or any Subsidiaries required to
be redeemed within the next twelve (12) months. Senior Funded Debt shall also
include any Senior Funded Debt which has been guaranteed by the Borrower or any
Subsidiary or which is supported by a letter of credit issued for the account of
the Borrower or any Subsidiary. Senior Funded Debt shall not include
Subordinated Debt.
"SHAREHOLDERS' EQUITY" shall mean, with respect to any Person as at
--------------------
any date of determination, the shareholders' equity of such Person, determined
on a consolidated basis in conformity with GAAP.
"SUBORDINATED DEBT" shall mean Indebtedness of Borrower and its
-----------------
Subsidiaries subordinated to all obligations of Borrower and its Subsidiaries or
any other Credit Party arising under this Agreement, the Notes, and the Guaranty
Agreements on terms and conditions satisfactory in all respects to the Agent and
the Required Lenders, including without limitation, with respect to interest
rates, payment terms, maturities, amortization schedules, covenants, defaults,
remedies, and subordination provisions, as evidenced by the written approval of
the Agent and Required Lenders.
"SUBSIDIARY" shall mean, with respect to any Person, any corporation
----------
or other entity (including, without limitation, partnerships, joint ventures,
and associations) regardless of its jurisdiction of organization or formation,
at least a majority of the total combined voting power of all classes of voting
stock or other ownership interests of which shall, at the time as of which any
determination is being made, be owned by such Person, either directly or
indirectly through one or more other Subsidiaries.
"SYNDICATE REVOLVING LOAN" shall mean, collectively, the Revolving
------------------------
Loans made to Borrower hereunder.
"TAXES" shall mean any present or future taxes, levies, imposts,
-----
duties, fees, assessments, deductions, withholdings or other charges of whatever
nature, including without limitation, income, receipts, excise, property, sales,
transfer, license, payroll, withholding, social security and franchise taxes now
or hereafter imposed or levied by the United States, or any state, local or
foreign government or by any department, agency or other political subdivision
or taxing authority thereof or therein and
14
<PAGE>
all interest, penalties, additions to tax and similar liabilities with respect
thereto.
"TELERATE" shall mean, when used in connection with any designated
--------
page and "LIBOR," the display page so designated on the Dow Jones Telerate
Service (or such other page as may replace that page on that service for the
purpose of displaying rates comparable to "LIBOR").
"TERMINATION DATE" shall mean June 2, 1998 or such later date as may
----------------
be agreed to in writing by the Lenders in their absolute discretion.
"TOTAL CAPITALIZATION" shall mean the sum of Funded Debt and
--------------------
Shareholders' Equity, including Redeemable Common Stock.
"TOTAL COMMITMENT" shall mean the sum of the Lenders' Commitments as
----------------
such Total Commitment may be reduced by voluntary reduction, prepayment or
nonrenewal of a Lender's Commitment as provided herein.
"TYPE" of Borrowing shall mean a Borrowing consisting of Base Rate
----
Advances or LIBOR Advances.
"WHOLLY OWNED SUBSIDIARY" shall mean any Subsidiary, all the stock or
-----------------------
ownership interest of every class of which, except directors' qualifying shares,
shall, at the time as of which any determination is being made, be owned by
Borrower either directly or indirectly.
SECTION 1.2 ACCOUNTING TERMS AND DETERMINATION. Unless otherwise defined
----------------------------------
or specified herein, all accounting terms shall be construed herein, all
accounting determinations hereunder shall be made, all financial statements
required to be delivered hereunder shall be prepared, and all financial records
shall be maintained in accordance with GAAP.
SECTION 1.3 OTHER DEFINITIONAL PROVISIONS.
-----------------------------
(a) Except as otherwise specified herein, references herein to any
agreement or contract defined or referred to herein shall be deemed a
reference to any such agreement or contract (and in the case of any
instrument, any other instrument issued in substitution therefor) as
the terms thereof may have been or may be amended, supplemented,
waived or otherwise modified from time to time.
(b) The words "hereof", "herein" and "hereunder" and words of similar
import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement, and
Article, Section, Schedule, Exhibit and like references are to this
Agreement unless otherwise specified.
15
<PAGE>
(c) The singular pronoun, when used in this Agreement, shall include the
plural and neuter shall include the masculine and the feminine.
(d) All terms defined in this Agreement shall have the defined meanings
when used in any Note or, except as otherwise expressly stated herein,
any certificate, opinion, or other document delivered pursuant hereto.
SECTION 1.4 EXHIBITS AND SCHEDULES. All Exhibits and Schedules attached
----------------------
hereto are by reference made a part hereof.
ARTICLE II
REVOLVING LOANS
---------------
SECTION 2.1 COMMITMENT; USE OF PROCEEDS.
---------------------------
(a) Subject to and upon the terms and conditions herein set forth,
each Lender severally agrees from time to time on and after the Closing
Date, but during the Revolving Period, to make the Revolving Loans as
provided in this Section 2.1. Borrower shall be entitled to repay and
reborrow Revolving Loans in accordance with the provisions hereof.
(b) The sum of the aggregate unpaid principal amount of any Lender's
Revolving Loans outstanding shall not exceed at any time such Lender's
Revolving Loan Commitment.
(c) The sum of the aggregate unpaid principal amount of all Revolving
Loans shall not exceed at any time the total Revolving Loan Commitment for
all Lenders.
(d) Each Revolving Loan shall, at the option of Borrower, be made or
continued as, or converted into, part of one or more Borrowings that shall
consist entirely of Syndicate Revolving Loans (as Base Rate Advances or
LIBOR Advances). The aggregate principal amount of each Borrowing of
Syndicate Revolving Loans comprised of Base Rate Advances and/or LIBOR
Advances shall be not less than $5,000,000 or a greater integral multiple
of $1,000,000. At no time shall the number of Borrowings of Syndicate
Revolving Loans comprised of LIBOR Advances outstanding under this Article
II exceed eight (8); provided that, for the purpose of determining the
minimum amount for Borrowings resulting from conversions or continuations,
all Borrowings of Base Rate Advances under this Facility shall be
considered as one Borrowing. The parties hereto agree that (i) the
aggregate principal balance of the Revolving Loans of the Lenders as a
group shall not exceed the sum of the Revolving Loan Commitments for each
Lender and (ii) no Lender shall be obligated to make Syndicate Revolving
16
<PAGE>
Loans in excess of the Revolving Loan Commitment of such Lender.
(e) The proceeds of Revolving Loans shall be used for working capital
and for other general corporate purposes, including acquisitions and
capital expenditures of the Consolidated Companies; provided, however that
-----------------
none of the proceeds of the Revolving Loans may be used to fund hostile
takeovers.
SECTION 2.2 NOTES; REPAYMENT OF PRINCIPAL.
-----------------------------
(a) Borrower's obligations to pay the principal of, and interest on,
the Revolving Loans to each Lender shall be evidenced by the records of the
Agent and such Lender and by the Revolving Credit Note payable to such
Lender (or the assignor of such Lender) completed in conformity with this
Agreement.
(b) All outstanding principal amounts under the Revolving Loans shall
be due and payable in full on the Termination Date.
SECTION 2.3 VOLUNTARY REDUCTION OF REVOLVING LOAN COMMITMENTS. Upon at
-------------------------------------------------
least three (3) Business Days' prior telephonic notice (promptly confirmed in
writing) to the Agent, Borrower shall have the right, without premium or
penalty, to terminate the Revolving Loan Commitments, in part or in whole,
provided that (i) any such termination shall apply to proportionately and
permanently reduce the Revolving Loan Commitments of each of the Lenders, (ii)
any partial termination pursuant to this Section 2.3 shall be in an amount of at
least $5,000,000 and integral multiples of $1,000,000, and (iii) no such
reduction shall be permitted if prohibited or without payment of all costs
required to be paid hereunder with respect to a prepayment. If the aggregate
outstanding amount of the Revolving Loans exceeds the amount of the Revolving
Loan Commitments as so reduced, Borrower shall immediately repay the Revolving
Loans for the ratable account of the Lenders by an amount equal to such excess,
together with all accrued but unpaid interest on such excess amount and any
amounts due under Section 4.12 hereof.
ARTICLE III
LINE OF CREDIT LOANS
--------------------
SECTION 3.1 LINE OF CREDIT COMMITMENT; USE OF PROCEEDS.
------------------------------------------
(a) Subject to and upon the terms and conditions herein set forth,
SunTrust agrees to make to Borrower from time to
17
<PAGE>
time on and after the Closing Date, but during the Line of Credit period,
Line of Credit Loans in an aggregate amount outstanding at any time not to
exceed SunTrust's Line of Credit Loan Commitment. Borrower shall be
entitled to repay and reborrow Line of Credit Loans in accordance with the
provisions hereof.
(b) Each Borrowing in respect of the Line of Credit Loan shall be in
such amount as may be mutually agreed upon from time to time by and between
the Borrower and SunTrust as to each such Line of Credit Loan and shall
bear interest at such rate or rates as may be mutually agreed upon by and
between the Borrower and SunTrust from time to time for each Line of Credit
Loan.
(c) The proceeds of Line of Credit Loans shall be used (i) to fund
daily swings in the cash position of the Borrower, and (ii) for other
general corporate purposes.
SECTION 3.2 NOTES; REPAYMENT OF PRINCIPAL.
-----------------------------
(a) Borrower's obligations to pay the principal of, and interest on,
the Line of Credit Loans to SunTrust shall be evidenced by the records of
the Agent and SunTrust and by the Line of Credit Note payable to SunTrust
(or the assignee of such Lender) completed in conformity with this
Agreement.
(b) All outstanding principal amounts under the Line of Credit Loans
shall be due and payable in full on the Termination Date.
SECTION 3.3 VOLUNTARY REDUCTION OF LINE OF CREDIT LOAN COMMITMENT. Upon
-----------------------------------------------------
at least three (3) Business Days' prior telephonic notice (promptly confirmed in
writing) to the Agent, Borrower shall have the right, without premium or
penalty, to terminate the Line of Credit Commitment, in part or in whole,
provided that (i) any such termination shall apply to permanently reduce the
Line of Credit Commitment, (ii) any partial termination pursuant to this Section
3.3 shall be in an amount of at least $1,000,000 and integral multiples of
$100,000, and (iii) no such reduction shall be permitted if prohibited or
without payment of all costs required to be paid hereunder with respect to a
prepayment. If the aggregate outstanding amount of the Line of Credit Loans
exceeds the amount of the Line of Credit Commitment as so reduced, Borrower
shall immediately repay the Line of Credit Loans by an amount equal to such
excess, together with all accrued but unpaid interest on such excess amount.
SECTION 3.4 MANDATORY LIBOR ADVANCE. At any time or times that the
-----------------------
Line of Credit Loan is fully funded and so long as there is sufficient
availability under the Revolving Loan Commitments, the outstanding principal
balance of the Line of Credit Loan shall
18
<PAGE>
automatically be paid in full by means of a one (1) month LIBOR Advance.
ARTICLE IV
GENERAL LOAN TERMS
------------------
SECTION 4.1 FUNDING NOTICES.
---------------
(a) Whenever Borrower desires to make a Borrowing with respect to the
Revolving Loan Commitments or the Line of Credit Commitment (other than one
resulting from a mandatory LIBOR Advance pursuant to Section 3.4 or a
conversion or continuation pursuant to Section 4.1(b)), it shall give the
Agent prior written notice (or telephonic notice promptly confirmed in
writing) of such Borrowing (a "Notice of Borrowing"), such Notice of
Borrowing to be given prior to 11:00 A.M. (local time for the Agent) at its
Payment Office (i) one Business Day prior to the requested date of such
Borrowing in the case of Revolving Loans comprised of Base Rate Advances,
(ii) three Business Days prior to the requested date of such Borrowing in
the case of LIBOR Advances, and (iii) the same Business Day of the
requested date of such Borrowing in the case of Line of Credit Loans.
Notices received after 11:00 A.M. shall be deemed received on the next
Business Day. Each Notice of Borrowing shall be irrevocable and shall
specify whether such Borrowing will be a Revolving Loan or Line of Credit
Loan, the aggregate principal amount of the Borrowing, the date of
Borrowing (which shall be a Business Day), if the Borrowing is a Revolving
Loan, whether the Borrowing is to consist of Base Rate Advances or LIBOR
Advances and (in the case of LIBOR Advances) the Interest Period to be
applicable thereto.
(b) Whenever Borrower desires to convert all or a portion of an
outstanding Borrowing under the Syndicate Revolving Loans, which Borrowing
consists of Base Rate Advances or LIBOR Advances, into one or more
Borrowings consisting of Advances of another Type, or to continue
outstanding a Borrowing consisting of LIBOR Advances for a new Interest
Period, it shall give the Agent at least three Business Days' prior written
notice (or telephonic notice promptly confirmed in writing) of each such
Borrowing to be converted into or continued as LIBOR Advances. Such notice
(a "Notice of Conversion/Continuation") shall be given prior to 11:00 A.M.
(local time for the Agent) on the date specified at the Payment Office of
the Agent. Each such Notice of Conversion/Continuation shall be irrevocable
and shall specify the aggregate principal amount of the Advances to be
converted or continued, the date of such conversion or continuation,
whether the Advances are being converted into or continued as LIBOR
Advances and (in the case of LIBOR Advances) the
19
<PAGE>
Interest Period applicable thereto. If, upon the expiration of any Interest
Period in respect of any Borrowing, Borrower shall have failed to deliver
the Notice of Conversion/Continuation, Borrower shall be deemed to have
elected to convert or continue such Borrowing to a Borrowing consisting of
Base Rate Advances. So long as any Default or Event of Default shall have
occurred and be continuing, no Borrowing may be converted into or continued
(upon expiration of the current Interest Period) as LIBOR Advances. No
conversion or continuation of any Borrowing of LIBOR Advances shall be
permitted except on the last day of the Interest Period in respect thereof.
(c) Without in any way limiting Borrower's obligation to confirm in
writing any telephonic notice, the Agent and the Lenders may act without
liability upon the basis of telephonic notice reasonably believed by the
Agent or the Lender in good faith to be from Borrower prior to receipt of
written confirmation.
(d) The Agent shall promptly give each Lender notice by telephone
(confirmed in writing) or by telex, telecopy or facsimile transmission of
the matters covered by the notices given to the Agent pursuant to this
Section 4.1 with respect to the Revolving Credit Commitments.
SECTION 4.2 DISBURSEMENT OF FUNDS.
---------------------
(a) No later than 12:00 noon (local time for the Agent) on the date
of each Borrowing pursuant to the Revolving Loan Commitments or the Line of
Credit Commitment (other than one resulting from a conversion or
continuation pursuant to Section 4.1(b)), each Lender will make available
its Pro Rata Share of the amount of such Borrowing in immediately available
funds at the Payment Office of the Agent. The Agent will make available to
Borrower the aggregate of the amounts (if any) so made available by the
Lenders to the Agent in a timely manner by crediting such amounts to
Borrower's demand deposit account maintained with the Agent or at
Borrower's option, to effect a wire transfer of such amounts to Borrower's
account specified by the Borrower, by the close of business on such
Business Day. In the event that the Lenders do not make such amounts
available to the Agent by the time prescribed above, but such amount is
received later that day, such amount may be credited to Borrower in the
manner described in the preceding sentence on the next Business Day (with
interest on such amount to begin accruing hereunder on such next Business
Day).
(b) Unless the Agent shall have been notified by any Lender prior to
the date of a Borrowing that such Lender does not intend to make available
to the Agent such Lender's portion of the Borrowing to be made on such
date, the Agent may assume that such Lender has made such amount available
to the Agent on such date and the Agent may make available to
20
<PAGE>
Borrower a corresponding amount. If such corresponding amount is not in
fact made available to the Agent by such Lender on the date of such
Borrowing, the Agent shall be entitled to recover such corresponding amount
on demand from such Lender together with interest at the Federal Funds
Rate. If such Lender does not pay such corresponding amount forthwith upon
the Agent's demand therefor, the Agent shall promptly notify Borrower, and
Borrower shall immediately pay such corresponding amount to the Agent
together with interest at the rate specified for the Borrowing. Nothing in
this subsection shall be deemed to relieve any Lender from its obligation
to fund its Commitments hereunder or to prejudice any rights which Borrower
may have against any Lender as a result of any default by such Lender
hereunder.
(c) All Borrowings under the Syndicate Revolving Loan shall be loaned
by the Lenders on the basis of their Pro Rata Share of the Revolving Loan
Commitments. No Lender shall be responsible for any default by any other
Lender in its obligations hereunder, and each Lender shall be obligated to
make the Loans provided to be made by it hereunder, regardless of the
failure of any other Lender to fund its Commitments hereunder.
SECTION 4.3 INTEREST
--------
(a) Borrower agrees to pay interest in respect of all unpaid
principal amounts of the Revolving Loans and Line of Credit Loans from the
respective dates such principal amounts were advanced to maturity (whether
by acceleration, notice of prepayment or otherwise) at rates per annum (on
the basis of a 360 day year) equal to the applicable rates indicated below:
(i) For Revolving Loan Base Rate Advances--The Base Rate in
effect from time to time;
(ii) For Revolving Loan LIBOR Advances--The applicable LIBOR plus
eighty basis points (.80%); and
(iii) For Line of Credit Loans--The rate or rates which shall be
mutually agreed upon from time to time by the Borrower and SunTrust
for each such Line of Credit Loan.
In the event of an Event of Default as described in Article IX, except a
payment default as described in Section 9.1, a default under Section 9.5 or
a default under Section 9.7, the interest rate on all the Loans shall be
increased to the Non-Monetary Default Rate until such Event of Default is
cured or waived in writing by the Agent and the Required Lenders. In the
event of an Event of Default as described in Section 9.5
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or Section 9.7, the interest rate on all the Loans shall be increased to
the Monetary Default Rate until such Event of Default is cured or waived in
writing by the Agent and the Required Lenders.
(b) Overdue principal (whether by non-payment at scheduled due date,
acceleration, notice of prepayment or otherwise) and, to the extent not
prohibited by applicable law, overdue interest, in respect of the Revolving
Loans and Line of Credit Loans and all other overdue amounts owing
hereunder, shall bear interest from each date that such amounts are overdue
at the Monetary Default Rate.
(c) Interest on each Loan shall accrue from and including the date of
such Loan to but excluding the date of any repayment thereof; provided
--------
that, if a Loan is repaid on the same day made, one day's interest shall be
paid on such Loan. Interest on all outstanding Advances of every type and
all outstanding Line of Credit Loans shall be payable monthly in arrears on
the first calendar day of each month. At the Agent's discretion, interest
on all outstanding LIBOR Advances and Line of Credit Loans shall also be
payable on the last day of each Interest Period applicable thereto.
Interest on any Loan shall be payable on any conversion of any Advances
comprising such Loan into Advances of another Type, prepayment (on the
amount prepaid), at maturity (whether by acceleration, notice of prepayment
or otherwise) and, after maturity, on demand.
SECTION 4.4 INTEREST PERIODS. In connection with the making or
----------------
continuation of, or conversion into, each Syndicate Revolving Loan comprised of
LIBOR Advances, Borrower shall select an interest period (each an "Interest
Period") to be applicable to such LIBOR Advances, which Interest Period shall be
either a 1, 2, 3 or 6 month period; provided that:
-------- ----
(a) The initial Interest Period for any Borrowing of LIBOR Advances
shall commence on the date of such Borrowing (including the date of any
conversion from a Borrowing consisting of Advances of another Type) and
each Interest Period occurring thereafter in respect of such Borrowing
shall commence on the day on which the next preceding Interest Period
expires;
(b) If any Interest Period would otherwise expire on a day which is
not a Business Day, such Interest Period shall expire on the next
succeeding Business Day, provided that if any Interest Period in respect of
LIBOR Advances would otherwise expire on a day that is not a Business Day
but is a day of the month after which no further Business Day occurs in
such month, such Interest Period shall expire on the next preceding
Business Day;
22
<PAGE>
(c) Any Interest Period in respect of LIBOR Advances which begins on
a day for which there is no numerically corresponding day in the calendar
month at the end of such Interest Period shall, subject to part (d) below,
expire on the last Business Day of such calendar month;
(d) No Interest Period shall extend beyond any date upon which any
principal payment is due with respect to the Revolving Loans.
SECTION 4.5 FEES
----
(a) Structuring and Syndication Fee. Borrower shall pay to SunTrust
-------------------------------
Capital Markets, Inc. on the Closing Date, the structuring and syndication
fee as required by the Fee Letter.
(b) Commitment Fee. Borrower shall pay to the Agent, for the account
--------------
of and distribution to each Lender, a commitment fee for the period
commencing on the Closing Date to and including the Termination Date,
computed at a rate equal to one-tenth of one percent (.10%) per annum on
the average daily unused portions of the Revolving Loan Commitment, and the
Line of Credit Commitment of each Lender, such fee being payable quarterly
in arrears on the last calendar day of each fiscal quarter of Borrower and
on the Termination Date.
(c) Annual Administrative Fee. Borrower shall pay to the Agent an
-------------------------
annual administrative fee, in advance, as set forth in the Fee Letter.
SECTION 4.6 VOLUNTARY PREPAYMENTS OF BORROWINGS.
-----------------------------------
(a) Borrower may, at its option, prepay Borrowings consisting of Base
Rate Advances at any time in whole, or from time to time in part, in
amounts aggregating $1,000,000 or any greater integral multiple of
$100,000, by paying the principal amount to be prepaid together with
interest accrued and unpaid thereon to the date of prepayment. Those
Borrowings consisting of LIBOR Advances may be prepaid, at Borrower's
option, in whole, or from time to time in part, in the respective minimum
amounts set forth in this Section 4.6(a) by paying the principal amount to
be prepaid, together with interest accrued and unpaid thereon to the date
of prepayment, and all compensation payments pursuant to Section 4.12 if
such prepayment is made on a date other than the last day of an Interest
Period applicable thereto. Each such optional prepayment shall be applied
in accordance with Section 4.6(c) below.
(b) Borrower shall give written notice (or telephonic notice
confirmed in writing) to the Agent of any intended prepayment of the
Revolving Loans or Line of Credit Loans
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(i) not less than one Business Day prior to any prepayment of Base Rate
Advances, and (ii) not less than three Business Days prior to any
prepayment of LIBOR Advances. Such notice, once given, shall be
irrevocable. Upon receipt of such notice of prepayment pursuant to the
first sentence of this paragraph (b), the Agent shall promptly notify each
Lender of the contents of such notice and of such Lender's share of such
prepayment.
(c) Borrower, when providing notice of prepayment pursuant to Section
4.6(b) may designate the Types of Advances and the specific Borrowing or
Borrowings which are to be prepaid, provided that (i) if any prepayment of
LIBOR Advances made pursuant to a single Borrowing of the Revolving Loans
shall reduce the outstanding Advances made pursuant to such Borrowing to an
amount less than $1,000,000, such Borrowing shall immediately be converted
into Base Rate Advances; and (ii) each prepayment made pursuant to a single
Borrowing shall be applied pro rata among the Loans comprising such
Borrowing.
SECTION 4.7 PAYMENTS, ETC.
-------------
(a) Except as otherwise specifically provided herein, all payments
under this Agreement and the other Credit Documents shall be made without
defense, set-off or counterclaim to the Agent, not later than 12:00 noon
(local time for the Agent) on the date when due and shall be made in
Dollars in immediately available funds at the respective Payment Office.
Payments received after such time shall be deemed received on the next
Business Day.
(b) (i) All such payments shall be made free and clear of and
without deduction or withholding for any Taxes in respect of this
Agreement, the Notes or other Credit Documents, or any payments of
principal, interest, fees or other amounts payable hereunder or thereunder
(but excluding any Taxes imposed on the overall net income of the Lenders
pursuant to the laws of the jurisdiction in which the principal executive
office or appropriate Lending Office of such Lender is located). If any
Taxes are so levied or imposed, Borrower agrees (A) to pay the full amount
of such Taxes, and such additional amounts as may be necessary so that
every net payment of all amounts due hereunder and under the Notes and
other Credit Documents, after withholding or deduction for or on account of
any such Taxes (including additional sums payable under this Section 4.7),
will not be less than the full amount provided for herein had no such
deduction or withholding been required, (B) to make such withholding or
deduction and (C) to pay the full amount deducted to the relevant authority
in accordance with applicable law. Borrower will furnish to the Agent and
each Lender, within 30 days after the date the payment of any Taxes is due
pursuant to applicable law, certified copies of tax
24
<PAGE>
receipts evidencing such payment by Borrower. Borrower will indemnify and
hold harmless the Agent and each Lender and reimburse the Agent and each
Lender upon written request for the amount of any Taxes so levied or
imposed and paid by the Agent or Lender and any liability (including
penalties, interest and expenses) arising therefrom or with respect
thereto, whether or not such Taxes were correctly or illegally asserted. A
certificate as to the amount of such payment by such Lender or the Agent,
absent manifest error, shall be final, conclusive and binding for all
purposes.
(ii) Each Lender that is organized under the laws of any
jurisdiction other than the United States of America or any State thereof
(including the District of Columbia) agrees to furnish to Borrower and the
Agent, prior to the time it becomes a Lender hereunder, two copies of
either U.S. Internal Revenue Service Form 4224 or U.S. Internal Revenue
Service Form 1001 or any successor forms thereto (wherein such Lender
claims entitlement to complete exemption from or reduced rate of U.S.
Federal withholding tax on interest paid by Borrower hereunder) and to
provide to Borrower and the Agent a new Form 4224 or Form 1001 or any
successor forms thereto if any previously delivered form is found to be
incomplete or incorrect in any material respect or upon the obsolescence of
any previously delivered form; provided, however, that no Lender shall be
-------- -------
required to furnish a form under this paragraph (ii) if it is not entitled
to claim an exemption from or a reduced rate of withholding under
applicable law. A Lender that is not entitled to claim an exemption from or
a reduced rate of withholding under applicable law, promptly upon written
request of Borrower, shall so inform Borrower in writing.
(c) Whenever any payment to be made hereunder or under any Note shall
be stated to be due on a day which is not a Business Day, the due date
thereof shall be extended to the next succeeding Business Day and, with
respect to payments of principal, interest thereon shall be payable at the
applicable rate during such extension.
(d) All computations of interest and fees shall be made on the basis
of a year of 360 days for the actual number of days (including the first
day but excluding the last day) occurring in the period for which such
interest or fees are payable (to the extent computed on the basis of days
elapsed). Interest on Base Rate Advances shall be calculated based on the
Base Rate from and including the date of such Loan to but excluding the
date of the repayment or conversion thereof. Interest on LIBOR Advances
shall be calculated as to each Interest Period from and including the first
day thereof to but excluding the last day thereof. Each determination by
the Agent of an interest rate or fee hereunder shall be made in
25
<PAGE>
good faith and, except for manifest error, shall be final, conclusive and
binding for all purposes.
(e) Payment by Borrower to the Agent in accordance with the terms of
this Agreement shall, as to Borrower, constitute payment to the Lenders
under this Agreement.
(f) Application of Payments. All payments made on the Notes shall be
-----------------------
applied (i) first to any accrued but unpaid fees as set forth in Section
4.5, (ii) next to interest accrued to the date of payment, (iii) next to
any compensation payments pursuant to Section 4.12, if applicable, and (iv)
then to the unpaid principal balance; provided, however, in the event an
Event of Default occurs and is continuing, payments shall be applied first
to any costs or expenses, including reasonable attorneys' fees that the
Agent or any of the Lenders may incur in exercising their rights under this
Agreement or the other Credit Documents.
SECTION 4.8 INTEREST RATE NOT ASCERTAINABLE, ETC. In the event that the
------------------------------------
Agent shall have determined (which determination shall be made in good faith
and, absent manifest error, shall be final, conclusive and binding upon all
parties) that on any date for determining LIBOR for any Interest Period, by
reason of any changes arising after the date of this Agreement, adequate and
fair means do not exist for ascertaining LIBOR then, and in any such event, the
Agent shall forthwith give notice (by telephone confirmed in writing) to
Borrower and to the Lenders of such determination and a summary of the basis for
such determination. Until the Agent notifies Borrower that the circumstances
giving rise to the suspension described herein no longer exist, the obligations
of the Lenders to make or permit portions of the Revolving Loans to remain
outstanding past the last day of the then current Interest Periods as LIBOR
Advances shall be suspended, and such affected Advances shall bear interest at
the same rate as Base Rate Advances.
SECTION 4.9 ILLEGALITY.
----------
(a) In the event that any Lender shall have determined (which
determination shall be made in good faith and, absent manifest error, shall
be final, conclusive and binding upon all parties) at any time that the
making or continuance of any LIBOR Advance has become unlawful or
impractical by compliance by such Lender in good faith with any applicable
law, governmental rule, regulation, guideline or order (whether or not
having the force of law and whether or not failure to comply therewith
would be unlawful), then, in any such event, the Lender shall give prompt
notice (by telephone confirmed in writing) to Borrower and to the Agent of
such determination and a summary of the basis for such determination (which
notice the Agent shall promptly transmit to the other Lenders).
26
<PAGE>
(b) Upon the giving of the notice to Borrower referred to in
subsection (a) above, (i) Borrower's right to request and such Lender's
obligation to make LIBOR Advances shall be immediately suspended, and such
Lender shall make an Advance as part of the requested Borrowing of LIBOR
Advances as a Base Rate Advance, which Base Rate Advance shall, for all
other purposes, be considered part of such Borrowing, and (ii) if the
affected LIBOR Advance or Advances are then outstanding, Borrower shall
immediately, or if permitted by applicable law, no later than the date
permitted thereby, upon at least one Business Day's written notice to the
Agent and the affected Lender, convert each such Advance into a Base Rate
Advance with an Interest Period ending on the date on which the Interest
Period applicable to the affected LIBOR Advances expires, provided that if
more than one Lender is affected at any time, then all affected Lenders
must be treated the same pursuant to this Section 4.9(b).
SECTION 4.10 INCREASED COSTS.
---------------
(a) If, by reason of (i) after the date hereof, the introduction of
or any change (including, without limitation, any change by way of
imposition or increase of reserve requirements) in or in the interpretation
of any law or regulation, or (ii) the compliance with any guideline or
request from any central bank or other governmental authority or quasi-
governmental authority exercising control over banks or financial
institutions generally (whether or not having the force of law):
(1) any Lender (or its applicable Lending Office)
shall be subject to any tax, duty or other charge with
respect to its LIBOR Advances or its obligation to make
LIBOR Advances, or the basis of taxation of payments to any
Lender of the principal of or interest on its LIBOR Advances
or its obligation to make LIBOR Advances shall have changed
(except for changes in the tax on the overall net income of
such Lender or its applicable Lending Office imposed by the
jurisdiction in which such Lender's principal executive
office or applicable Lending Office is located); or
(2) any reserve (including, without limitation, any
imposed by the Board of Governors of the Federal Reserve
System), special deposit or similar requirement against
assets of, deposits with or for the account of, or credit
extended by, any Lender's applicable Lending Office shall be
imposed or deemed applicable or any other condition
affecting its LIBOR Advances or its obligation
27
<PAGE>
to make LIBOR Advances shall be imposed on any Lender or its
applicable Lending Office or the London interbank market or
the United States secondary certificate of deposit market;
and as a result thereof there shall be any increase in the cost to such
Lender of agreeing to make or making, funding or maintaining LIBOR
Advances, or there shall be a reduction in the amount received or
receivable by such Lender or its applicable Lending Office, then Borrower
shall from time to time (subject, in the case of certain Taxes, to the
applicable provisions of Section 4.7(b)), upon written notice from and
demand by such Lender on Borrower (with a copy of such notice and demand to
the Agent), pay to the Agent for the account of such Lender within five
Business Days after the date of such notice and demand, additional amounts
sufficient to indemnify such Lender against such increased cost. A
certificate as to the amount of such increased cost, submitted to Borrower
and the Agent by such Lender in good faith and accompanied by a statement
prepared by such Lender describing in reasonable detail the basis for and
calculation of such increased cost, shall, except for manifest error, be
final, conclusive and binding for all purposes.
(b) If any Lender shall advise the Agent that at any time, because of
the circumstances described in clauses (i) or (ii) in paragraph 4.10(a)
above or any other circumstances beyond such Lender's control arising after
the date of this Agreement affecting such Lender or the London interbank
market or such Lender's position in such market, LIBOR as determined by the
Agent will not adequately and fairly reflect the cost to such Lender of
funding its LIBOR Advances, then, and in any such event:
(i) the Agent shall forthwith give notice (by telephone
confirmed in writing) to Borrower and to the other Lenders
of such advice;
(ii) Borrower's right to request and such Lender's
obligation to make or permit portions of the Loans to remain
outstanding past the last day of the then current Interest
Periods as LIBOR Advances shall be immediately suspended;
and
(iii) such Lender shall make a Loan as part of the
requested Borrowing of LIBOR Advances as a Base Rate
Advance, which such Base Rate Advance shall, for all other
purposes, be considered part of such Borrowing.
28
<PAGE>
Section 4.11 LENDING OFFICES.
---------------
(a) Each Lender agrees that, if requested by Borrower, it will use
reasonable efforts (subject to overall policy considerations of such
Lender) to designate an alternate Lending Office with respect to any of its
LIBOR Advances affected by the matters or circumstances described in
Sections 4.7(b), 4.8, 4.9 or 4.10 to reduce the liability of Borrower or
avoid the results provided thereunder, so long as such designation is not
disadvantageous to such Lender as determined by such Lender, which
determination if made in good faith, shall be conclusive and binding on all
parties hereto. Nothing in this Section 4.11 shall affect or postpone any
of the obligations of Borrower or any right of any Lender provided
hereunder.
(b) If any Lender that is organized under the laws of any
jurisdiction other than the United States of America or any State thereof
(including the District of Columbia) issues a public announcement with
respect to the closing of its lending offices in the United States such
that any withholdings or deductions and additional payments with respect to
Taxes may be required to be made by Borrower thereafter pursuant to Section
4.7(b), such Lender shall use reasonable efforts to furnish Borrower notice
thereof as soon as practicable thereafter; provided, however, that no delay
or failure to furnish such notice shall in any event release or discharge
Borrower from its obligations to such Lender pursuant to Section 4.7(b) or
otherwise result in any liability of such Lender.
SECTION 4.12 FUNDING LOSSES. Borrower shall compensate each Lender, upon
--------------
its written request to Borrower (which request shall set forth the basis for
requesting such amounts in reasonable detail and which request shall be made in
good faith and, absent manifest error, shall be final, conclusive and binding
upon all of the parties hereto), for all losses, expenses and liabilities
(including, without limitation, any interest paid by such Lender to lenders of
funds borrowed by it to make or carry its LIBOR Advances to the extent not
recovered by such Lender in connection with the reemployment of such funds and
including loss of anticipated profits), which the Lender may sustain: (i) if for
any reason (other than a default by such Lender) a borrowing of, or conversion
to or continuation of, LIBOR Advances to Borrower does not occur on the date
specified therefor in a Notice of Borrowing or Notice of Conversion/Continuation
(whether or not withdrawn), (ii) if any repayment (including mandatory
prepayments and any conversions pursuant to Section 4.9(b)) of any LIBOR
Advances to Borrower occurs on a date which is not the last day of an Interest
Period applicable thereto, or (iii) if, for any reason, Borrower defaults in its
obligation to repay its LIBOR Advances when required by the terms of this
Agreement.
29
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SECTION 4.13 ASSUMPTIONS CONCERNING FUNDING OF LIBOR ADVANCES.
------------------------------------------------
Calculation of all amounts payable to a Lender under this Article IV shall be
made as though that Lender had actually funded its relevant LIBOR Advances
through the purchase of deposits in the relevant market bearing interest at the
rate applicable to such LIBOR Advances in an amount equal to the amount of the
LIBOR Advances and having a maturity comparable to the relevant Interest Period
and through the transfer of such LIBOR Advances from an offshore office of that
Lender to a domestic office of that Lender in the United States of America;
provided however, that each Lender may fund each of its LIBOR Advances in any
- ----------------
manner it sees fit and the foregoing assumption shall be used only for
calculation of amounts payable under this Article IV.
SECTION 4.14 APPORTIONMENT OF PAYMENTS. Aggregate principal and interest
-------------------------
payments in respect of Loans and payments in respect of facility fees and
commitment fees shall be apportioned among all outstanding Commitments and Loans
to which such payments relate, proportionately to the Lenders' respective pro
rata portions of such Commitments and outstanding Loans. The Agent shall
promptly distribute to each Lender at its payment office set forth beside its
name on the appropriate signature page hereof or such other address as any
Lender may request its share of all such payments received by the Agent.
SECTION 4.15 SHARING OF PAYMENTS, ETC. If any Lender shall obtain any
------------------------
payment or reduction (including, without limitation, any amounts received as
adequate protection of a deposit treated as cash collateral under the Bankruptcy
Code) of the Obligations (whether voluntary, involuntary, through the exercise
of any right of set-off, or otherwise) in excess of its pro rata portion of
payments or reductions on account of such obligations obtained by all the
Lenders, such Lender shall forthwith (i) notify each of the other Lenders and
Agent of such receipt, and (ii) purchase from the other Lenders such
participations in the affected obligations as shall be necessary to cause such
purchasing Lender to share the excess payment or reduction, net of costs
incurred in connection therewith, ratably with each of them, provided that if
all or any portion of such excess payment or reduction is thereafter recovered
from such purchasing Lender or additional costs are incurred, the purchase shall
be rescinded and the purchase price restored to the extent of such recovery or
such additional costs, but without interest unless the Lender obligated to
return such funds is required to pay interest on such funds. Borrower agrees
that any Lender so purchasing a participation from another Lender pursuant to
this Section 4.15 may, to the fullest extent permitted by law, exercise all its
rights of payment (including the right of set-off) with respect to such
participation as fully as if such Lender were the direct creditor of Borrower in
the amount of such participation.
SECTION 4.16 CAPITAL ADEQUACY. Without limiting any other provision of
----------------
this Agreement, in the event that any Lender shall
30
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have determined that any law, treaty, governmental (or quasi-governmental) rule,
regulation, guideline or order regarding capital adequacy not currently in
effect or fully applicable as of the Closing Date, or any change therein or in
the interpretation or application thereof after the Closing Date, or compliance
by such Lender with any request or directive regarding capital adequacy not
currently in effect or fully applicable as of the Closing Date (whether or not
having the force of law and whether or not failure to comply therewith would be
unlawful) from a central bank or governmental authority or body having
jurisdiction, does or shall have the effect of reducing the rate of return on
such Lender's capital as a consequence of its obligations hereunder to a level
below that which such Lender could have achieved but for such law, treaty, rule,
regulation, guideline or order, or such change or compliance (taking into
consideration such Lender's policies with respect to capital adequacy) by an
amount deemed by such Lender to be material, then within ten (10) Business Days
after written notice and demand by such Lender (with copies thereof to the
Agent), Borrower shall from time to time pay to such Lender additional amounts
sufficient to compensate such Lender for such reduction (but, in the case of
outstanding Base Rate Advances, without duplication of any amounts already
recovered by such Lender by reason of an adjustment in the applicable Base
Rate). Each certificate as to the amount payable under this Section 4.16 (which
certificate shall set forth the basis for requesting such amounts in reasonable
detail), submitted to Borrower by any Lender in good faith, shall, absent
manifest error, be final, conclusive and binding for all purposes.
SECTION 4.17 BENEFITS TO GUARANTORS. In consideration for the execution
----------------------
and delivery by the Guarantors of their Guaranty Agreements, Borrower agrees to
make the benefit of extensions of credit hereunder available to the Guarantors.
SECTION 4.18 RETURN OF PAYMENTS. If the Agent shall be required by any
------------------
court, trustee or debtor-in-possession or other person to return any amount
previously received by it in respect of the obligations under this Agreement,
upon receipt of notice from it, each Lender shall immediately pay over to it,
such Lender's Pro Rata Share of the amount to be returned.
ARTICLE V
CONDITIONS TO BORROWINGS
------------------------
The obligations of each Lender to make Advances to Borrower hereunder is
subject to the satisfaction of the following conditions:
SECTION 5.1 CONDITIONS PRECEDENT TO INITIAL LOANS. At the time of the
-------------------------------------
making of the initial Loans hereunder on the Closing Date, all obligations of
Borrower hereunder incurred prior to the
31
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initial Loans (including, without limitation, Borrower's obligations to
reimburse any fees and expenses payable to the Agent and the Lenders as
previously agreed with Borrower), shall have been paid in full, and, except as
provided in Section 5.1(g), the Agent shall have received the following, in form
and substance reasonably satisfactory in all respects to the Agent:
(a) the duly executed counterparts of this Agreement;
(b) the duly completed Revolving Notes evidencing the Revolving Loan
Commitments and the duly executed Line of Credit Note evidencing the Line
of Credit Commitment;
(c) the Guaranty Agreement;
(d) the Negative Pledges;
(e) certificate of Borrower in substantially the form of Exhibit G
---------
attached hereto and appropriately completed;
(f) certificates of the Secretary or Assistant Secretary of each of
the Credit Parties, attaching and certifying copies of the resolutions of
the boards of directors of the Credit Parties, authorizing as applicable
the execution, delivery and performance of the Credit Documents;
(g) certificates of the Secretary or an Assistant Secretary of each of
the Credit Parties certifying (i) the name, title and true signature of
each officer of such entities executing the Credit Documents, and (ii) the
articles of incorporation and the bylaws or comparable governing documents
of such entities;
(h) copies of all documents and instruments, including all consents,
authorizations and filings, required or advisable under any Requirement of
Law or by any material Contractual Obligation of the Credit Parties, in
connection with the execution, delivery, performance, validity and
enforceability of the Credit Documents and the other documents to be
executed and delivered hereunder, and such consents, authorizations,
filings and orders shall be in full force and effect and all applicable
waiting periods shall have expired;
(i) certified copies of indentures, credit agreements, leases, capital
leases, instruments, and other documents evidencing or securing Indeb
tedness of any Consolidated Company described on Schedule 8.1(b), in
---------------
any single case in an amount not less than $1,000,000;
(j) certificates, reports and other information as the Agent may
reasonably request from any Consolidated Company in order to satisfy the
Lenders as to the absence of any material liabilities or obligations
arising from matters relating to
32
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employees of the Consolidated Companies, including employee relations,
collective bargaining agreements, Plans, and other compensation and
employee benefit plans;
(k) certificates, reports, environmental audits and investigations,
and other information as the Agent may reasonably request from any
Consolidated Company in order to satisfy the Lenders as to the absence
of any material liabilities or obligations under Environmental Laws
which could reasonably be expected to have a Materially Adverse
Effect;
(l) certificates, reports and other information as the Agent may
reasonably request from any Consolidated Company in order to satisfy
the Lenders as to the absence of any material liabilities or
obligations arising from litigation (including without limitation,
products liability, patent infringement and malpractice claims)
pending or threatened against the Consolidated Companies;
(m) a summary, set forth in format and detail reasonably acceptable to
the Agent, of the types and amounts of insurance (property and
liability) maintained by the Consolidated Companies;
(n) the favorable opinion of Winderweedle, Haines, Ward & Woodman,
P.A., counsel to the Credit Parties, substantially in the form of
Exhibit H addressed to the Agent and each of the Lenders; and
---------
(o) financial statements of Borrower and its Subsidiaries, on a
consolidated basis, for the most recently completed fiscal year.
In addition to the foregoing, the following conditions shall have been satisfied
or shall exist, all to the satisfaction of the Agent, as of the time the initial
Loans are made hereunder:
(p) payment in full and termination of all outstanding senior
indebtedness of the Borrower and its Material Subsidiaries and the release
of any liens securing the same; provided, however, the following
indebtedness may remain outstanding: (i) all Capitalized Lease Obligations
described on Schedule 6.7; and (ii) installment notes described on Schedule
-------- --- --------
8.1(b);
-----
(q) the Loans to be made on the Closing Date and the use of proceeds
thereof shall not contravene, violate or conflict with, or involve the
Agent or any Lender in a violation of, any law, rule, injunction, or
regulation, or determination of any court of law or other governmental
authority;
33
<PAGE>
(r) all corporate proceedings and all other legal matters in
connection with the authorization, legality, validity and enforceability of
the Credit Documents shall be reasonably satisfactory in form and substance
to the Required Lenders; and
(s) the status of all pending and threatened litigation (including
products liability, malpractice and patent claims) described on Schedule
--------
6.5, including a description of any damages sought and the claims
---
constituting the basis therefor, shall have been reported in writing to the
Agent, the Agent shall have reported such matters to the Lenders, and the
Lenders shall be satisfied with such status.
SECTION 5.2 CONDITIONS TO ALL LOANS. At the time of the making of all
-----------------------
Loans(before as well as after giving effect to such Loans and to the proposed
use of the proceeds thereof), the following conditions shall have been
satisfied or shall exist:
(a) there shall exist no Default or Event of Default;
(b) all representations and warranties by Borrower contained herein
shall be true and correct in all material respects with the same effect as
though such representations and warranties had been made on and as of the
date of such Loans;
(c) since the date of the most recent financial statements of the
Consolidated Companies described in Section 6.3, there shall have been no
change which has had or could reasonably be expected to have a Materially
Adverse Effect.
(d) there shall be no action or proceeding instituted or pending
before any court or other governmental authority or, to the knowledge of
Borrower, threatened (i) which reasonably could be expected to have a
Materially Adverse Effect, or (ii) seeking to prohibit or restrict one or
more Credit Party's ownership or operation of any portion of its business
or assets, or to compel one or more Credit Party to dispose of or hold
separate all or any portion of its businesses or assets, where such portion
or portions of such business(es) or assets, as the case may be, constitute
a material portion of the total businesses or assets of the Consolidated
Companies;
(e) the Loans to be made and the use of proceeds thereof shall not
contravene, violate or conflict with, or involve the Agent or any Lender in
a violation of, any law, rule, injunction, or regulation, or determination
of any court of law or other governmental authority applicable to Borrower;
and
34
<PAGE>
(f) the Agent shall have received such other documents, including, but
not limited to a properly completed Notice of Borrowing, or legal opinions
as the Agent or any Lender may reasonably request, all in form and
substance reasonably satisfactory to the Agent.
Each request for a Borrowing and the acceptance by Borrower of the proceeds
thereof shall constitute a representation and warranty by Borrower, as of the
date of the Loans comprising such Borrowing, that the applicable conditions
specified in Sections 5.1 and 5.2 have been satisfied.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
------------------------------
Borrower represents, warrants and covenants to Lenders that:
SECTION 6.1 ORGANIZATION AND QUALIFICATION. Borrower is a corporation
------------------------------
duly organized and existing in good standing under the laws of the State of
Florida. Each Subsidiary of Borrower is a corporation duly organized and
existing under the laws of the jurisdiction of its incorporation. Borrower and
each of its Subsidiaries are duly qualified to do business as a foreign
corporation and are in good standing in each jurisdiction in which the character
of their properties or the nature of their business makes such qualification
necessary, except for such jurisdictions in which a failure to qualify to do
business would not have a Materially Adverse Effect. Borrower and each of its
Material Subsidiaries have the corporate power to own their respective
properties and to carry on their respective businesses as now being conducted.
The jurisdiction of incorporation or organization, and the ownership of all
issued and outstanding capital stock, for each Subsidiary as of the date of this
Agreement is accurately described on Schedule 6.1. Schedule 6.1 also designates
------------- ------------
all Subsidiaries of the Borrower as of the Closing Date and specifies whether
each is a Material Subsidiary.
SECTION 6.2 CORPORATE AUTHORITY. The execution and delivery by Borrower
-------------------
and the Guarantors of and the performance by Borrower and Guarantors of their
obligations under the Credit Documents have been duly authorized by all
requisite corporate action and all requisite shareholder action, if any, on the
part of Borrower and the Guarantors and do not and will not (i) violate any
provision of any law, rule or regulation, any judgment, order or ruling of any
court or governmental agency, the organizational papers or bylaws of Borrower or
the Guarantors, or any indenture, agreement or other instrument to which
Borrower or the Guarantors are a party or by which Borrower or the Guarantors or
any of their properties is bound, or (ii) be in conflict with, result in a
breach of, or constitute with notice or lapse of time or both a default under
any such indenture, agreement or other instrument.
35
<PAGE>
SECTION 6.3 FINANCIAL STATEMENTS. Borrower has furnished Lenders with
--------------------
the following financial statements, identified by the Chief Financial Officer of
Borrower: audited consolidated balance sheet of the Borrower and its
Subsidiaries as at July 31, 1996 and audited consolidated statement of income
and consolidated statement of stockholders' equity of Borrower and its
Subsidiaries for the fiscal year ended on such date certified by Deloitte &
Touche, LLP, Certified Public Accountants and interim internally generated
financial statements for the quarters ended October 31, 1996 and January 31,
1997. Such financial statements (including any related schedules and notes) are
true and correct in all material respects, have been prepared in accordance with
generally accepted accounting principles consistently applied throughout the
period or periods in question and show, in the case of audited statements, all
liabilities, direct or contingent, of Borrower and its Subsidiaries, required to
be shown in accordance with generally accepted accounting principles
consistently applied throughout the period or periods in question and fairly
present the consolidated financial position and the consolidated results of
operations of Borrower and its Subsidiaries for the periods indicated therein.
There has been no material adverse change in the business, condition or
operations, financial or otherwise, of Borrower and its Subsidiaries since July
31, 1996.
SECTION 6.4 TAX RETURNS. Except as set forth on Schedule 6.4, each of
----------- ------------
Borrower and its Material Subsidiaries has filed all federal, state and other
tax returns and reports which, to the best knowledge of the Executive Officers
of Borrower and its Subsidiaries, are required to be filed, and each has paid
all taxes as shown on said returns and all other taxes, assessments, fees and
other governmental charges upon Borrower or any of its Material Subsidiaries or
upon any of the properties, assets, incomes or franchises of Borrower or any of
its Material Subsidiaries, to the extent that such taxes, assessments, fees and
other governmental charges have become due or except such as are being contested
in good faith by appropriate proceedings for which adequate reserves have been
established in accordance with GAAP. The Borrower and its Material Subsidiaries
have and will establish all necessary reserves and make all payments required of
them to be set aside or made in regard to all F.I.C.A., withholding, sales or
excise and all other similar federal, state and local taxes.
SECTION 6.5 ACTIONS PENDING. Except as disclosed on Schedule 6.5 hereto,
--------------- ------------
there is no action, suit, investigation or proceeding pending or, to the
knowledge of Borrower, threatened against or affecting Borrower or any of its
Material Subsidiaries or any of their properties or rights, by or before any
court, arbitrator or administrative or governmental body, which might result in
any Materially Adverse Effect.
SECTION 6.6 REPRESENTATIONS; NO DEFAULTS. At the time of each Extension
----------------------------
of Credit there shall exist no Default or Event of Default, and each Extension
of Credit shall be deemed a renewal by
36
<PAGE>
Borrower of the representations and warranties contained in this Agreement and
an affirmative statement by Borrower that such representations and warranties
are true and correct in all material respects on and as of such time with the
same effect as though such representations and warranties has been made on and
as of such time. The Borrower and each of the Lenders who are parties to the
Original Credit Agreement acknowledge that as at April 30, 1997, the Borrower
may be in default with respect to the Consolidated Funded Debt to Total in
default with respect to the Consolidated Fund Debt to total Capitalization Ratio
("CFD/TC Ratio") requirement (0.55:1.0) contained in section 7.8(b). The Lenders
who are parties to the Original Credit Agreement hereby waive such default, if
any, as at April 30, 1997 only. It is the mutual understanding of the Borrower
and the lenders who are parties to the Original Credit Agreement that waiver
contained in this Section 6.6 shall apply to the specific default events
described herein, for the purposes set forth herein, and shall not apply to any
other provisions of the Agreement or any other Credit Document, nor to any
future default, violations or events, whether or not of a similar nature.
SECTION 6.7 TITLE TO PROPERTIES; CAPITALIZED LEASES. Each of
---------------------------------------
Borrower and its Material Subsidiaries has (i) good and marketable fee simple
title to its respective real properties (other than real properties which it
leases from others), including such real properties reflected in the
consolidated balance sheet of Borrower and its Subsidiaries described in Section
6.3 above (other than real properties disposed of in the ordinary course of
business), subject to no Lien of any kind except Liens permitted by Section 8.2
and (ii) good title to all of its other respective properties and assets (other
than properties and assets which it leases from others), including the other
properties and assets reflected in the consolidated balance sheet of Borrower
and its Subsidiaries described in Section 6.3 above (other than properties and
assets disposed of in the ordinary course of business), subject to no Lien of
any kind except Liens permitted by Section 8.2. Each of Borrower and its
Material Subsidiaries enjoys peaceful and undisturbed possession under all
leases necessary in any material respect for the operation of its respective
properties and assets, none of which contains any unusual or burdensome
provisions which might materially affect or impair the operation of such
properties and assets, and all such leases are valid and subsisting and in full
force and effect. There are no Capitalized Lease Obligations except as disclosed
on Schedule 6.7 hereto.
------------
SECTION 6.8 ENFORCEABILITY OF AGREEMENT. This Agreement is the legal,
---------------------------
valid and binding agreement of Borrower enforceable against Borrower in
accordance with its terms, and the Notes, and all other Credit Documents, when
executed and delivered, will be similarly legal, valid, binding and enforceable,
except as the enforceability of the Notes and other Credit Documents may be
limited by bankruptcy, insolvency, reorganization, moratorium and other laws
affecting creditor's rights and remedies in general and
37
<PAGE>
by general principles of equity, whether considered in a proceeding at law or in
equity.
SECTION 6.9 CONSENT. No consent, permission, authorization, order or
-------
license of or filing with any governmental authority or Person which has not
been obtained or made is necessary in connection with the execution, delivery,
performance or enforcement of the Credit Documents by the Credit Parties, or in
order to constitute the indebtedness to be incurred hereunder and under the
Notes and the other Credit Documents as "Senior Debt" or any similar term
defined within each of the Subordinated Notes.
SECTION 6.10 FEDERAL RESERVE REGULATIONS. None of the proceeds of the
---------------------------
Notes will be used, directly or indirectly, for the purpose of purchasing or
carrying any "margin security" or "margin stock" or for the purpose of reducing
or retiring any indebtedness that originally was incurred to purchase or carry a
"margin security" or "margin stock" or for any other purpose that might
constitute this transaction a "purpose credit" within the meaning of the
regulations of the Board of Governors of the Federal Reserve System.
SECTION 6.11 ERISA.
-----
(a) Identification of Certain Plans. Schedule 6.11 hereto sets forth
-------------------------------
all Plans of Borrower and its Subsidiaries;
(b) Compliance. Each Plan is being maintained, by its terms and in
----------
operation, in accordance with all applicable laws, except such
noncompliance (when taken as a whole) that will not have a Materially
Adverse Effect on the Borrower and its Subsidiaries taken as a whole, or
upon their financial condition, assets, business, operations, liabilities
or prospects;
(c) Liabilities. Neither the Borrower nor any Subsidiary is currently
-----------
or will become subject to any liability (including withdrawal liability),
tax or penalty whatsoever to any person whomsoever with respect to any Plan
including, but not limited to, any tax, penalty or liability arising under
Title I or Title IV or ERISA or Chapter 43 of the Code, except such
liabilities (when taken as a whole) as will not have a Materially Adverse
Effect on the Borrower and its Subsidiaries taken as a whole, or upon their
financial condition, assets, business, operations, liabilities or
prospects; and
(d) Funding. The Borrower and each ERISA Affiliate has made full and
-------
timely payment of all amounts (i) required to be contributed under the
terms of each Plan and applicable law and (ii) required to be paid as
expenses of each Plan, except where such non-payment would not have a
Material Adverse Effect. No Plan has an "amount of unfunded benefit
liabilities" (as defined in Section 4001(a)(18) of ERISA)
38
<PAGE>
except as disclosed on Schedule 6.11. No Plan is subject to a waiver or
-------------
extension of the minimum funding requirements under ERISA or the Code, and
no request for such waiver or extension is pending.
SECTION 6.12 SUBSIDIARIES. As of the Closing Date, the only Subsidiaries
------------
of the Borrower are those listed on Schedule 6.1. All the outstanding shares of
------------
stock of each Subsidiary have been validly issued and are fully paid and
nonassessable and all such outstanding shares, except as noted on such Schedule
--------
6.1, are owned by Borrower or a Wholly Owned Subsidiary of Borrower free of any
- ---
Lien or claim.
SECTION 6.13 OUTSTANDING DEBT.Except as set forth on Schedule 6.13 as
---------------- -------------
of the date of closing and after giving effect to the transactions contemplated
by this Agreement, neither Borrower nor any of its Subsidiaries has outstanding
any Debt except as permitted by Section 8.1 and there exists no default, and,
after giving effect to the transactions contemplated in this Agreement, there
will exist no default under the provisions of any instrument evidencing such
Debt or of any agreement relating thereto except as noted on Schedule 6.13.
-------------
SECTION 6.14 CONFLICTING AGREEMENTS. Neither Borrower nor any of its
----------------------
Subsidiaries is a party to any contract or agreement or subject to any charter,
bylaw or other corporate restriction which materially and adversely affects its
business, property or assets, or financial condition. Assuming the consummation
of the transactions contemplated by this Agreement, neither the execution or
delivery of this Agreement or the Credit Documents, nor fulfillment of or
compliance with the terms and provisions hereof and thereof, will conflict with,
or result in a breach of the terms, conditions or provisions of, or constitute a
default under, or result in any violation of, or result in the creation of any
Lien upon any of the properties or assets of Borrower or any of its Subsidiaries
pursuant to, the charter or By-Laws of Borrower or any of its Subsidiaries, any
award of any arbitrator or any agreement (including any agreement with
stockholders), instrument, order, judgment, decree, statute, law, rule or
regulation to which Borrower or any of its Subsidiaries is subject, and neither
Borrower nor any of its Subsidiaries is a party to, or otherwise subject to any
provision contained in, any instrument evidencing Debt of Borrower or any of its
Subsidiaries, any agreement relating thereto or any other contract or agreement
(including its charter) which limits the amount of, or otherwise imposes
restrictions on the incurring of, Debt of the type to be evidenced by the Notes
or contains dividend or redemption limit ations on Common Stock of Borrower,
except for this Agreement, Borrower's Certificate of Incorporation and those
matters listed on Schedule 6.14 attached hereto.
-------------
39
<PAGE>
SECTION 6.15 ENVIRONMENTAL MATTERS .
---------------------
(a) Except as set forth on Schedule 6.15(a), each of the Borrower and
----------------
its Subsidiaries has complied in all material respects (except for
instances of noncompliance that have been resolved prior to the Closing
Date) with all applicable Environmental Laws, including without limitation,
compliance with permits, licenses, standards, schedules and timetables
issued pursuant to Environmental Laws, and is not in violation of, and does
not presently have outstanding any liability under, has not been notified
that it is or may be liable under and does not have knowledge of any
liability or potential liability under any applicable Environmental Law,
including without limitation, the Resource Conservation and Recovery Act of
1976, as amended ("RCRA"), the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended by the Superfund
Amendments and Reauthorization Act of 1986 ("CERCLA"), the Federal Water
Pollution Control Act, as amended ("FWPCA"), the Federal Clean Air Act, as
amended ("FCAA"), and the Toxic Substance Control Act ("TSCA"), which
violation, liability or potential liability could reasonably be expected to
have a Materially Adverse Effect.
(b) Except as set forth on Schedule 6.15(b), neither the Borrower nor
----------------
any of its Subsidiaries has received a written request for information
under CERCLA or any analogous state law, or written notice that any such
entity has been identified as a potential responsible party under CERCLA,
or any analogous state law, nor has any such entity received any written
notification that any Hazardous Substance that it or any of its respective
predecessors in interest has generated, stored, treated, handled,
transported, or disposed of, has been released or is threatened to be
released at any site at which any Person intends to conduct or is
conducting a remedial investigation or other action pursuant to any
applicable Environmental Law, or any other Environmental Laws.
(c) Except as set forth on Schedule 6.15(c), each of the Borrower and
----------------
its Subsidiaries has obtained all permits, licenses or other authorizations
which are material for the conduct of their respective operations under all
applicable Environmental Laws and with respect to which each such
authorization is in full force and effect.
(d) Except as set forth in Schedule 6.15(d), each of Borrower and its
----------------
Subsidiaries complies in all material respects with all laws and
regulations relating to equal employment opportunity and employee safety in
all jurisdictions in which it is presently doing business.
SECTION 6.16 POSSESSION OF FRANCHISES, LICENSES, ETC. Each of Borrower
---------------------------------------
and its Material Subsidiaries possesses all franchises, certificates, licenses,
permits and other authorizations from
40
<PAGE>
governmental political subdivisions or regulatory authorities, free from
burdensome restrictions, that are necessary in any material respect for the
ownership, maintenance and operation of its properties and assets, and neither
Borrower nor any of its Subsidiaries is in violation of any thereof in any
material respect.
SECTION 6.17 PATENTS, TRADEMARKS, ETC. Except as set forth on Schedule
------------------------ --------
6.17, each of Borrower and its Material Subsidiaries owns or has the right to
- ----
use all patents, trademarks, service marks, trade names, copyrights, licenses,
franchises and other rights, which are necessary for the operation of its
business as presently conducted or proposed to be conducted without any known
conflict with the rights of others, and, in each case, subject to no mortgage,
pledge, lien, lease, encumbrance, charge, security interest, title retention
agreement or option. Each such asset or agreement is in full force and effect,
and the holder thereof has fulfilled and performed all of its obligations with
respect thereto. No event has occurred or exists which permits, or after notice
or lapse of time or both would permit, revocation or termination, or which
materially, adversely affects or in the future may (to the knowledge of any
Executive Officer) materially adversely affect, the rights of such holder
thereof with respect thereto. No other license or franchise is known by any
Executive Officer to be necessary to the operations of the business of the
Borrower and its Material Subsidiaries as now conducted or proposed to be
conducted. To the knowledge of any Executive Officer (i) no product, process,
method, substance, part, piece of equipment or other material presently
contemplated to be sold by or employed by Borrower or any of its Material
Subsidiaries in connection with its business may infringe any patent, trademark,
service mark, trade name, copyright, license or other right owned by any other
Person, (ii) there are no pending or threatened claims or litigation against or
affecting Borrower or any of its Subsidiaries contesting its right to sell or
use any such product, process, method, substance, part, piece of equipment or
other material and (iii) there is no, or there is no pending or proposed,
patent, invention, device, application or principle or any statute, law, rule,
regulation, standard or code which would prevent, inhibit or render obsolete the
production or sale of any products of, or substantially reduce the projected
revenues of, or otherwise materially adversely affect the Borrower or any of its
Material Subsidiaries.
SECTION 6.18 GOVERNMENTAL CONSENT. Neither the nature of Borrower or any
--------------------
of its Subsidiaries nor any of their respective businesses or properties, nor
any relationship between Borrower and any other Person, nor any circumstance in
connection with the execution and delivery of the Credit Documents and the
consummation of the transactions contemplated thereby is such as to require on
behalf of Borrower or any of its Material Subsidiaries any consent, approval or
other action by or any notice to or filing with any
41
<PAGE>
court or administrative or governmental body in connection with the execution
and delivery of this Agreement and the Credit Documents.
SECTION 6.19 DISCLOSURE. Neither this Agreement nor the Credit Documents
----------
nor any other document, certificate or written statement furnished to Lenders by
or on behalf of Borrower in connection herewith contains any untrue statement of
a material fact or omits to state a material fact necessary in order to make the
statements contained herein or therein not misleading. There is no fact peculiar
to Borrower which materially adversely affects or in the future may (so far as
Borrower can now foresee) materially adversely affect the business, property or
assets, financial condition of Borrower which has not been set forth in this
Agreement or in the Credit Documents, certificates and written statements
furnished to Lenders by or on behalf of Borrower prior to the date hereof in
connection with the transactions contemplated hereby.
SECTION 6.20 INSURANCE COVERAGE. Each property of Borrower or any of its
------------------
Subsidiaries is insured within terms acceptable to Lenders for the benefit of
Borrower or a Subsidiary of Borrower in amounts deemed adequate by Borrower's
management and no less than those amounts customary in the industry in which
Borrower and its Subsidiaries operate against risks usually insured against by
Persons operating businesses similar to those of Borrower or its Subsidiaries in
the localities where such properties are located.
SECTION 6.21 LABOR MATTERS. Except as set forth on Schedule 6.21, the
------------- -------------
Borrower and the Borrower's Subsidiaries have experienced no strikes, labor
disputes, slow downs or work stoppages due to labor disagreements which have
had, or would reasonably be expected to have, a Materially Adverse Effect, and,
to the best knowledge of Borrower's Executive Officers, there are no such
strikes, disputes, slow downs or work stoppages threatened against any Borrower
or any of Borrower's Subsidiaries. The hours worked and payment made to
employees of the Borrower and Borrower's Subsidiaries have not been in violation
in any material respect of the Fair Labor Standards Act or any other applicable
law dealing with such matters. All payments due from the Borrower and Borrower's
Subsidiaries, or for which any claim may be made against the Consolidated
Companies, on account of wages and employee health and welfare insurance and
other benefits have been paid or accrued as liabilities on the books of the
Borrower and Borrower's Subsidiaries where the failure to pay or accrue such
liabilities would reasonably be expected to have a Materially Adverse Effect.
SECTION 6.22 INTERCOMPANY LOANS; DIVDENDS. There are no Intercompany Loans
----------------------------
as of the Closing Date except those set forth on Schedule 6.22. There are no
-------------
restrictions on the power of any Consolidated Company to repay any Intercompany
Loan or, except as provided in Section 8.13, to pay dividends on capital stock.
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SECTION 6.23 SECURITIES ACTS. Neither Borrower nor any of its Subsidiaries
---------------
nor any agent acting on their behalf has, directly or indirectly, taken or will
take any action which would subject the issuance of the Notes to the provisions
of Section 5 of the Securities Act of 1933, as amended, or to the provisions of
any securities or Blue Sky Law of any applicable jurisdiction.
SECTION 6.24 INVESTMENT COMPANY ACT; HOLDING COMPANY. Neither Borrower nor
---------------------------------------
any of its Subsidiaries is an "investment company" or a company "controlled" by
an "investment company" within the meaning of the Investment Company Act of 1940
or is a "holding company," or a subsidiary or affiliate of a "holding company,"
or a "public utility," within the meaning of the Public Utility Holding Company
Act of 1935, as amended or a "public utility" within the meaning of the Federal
Power Act, as amended.
SECTION 6.25 REGULATION G, ETC. Neither Borrower nor any of its
-----------------
Subsidiaries nor any agent acting on their behalf has taken or will take any
action which might cause this Agreement or the Notes to violate Regulation G, T,
or X or any other regulation of the Board of Governors of the Federal Reserve
System or to violate the Securities Exchange Act of 1934, and each case in
effect now or as the same may hereafter be in effect.
SECTION 6.26 CHANGES IN FINANCIAL CONDITION; ADVERSE DEVELOPMENTS. From
----------------------------------------------------
the date of the annual statements described in Section 6.3 hereinabove, to the
date of this Agreement, there has been, and to the date of each Advance there
will be, no change in the properties, assets, liabilities, financial condition,
business operations, affairs or properties of the Borrower and its Subsidiaries
on a consolidated basis from that set forth or reflected in the year-end
financial statement described in Section 6.3, other than changes in the ordinary
course of business, including acquisitions, none of which either in any case or
in the aggregate will have a Materially Adverse Effect.
ARTICLE VII
AFFIRMATIVE COVENANTS
---------------------
Borrower covenants and agrees that so long as it may borrow under this
Agreement or so long as any indebtedness remains outstanding under the Notes
that it will:
SECTION 7.1 CORPORATE EXISTENCE, ETC. Preserve and maintain, and cause
------------------------
each of its Subsidiaries to preserve and maintain, its corporate existence, its
material rights, franchises, and licenses, and its material patents and
copyrights (for the scheduled duration thereof), trademarks, trade names, and
service marks, necessary or desirable in the normal conduct of its business, and
its qualification to do business as a foreign corporation in all jurisdictions
where it conducts business or
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other activities making such qualification necessary, where the failure to do so
would reasonably be expected to have a Materially Adverse Effect.
SECTION 7.2 COMPLIANCE WITH LAWS, ETC. Comply, and cause each of its
-------------------------
Subsidiaries to comply with all Requirements of Law (including, without
limitation, the Environmental Laws, subject to the exception set forth in
Section 7.7(f) where the penalties, claims, fines, and other liabilities
resulting from noncompliance with such Environmental Laws do not involve amounts
in excess of $100,000 in the aggregate) and Contractual Obligations applicable
to or binding on any of them.
SECTION 7.3 PAYMENT OF TAXES AND CLAIMS, ETC. Pay, and cause each of its
--------------------------------
Subsidiaries to pay, (i) all taxes, assessments and governmental charges imposed
upon it or upon its property, and (ii) all claims (including, without
limitation, claims for labor, materials, supplies or services) which might, if
unpaid, become a Lien upon its property, unless, in each case, the validity or
amount thereof is being contested in good faith by appropriate proceedings and
adequate reserves are maintained with respect thereto.
SECTION 7.4 KEEPING OF BOOKS. Keep, and cause each of its Subsidiaries to
----------------
keep, proper books of record and account, containing complete and accurate
entries of all their respective financial and business transactions.
SECTION 7.5 VISITATION, INSPECTION, ETC. Permit, and cause each of its
---------------------------
Subsidiaries to permit, any representative of the Agent or any Lender to visit
and inspect any of its property, to examine its books and records and to make
copies and take extracts therefrom, and to discuss its affairs, finances and
accounts with its officers, all at such reasonable times and as often as the
Agent or such Lender may reasonably request after reasonable prior notice to
Borrower; provided, however, that at any time following the occurrence and
during the continuance of a Default or an Event of Default, no prior notice to
Borrower shall be required and further, provided, that in the event any
documents and records are subject to any contractual confidentiality
requirements with any Person, the right to make copies or extracts therefrom
shall be subject to the prior written consent of the Borrower, which consent
will not be unreasonably withheld.
SECTION 7.6 INSURANCE; MAINTENANCE OF PROPERTIES.
------------------------------------
(a) Maintain or cause to be maintained with financially sound and
reputable insurers, insurance with respect to its properties and business,
and the properties and business of its Subsidiaries, against loss or damage
of the kinds customarily insured against by reputable companies in the same
or similar businesses, such insurance to be of such types and in such
amounts, including such self-insurance and deductible
44
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provisions, as is customary for such companies under similar circumstances;
provided, however, that in any event Borrower shall use its best efforts to
maintain, or cause to be maintained, insurance in amounts and with
coverages not materially less favorable to any Consolidated Company as in
effect on the date of this Agreement, except where the costs of maintaining
such insurance would, in the judgment of both Borrower and the Agent, be
excessive.
(b) Cause, and cause each of the Consolidated Companies to cause, all
properties used or useful in the conduct of its business to be maintained
and kept in good condition, repair and working order and supplied with all
necessary equipment and will cause to be made all necessary repairs,
renewals, replacements, settlements and improvements thereof, all as in the
judgment of Borrower may be necessary so that the business carried on in
connection therewith may be properly and advantageously conducted at all
times; provided, however, that nothing in this Section shall prevent
Borrower from discontinuing the operation or maintenance of any such
properties if such discontinuance is, in the judgment of Borrower,
desirable in the conduct of its business or the business of any
Consolidated Company.
SECTION 7.7 REPORTING COVENANTS. Furnish to each Lender:
-------------------
(a) Annual Financial Statements. As soon as available and in any
---------------------------
event within 90 days after the end of each fiscal year of Borrower, audited
financial statements, consisting of balance sheets of the Consolidated
Companies as at the end of such year, presented on a consolidated basis,
and the related statements of income, shareholders' equity, and cash flows
of the Consolidated Companies for such fiscal year, presented on a
consolidated basis, setting forth in each case in comparative form the
figures for the previous fiscal year, all in reasonable detail and
accompanied by (i) a report thereon of Deloitte & Touche, LLP, or other
independent public accountants of comparable recognized national standing,
which such report shall be unqualified as to going concern and scope of
audit and shall state that such financial statements present fairly in all
material respects the financial condition as at the end of such fiscal year
on a consolidated basis, and the results of operations and statements of
cash flows of the Consolidated Companies for such fiscal year in accordance
with GAAP and that the examination by such accountants in connection with
such consolidated financial statements has been made in accordance with
GAAP and (ii) a copy of any management letter(s) issued to the Borrower by
such independent public accountants;
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(b) Quarterly Financial Statements. As soon as available and in any
------------------------------
event within 45 days after the end of each fiscal quarter of Borrower
(other than the fourth fiscal quarter), balance sheets of the Consolidated
Companies as at the end of such quarter presented on a consolidated basis
and the related statements of income, shareholders' equity, and cash flows
of the Consolidated Companies for such fiscal quarter and for the portion
of Borrower's fiscal year ended at the end of such quarter, presented on a
consolidated basis setting forth in each case in comparative form the
figures for the corresponding quarter and the corresponding portion of
Borrower's previous fiscal year, all in reasonable detail and certified by
the Chief Financial Officer or other authorized financial officer of
Borrower acceptable to the Agent and the Required Lenders that such
financial statements fairly present in all material respects the financial
condition of the Consolidated Companies as at the end of such fiscal
quarter on a consolidated basis, and the results of operations and
statements of cash flows of the Consolidated Companies for such fiscal
quarter and such portion of Borrower's fiscal year, in accordance with GAAP
consistently applied (subject to normal year end audit adjustments and the
absence of certain footnotes);
(c) No Default/Compliance Certificate. Together with the financial
---------------------------------
statements required pursuant to subsections (a) and (b) above, a
certificate of the Treasurer, Chief Financial Officer or other authorized
financial officer of Borrower acceptable to the Agent and the Required
Lenders (i) to the effect that, based upon a review of the activities of
the Consolidated Companies and such financial statements during the period
covered thereby, there exists no Event of Default and no Default under this
Agreement, or if there exists an Event of Default or a Default hereunder,
specifying the nature thereof and the proposed response thereto, and (ii)
demonstrating in reasonable detail compliance as at the end of such fiscal
year or such fiscal quarter with the covenants contained in Section 7.8 and
Sections 8.1 through 8.4;
(d) Notice of Default. Promptly after any Executive Officer of
-----------------
Borrower has notice or knowledge of the occurrence of an Event of Default
or a Default, a certificate of the chief financial officer or principal
accounting officer of Borrower specifying the nature thereof and the
proposed response thereto;
(e) Litigation. Promptly after (i) the occurrence thereof, notice of
----------
the institution of or any adverse development in any action, suit or
proceeding or any governmental investigation or any arbitration, before any
court or arbitrator or any governmental or administrative body, agency or
official, against any Consolidated Company, or
46
<PAGE>
any material property thereof which involves individually or in the
aggregate in excess of $1,000,000 or which might have a Materially Adverse
Effect, or (ii) actual knowledge thereof, notice of the threat of any such
action, suit, proceeding, investigation or arbitration, together with any
information and documentation relating thereto, as may be requested;
notwithstanding anything to the contrary contained in this subsection, the
Borrower shall promptly advise the Lenders, in writing, of the threatened
or actual filing of any malpractice litigation against Borrower or any of
its Subsidiaries whether or not such litigation is expected to have a
Materially Adverse Effect;
(f) Environmental Notices. Promptly after receipt thereof, notice
---------------------
of any actual or alleged violation, or notice of any action, claim or
request for information, either judicial or administrative, from any
governmental authority relating to any actual or alleged claim, notice of
potential responsibility under or violation of any Environmental Law, or
any actual or alleged spill, leak, disposal or other release of any waste,
petroleum product, or hazardous waste or Hazardous Substance by any
Consolidated Company which violation, action, claim, request, spill, leak,
disposal, or release could result in penalties, fines, claims or other
liabilities to any Consolidated Company in amounts in excess of $100,000
individually or when aggregated with other then pending such matters;
(g) ERISA.
-----
(i) Promptly after the occurrence thereof with respect
to any Plan of any Consolidated Company or any ERISA
Affiliate thereof, or any trust established thereunder,
notice of (1) a "reportable event" described in Section 4043
of ERISA and the regulations issued from time to time
thereunder (other than a "reportable event" not subject to
the provisions for 30 day notice to the PBGC under such
regulations), or (2) any other event which could subject any
Consolidated Company to any tax, penalty or liability under
Title I or Title IV of ERISA or Chapter 43 of the Tax Code,
or any tax or penalty resulting from a loss of deduction
under Sections 162, 404 or 419 of the Tax Code, where any
such taxes, penalties or liabilities exceed or could exceed
$250,000 in the aggregate;
(ii) Promptly after such notice must be provided to the
PBGC, or to a Plan participant, beneficiary or alternative
payee, any notice required under Section 101(d),
47
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302(f)(4), 303, 307, 4041(b)(1)(A) or 4041(c)(1)(A) of ERISA
or under Section 401(a)(29) or 412 of the Tax Code with
respect to any Plan of any Consolidated Company or any ERISA
Affiliate thereof;
(iii) Promptly after receipt, any notice received by
any Consolidated Company or any ERISA Affiliate thereof
concerning the intent of the PBGC or any other governmental
authority to terminate a Plan of such Company or ERISA
Affiliate thereof which is subject to Title IV of ERISA, to
impose any liability on such Company or ERISA Affiliate
under Title IV of ERISA or Chapter 43 of the Tax Code;
(iv) Upon the request of the Agent, promptly upon the
filing thereof with the Internal Revenue Service ("IRS") or
the Department of Labor ("DOL"), a copy of IRS Form 5500 or
annual report for each Plan of any Consolidated Company or
ERISA Affiliate thereof which is subject to Title IV of
ERISA;
(v) Upon the request of the Agent, (A) true and
complete copies of any and all documents, government reports
and IRS determination or opinion letters or rulings for any
Plan of any Consolidated Company from the IRS, PBGC or DOL,
(B) any reports filed with the IRS, PBGC or DOL with respect
to a Plan of the Consolidated Companies or any ERISA
Affiliate thereof, or (C) a current statement of withdrawal
liability for each Multiemployer Plan of any Consolidated
Company or any ERISA Affiliate thereof;
(h) Liens. Promptly upon any Consolidated Company becoming aware
-----
thereof, notice of the filing of any federal statutory Lien, tax or other
state or local government Lien or any other Lien affecting their respective
properties, other than those Liens expressly permitted by Section 8.2;
(i) Public Filings, Etc. Promptly upon the filing thereof or
-------------------
otherwise becoming available, copies of all financial statements, annual,
quarterly and special reports, including, but not limited to its current
Form 10-Q (with exhibits) as filed with the Securities and Exchange
Commission, proxy statements and notices sent or made available generally
by Borrower to its public security holders, of all regular and periodic
reports and all registration statements and prospectuses, if any, filed by
any of them with any securities exchange, and of all press
48
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releases and other statements made available generally to the public
containing material developments in the business or financial condition of
Borrower and the other Consolidated Companies;
(j) Accountants' Reports. Promptly upon receipt thereof, copies of
--------------------
all financial statements of, and all reports submitted by, independent
public accountants to Borrower in connection with each annual, interim, or
special audit of Borrower's consolidated financial statements;
(k) Trademarks; Labor Disputes, Etc. Promptly upon the existence or
-------------------------------
occurrence thereof, notice of the existence or occurrence of (i) failure of
any Consolidated Company to hold in full force and effect those material
trademarks, service marks, patents, trade names, copyrights, licenses,
franchises and similar rights necessary in the normal conduct of its
business, and (ii) any strike, labor dispute, slow down or work stoppage as
described in Section 6.21;
(l) New Subsidiaries. On a quarterly basis, or more often if
----------------
requested by the Agent and/or the Required Lenders, notice of the formation
or acquisition of any new Subsidiary or the occurrence of any other event
resulting in the creation of a new Subsidiary, including the purchase price
for such entity, a description of the assets of such entity, the activities
in which it will be engaged, and such other information as the Agent may
request, together with the other documents required by Section 7.10, if
applicable;
(m) Intercompany Asset Transfers. Promptly upon the occurrence
----------------------------
thereof, notice of the transfer of any assets from Borrower or any
Guarantor to any other Consolidated Company that is not Borrower or a
Guarantor (in any transaction or series of related transactions), excluding
sales or other transfers of assets in the ordinary course of business,
where the Asset Value of such assets is less than $1,000,000;
(n) Capitalized Lease Obligations. Promptly upon the occurrence
-----------------------------
thereof, notice and a complete description of any Capitalized Lease
Obligations entered into by any Consolidated Company.
(o) Other Information. With reasonable promptness, such other
-----------------
information about the Consolidated Companies as the Agent or any Lender may
reasonably request from time to time.
SECTION 7.8 FINANCIAL COVENANTS.
-------------------
(a) Consolidated EBITR to Consolidated IR. Maintain as at the last
-------------------------------------
day of each fiscal quarter, a ratio of Consolidated EBITR to Consolidated
IR of at least 2.0:1.0, computed on a rolling four-quarter basis, based on
informatio n
49
<PAGE>
contained in the Borrower's current financial statement and its financial
statements for the preceding three quarters.
(b) Consolidated Funded Debt to Total Capitalization Ratio. Maintain
------------------------------------------------------
at all times, a maximum ratio of Consolidated Funded Debt to Total
Capitalization, of less than 0.70:1.0.
(c) Consolidated Funded Debt to Consolidated EBITDA Ratio. Maintain
-----------------------------------------------------
as at the last day of each fiscal quarter, a maximum ratio of Consolidated
Funded Debt to Consolidated EBITDA of less than 4.0:1.0. For purposes of
calculating Borrower's compliance with this ratio, Consolidated EBITDA
shall be computed on a rolling two quarter basis, based on information
contained in the Borrower's current financial statements and its financial
statements for the preceding fiscal quarter and shall be annualized by
multiplying by two (2) the result of such calculation.
(d) Consolidated Net Worth. Maintain at all times, Consolidated Net
----------------------
Worth of at least $180,000,000.00 plus (i) fifty percent (50%) of
Consolidated Net Income earned after January 31, 1997, and (ii) one hundred
percent (100%) of the net proceeds of any equity offering or subordinated
debt issue realized after the date hereof.
(e) Consolidated Senior Funded Debt to Consolidated EBITDA. Maintain
------------------------------------------------------
as at the last day of each fiscal quarter, a ratio of Consolidated Senior
Funded Debt to Consolidated EBITDA of less than 3.0:1.0. For purposes of
calculating Borrower's compliance with this ratio, Consolidated EBITDA
shall be computed on a rolling two quarter basis, based on information
contained in the Borrower's current financial statements and its financial
statements for the preceding quarter and shall be annualized by multiplying
by two (2) the result of such calculation.
SECTION 7.9 NOTICES UNDER CERTAIN OTHER INDEBTEDNESS. Immediately upon its
----------------------------------------
receipt thereof, Borrower shall furnish the Agent a copy of any notice received
by it or any other Consolidated Company from the holder(s) of Indebtedness
referred to in Section 8.1 (or from any trustee, agent, attorney, or other party
acting on behalf of such holder(s)) in an amount which, in the aggregate,
exceeds $500,000, where such notice states or claims (i) the existence or
occurrence of any default or event of default with respect to such Indebtedness
under the terms of any indenture, loan or credit agreement, debenture, note, or
other document evidencing or governing such Indebtedness, or (ii) the existence
or occurrence of any event or condition which requires or permits holder(s) of
any Indebtedness to exercise rights under any Change in Control Provision.
Borrower agrees to take such actions as may be necessary to require the
holder(s) of any Indebtedness (or any trustee or agent acting on their behalf)
incurred pursuant to documents executed or amended and restated after the
Closing Date,
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to furnish copies of all such notices directly to the Agent simultaneously with
the furnishing thereof to Borrower, and that such requirement may not be altered
or rescinded without the prior written consent of the Agent.
SECTION 7.10 ADDITIONAL GUARANTORS. On a quarterly basis, or more
---------------------
often, if requested by the Agent and/or the Required Lenders, the Borrower shall
give the Agent and the Lenders prompt written notification of (a) the formation
or acquisition (provided that nothing in this Section shall be deemed to
authorize or prohibit the acquisition of any entity) of any Subsidiary not
listed on Schedule 6.1 and the purchase price therefor, (b) the transfer of
------------
assets to any Consolidated Company if notice thereof is required to be given
pursuant to Section 7.7(m) and as a result thereof the recipient of such assets
becomes a Subsidiary, and (c) the occurrence of any other event creating a new
Subsidiary. On a quarterly basis, or more often if required by the Agent and/or
the Required Lenders, Borrower shall deliver to the Agent copies of the Articles
of Incorporation and bylaws of each new Material Subsidiary and shall cause such
new Material Subsidiary to execute and deliver (i) a joinder to this Agreement
in the form of Exhibit H attached hereto; (ii) a Supplement to Subsidiary
---------
Guaranty Agreement in the form of Exhibit I attached hereto; (iii) a Negative
---------
Pledge in the form of Exhibit J attached hereto; and (iv) a Supplement to
---------
Contribution Agreement in the form of Exhibit K attached hereto, all in the
---------
prescribed form or such other form and substance as may be satisfactory to the
Agent and the Required Lenders. As used in this Section, Material Subsidiary
shall not include a Foreign Subsidiary. If the Facilities are renewed, the
Termination Date extended and this Agreement modified, amended and/or restated,
at that time the Borrower shall cause each of its then existing Subsidiaries
which have not previously done so to execute and deliver the documents set forth
in (i), (ii), (iii) and (iv) in the previous sentence.
SECTION 7.11 FISCAL YEAR. Borrower shall not change its fiscal year
-----------
now employed for accounting and reporting purposes without the prior written
consent of the Agent and the Required Lenders, which consent shall not be
unreasonably withheld.
SECTION 7.12 OWNERSHIP OF GUARANTORS. Borrower shall maintain at least
-----------------------
its percentage of ownership existing as of the date hereof of all Guarantors,
and shall not decrease its ownership percentage in each Person which becomes a
Guarantor after the date hereof, as such ownership exists at the time such
Person becomes a Guarantor.
SECTION 7.13 SUBORDINATION OF INTERCOMPANY LOANS. All loans or fees
-----------------------------------
owed to any Guarantor or any other Consolidated Company, or any Affiliate of any
thereof, shall, at all times, be subordinate to the Loans and the Borrower shall
cause its Subsidiaries and/or Affiliates from time to time to execute and
deliver to the Agent
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and the Required Lenders subordination agreements in form and content
satisfactory to the Agent and the Required Lenders.
ARTICLE VIII
NEGATIVE COVENANTS
------------------
So long as any Commitment remains in effect hereunder or any Note shall
remain unpaid, Borrower will not and will not permit any Subsidiary to:
SECTION 8.1 INDEBTEDNESS. Create, incur, assume or suffer to exist any
------------
Indebtedness, other than:
(a) Indebtedness under this Agreement;
(b) Indebtedness outstanding on the date hereof or pursuant to lines
of credit in effect on the date hereof and described on Schedule 8.1(b);
---------------
(c) purchase money Indebtedness to the extent secured by a Lien
permitted by Section 8.2(b) provided such purchase money Indebtedness does
not exceed $1,000,000;
(d) unsecured current liabilities (other than liabilities for
borrowed money or liabilities evidenced by promissory notes, bonds or
similar instruments) incurred in the ordinary course of business and either
(i) not more than 30 days past due, or (ii) being disputed in good faith by
appropriate proceedings with reserves for such disputed liability
maintained in conformity with GAAP;
(e) the Intercompany Loans described on Schedule 6.22 and any other
-------------
loans between Consolidated Companies as may be approved by the Agent and
the Required Lenders, which approval shall not be unreasonably withheld;
(f) Subordinated Debt in form and substance acceptable to the Agent
and the Required Lenders, and evidenced by their written consent thereto,
which consent shall not be unreasonably withheld;
(g) Capitalized Lease Obligations not to exceed $1,000,000 in the
aggregate;
(h) Indebtedness arising under interest rate contracts;
(i) advances to officers and employees in the ordinary course of
business not to exceed $1,000,000 in the aggregate; and
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(j) endorsements of instruments for deposit or collection in the
ordinary course of business.
SECTION 8.2 LIENS. Create, incur, assume or suffer to exist any Lien on
-----
any of its property now owned or hereafter acquired to secure any Indebtedness
other than:
(a) Liens existing on the date hereof disclosed on Schedule 8.2;
------------
(b) any Lien on any property securing Indebtedness incurred or
assumed for the purpose of financing all or any part of the acquisition
cost of such property and any refinancing thereof, provided that such Lien
does not extend to any other property, and provided further that the
aggregate principal amount of Indebtedness secured by all such Liens at any
time does not exceed $1,000,000;
(c) Liens for taxes not yet due, and Liens for taxes or Liens imposed
by ERISA which are being contested in good faith by appropriate proceedings
and with respect to which adequate reserves are being maintained;
(d) Statutory Liens of landlords, existing contractual Liens of
landlords, future contractual Liens of landlords not to exceed five percent
(5%) of the number of leases in existence from time to time and Liens of
carriers, warehousemen, mechanics, materialmen and other Liens imposed by
law created in the ordinary course of business for amounts not yet due or
which are being contested in good faith by appropriate proceedings and with
respect to which adequate reserves are being maintained;
(e) Liens incurred or deposits made in the ordinary course of
business in connection with workers, compensation, unemployment insurance
and other types of social security, or to secure the performance of
tenders, statutory obligations, surety and appeal bonds, bids, leases,
government contracts, performance and return-of-money bonds and other
similar obligations (exclusive of obligations for the payment of borrowed
money);
(f) Liens resulting from zoning, easements, and restrictions on the
use of such real estate, or rights reserved or vested in governmental
authority, which do not materially impair the use of such real estate; and
(g) Liens arising under ERISA.
SECTION 8.3 MERGERS, ACQUISITIONS, SALES, ETC. Merge or consolidate
---------------------------------
with any other Person, other than Borrower or another Subsidiary, or sell,
lease, or otherwise dispose of its accounts, property or other assets (including
capital stock of Subsidiaries),
53
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or, except for the purchase of capital stock as an investment in a Subsidiary as
permitted by subsection (a) in Section 8.4, below, purchase, lease or otherwise
acquire all or any substantial portion of the property or assets (including
capital stock) of any Person; provided, however, that the foregoing restrictions
on asset sales shall not be applicable to (i) sales of equipment or other
personal property being replaced by other equipment or other personal property
purchased as a capital expenditure item having comparable values, (ii) sale,
lease or transfer of assets of the Borrower or any Subsidiary to the Borrower or
to any other Subsidiary, (iii) sales of inventory in the ordinary course of
business, and (iv) other asset sales (including the stock of Subsidiaries)
where, on the date of execution of a binding obligation to make such asset sale
(provided that if the asset sale is not consummated within six (6) months of
such execution, then on the date of consummation of such asset sale rather than
on the date of execution of such binding obligation), the Asset Value of asset
sales occurring after the Closing Date, taking into account the Asset Value of
the proposed asset sale, would not exceed ten percent (10%) of Borrower's
assets, since the Closing Date; and, provided further, that the foregoing
restrictions on mergers shall not apply to mergers involving Borrower and
another entity, provided Borrower is the surviving entity, and mergers between a
Subsidiary of Borrower and Borrower or between Subsidiaries of Borrower provided
that, in either case, upon consummation of such mergers, Borrower is in
compliance with Section 8.3 hereof; provided, however, that no transaction
pursuant to clauses (i), (ii), (iv) or the second proviso above shall be
permitted if any Default or Event of Default otherwise exists at the time of
such transaction or would otherwise exist as a result of such transaction.
SECTION 8.4 INVESTMENTS, LOANS, ETC. Make or permit to remain
-----------------------
outstanding any loan or advance to, or guarantee, endorse, or otherwise be or
become contingently liable, directly or indirectly in connection with
obligations, stock or dividends of any other Person, or hold any Investments in
any Person, or otherwise acquire or hold any Subsidiaries, other than:
(a) Investments in Subsidiaries, all of which Subsidiaries shall be
(i) Subsidiaries in existence on the date hereof, (ii) other home
healthcare companies having core business comparable to that of the
Borrower and which companies and the terms of acquisition shall be
acceptable to the Agent and the Required Lenders, or (iii) primary care
physician practices; provided, however, nothing in this Section 8.4 shall
be deemed to authorize or prohibit an investment pursuant to this
subsection (a) in any entity that is not a Subsidiary and a Guarantor prior
to such investment and provided, further, however, that at the time of the
request by the Borrower for a Borrowing in the amount of $7,000,000 or more
for the purpose of an acquisition, the Borrower shall deliver to the Agent
a pro-forma financial statement on a consolidated basis satisfactory to the
Agent
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and the Required Lenders in form and content, which shall show the Borrower
in compliance, as at the effective date of such acquisition, with all
financial covenants and ratios contained in this Agreement;
(b) direct obligations of the United States or any agency thereof, or
obligations guaranteed by the United States or any agency thereof, in each
case supported by the full faith and credit of the United States and
maturing within one year from the date of creation thereof;
(c) commercial paper, bankers acceptances or corporate obligations
maturing within one year from the date of creation thereof having a rating
at the time as of which any determination is made of P-1 (or higher)
according to Moody's or as A-1 (or higher) according to Standard & Poor's
corporation or the equivalent thereof if by another nationally recognized
credit rating agency;
(d) time deposits maturing within one year from the date of creation
thereof, including certificates of deposit issued by any Lender and any
office located in the United States of any bank or trust company which is
organized under the laws of the United States or any state thereof and has
total assets aggregating at least $500,000,000, including without
limitation, any such deposits in Eurodollars issued by a foreign branch of
any such bank or trust company;
(e) Investments made by Plans; and
(f) Intercompany Loans as permitted by Section 8.1(f).
SECTION 8.5 SALE AND LEASEBACK TRANSACTIONS. Sell or transfer any
-------------------------------
property, real or personal, whether now owned or hereafter acquired, and
thereafter rent or lease such property or other property which any Consolidated
Company intends to use for substantially the same purpose or purposes as the
property being sold or transferred.
SECTION 8.6 TRANSACTIONS WITH AFFILIATES.
----------------------------
(a) Enter into any material transaction or series of related
transactions which in the aggregate would be material, whether or not in
the ordinary course of business, with any Affiliate of any Consolidated
Company, other than on terms and conditions substantially as favorable to
such Consolidated Company as would be obtained by such Consolidated Company
at the time in a comparable arm's length transaction with a Person other
than an Affiliate.
(b) Convey or transfer to any other Person (including any other
Consolidated Company) any real property, buildings, or fixtures used in the
manufacturing or production operations
55
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of any Consolidated Company, or convey or transfer to any other
Consolidated Company any other assets (excluding conveyances or transfers
in the ordinary course of business) if at the time of such conveyance or
transfer any Default or Event of Default exists or would exist as a result
of such conveyance or transfer.
SECTION 8.7 OPTIONAL PREPAYMENTS. Directly or indirectly, prepay,
--------------------
purchase, redeem, retire, defease or otherwise acquire, or make any optional
payment on account of any principal of, interest on, or premium payable in
connection with the optional prepayment, redemption or retirement of, any of its
Indebtedness, or give a notice of redemption with respect to any such
Indebtedness, or make any payment in violation of the subordination provisions
of any Subordinated Debt, except with respect to (i) the Obligations under this
Agreement and the Notes, (ii) prepayments of Indebtedness outstanding pursuant
to revolving credit, overdraft and line of credit facilities permitted pursuant
to Section 8.1, and (iii) trade payables incurred in the ordinary course of
business.
SECTION 8.8 CHANGES IN BUSINESS. Enter into any business which is
-------------------
substantially different from that presently conducted by the Consolidated
Companies taken as a whole.
SECTION 8.9 ERISA. Take or fail to take any action with respect to any
-----
Plan of any Consolidated Company or, with respect to its ERISA Affiliates, any
Plans which are subject to Title IV of ERISA or to continuation health care
requirements for group health plans under the Tax Code, including without
limitation (i) establishing any such Plan, (ii) amending any such Plan (except
where required to comply with applicable law), (iii) terminating or withdrawing
from any such Plan, or (iv) incurring an amount of unfunded benefit liabilities,
as defined in Section 4001(a)(18) of ERISA, or any withdrawal liability under
Title IV of ERISA with respect to any such Plan, without first obtaining the
written approval of the Agent and the Required Lenders, where such actions or
failures could result in a Material Adverse Effect.
SECTION 8.10 ADDITIONAL NEGATIVE PLEDGES. Create or otherwise cause or
---------------------------
suffer to exist or become effective, directly or indirectly, any prohibition or
restriction on the creation or existence of any Lien upon any asset of any
Consolidated Company, other than pursuant to (i) the terms of any agreement,
instrument or other document pursuant to which any Indebtedness permitted by
Section 8.2(b) is incurred by any Consolidated Company, so long as such
prohibition or restriction applies only to the property or asset being financed
by such Indebtedness, and (ii) any requirement of applicable law or any
regulatory authority having jurisdiction over any of the Consolidated Companies.
SECTION 8.11 LIMITATION ON PAYMENT RESTRICTIONS AFFECTING CONSOLIDATED
---------------------------------------------------------
COMPANIES. Create or otherwise cause or suffer to exist or become effective,
- ---------
any consensual encumbrance or
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restriction on the ability of any Consolidated Company to (i) pay dividends or
make any other distributions on such Consolidated Company's stock, or (ii) pay
any indebtedness owed to Borrower or any other Consolidated Company, or (iii)
transfer any of its property or assets to Borrower or any other Consolidated
Company, except any consensual encumbrance or restriction existing under the
Credit Documents.
SECTION 8.12 ACTIONS UNDER CERTAIN DOCUMENTS. Without the prior written
-------------------------------
consent of the Agent (which consent shall not be unreasonably withheld), modify,
amend, cancel or rescind the Intercompany Loans or any agreements or documents
evidencing or governing Subordinated Debt or the senior Indebtedness permitted
pursuant to Section 8.1 hereof (except that a loan between Consolidated
Companies as permitted by Section 8.1 may be modified or amended so long as it
otherwise satisfies the requirements of Section 8.1).
SECTION 8.13 DIVIDENDS. Borrower shall not declare or pay any dividend on
---------
its capital stock, or make any payment to purchase, redeem, retire or acquire
any of its capital stock or any option, warrant, or other right to acquire such
capital stock, other than:
(i) dividends payable solely in shares of capital stock; and
(ii) each dividend declared and paid, and all other such payments
made in any fiscal year, in an aggregate amount at any time not to
exceed 10% of Consolidated Net Income for said fiscal year;
provided, further, however, no such dividend or other payment may be declared or
- --------------------------
paid pursuant to clause (ii) above unless no Default or Event of Default exists
at the time of such declaration or payment, or would exist as a result of such
declaration or payment.
SECTION 8.14 CHANGES IN CONTROL OR OWNERSHIP. Without the prior written
-------------------------------
consent of the Agent, in its sole and absolute discretion, permit a change in
the ownership or control of the Borrower.
ARTICLE IX
EVENTS OF DEFAULT
-----------------
Upon the occurrence and during the continuance of any of the following
specified events (each an "Event of Default"):
SECTION 9.1 PAYMENTS. Borrower shall fail to make promptly when due
--------
(including, without limitation, by mandatory prepayment)
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any principal payment with respect to the Loans, or any payment of interest, fee
or other amount payable hereunder;
SECTION 9.2 COVENANTS WITHOUT NOTICE. Borrower shall fail to observe or
------------------------
perform any covenant or agreement contained in Sections 7.7(h), 7.8, 7.11, 8.1
through 8.14;
SECTION 9.3 OTHER COVENANTS. Borrower shall fail to observe or perform
---------------
any covenant or agreement contained in this Agreement, other than those referred
to in Sections 9.1 and 9.2, and, if capable of being remedied, such failure
shall remain unremedied for 30 days after the earlier of (i) Borrower's
obtaining knowledge thereof, or (ii) written notice thereof shall have been
given to Borrower by Agent or any Lender;
SECTION 9.4 REPRESENTATIONS. Any representation or warranty made or
---------------
deemed to be made by Borrower or any other Credit Party or by any of its
officers under this Agreement or any other Credit Document (including the
Schedules attached thereto), or any certificate or other document submitted to
the Agent or the Lenders by any such Person pursuant to the terms of this
Agreement or any other Credit Document, shall be incorrect in any material
respect when made or deemed to be made or submitted;
SECTION 9.5 NON-PAYMENTS OF OTHER INDEBTEDNESS. Any Consolidated
----------------------------------
Company shall fail to make when due (whether at stated maturity, by
acceleration, on demand or otherwise, and after giving effect to any applicable
grace period) any payment of principal of or interest on any Indebtedness (other
than the Obligations) which individually or in the aggregate exceeds $500,000;
provided that if the Borrower acquires as a Subsidiary an entity which has
unpaid Indebtedness such that the Borrower would, upon acquisition of such
entity, be in default under this Section 9.5, the Borrower shall have a grace
period of 30 days from the effective date of such acquisition within which to
pay or satisfy such Indebtedness;
SECTION 9.6 DEFAULTS UNDER OTHER AGREEMENTS. Any Consolidated Company
-------------------------------
shall fail to observe or perform within any applicable grace period any
covenants or agreements (other than those referenced in Section 9.5) contained
in any agreements or instruments relating to any of its Indebtedness or any
other event shall occur if the effect of such failure or other event is to
accelerate, or to permit the holder of such Indebtedness or any other Person to
accelerate, the maturity of such Indebtedness; or any such Indebtedness shall be
required to be prepaid (other than by a regularly scheduled required prepayment)
in whole or in part prior to its stated maturity;
SECTION 9.7 BANKRUPTCY. Borrower or any other Consolidated Company
----------
shall commence a voluntary case concerning itself under the Bankruptcy Code or
an involuntary case for bankruptcy is commenced against any Consolidated Company
and the petition is not controverted within 10 days, or is not dismissed within
60 days,
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after commencement of the case; or a custodian (as defined in the Bankruptcy
Code) is appointed for, or takes charge of, all or any substantial part of the
property of any Consolidated Company; or any Consolidated Company commences
proceedings of its own bankruptcy or to be granted a suspension of payments or
any other proceeding under any reorganization, arrangement, adjustment of debt,
relief of debtors, dissolution, insolvency or liquidation or similar law of any
jurisdiction, whether now or hereafter in effect, relating to any Consolidated
Company or there is commenced against any Consolidated Company any such
proceeding which remains undismissed for a Period of 60 days; or any
Consolidated Company is adjudicated insolvent or bankrupt; or any order of
relief or other order approving any such case or proceeding is entered; or any
Consolidated Company suffers any appointment of any custodian or the like for it
or any substantial part of its property to continue undischarged or unstayed for
a period of 60 days; or any Consolidated Company makes a general assignment for
the benefit of creditors; or any Consolidated Company shall fail to pay, or
shall state that it is unable to pay, or shall be unable to pay, its debts
generally as they become due; or any Consolidated Company shall call a meeting
of its creditors with a view to arranging a composition or adjustment of its
debts; or any Consolidated Company shall by any act or failure to act indicate
its consent to, approval of or acquiescence in any of the foregoing; or any
corporate action is taken by any Consolidated Company for the purpose of
effecting any of the foregoing;
SECTION 9.8 ERISA. A Plan of a Consolidated Company or a Plan subject to
-----
Title IV of ERISA of any of its ERISA Affiliates:
(a) shall fail to be funded in accordance with the minimum funding
standard required by applicable law, the terms of such Plan, Section 412 of
the Tax Code or Section 302 of ERISA for any plan year or a waiver of such
standard is sought or granted with respect to such Plan under applicable
law, the terms of such Plan or Section 412 of the Tax Code or Section 303
of ERISA; or
(b) is being, or has been, terminated or the subject of termination
proceedings under applicable law or the terms of such Plan; or
(c) shall require a Consolidated Company to provide security under
applicable law, the terms of such Plan, Section 401 or 412 of the Tax Code
or Section 306 or 307 of ERISA; or
(d) results in a liability to a Consolidated Company under applicable
law, the terms of such Plan, or Title IV of ERISA;
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and there shall result from any such failure, waiver, termination or other event
a liability to the PBGC or a Plan that would have a Materially Adverse Effect;
SECTION 9.9 MONEY JUDGMENT. A judgment which individually, or in the
--------------
aggregate, exceeds $500,000, tax lien or order for the payment of money shall be
rendered against Borrower or any other Consolidated Company and such judgment or
order shall continue unsatisfied (in the case of a money judgment) and in effect
for a period of 30 days during which execution shall not be effectively stayed
or deferred (whether by action of a court, by agreement or otherwise);
SECTION 9.10 OWNERSHIP OF CREDIT PARTIES. If Borrower shall at any time
---------------------------
fail to own and control the required percentage of the voting stock of any
Guarantor, either directly or indirectly through a wholly-owned Subsidiary of
Borrower;
SECTION 9.11 CHANGE IN CONTROL OF BORROWER.
-----------------------------
(a) Any "person" or "group" (within the meaning of Sections 13(d) and
14(d)(2) of the Exchange Act) shall become the "beneficial owner(s)" (as
defined in said Rule 13d-3) of more than forty percent (40%) of the shares
of the outstanding common stock of Borrower entitled to vote for members of
Borrower's board of directors; or
(b) any event or condition shall occur or exist which, pursuant to
the terms of any change in control provision, requires or permits the
holder(s) of Indebtedness of any Consolidated Company to require that such
Indebtedness be redeemed, repurchased, defeased, prepaid or repaid, in
whole or in part, or the maturity of such Indebtedness to be accelerated in
any respect;
SECTION 9.12 DEFAULT UNDER OTHER CREDIT DOCUMENTS. There shall exist or
------------------------------------
occur any "Event of Default" as provided under the terms of any other Credit
Document, or any Credit Document ceases to be in full force and effect or the
validity or enforceability thereof is disaffirmed by or on behalf of Borrower or
any other Credit Party, or any Credit Party seeks to cancel or terminate any
Credit Documents or to limit its liability thereunder, or at any time it is or
becomes unlawful for Borrower or any other Credit Party to perform or comply
with its obligations under any Credit Document, or the obligations of Borrower
or any other Credit Party under any Credit Document are not or cease to be
legal, valid and binding on Borrower or any such Credit Party;
SECTION 9.13 ATTACHMENTS. An attachment or similar action shall be made
-----------
on or taken against any of the assets of any Consolidated Company and is not
removed, suspended or enjoined within 30 days of the same being made or any
suspension or injunction being lifted; then, and in any such event, and at any
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time thereafter if any Event of Default shall then be continuing, the Agent may,
and upon the written or telex request of the Required Lenders, shall, by written
notice to Borrower, take any or all of the following actions, without prejudice
to the rights of the Agent, any Lender or the holder of any Note to enforce its
claims against Borrower or any other Credit Party: (i) declare all Commitments
terminated, whereupon the pro rata Commitments of each Lender shall terminate
immediately and any commitment fee shall forthwith become due and payable
without any other notice of any kind; and (ii) declare the principal of and any
accrued interest on the Loans, and all other obligations owing hereunder, to be,
whereupon the same shall become, forthwith due and payable without presentment,
demand, protest or other notice of any kind, all of which are hereby waived by
Borrower; provided, that, if an Event of Default specified in Section 9.7 shall
occur, the result which would occur upon the giving of written notice by the
Agent to any Credit Party, as specified in clauses (i) and (ii) above, shall
occur automatically without the giving of any such notice.
ARTICLE X
THE AGENT
---------
SECTION 10.1 APPOINTMENT OF AGENT. Each Lender hereby designates
--------------------
SunTrust Bank, Central Florida, National Association as Agent ("Agent") to
administer all matters concerning the Loans and to act as herein specified. Each
Lender hereby irrevocably authorizes, and each holder of any Note by the
acceptance of a Note shall be deemed irrevocably to authorize, the Agent to take
such actions on its behalf under the provisions of this Agreement, the other
Credit Documents, and all other instruments and agreements referred to herein or
therein, and to exercise such powers and to perform such duties hereunder and
thereunder as are specifically delegated to or required of the Agent by the
terms hereof and thereof and such other powers as are reasonably incidental
thereto. The Agent may perform any of its duties hereunder by or through their
agents or employees. The provisions of this Section 10.1 are solely for the
benefit of the Agent, and Borrower and the other Consolidated Companies shall
not have any rights as third party beneficiaries of any of the provisions
hereof. In performing its functions and duties under this Agreement, the Agent
shall act solely as agent of the Lenders and does not assume and shall not be
deemed to have assumed any obligations towards or relationship of agency or
trust with or for the Borrower and the other Consolidated Companies.
SECTION 10.2 NATURE OF DUTIES OF AGENT. The Agent shall have no duties
-------------------------
or responsibilities except those expressly set forth in this Agreement and the
other Credit Documents. Neither the Agent nor any of its respective officers,
directors, employees or agents shall be liable for any action taken or omitted
by it as such hereunder or in connection herewith, unless caused by its
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gross negligence or willful misconduct. The duties of the Agent shall be
ministerial and administrative in nature; the Agent shall not have by reason of
this Agreement a fiduciary relationship in respect of any Lender; and nothing in
this Agreement, express or implied, is intended to or shall be so construed as
to impose upon the Agent any obligations, in respect of this Agreement or the
other Credit Documents except as expressly set forth herein.
SECTION 10.3 LACK OF RELIANCE ON THE AGENT.
-----------------------------
(a) Independently and without reliance upon the Agent, each Lender,
to the extent it deems appropriate, has made and shall continue to make (i)
its own independent investigation of the financial condition and affairs of
the Credit Parties in connection with the taking or not taking of any
action in connection herewith, and (ii) its own appraisal of the
creditworthiness of the Credit Parties, and, except as expressly provided
in this Agreement, the Agent shall have no duty or responsibility, either
initially or on a continuing basis, to provide any Lender with any credit
or other information with respect thereto, whether coming into its
possession before the making of the Loans or at any time or times
thereafter.
(b) The Agent shall not be responsible to any Lender for any
recitals, statements, information, representations or warranties herein or
in any document, certificate or other writing delivered in connection
herewith or for the execution, effectiveness, genuineness, validity,
enforceability, collectability, priority or sufficiency of this Agreement,
the Notes, the Guaranty Agreements, or any other documents contemplated
hereby or thereby, or the financial condition of the Credit Parties, or be
required to make any inquiry concerning either the performance or
observance of any of the terms, provisions or conditions of this Agreement,
the Notes, the Guaranty Agreements, or the other documents contemplated
hereby or thereby, or the financial condition of the Credit Parties, or the
existence or possible existence of any Default or Event of Default;
provided, however, to the extent that the Agent has been advised that a
Lender has not received any information formally delivered to the Agent
pursuant to Section 7.7, the Agent shall deliver or cause to be delivered
such information to such Lender.
SECTION 10.4 CERTAIN RIGHTS OF THE AGENT. If the Agent shall request
---------------------------
instructions from the Required Lenders or all the Lenders, in instances where
unanimity is required, with respect to any action or actions (including the
failure to act) in connection with this Agreement, the Agent shall be entitled
to refrain from such act or taking such act, unless and until the Agent shall
have received instructions from the Required Lenders or all the Lenders, in
instances where unanimity is required; and the Agent shall not incur liability
in any Person by reason of so refraining. Without
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limiting the foregoing, no Lender shall have any right of action whatsoever
against the Agent as a result of the Agent acting or refraining from acting
hereunder in accordance with the instructions of the Required Lenders or all the
Lenders, in instances where unanimity is required.
SECTION 10.5 RELIANCE BY AGENT. The Agent shall be entitled to rely, and
-----------------
shall be fully protected in relying, upon any note, writing, resolution, notice,
statement, certificate, telex, teletype or telecopier message, cable gram,
radiogram, order or other documentary, teletransmission or telephone message
believed by it to be genuine and correct and to have been signed, sent or made
by the proper Person. The Agent may consult with legal counsel (including
counsel for any Credit Party), independent public accountants and other experts
selected by it and shall not be liable for any action taken or omitted to be
taken by it in good faith in accordance with the advice of such counsel,
accountants or experts.
SECTION 10.6 INDEMNIFICATION OF AGENT. To the extent the Agent is not
------------------------
reimbursed and indemnified by the Credit Parties, each Lender will reimburse and
indemnify the Agent, ratably according to the respective amounts of the Loans
outstanding under all Facilities (or if no amounts are outstanding, ratably in
accordance with the Total Commitments), in either case, for and against any and
all liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses (including counsel fees and disbursements) or
disbursements of any kind or nature whatsoever which may be imposed on, incurred
by or asserted against the Agent in performing its duties hereunder, in any way
relating to or arising out of this Agreement or the other Credit Documents;
provided that no Lender shall be liable to the Agent for any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements resulting from the Agent's gross negligence or
willful misconduct.
SECTION 10.7 THE AGENT IN ITS INDIVIDUAL CAPACITY. With respect to its
------------------------------------
obligation to lend under this Agreement, the Loans made by it and the Notes
issued to it, the Agent shall have the same rights and powers hereunder as any
other Lender or holder of a Note and may exercise the same as though it were not
performing the duties specified herein; and the terms "Lenders", "Required
Lenders", "holders of Notes", or any similar terms shall, unless the context
clearly otherwise indicates, include the Agent in its individual capacity. The
Agent may accept deposits from, lend money to, and generally engage in any kind
of banking, trust, financial advisory or other business with the Consolidated
Companies or any affiliate of the Consolidated Companies as if it were not
performing the duties specified herein, and may accept fees and other
consideration from the Consolidated Companies for services in connection with
this Agreement and otherwise without having to account for the same to the
Lenders.
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SECTION 10.8 HOLDERS OF NOTES. The Agent may deem and treat the payee of
----------------
any Note as the owner thereof for all purposes hereof unless and until a written
notice of the assignment or transfer thereof shall have been filed with the
Agent. Any request, authority or consent of any Person who, at the time of
making such request or giving such authority or consent, is the holder of any
Note shall be conclusive and binding on any subsequent holder, transferee or
assignee of such Note or of any Note or Notes issued in exchange therefor.
SECTION 10.9 SUCCESSOR AGENT.
---------------
(a) The Agent may resign at any time by giving written notice thereof
to the Lenders and Borrower and may be removed at any time with or without
cause by the Required Lenders; provided, however, the Agent may not resign
or be removed until a successor Agent has been appointed and shall have
accepted such appointment. Upon any such resignation or removal, the
Required Lenders shall have the right to appoint a successor Agent subject
to Borrower's prior written approval, which approval will not be
unreasonably withheld. If no successor Agent shall have been so appointed
by the Required Lenders, and shall have accepted such appointment, within
30 days after the retiring Agent's giving of notice of resignation or the
Required Lenders' removal of the retiring Agent, then the retiring Agent
may, on behalf of the Lenders, appoint a successor Agent subject to
Borrower's prior written approval, which approval will not be unreasonably
withheld, which successor Agent shall be a bank which maintains an office
in the United States, or a commercial bank organized under the laws of the
United States of America or any State thereof, or any Affiliate of such
bank, having a combined capital and surplus of at least $100,000,000. If at
any time SunTrust Bank, Central Florida, National Association is removed as
a Lender, SunTrust Bank, Central Florida, National Association, shall
simultaneously resign as Agent.
(b) Upon the acceptance of any appointment as the Agent hereunder by
a successor Agent, such successor Agent shall thereupon succeed to and
become vested with all the rights, powers, privileges and duties of the
retiring Agent, and the retiring Agent shall be discharged from its duties
and obligations under this Agreement. After any retiring Agent's
resignation or removal hereunder as Agent, the provisions of this Article X
shall inure to its benefit as to any actions taken or omitted to be taken
by it while it was an Agent under this Agreement.
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ARTICLE XI
MISCELLANEOUS
-------------
SECTION 11.1 NOTICES. All notices, requests and other communications to
-------
any party hereunder shall be in writing (including bank wire, telex, telecopy or
similar teletransmission or writing) and shall be given to such party at its
address or applicable teletransmission number set forth on the signature pages
hereof, or such other address or applicable teletransmission number as such
party may hereafter specify by notice to the Agent and Borrower. Each such
notice, request or other communication shall be effective (i) if given by telex,
when such telex is transmitted to the telex number specified in this Section and
the appropriate answerback is received, (ii) if given by mail, 72 hours after
such communication is deposited in the mails with first class postage prepaid,
addressed as aforesaid, (iii) if given by telecopy, when such telecopy is
transmitted to the telecopy number specified in this Section and the appropriate
confirmation is received, or (iv) if given by any other means (including,
without limitation, by air courier), when delivered or received at the address
specified in this Section; Provided that notices to the Agent shall not be
effective until received.
SECTION 11.2 AMENDMENTS, ETC. No amendment or waiver of any provision of
---------------
this Agreement or the other Credit Documents, nor consent to any departure by
any Credit Party therefrom, shall in any event be effective unless the same
shall be in writing and signed by the Required Lenders, and then such waiver or
consent shall be effective only in the specific instance and for the specific
purpose for which given; provided that no amendment, waiver or consent shall,
unless in writing and signed by all the Lenders, do any of the following: (i)
waive any of the conditions specified in Section 5.1 or Section 5.2, (ii)
increase the Commitments or other contractual obligations to Borrower under this
Agreement, (iii) reduce the principal of, or interest on, the Notes or any fees
hereunder, (iv) postpone any date fixed for the payment in respect of principal
of, or interest on, the Notes or any fees hereunder, (v) change the percentage
of the Commitments or of the aggregate unpaid principal amount of the Notes, or
the number or identity of Lenders which shall be required for the Lenders or any
of them to take any action hereunder, (vi) release any Guarantor from its
obligations under any Guaranty Agreements, (vii) modify the definition of
"Required Lenders," or (viii) modify this Section 11.2. Notwithstanding the
foregoing, no amendment, waiver or consent shall, unless in writing and signed
by the Agent in addition to the Lenders required hereinabove to take such
action, affect the rights or duties of the Agent under this Agreement or under
any other Credit Document.
SECTION 11.3 NO WAIVER; REMEDIES CUMULATIVE. No failure or delay on the
------------------------------
part of the Agent, any Lender or any holder of a Note in exercising any right or
remedy hereunder or under any other
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Credit Document, and no course of dealing between any Credit Party and the
Agent, any Lender or the holder of any Note shall operate as a waiver thereof,
nor shall any single or partial exercise of any right or remedy hereunder or
under any other Credit Document preclude any other or further exercise thereof
or the exercise of any other right or remedy hereunder or thereunder. The rights
and remedies herein expressly provided are cumulative and not exclusive of any
rights or remedies which the Agent, any Lender or the holder of any Note would
otherwise have. No notice to or demand on any Credit Party not required
hereunder or under any other Credit Document in any case shall entitle any
Credit Party to any other or further notice or demand in similar or other
circumstances or constitute a waiver of the rights of the Agent, the Lenders or
the holder of any Note to any other or further action in any circumstances
without notice or demand.
SECTION 11.4 PAYMENT OF EXPENSES, ETC. Borrower shall:
-------------------------
(a) whether or not the transactions hereby contemplated are
consummated, pay all reasonable, out-of-pocket costs and expenses of the
Agent in the administration (both before and after the execution hereof and
including reasonable expenses actually incurred relating to advice of
counsel as to the rights and duties of the Agent and the Lenders with
respect thereto) of, and in connection with the preparation, execution and
delivery of, preservation of rights under, enforcement of, and, after a
Default or Event of Default, refinancing, renegotiation or restructuring
of, this Agreement and the other Credit Documents and the documents and
instruments referred to therein, and any amendment, waiver or consent
relating thereto (including, without limitation, the reasonable fees
actually incurred and disbursements of counsel for the Agent in connection
with any amendment, modification or restatement of this Agreement or any
other Credit Document), and in the case of enforcement (which shall include
workouts and bankruptcy related matters) of this Agreement or any Credit
Document after an Event of Default, all such reasonable, out-of-pocket
costs and expenses (including, without limitation, the reasonable fees
actually incurred and disbursements of counsel, including without
limitation in-house attorneys' fees), for any of the Lenders;
(b) subject, in the case of certain Taxes, to the applicable
provisions of Section 4.7(b), pay and hold each of the Lenders harmless
from and against any and all present and future stamp, documentary, and
other similar Taxes with respect to this Agreement, the Notes and any other
Credit Documents, any collateral described therein, or any payments due
thereunder, and save each Lender harmless from and against any and all
liabilities with respect to or resulting from any delay or omission to pay
such Taxes; and
66
<PAGE>
(c) indemnify the Agent and each Lender, and their respective
officers, directors, employees, representatives and agents from, and hold
each of them harmless against, any and all costs, losses, liabilities,
claims, damages or expenses incurred by any of them (whether or not any of
them is designated a party thereto) (an "Indemnitee") arising out of or by
reason of any investigation, litigation or other proceeding related to any
actual or proposed use of the proceeds of any of the Loans or any Credit
Party's entering into and performing of the Agreement, the Notes, or the
other Credit Documents, including, without limitation, the reasonable fees
actually incurred and disbursements of counsel (including foreign counsel)
incurred in connection with any such investigation, litigation or other
proceeding; provided, however, Borrower shall not be obligated to indemnify
any Indemnitee for any of the foregoing arising out of such Indemnitee's
gross negligence or willful misconduct;
(d) without limiting the indemnities set forth in subsection (c)
above, indemnify each Indemnitee for any and all expenses and costs
(including without limitation, remedial, removal, response, abatement,
cleanup, investigative, closure and monitoring costs), losses, claims
(including claims for contribution or indemnity and including the cost of
investigating or defending any claim and whether or not such claim is
ultimately defeated, and whether such claim arose before, during or after
any Credit Party's ownership, operation, possession or control of its
business, property or facilities or before, on or after the date hereof,
and including also any amounts paid incidental to any compromise or
settlement by the Indemnitee or Indemnitees to the holders of any such
claim), lawsuits, liabilities, obligations, actions, judgments, suits,
disbursements, encumbrances, liens, damages (including without limitation
damages for contamination or destruction of natural resources), penalties
and fines of any kind or nature whatsoever (including without limitation in
all cases the reasonable fees actually incurred, other charges and
disbursements of counsel in connection therewith) incurred, suffered or
sustained by that Indemnitee based upon, arising under or relating to
Environmental Laws based on, arising out of or relating to in whole or in
part, the existence or exercise of any rights or remedies by any Indemnitee
under this Agreement, any other Credit Document or any related documents
(but excluding those incurred, suffered or sustained by any Indemnitee as a
result of any action taken by or on behalf of the Lenders with respect to
any Subsidiary of Borrower (or the assets thereof) owned or controlled by
the Lenders); provided, however, Borrower shall not be obligated to
indemnify any Indemnitee for any of the foregoing arising out of such
Indemnitee's gross negligence or wilful misconduct.
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<PAGE>
If and to the extent that the obligations of Borrower under this Section 11.4
are unenforceable for any reason, Borrower hereby agrees to make the maximum
contribution to the payment and satisfaction of such obligations which is
permissible under applicable law.
SECTION 11.5 RIGHT OF SETOFF. In addition to and not in limitation of
---------------
all rights of offset that any Lender or other holder of a Note may have under
applicable law, each Lender or other holder of a Note shall, upon the occurrence
of any Event of Default and whether or not such Lender or such holder has made
any demand or any Credit Party's obligations are matured, have the right to
appropriate and apply to the payment of any Credit Party's obligations hereunder
and under the other Credit Documents, all deposits of any Credit Party (general
or special, time or demand, provisional or final) then or thereafter held by and
other indebtedness or property then or thereafter owing by such Lender or other
holder to any Credit Party, whether or not related to this Agreement or any
transaction hereunder. Each Lender shall promptly notify Borrower of any offset
hereunder.
SECTION 11.6 BENEFIT OF AGREEMENT.
--------------------
(a) This Agreement shall be binding upon and inure to the benefit of
and be enforceable by the respective successors and assigns of the parties
hereto, provided that Borrower may not assign or transfer any of its
interest hereunder without the prior written consent of all the Lenders.
(b) Any Lender may make, carry or transfer Loans at, to or for the
account of, any of its branch offices or the office of an Affiliate of such
Lender.
(c) Each Lender may assign all or a portion of its interests, rights
and obligations under this Agreement (including all or a portion of any of
its Commitments and the Loans at the time owing to it and the Notes held by
it) to any Eligible Assignee; provided, however, that (i) the Agent and
Borrower must give their prior written consent to such assignment (which
consent shall not be unreasonably withheld or delayed) unless such
assignment is to an Affiliate of the assigning Lender, (ii) the amount of
the Commitments, in the case of the Revolving Loan Commitments and the Line
of Credit Commitments, or Loans, in the case of assignment of Loans, of the
assigning Lender subject to each assignment (determined as of the date the
assignment and acceptance with respect to such assignment is delivered to
the Agent) shall not be less than $5,000,000 (iii) the parties to each such
assignment shall execute and deliver to the Agent an Assignment and
Acceptance, together with a Note or Notes subject to such assignment and a
processing and recordation fee of $3500. Borrower shall not be responsible
for such processing and recordation fee or any costs or expenses incurred
by any Lender or the Agent in
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<PAGE>
connection with such assignment. From and after the effective date
specified in each Assignment and Acceptance, which effective date shall be
at least five (5) Business Days after the execution thereof, the assignee
thereunder shall be a party hereto and to the extent of the interest
assigned by such Assignment and Acceptance, have the rights and obligations
of a Lender under this Agreement. Notwithstanding the foregoing, the
assigning Lender must retain after the consummation of such Assignment and
Acceptance, a minimum aggregate amount of Commitments or Loans, as the case
may be, of $10,000,000; provided, however, no such minimum amount shall be
required with respect to any such assignment made at any time there exists
an Event of Default hereunder. Within five (5) Business Days after receipt
of the notice and the Assignment and Acceptance, Borrower, at its own
expense, shall execute and deliver to the Agent, in exchange for the
surrendered Note or Notes, a new Note or Notes to the order of such
assignee in a principal amount equal to the applicable Commitments or Loans
assumed by it pursuant to such Assignment and Acceptance and new Note or
Notes to the assigning Lender in the amount of its retained Commitment or
Commitments or amount of its retained Loans. Such new Note or Notes shall
be in an aggregate principal amount equal to the aggregate principal amount
of such surrendered Note or Notes, shall be dated the date of the
surrendered Note or Notes which they replace, and shall otherwise be in
substantially the form attached hereto.
(d) Each Lender may, without the consent of Borrower and the Agent,
sell participations to one or more banks or other entities in all or a
portion of its rights and obligations under this Agreement (including all
or a portion of its Commitments in the Loans owing to it and the Notes held
by it), provided, however, that (i) such Lender's obligations under this
Agreement shall remain unchanged, (ii) such Lender shall remain solely
responsible to the other parties hereto for the performance of such
obligations, (iii) the participating bank or other entity shall not be
entitled to the benefit (except through its selling Lender) of the cost
protection provisions contained in Article IV of this Agreement, and (iv)
Borrower and the Agent and other Lenders shall continue to deal solely and
directly with each Lender in connection with such Lender's rights and
obligations under this Agreement and the other Credit Documents, and such
Lender shall retain the sole right to enforce the obligations of Borrower
relating to the Loans and to approve any amendment, modification or waiver
of any provisions of this Agreement. Any Lender selling a participation
hereunder shall provide prompt written notice to Borrower and Agent of the
name of such participant.
(e) Any Lender or participant may, in connection with the assignment
or participation or proposed assignment or
69
<PAGE>
participation, pursuant to this Section, disclose to the assignee or
participant or proposed assignee or participant any information relating to
Borrower or the other Consolidated Companies furnished to such Lender by or
on behalf of Borrower or any other Consolidated Company. With respect to
any disclosure of confidential, non-public, proprietary information, such
proposed assignee or participant shall agree to use the information only
for the purpose of making any necessary credit judgments with respect to
this credit facility and not to use the information in any manner
prohibited by any law, including without limitation, the securities laws of
the United States. The proposed participant or assignee shall agree in
writing, a copy of which shall be furnished to Borrower, not to disclose
any of such information except (i) to directors, employees, auditors or
counsel to whom it is necessary to show such information, each of whom
shall be informed of the confidential nature of the information, (ii) in
any statement or testimony pursuant to a subpoena or order by any court,
governmental body or other agency asserting jurisdiction over such entity,
or as otherwise required by law (provided prior notice is given to Borrower
and the Agent unless otherwise prohibited by the subpoena, order or law),
and (iii) upon the request or demand of any regulatory agency or authority
with proper jurisdiction. The proposed participant or assignee shall
further agree to return all documents or other written material and copies
thereof received from any Lender, the Agent or Borrower relating to such
confidential information unless otherwise properly disposed of by such
entity.
(f) Any Lender may at any time assign all or any portion of its
rights in this Agreement and the Notes issued to it to a Federal Reserve
Bank; provided that no such assignment shall release the Lender from any of
its obligations hereunder.
(g) If (i) any Taxes referred to in Section 4.7(b) have been levied
or imposed so as to require withholdings or deductions by Borrower and
payment by Borrower of additional amounts to any Lender as a result
thereof, (ii) any Lender shall make demand for payment of any material
additional amounts as compensation for increased costs pursuant to Section
4.10 or for its reduced rate of return pursuant to Section 4.16, or (iii)
any Lender shall decline to consent to a modification or waiver of the
terms of this Agreement or the other Credit Documents requested by
Borrower, then and in such event, upon request from Borrower delivered to
such Lender and the Agent, such Lender shall assign, in accordance with the
provisions of Section 11.6(c), all of its rights and obligations under this
Agreement and the other Credit Documents to another Lender or an Eligible
Assignee selected by Borrower, in consideration for the payment by such
assignee to the Lender of the principal of, and interest on, the
outstanding Loans accrued to the date of such assignment, and
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<PAGE>
the assumption of such Lender's Total Commitment hereunder, together with
any and all other amounts owing to such Lender under any provisions of this
Agreement or the other Credit Documents accrued to the date of such
assignment.
SECTION 11.7 GOVERNING LAW; SUBMISSION TO JURISDICTION
-----------------------------------------
(A) THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER AND UNDER THE NOTES SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE
GOVERNED BY THE LAW (WITHOUT GIVING EFFECT TO THE CONFLICT OF LAW
PRINCIPLES THEREOF) OF THE STATE OF FLORIDA.
(B) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT,
THE NOTES OR ANY OTHER CREDIT DOCUMENT MAY BE BROUGHT IN THE CIRCUIT COURT
OF ORANGE COUNTY, FLORIDA, OR ANY OTHER COURT OF THE STATE OF FLORIDA OR OF
THE UNITED STATES OF AMERICA FOR THE MIDDLE DISTRICT OF FLORIDA, AND, BY
EXECUTION AND DELIVERY OF THIS AGREEMENT, BORROWER HEREBY ACCEPTS FOR
ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, THE
JURISDICTION OF THE AFORESAID COURTS. THE PARTIES HERETO HEREBY IRREVOCABLY
WAIVE TRIAL BY JURY IN RESPECT OF ANY DISPUTE ARISING UNDER OR IN
CONNECTION WITH THIS AGREEMENT, OR ANY OTHER CREDIT DOCUMENT OR ANY
DOCUMENT RELATED THERETO.
(C) BORROWER AND GUARANTORS FURTHER IRREVOCABLY CONSENT TO THE
SERVICE OF PROCESS OF ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH ACTION
OR PROCEEDING BY THE MAILING OF COPIES THEREOF BY REGISTERED OR CERTIFIED
MAIL, POSTAGE PREPAID, TO BORROWER AND/OR EACH SUCH GUARANTOR AT ITS SAID
ADDRESS, SUCH SERVICE TO BECOME EFFECTIVE 30 DAYS AFTER SUCH MAILING. THE
BORROWER AND THE GUARANTORS HEREBY IRREVOCABLY WAIVE ANY OBJECTION,
INCLUDING, WITHOUT LIMITATION, ANY OBJECTION EITHER OF THEM MAY HAVE TO THE
LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT
--------------------
MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY ACTION OR PROCEEDING IN
SUCH RESPECTIVE JURISDICTIONS IN RESPECT OF THIS AGREEMENT, ANY OTHER
CREDIT DOCUMENT OR ANY DOCUMENT RELATED THERETO.
(D) NOTHING HEREIN SHALL AFFECT THE RIGHT OF THE AGENT, ANY LENDER,
ANY HOLDER OF A NOTE OR ANY CREDIT PARTY TO SERVE PROCESS IN ANY OTHER
MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE
PROCEED AGAINST BORROWER IN ANY OTHER JURISDICTION.
SECTION 11.8 INDEPENDENT NATURE OF LENDERS' RIGHTS . The amounts payable
-------------------------------------
at any time hereunder to each Lender shall be a separate and independent debt,
and each Lender shall be entitled to protect and enforce its rights pursuant to
this Agreement and its Notes, and it shall not be necessary for any other Lender
to be joined as an additional party in any proceeding for such purpose.
71
<PAGE>
SECTION 11.9 COUNTERPARTS . This Agreement may be executed in any number
------------
of counterparts and by the different parties hereto on separate counterparts,
each of which when so executed and delivered shall be an original, but all of
which shall together constitute one and the same instrument.
SECTION 11.10 EFFECTIVENESS; SURVIVAL
-----------------------
(a) This Agreement shall not become effective until the date (the
"Effective Date") on which all of the parties hereto shall have signed a
counterpart hereof (whether the same or different counterparts) and the
signature of the Borrower shall not be effective until after execution
hereof by all the Lenders and acceptance of delivery of this Agreement by
the Agent (or an agent of the Agent) pursuant to Section 5.1.
(b) The obligations of Borrower under Sections 4.7(b), 4.8, 4.10,
4.12, 4.16, and 11.4 hereof shall survive for one hundred twenty (120) days
after the payment in full of the Notes after the Final Maturity Date. All
representations and warranties made herein, in the certificates, reports,
notices, and other documents delivered pursuant to this Agreement shall
survive the execution and delivery of this Agreement, the other Credit
Documents, and such other agreements and documents, the making of the Loans
hereunder, and the execution and delivery of the Notes.
SECTION 11.11 SEVERABILITY. In case any provision in or obligation under
------------
this Agreement or the other Credit Documents shall be invalid, illegal or
unenforceable, in whole or in part, in any jurisdiction, the validity, legality
and enforceability of the remaining provisions or obligations, or of such
provision or obligation in any other jurisdiction, shall not in any way be
affected or impaired thereby.
SECTION 11.12 INDEPENDENCE OF COVENANTS. All covenants hereunder shall be
-------------------------
given independent effect so that if a particular action or condition is not
permitted by any of such covenants, the fact that it would be permitted by an
exception to, or be otherwise within the limitation of, another covenant, shall
not avoid the occurrence of a Default or an Event of Default if such action is
taken or condition exists.
SECTION 11.13 CHANGE IN ACCOUNTING PRINCIPLES, FISCAL YEAR OR TAX LAWS.
--------------------------------------------------------
If (i) any preparation of the financial statements referred to in Section 7.7
hereafter occasioned by the promulgation of rules, regulations, pronouncements
and opinions by or required by the Financial Accounting Standards Board or the
American Institute of Certified Public Accounts (or successors thereto or
agencies with similar functions) (other than changes mandated by FASB 106)
result in a material change in the method of calculation of financial covenants,
standards or terms found in this Agreement, (ii) there is any change in
Borrower's fiscal quarter or fiscal
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<PAGE>
year as provided herein, or (iii) there is a material change in federal tax laws
which materially affects any of the Consolidated Companies' ability to comply
with the financial covenants, standards or terms found in this Agreement,
Borrower and the Required Lenders agree to enter into negotiations in order to
amend such provisions so as to equitably reflect such changes with the desired
result that the criteria for evaluating any of the Consolidated Companies,
financial condition shall be the same after such changes as if such changes had
not been made. Unless and until such provisions have been so amended, the
provisions of this Agreement shall govern.
SECTION 11.14 HEADINGS DESCRIPTIVE; ENTIRE AGREEMENT. The headings of the
--------------------------------------
several sections and subsections of this Agreement are inserted for convenience
only and shall not in any way affect the meaning or construction of any
provision of this Agreement. This Agreement, the other Credit Documents, and the
agreements and documents required to be delivered pursuant to the terms of this
Agreement constitute the entire agreement among the parties hereto and thereto
regarding the subject matters hereof and thereof and supersede all prior
agreements, representations and understandings related to such subject matters.
SECTION 11.15 TIME IS OF THE ESSENCE. Time is of the essence in
----------------------
interpreting and performing this Agreement and all other Credit Documents.
SECTION 11.16 USURY. It is the intent of the parties hereto not to violate
-----
any federal or state law, rule or regulation pertaining either to usury or to
the contracting for or charging or collecting of interest, and Borrower and
Lenders agree that, should any provision of this Agreement or of the Notes, or
any act performed hereunder or thereunder, violate any such law, rule or
regulation, then the excess of interest contracted for or charged or collected
over the maximum lawful rate of interest shall be applied to the outstanding
principal indebtedness due to Lenders by Borrower under this Agreement.
SECTION 11.17 CONSTRUCTION. Should any provision of this Agreement require
------------
judicial interpretation, the parties hereto agree that the court interpreting or
construing the same shall not apply a presumption that the terms hereof shall be
more strictly construed against one party by reason of the rule of construction
that a document is to be more strictly construed against the party who itself or
through its agents prepared the same, it being agreed that Borrower, Agent,
Lenders and their respective agents have participated in the preparation hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and delivered in Orlando, Florida, by their duly authorized
officers as of the day and year first above written.
[BALANCE OF THIS PAGE INTENTIONALLY LEFT BLANK]
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<PAGE>
[SIGNATURE PAGE TO
SECOND AMENDED AND RESTATED REVOLVING CREDIT
AND LINE OF CREDIT AGREEMENT
BETWEEN SUNTRUST, AS AGENT
AND ROTECH MEDICAL CORPORATION]
BORROWER:
Signed, sealed and delivered ROTECH MEDICAL CORPORATION
in the presence of:
[SIGNATURE ILLEGIBLE] By:/s/ Rebecca R. Irish
- ------------------------------- --------------------------
Name:[SIGNATURE ILLEGIBLE] Rebecca R. Irish,
-------------------------- Treasurer
/s/ Cheri Jacobs
- -------------------------------
Name: Cheri Jacobs
--------------------------
4506 L.B. McLeod Road
Orlando, Florida 32811
-------------------------------
Address
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<PAGE>
JOINDER OF GUARANTORS
---------------------
The undersigned, as Guarantors under the Second Amended and Restated
Revolving Credit and Line of Credit Agreement, hereby join in and consent to the
Agreement and agree to be bound by the terms thereof applicable to them as fully
as if they were original signatories thereto.
Dated as of the 3rd day of June, 1997.
Signed, sealed and delivered A-1 MEDICAL EQUIPMENT, INC.,
in the Presence of a Florida corporation
[SIGNATURE ILLEGIBLE] By:/s/ Rebecca R. Irish,
- --------------------------- --------------------------
Name: Rebecca R. Irish,
Treasurer
/s/ Cheri Jacobs
- ---------------------------
Name:
ABBA MEDICAL EQUIPMENT, INC.,
a Florida corporation
[SIGNATURE ILLEGIBLE] By:/s/ Rebecca R. Irish,
- --------------------------- -------------------------
Name: Rebecca R. Irish,
Treasurer
/s/ Cheri Jacobs
- ---------------------------
Name:
ADAPTIVE MEDICAL, INC., a
South Carolina corporation
[SIGNATURE ILLEGIBLE] By:/s/ Rebecca R. Irish
- --------------------------- __________________________
Name: Rebecca R. Irish,
Treasurer
/s/ Cheri Jacobs
- ---------------------------
Name:
ADVANCED IMAGING CENTER,
INC., a Florida corporation,
f/k/a Integral Home Health
Care, Inc.
[SIGNATURE ILLEGIBLE] By:/s/ Rebecca R. Irish
- --------------------------- --------------------------
Name: Rebecca R. Irish,
Treasurer
/s/ Cheri Jacobs
- ---------------------------
Name:
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<PAGE>
ALLIED MEDICAL SUPPLY, INC.,
an Arizona corporation
[SIGNATURE ILLEGIBLE] By:/s/ Rebecca R. Irish
- --------------------------- -------------------------
Name: Rebecca R. Irish,
Treasurer
/s/ Cheri Jacobs
- ---------------------------
Name:
ALWAYS MEDICAL EQUIPMENT,
INC., a Florida corporation
[SIGNATURE ILLEGIBLE] By:/s/ Rebecca R. Irish
- --------------------------- ---------------------------
Name: Rebecca R. Irish,
Treasurer
/s/ Cheri Jacobs
- ---------------------------
Name:
AMBASSADOR MEDICAL EQUIPMENT,
INC., a Florida corporation
[SIGNATURE ILLEGIBLE] By:/s/ Rebecca R. Irish
- --------------------------- --------------------------
Name: Rebecca R. Irish,
Treasurer
/s/ Cheri Jacobs
- ---------------------------
Name:
AMERICAN MEDICAL RENTALS,
INC., an Arkansas corporation
[SIGNATURE ILLEGIBLE] By:/s/ Rebecca R. Irish
- --------------------------- -------------------------
Name: Rebecca R. Irish,
Treasurer
/s/ Cheri Jacobs
- ---------------------------
Name:
AMERICAN OXYGEN SERVICES,
INC., a Florida corporation
[SIGNATURE ILLEGIBLE] By:/s/ Rebecca R. Irish
- --------------------------- -------------------------
Name: Rebecca R. Irish,
Treasurer
/s/ Cheri Jacobs
- ---------------------------
Name:
76
<PAGE>
ANNISTON HEALTH & SICKROOM
SUPPLIES, INC., an Alabama
corporation
[SIGNATURE ILLEGIBLE] By:/s/ Rebecca R. Irish
- --------------------------- --------------------------
Name: Rebecca R. Irish,
Treasurer
/s/ Cheri Jacobs
- ---------------------------
Name:
APEX HEALTHCARE, INC., a
Delaware corporation
[SIGNATURE ILLEGIBLE] By:/s/ Rebecca R. Irish
- --------------------------- -------------------------
Name: Rebecca R. Irish,
Treasurer
/s/ Cheri Jacobs
- ---------------------------
Name:
APEX HEALTHCARE OF ALABAMA,
INC., an Alabama corporation
[SIGNATURE ILLEGIBLE] By:/s/ Rebecca R. Irish
- --------------------------- -------------------------
Name: Rebecca R. Irish,
Treasurer
/s/ Cheri Jacobs
- ---------------------------
Name:
APEX HEALTHCARE OF LOUISIANA,
INC., a Louisiana corporation
[SIGNATURE ILLEGIBLE] By:/s/ Rebecca R. Irish
- --------------------------- -------------------------
Name: Rebecca R. Irish,
Treasurer
/s/ Cheri Jacobs
- ---------------------------
Name:
77
<PAGE>
APEX HEALTHCARE OF
MISSISSIPPI, INC., a
Mississippi corporation
[SIGNATURE ILLEGIBLE] By:/s/ Rebecca R. Irish
- --------------------------- -------------------------
Name: Rebecca R. Irish,
Treasurer
/s/ Cheri Jacobs
- ---------------------------
Name:
ATLANTIC MEDICAL EQUIPMENT OF
JACKSONVILLE, INC., a Florida
corporation
[SIGNATURE ILLEGIBLE] By:/s/ Rebecca R. Irish
- --------------------------- -------------------------
Name: Rebecca R. Irish,
Treasurer
/s/ Cheri Jacobs
- ---------------------------
Name:
BAUMANN PHARMACEUTICAL
SERVICES, INC., an Alabama
corporation
[SIGNATURE ILLEGIBLE] By:/s/ Rebecca R. Irish
- --------------------------- --------------------------
Name: Rebecca R. Irish,
Treasurer
/s/ Cheri Jacobs
- ---------------------------
Name:
BERKELEY MEDICAL EQUIPMENT,
INC., a Florida corporation
[SIGNATURE ILLEGIBLE] By:/s/ Rebecca R. Irish
- --------------------------- -------------------------
Name: Rebecca R. Irish,
Treasurer
/s/ Cheri Jacobs
- ---------------------------
Name:
78
<PAGE>
BETA MEDICAL EQUIPMENT, INC.,
a Florida corporation
[SIGNATURE ILLEGIBLE] By:/s/ Rebecca R. Irish
- --------------------------- --------------------------
Name: Rebecca R. Irish,
Treasurer
/s/ Cheri Jacobs
- ---------------------------
Name:
BIOCARE MEDICAL, INC., a
Florida corporation, f/k/a
Advantageous Home Health
Care, Inc.
[SIGNATURE ILLEGIBLE] By:/s/ Rebecca R. Irish
- --------------------------- -------------------------
Name: Rebecca R. Irish,
Treasurer
/s/ Cheri Jacobs
- ---------------------------
Name:
BREATHING AND RELIEF, INC., a
Texas corporation
[SIGNATURE ILLEGIBLE] By:/s/ Rebecca R. Irish
- --------------------------- --------------------------
Name: Rebecca R. Irish,
Treasurer
/s/ Cheri Jacobs
- ---------------------------
Name:
BRISTER'S MEDICAL ASSOCIATES,
INC., a Mississippi
corporation
[SIGNATURE ILLEGIBLE] By:/s/ Rebecca R. Irish
- --------------------------- -------------------------
Name: Rebecca R. Irish,
Treasurer
/s/ Cheri Jacobs
- ---------------------------
Name:
79
<PAGE>
BRISTER PHARMACY, INC., a
Mississippi corporation
[SIGNATURE ILLEGIBLE] By:/s/ Rebecca R. Irish
- --------------------------- -------------------------
Name: Rebecca R. Irish,
Treasurer
/s/ Cheri Jacobs
- ---------------------------
Name:
BROOKSVILLE PRIMARY CARE
CLINIC, INC., a Florida
corporation, f/k/a Gamma Home
Health Care, Inc.
[SIGNATURE ILLEGIBLE] By:/s/ Rebecca R. Irish
- --------------------------- -------------------------
Name: Rebecca R. Irish,
Treasurer
/s/ Cheri Jacobs
- ---------------------------
Name:
CABOT MEDICAL EQUIPMENT,
INC., a Florida corporation
[SIGNATURE ILLEGIBLE] By:/s/ Rebecca R. Irish
- --------------------------- --------------------------
Name: Rebecca R. Irish,
Treasurer
/s/ Cheri Jacobs
- ---------------------------
Name:
CAMDEN MEDICAL SUPPLY, INC.,
a Florida corporation, f/k/a
NebTech, Inc.
[SIGNATURE ILLEGIBLE] By:/s/ Rebecca R. Irish
- --------------------------- -------------------------
Name: Rebecca R. Irish,
Treasurer
/s/ Cheri Jacobs
- ---------------------------
Name:
80
<PAGE>
CANYON STATE MEDICAL SUPPLIES,
INC., an Arizona corporation
[SIGNATURE ILLEGIBLE] /s/ Rebecca R. Irish
- --------------------------- By:----------------------------
Name: Rebecca R. Irish,
Treasurer
/s/ Cheri Jacobs
- ---------------------------
Name:
CARE MEDICAL SUPPLIES, INC.,
a Illinois corporation
[SIGNATURE ILLEGIBLE] /s/ Rebecca R. Irish
- --------------------------- By:----------------------------
Name: Rebecca R. Irish,
Treasurer
/s/ Cheri Jacobs
- ---------------------------
Name:
CARE MEDICAL OF NEW JERSEY,
INC., a New Jersey corporation
[SIGNATURE ILLEGIBLE] /s/ Rebecca R. Irish
- --------------------------- By:----------------------------
Name: Rebecca R. Irish,
Treasurer
/s/ Cheri Jacobs
- ---------------------------
Name:
CENTENNIAL MEDICAL EQUIPMENT,
INC., a Florida corporation
[SIGNATURE ILLEGIBLE] /s/ Rebecca R. Irish
- --------------------------- By:----------------------------
Name: Rebecca R. Irish,
Treasurer
/s/ Cheri Jacobs
- ---------------------------
Name:
81
<PAGE>
CENTRAL HOME CARE, INC., a
Kentucky corporation
[SIGNATURE ILLEGIBLE] /s/ Rebecca R. Irish
- --------------------------- By:----------------------------
Name: Rebecca R. Irish,
Treasurer
/s/ Cheri Jacobs
- ---------------------------
Name:
CHARLOTTE MEDICAL SUPPLY, INC.,
a Florida corporation, f/k/a
Fundamental Home Health
Care, Inc.
[SIGNATURE ILLEGIBLE] /s/ Rebecca R. Irish
- --------------------------- By:----------------------------
Name: Rebecca R. Irish,
Treasurer
/s/ Cheri Jacobs
- ---------------------------
Name:
CHEROKEE HOME MEDICAL, INC., a
Georgia corporation
[SIGNATURE ILLEGIBLE] /s/ Rebecca R. Irish
- --------------------------- By:----------------------------
Name: Rebecca R. Irish,
Treasurer
/s/ Cheri Jacobs
- ---------------------------
Name:
CHI MEDICAL EQUIPMENT, INC.,
a Florida corporation
[SIGNATURE ILLEGIBLE] /s/ Rebecca R. Irish
- --------------------------- By:----------------------------
Name: Rebecca R. Irish,
Treasurer
/s/ Cheri Jacobs
- ---------------------------
Name:
82
<PAGE>
CHURCH STREET CLINIC, INC.,
a Mississippi corporation
[SIGNATURE ILLEGIBLE] /s/ Rebecca R. Irish
- --------------------------- By:----------------------------
Name: Rebecca R. Irish,
Treasurer
/s/ Cheri Jacobs
- ---------------------------
Name:
CLINICAL LABORATORY, INC., a
Mississippi corporation, f/k/a
Gorton Medical Clinic, Inc.
[SIGNATURE ILLEGIBLE] /s/ Rebecca R. Irish
- --------------------------- By:----------------------------
Name: Rebecca R. Irish,
Treasurer
/s/ Cheri Jacobs
- ---------------------------
Name:
COASTAL SURGICAL, INC.,
a Florida corporation
[SIGNATURE ILLEGIBLE] /s/ Rebecca R. Irish
- --------------------------- By:----------------------------
Name: Rebecca R. Irish,
Treasurer
/s/ Cheri Jacobs
- ---------------------------
Name:
COMMUNITY HOME OXYGEN, INC.,
a Montana corporation,
f/k/a Home Oxygen Care, Inc.
[SIGNATURE ILLEGIBLE] /s/ Rebecca R. Irish
- --------------------------- By:----------------------------
Name: Rebecca R. Irish,
Treasurer
/s/ Cheri Jacobs
- ---------------------------
Name:
83
<PAGE>
CPO2, INC., a Pennsylvania
corporation
[SIGNATURE ILLEGIBLE] /s/ Rebecca R. Irish
- --------------------------- By:----------------------------
Name: Rebecca R. Irish,
Treasurer
/s/ Cheri Jacobs
- ---------------------------
Name:
CYNTHIANA MEDICAL EQUIPMENT,
INC., a Florida corporation,
f/k/a Delta Home Health
Care, Inc.
[SIGNATURE ILLEGIBLE] /s/ Rebecca R. Irish
- --------------------------- By:----------------------------
Name: Rebecca R. Irish,
Treasurer
/s/ Cheri Jacobs
- ---------------------------
Name:
DISTINCT HOME HEALTH CARE,
INC., a Florida corporation
[SIGNATURE ILLEGIBLE] /s/ Rebecca R. Irish
- --------------------------- By:----------------------------
Name: Rebecca R. Irish,
Treasurer
/s/ Cheri Jacobs
- ---------------------------
Name:
DOCTORS MANAGEMENT GROUP, INC.,
a Louisiana corporation
[SIGNATURE ILLEGIBLE] /s/ Rebecca R. Irish
- --------------------------- By:----------------------------
Name: Rebecca R. Irish,
Treasurer
/s/ Cheri Jacobs
- ---------------------------
Name:
84
<PAGE>
DON PAUL RESPIRATORY SERVICES,
INC., a Colorado corporation
[SIGNATURE ILLEGIBLE] /s/ Rebecca R. Irish
- --------------------------- By:----------------------------
Name: Rebecca R. Irish,
Treasurer
/s/ Cheri Jacobs
- ---------------------------
Name:
DREW PRIMARY CARE CLINIC, INC.,
a Mississippi corporation
[SIGNATURE ILLEGIBLE] /s/ Rebecca R. Irish
- --------------------------- By:----------------------------
Name: Rebecca R. Irish,
Treasurer
/s/ Cheri Jacobs
- ---------------------------
Name:
EXCEL MEDICAL OF AMES, INC., an
Iowa corporation
[SIGNATURE ILLEGIBLE] /s/ Rebecca R. Irish
- --------------------------- By:----------------------------
Name: Rebecca R. Irish,
Treasurer
/s/ Cheri Jacobs
- ---------------------------
Name:
EXCEL MEDICAL OF FORT DODGE,
INC., an Iowa corporation
[SIGNATURE ILLEGIBLE] /s/ Rebecca R. Irish
- --------------------------- By:----------------------------
Name: Rebecca R. Irish,
Treasurer
/s/ Cheri Jacobs
- ---------------------------
Name:
EXCEL MEDICAL OF MARSHALLTOWN,
INC., an Iowa corporation
[SIGNATURE ILLEGIBLE] /s/ Rebecca R. Irish
- --------------------------- By:----------------------------
Name: Rebecca R. Irish,
Treasurer
/s/ Cheri Jacobs
- ---------------------------
Name:
85
<PAGE>
EAST TENNESSEE INFUSION &
RESPIRATORY, INC., a Florida
corporation, f/k/a Orlando
Health & Medications, Inc.
[SIGNATURE ILLEGIBLE] /s/ Rebecca R. Irish
- --------------------------- By:----------------------------
Name: Rebecca R. Irish,
Treasurer
/s/ Cheri Jacobs
- ---------------------------
Name:
ENCORE HOME HEALTH CARE, INC.,
a Florida corporation
[SIGNATURE ILLEGIBLE] /s/ Rebecca R. Irish
- --------------------------- By:----------------------------
Name: Rebecca R. Irish,
Treasurer
/s/ Cheri Jacobs
- ---------------------------
Name:
EPSILON HOME HEALTH CARE, INC.,
a Florida corporation
[SIGNATURE ILLEGIBLE] /s/ Rebecca R. Irish
- --------------------------- By:----------------------------
Name: Rebecca R. Irish,
Treasurer
/s/ Cheri Jacobs
- ---------------------------
Name:
ESSENTIAL HOME HEALTH CARE,
INC., a Florida corporation
[SIGNATURE ILLEGIBLE] /s/ Rebecca R. Irish
- --------------------------- By:----------------------------
Name: Rebecca R. Irish,
Treasurer
/s/ Cheri Jacobs
- ---------------------------
Name:
86
<PAGE>
ETA HOME HEALTH CARE, INC.,
a Florida corporation
[SIGNATURE ILLEGIBLE] /s/ Rebecca R. Irish
- --------------------------- By:----------------------------
Name: Rebecca R. Irish,
Treasurer
/s/ Cheri Jacobs
- ---------------------------
Name:
FAMLICARE HOME MEDICAL
EQUIPMENT, INC., a Georgia
corporation
[SIGNATURE ILLEGIBLE] /s/ Rebecca R. Irish
- --------------------------- By:----------------------------
Name: Rebecca R. Irish,
Treasurer
/s/ Cheri Jacobs
- ---------------------------
Name:
FAMILY CARE SPECIALISTS, INC.,
a Florida corporation, f/k/a
Family Medical Center, Inc.;
f/k/a Integrated Home Health
Care, Inc.
[SIGNATURE ILLEGIBLE] /s/ Rebecca R. Irish
- --------------------------- By:----------------------------
Name: Rebecca R. Irish,
Treasurer
/s/ Cheri Jacobs
- ---------------------------
Name:
FIRSTCARE, INC., a Kansas
corporation
[SIGNATURE ILLEGIBLE] /s/ Rebecca R. Irish
- --------------------------- By:----------------------------
Name: Rebecca R. Irish,
Treasurer
/s/ Cheri Jacobs
- ---------------------------
Name:
87
<PAGE>
FISHER MEDICAL EQUIPMENT CO.,
INC., an Idaho corporation
[SIGNATURE ILLEGIBLE] /s/ Rebecca R. Irish
- --------------------------- By:----------------------------
Name: Rebecca R. Irish,
Treasurer
/s/ Cheri Jacobs
- ---------------------------
Name:
FOUR RIVERS HOME HEALTHCARE,
INC., a Missouri corporation
[SIGNATURE ILLEGIBLE] /s/ Rebecca R. Irish
- --------------------------- By:----------------------------
Name: Rebecca R. Irish,
Treasurer
/s/ Cheri Jacobs
- ---------------------------
Name:
G & G MEDICAL, INC.,
a Colorado corporation
[SIGNATURE ILLEGIBLE] /s/ Rebecca R. Irish
- --------------------------- By:----------------------------
Name: Rebecca R. Irish,
Treasurer
/s/ Cheri Jacobs
- ---------------------------
Name:
GATE CITY MEDICAL EQUIPMENT,
INC., a Florida corporation
[SIGNATURE ILLEGIBLE] /s/ Rebecca R. Irish
- --------------------------- By:----------------------------
Name: Rebecca R. Irish,
Treasurer
/s/ Cheri Jacobs
- ---------------------------
Name:
GEORGIA MEDICAL RESOURCES,
INC., a Florida corporation
[SIGNATURE ILLEGIBLE] /s/ Rebecca R. Irish
- --------------------------- By:----------------------------
Name: Rebecca R. Irish,
Treasurer
/s/ Cheri Jacobs
- ---------------------------
Name:
88
<PAGE>
GREENVILLE PRIMARY CARE CLINIC,
INC., a Mississippi corporation
[SIGNATURE ILLEGIBLE] /s/ Rebecca R. Irish
- --------------------------- By:----------------------------
Name: Rebecca R. Irish,
Treasurer
/s/ Cheri Jacobs
- ---------------------------
Name:
GREENWOOD MULTI-SPECIALTY
CLINIC, INC., a Mississippi
corporation,
f/k/a T.C. Medical, Inc.
[SIGNATURE ILLEGIBLE] /s/ Rebecca R. Irish
- --------------------------- By:----------------------------
Name: Rebecca R. Irish,
Treasurer
/s/ Cheri Jacobs
- ---------------------------
Name:
GRENADA DOCTORS CLINIC, INC.,
a Mississippi corporation
[SIGNATURE ILLEGIBLE] /s/ Rebecca R. Irish
- --------------------------- By:----------------------------
Name: Rebecca R. Irish,
Treasurer
/s/ Cheri Jacobs
- ---------------------------
Name:
GRENADA FAMILY DOCTORS, INC.,
a Mississippi corporation
[SIGNATURE ILLEGIBLE] /s/ Rebecca R. Irish
- --------------------------- By:----------------------------
Name: Rebecca R. Irish,
Treasurer
/s/ Cheri Jacobs
- ---------------------------
Name:
89
<PAGE>
HAMILTON MEDICAL EQUIPMENT
SERVICE, INC., an Iowa corporation
[SIGNATURE ILLEGIBLE] /s/ Rebecca R. Irish
- --------------------------- By:----------------------------
Name: Rebecca R. Irish,
Treasurer
/s/ Cheri Jacobs
- ---------------------------
Name:
HEADACHE CENTER OF THE WEST
COAST, INC., a Florida
corporation, f/k/a R M C Home
Care, Inc.
[SIGNATURE ILLEGIBLE] /s/ Rebecca R. Irish
- --------------------------- By:----------------------------
Name: Rebecca R. Irish,
Treasurer
/s/ Cheri Jacobs
- ---------------------------
Name:
HEADACHE MANAGEMENT OF AMERICA,
INC., a Florida corporation
[SIGNATURE ILLEGIBLE] /s/ Rebecca R. Irish
- --------------------------- By:----------------------------
Name: Rebecca R. Irish,
Treasurer
/s/ Cheri Jacobs
- ---------------------------
Name:
HEADACHE & PAIN MANAGEMENT
CENTER, INC., a Florida
corporation, f/k/a Headache
Management Center, Inc., f/k/a
Alternative Home Care, Inc.
[SIGNATURE ILLEGIBLE] /s/ Rebecca R. Irish
- --------------------------- By:----------------------------
Name: Rebecca R. Irish,
Treasurer
/s/ Cheri Jacobs
- ---------------------------
Name:
90
<PAGE>
HEALTH & MEDICATIONS AT HOME,
INC., a North Carolina
corporation
[SIGNATURE ILLEGIBLE] By:/s/ Rebecca R. Irish
- --------------------------- ----------------------------
Name: Rebecca R. Irish,
Treasurer
/s/ Cheri Jacobs
- ---------------------------
Name:
HEALTH AT HOME, INC.,
a Florida corporation
[SIGNATURE ILLEGIBLE] By:/s/ Rebecca R. Irish
- --------------------------- ----------------------------
Name: Rebecca R. Irish,
Treasurer
/s/ Cheri Jacobs
- ---------------------------
Name:
HEALTHCARE BUSINESS SOLUTIONS,
INC., a Florida corporation,
f/k/a Orlando Home Care, Inc.
[SIGNATURE ILLEGIBLE] By:/s/ Rebecca R. Irish
- --------------------------- ----------------------------
Name: Rebecca R. Irish,
Treasurer
/s/ Cheri Jacobs
- ---------------------------
Name:
HEALTHCARE CLAIMS RECOVERY,
INC., a Florida corporation,
f/k/a Jackson Medical Infusion,
Inc., f/k/a Southern Health &
Medications, Inc.
[SIGNATURE ILLEGIBLE] By:/s/ Rebecca R. Irish
- --------------------------- ----------------------------
Name: Rebecca R. Irish,
Treasurer
/s/ Cheri Jacobs
- ---------------------------
Name:
91
<PAGE>
HEALTH CARE SERVICES OF
MISSISSIPPI, INCORPORATED,
a Florida corporation,
f/k/a W.M.E, Inc.
[SIGNATURE ILLEGIBLE] By:/s/ Rebecca R. Irish
- --------------------------- ----------------------------
Name: Rebecca R. Irish,
Treasurer
/s/ Cheri Jacobs
- ---------------------------
Name:
HEALTH-MED, INC., a
Mississippi corporation
[SIGNATURE ILLEGIBLE] By:/s/ Rebecca R. Irish
- --------------------------- ----------------------------
Name: Rebecca R. Irish,
Treasurer
/s/ Cheri Jacobs
- ---------------------------
Name:
HEARTLAND HOME HEALTH CARE,
INC., a Florida corporation,
f/k/a Preferential Home
Health Care, Inc.
[SIGNATURE ILLEGIBLE] By:/s/ Rebecca R. Irish
- --------------------------- ----------------------------
Name: Rebecca R. Irish,
Treasurer
/s/ Cheri Jacobs
- ---------------------------
Name:
HOLLAND MEDICAL SERVICES,
INC., a Florida corporation,
f/k/a Beneficial Home Health
Care, Inc.
[SIGNATURE ILLEGIBLE] By:/s/ Rebecca R. Irish
- --------------------------- ----------------------------
Name: Rebecca R. Irish,
Treasurer
/s/ Cheri Jacobs
- ---------------------------
Name:
92
<PAGE>
HOLLANDALE PRIMARY CARE, INC.,
a Mississippi corporation
[SIGNATURE ILLEGIBLE] By:/s/ Rebecca R. Irish
- --------------------------- ----------------------------
Name: Rebecca R. Irish,
Treasurer
/s/ Cheri Jacobs
- ---------------------------
Name:
HOME CARE SOLUTIONS OF MURRAY,
INC., a Florida corporation
f/k/a Advantage Home
Health Care, Inc.
[SIGNATURE ILLEGIBLE] By:/s/ Rebecca R. Irish
- --------------------------- ----------------------------
Name: Rebecca R. Irish,
Treasurer
/s/ Cheri Jacobs
- ---------------------------
Name:
HOME HEALTH SERVICES COMPANY,
INC., an Iowa corporation
[SIGNATURE ILLEGIBLE] By:/s/ Rebecca R. Irish
- --------------------------- ----------------------------
Name: Rebecca R. Irish,
Treasurer
/s/ Cheri Jacobs
- ---------------------------
Name:
93
<PAGE>
HOME MEDICAL SUPPLY, INC.,
a Florida corporation, f/k/a
Bravo Home Health Care, Inc.
[SIGNATURE ILLEGIBLE] By:/s/ Rebecca R. Irish
- --------------------------- ----------------------------
Name: Rebecca R. Irish,
Treasurer
/s/ Cheri Jacobs
- ---------------------------
Name:
HOME MEDICAL SYSTEMS, INC.,
a South Carolina corporation
[SIGNATURE ILLEGIBLE] By:/s/ Rebecca R. Irish
- --------------------------- ----------------------------
Name: Rebecca R. Irish,
Treasurer
/s/ Cheri Jacobs
- ---------------------------
Name:
INDIANOLA PRIMARY CARE CLINIC,
INC., a Mississippi
corporation
[SIGNATURE ILLEGIBLE] By:/s/ Rebecca R. Irish
- --------------------------- ----------------------------
Name: Rebecca R. Irish,
Treasurer
/s/ Cheri Jacobs
- ---------------------------
Name:
INFUSION SERVICES, INC., an
Alabama corporation
[SIGNATURE ILLEGIBLE] By:/s/ Rebecca R. Irish
- --------------------------- ----------------------------
Name: Rebecca R. Irish,
Treasurer
/s/ Cheri Jacobs
- ---------------------------
Name:
94
<PAGE>
INTENSIVE HOME CARE NURSES,
INC., a Texas corporation
[SIGNATURE ILLEGIBLE] By:/s/ Rebecca R. Irish
- --------------------------- ----------------------------
Name: Rebecca R. Irish,
Treasurer
/s/ Cheri Jacobs
- ---------------------------
Name:
INTENSIVE HOME CARE SERVICES,
INC., a Texas corporation
[SIGNATURE ILLEGIBLE] By:/s/ Rebecca R. Irish
- --------------------------- ----------------------------
Name: Rebecca R. Irish,
Treasurer
/s/ Cheri Jacobs
- ---------------------------
Name:
INTERNAL MEDICINE GRAND VIEW,
INC., a South Carolina
corporation
[SIGNATURE ILLEGIBLE] By:/s/ Rebecca R. Irish
- --------------------------- ----------------------------
Name: Rebecca R. Irish,
Treasurer
/s/ Cheri Jacobs
- ---------------------------
Name:
INTERNATIONAL MEDICAL SERVICES
AND SUPPLIES, INC., a Florida
corporation, f/k/a
International Medical Supply,
Inc.
[SIGNATURE ILLEGIBLE] By:/s/ Rebecca R. Irish
- --------------------------- ----------------------------
Name: Rebecca R. Irish,
Treasurer
/s/ Cheri Jacobs
- ---------------------------
Name:
95
<PAGE>
INTERNATIONAL THERAPEUTIC
SERVICES, INC.,
a Florida corporation
[SIGNATURE ILLEGIBLE] By:/s/ Rebecca R. Irish
- --------------------------- ----------------------------
Name: Rebecca R. Irish,
Treasurer
/s/ Cheri Jacobs
- ---------------------------
Name:
IOTA MEDICAL EQUIPMENT, INC.,
a Florida corporation
[SIGNATURE ILLEGIBLE] By:/s/ Rebecca R. Irish
- --------------------------- ----------------------------
Name: Rebecca R. Irish,
Treasurer
/s/ Cheri Jacobs
- ---------------------------
Name:
KAPPA MEDICAL EQUIPMENT, INC.,
a Florida corporation
[SIGNATURE ILLEGIBLE] By:/s/ Rebecca R. Irish
- --------------------------- ----------------------------
Name: Rebecca R. Irish,
Treasurer
/s/ Cheri Jacobs
- ---------------------------
Name:
96
<PAGE>
LAMBDA MEDICAL EQUIPMENT, INC.,
a Florida corporation
[SIGNATURE ILLEGIBLE] By:/s/ Rebecca R. Irish
- --------------------------- ----------------------------
Name: Rebecca R. Irish,
Treasurer
/s/ Cheri Jacobs
- ---------------------------
Name:
LAMS, INC., a Texas
corporation
[SIGNATURE ILLEGIBLE] By:/s/ Rebecca R. Irish
- --------------------------- ----------------------------
Name: Rebecca R. Irish,
Treasurer
/s/ Cheri Jacobs
- ---------------------------
Name:
LAWRENCE MEDICAL EQUIPMENT,
INC., a Kansas corporation
[SIGNATURE ILLEGIBLE] By:/s/ Rebecca R. Irish
- --------------------------- ----------------------------
Name: Rebecca R. Irish,
Treasurer
/s/ Cheri Jacobs
- ---------------------------
Name:
LEXINGTON PRIMARY CARE, INC.,
a Mississippi corporation
[SIGNATURE ILLEGIBLE] By:/s/ Rebecca R. Irish
- --------------------------- ----------------------------
Name: Rebecca R. Irish,
Treasurer
/s/ Cheri Jacobs
- ---------------------------
Name:
97
<PAGE>
LIBERTY HOME HEALTH CARE, INC.,
a Florida corporation
[SIGNATURE ILLEGIBLE] By:/s/ Rebecca R. Irish
- --------------------------- ----------------------------
Name: Rebecca R. Irish,
Treasurer
/s/ Cheri Jacobs
- ---------------------------
Name:
LOVEJOY MEDICAL, INC., a
Kentucky corporation, f/k/a
Lexington Home Health Care,
Inc.
[SIGNATURE ILLEGIBLE] By:/s/ Rebecca R. Irish
- --------------------------- ----------------------------
Name: Rebecca R. Irish,
Treasurer
/s/ Cheri Jacobs
- ---------------------------
Name:
MHB, INC., a West Virginia
corporation
[SIGNATURE ILLEGIBLE] By:/s/ Rebecca R. Irish
- --------------------------- ----------------------------
Name: Rebecca R. Irish,
Treasurer
/s/ Cheri Jacobs
- ---------------------------
Name:
MACON PRIMARY CARE, INC.,
a Florida corporation, f/k/a
Beta Home Health Care, Inc.
[SIGNATURE ILLEGIBLE] By:/s/ Rebecca R. Irish
- --------------------------- ----------------------------
Name: Rebecca R. Irish,
Treasurer
/s/ Cheri Jacobs
- ---------------------------
Name:
98
<PAGE>
MAJOR MEDICAL SUPPLY, INC.,
a Texas corporation
[SIGNATURE ILLEGIBLE] By:/s/ Rebecca R. Irish
- --------------------------- ----------------------------
Name: Rebecca R. Irish,
Treasurer
/s/ Cheri Jacobs
- ---------------------------
Name:
MEDCO PROFESSIONAL SERVICES
CORP., a Colorado corporation
[SIGNATURE ILLEGIBLE] By:/s/ Rebecca R. Irish
- --------------------------- ----------------------------
Name: Rebecca R. Irish,
Treasurer
/s/ Cheri Jacobs
- ---------------------------
Name:
MEDFIRST HEALTH PLANS OF
LOUISIANA, INC., a Louisiana
corporation
[SIGNATURE ILLEGIBLE] By:/s/ Rebecca R. Irish
- --------------------------- ----------------------------
Name: Rebecca R. Irish,
Treasurer
/s/ Cheri Jacobs
- ---------------------------
Name:
MEDFIRST MEDICAL CENTERS, INC.,
a Louisiana corporation
[SIGNATURE ILLEGIBLE] By:/s/ Rebecca R. Irish
- --------------------------- ----------------------------
Name: Rebecca R. Irish,
Treasurer
/s/ Cheri Jacobs
- ---------------------------
Name:
99
<PAGE>
MEDCASE MANAGEMENT, INC., a
Louisiana corporation
[SIGNATURE ILLEGIBLE] By:/s/ Rebecca R. Irish
- --------------------------- ----------------------------
Name: Rebecca R. Irish,
Treasurer
/s/ Cheri Jacobs
- ---------------------------
Name:
MEDIC-AIRE MEDICAL EQUIPMENT,
INC., a Florida corporation
[SIGNATURE ILLEGIBLE] By:/s/ Rebecca R. Irish
- --------------------------- ----------------------------
Name: Rebecca R. Irish,
Treasurer
/s/ Cheri Jacobs
- ---------------------------
Name:
MEDICAL ELECTRO-THERAPEUTICS,
INC., a Florida corporation,
f/k/a Southeastern Health &
Medications, Inc.
[SIGNATURE ILLEGIBLE] By:/s/ Rebecca R. Irish
- --------------------------- ----------------------------
Name: Rebecca R. Irish,
Treasurer
/s/ Cheri Jacobs
- ---------------------------
Name:
MERGER SUB, INC., a Texas
corporation
[SIGNATURE ILLEGIBLE] By:/s/ Rebecca R. Irish
- --------------------------- ----------------------------
Name: Rebecca R. Irish,
Treasurer
/s/ Cheri Jacobs
- ---------------------------
Name:
100
<PAGE>
MURRAY MEDICAL, INC., a
Colorado corporation
[SIGNATURE ILLEGIBLE] By: /s/ Rebecca R. Irish
- --------------------------- ---------------------------
Name: Rebecca R. Irish,
Treasurer
/s/ Cheri Jacobs
- ---------------------------
Name:
NATIONAL HOME CARE, INC., a
Florida corporation
[SIGNATURE ILLEGIBLE] By: /s/ Rebecca R. Irish
- --------------------------- ---------------------------
Name: Rebecca R. Irish,
Treasurer
/s/ Cheri Jacobs
- ---------------------------
Name:
NATIONAL MEDICAL EQUIPMENT CENTERS,
INC., a Florida corporation, f/k/a
National Medicine Centers of Central
Florida, Inc., f/k/a National
Medicare Equipment Centers,Inc.
[SIGNATURE ILLEGIBLE] By: /s/ Rebecca R. Irish
- --------------------------- ---------------------------
Name: Rebecca R. Irish,
Treasurer
/s/ Cheri Jacobs
- ---------------------------
Name:
NATIONAL MEDICINE CENTER- GROVELAND,
INC., a Florida corporation
[SIGNATURE ILLEGIBLE] By: /s/ Rebecca R. Irish
- --------------------------- ---------------------------
Name: Rebecca R. Irish,
Treasurer
/s/ Cheri Jacobs
- ---------------------------
Name:
101
<PAGE>
NEUMANN'S HOME MEDICAL, INC., an
Illinois corporation
[SIGNATURE ILLEGIBLE] By: /s/ Rebecca R. Irish
- --------------------------- ---------------------------
Name: Rebecca R. Irish,
Treasurer
/s/ Cheri Jacobs
- ---------------------------
Name:
NIGHTINGALE HOME HEALTH CARE,
INC., a Florida corporation,
Premier Home Care, Inc. and
Southeastern Home Care, Inc.
[SIGNATURE ILLEGIBLE] By: /s/ Rebecca R. Irish
- --------------------------- ---------------------------
Name: Rebecca R. Irish,
Treasurer
/s/ Cheri Jacobs
- ---------------------------
Name:
NORTH CENTRAL WASHINGTON RESPIRATORY
CARE SERVICES, INC., a Washington
corporation
[SIGNATURE ILLEGIBLE] By: /s/ Rebecca R. Irish
- --------------------------- ---------------------------
Name: Rebecca R. Irish,
Treasurer
/s/ Cheri Jacobs
- ---------------------------
Name:
NORTH FLORIDA PAIN INSTITUTE, INC., a
Florida corporation, f/k/a Good Home
Health Care,Inc.
[SIGNATURE ILLEGIBLE] By: /s/ Rebecca R. Irish
- --------------------------- ---------------------------
Name: Rebecca R. Irish,
Treasurer
/s/ Cheri Jacobs
- ---------------------------
Name:
102
<PAGE>
NORTHWEST HOME MEDICAL, INC., an
Idaho corporation
[SIGNATURE ILLEGIBLE] By: /s/ Rebecca R. Irish
- --------------------------- ---------------------------
Name: Rebecca R. Irish,
Treasurer
/s/ Cheri Jacobs
- ---------------------------
Name:
OMEGA MEDICAL EQUIPMENT, INC.,
a Florida Corporation
[SIGNATURE ILLEGIBLE] By: /s/ Rebecca R. Irish
- --------------------------- ---------------------------
Name: Rebecca R. Irish,
Treasurer
/s/ Cheri Jacobs
- ---------------------------
Name:
OMICRON MEDICAL EQUIPMENT, INC.,
a Florida corporation
[SIGNATURE ILLEGIBLE] By: /s/ Rebecca R. Irish
- --------------------------- ---------------------------
Name: Rebecca R. Irish,
Treasurer
/s/ Cheri Jacobs
- ---------------------------
Name:
OXYGEN OF OKLAHOMA, INC.,
an Oklahoma corporation
[SIGNATURE ILLEGIBLE] By: /s/ Rebecca R. Irish
- --------------------------- ---------------------------
Name: Rebecca R. Irish,
Treasurer
/s/ Cheri Jacobs
- ---------------------------
Name:
OXYGEN PLUS, INC., a Colorado
corporation
[SIGNATURE ILLEGIBLE] By: /s/ Rebecca R. Irish
- --------------------------- ---------------------------
Name: Rebecca R. Irish,
Treasurer
/s/ Cheri Jacobs
- ---------------------------
Name:
103
<PAGE>
OXYGEN PLUS MEDICAL EQUIPMENT,
INC., a Florida corporation
[SIGNATURE ILLEGIBLE] By: /s/ Rebecca R. Irish
- --------------------------- ---------------------------
Name: Rebecca R. Irish,
Treasurer
/s/ Cheri Jacobs
- ---------------------------
Name:
OXYGEN THERAPY ASSOCIATES,
INC., a Texas corporation
[SIGNATURE ILLEGIBLE] By: /s/ Rebecca R. Irish
- --------------------------- ---------------------------
Name: Rebecca R. Irish,
Treasurer
/s/ Cheri Jacobs
- ---------------------------
Name:
PEDI-CARE, INC., a Kansas corporation
[SIGNATURE ILLEGIBLE] By: /s/ Rebecca R. Irish
- --------------------------- ---------------------------
Name: Rebecca R. Irish,
Treasurer
/s/ Cheri Jacobs
- ---------------------------
Name:
PERRY FAMILY PRACTICE, INC.,
a Florida corporation
[SIGNATURE ILLEGIBLE] By: /s/ Rebecca R. Irish
- --------------------------- ---------------------------
Name: Rebecca R. Irish,
Treasurer
/s/ Cheri Jacobs
- ---------------------------
Name:
104
<PAGE>
PERRY/RMC REAL ESTATE, INC.,
a Florida corporation
[SIGNATURE ILLEGIBLE] By: /s/ Rebecca R. Irish
- --------------------------- ---------------------------
Name: Rebecca R. Irish,
Treasurer
/s/ Cheri Jacobs
- ---------------------------
Name:
PHI MEDICAL EQUIPMENT, INC.,
a Florida corporation
[SIGNATURE ILLEGIBLE] By: /s/ Rebecca R. Irish
- --------------------------- ---------------------------
Name: Rebecca R. Irish,
Treasurer
/s/ Cheri Jacobs
- ---------------------------
Name:
PHYSICIAN'S FORMULARY SERVICES,
INC., a Florida corporation
[SIGNATURE ILLEGIBLE] By: /s/ Rebecca R. Irish
- --------------------------- ---------------------------
Name: Rebecca R. Irish,
Treasurer
/s/ Cheri Jacobs
- ---------------------------
Name:
PIONEER MEDICAL SERVICES, INC.,
a West Virginia corporation
[SIGNATURE ILLEGIBLE] By: /s/ Rebecca R. Irish
- --------------------------- ---------------------------
Name: Rebecca R. Irish,
Treasurer
/s/ Cheri Jacobs
- ---------------------------
Name:
POLK CITY PHARMACY, INC.,
a Florida corporation
[SIGNATURE ILLEGIBLE] By: /s/ Rebecca R. Irish
- --------------------------- ---------------------------
Name: Rebecca R. Irish,
Treasurer
/s/ Cheri Jacobs
- ---------------------------
Name:
105
<PAGE>
PRIMARY HOME HEALTH CARE, INC.,
a Florida corporation
[SIGNATURE ILLEGIBLE] By: /s/ Rebecca R. Irish
- --------------------------- ---------------------------
Name: Rebecca R. Irish,
Treasurer
/s/ Cheri Jacobs
- ---------------------------
Name:
PRINCIPAL MEDICAL EQUIPMENT, INC., a
Florida corporation
[SIGNATURE ILLEGIBLE] By: /s/ Rebecca R. Irish
- --------------------------- ---------------------------
Name: Rebecca R. Irish,
Treasurer
/s/ Cheri Jacobs
- ---------------------------
Name:
PROFESSIONAL RESPIRATORY HOME
HEALTHCARE, INC., a Florida
corporation
[SIGNATURE ILLEGIBLE] By: /s/ Rebecca R. Irish
- --------------------------- ---------------------------
Name: Rebecca R. Irish,
Treasurer
/s/ Cheri Jacobs
- ---------------------------
Name:
PROFESSIONAL BREATHING ASSOCIATES,
INC., a Michigan corporation
[SIGNATURE ILLEGIBLE] By: /s/ Rebecca R. Irish
- --------------------------- ---------------------------
Name: Rebecca R. Irish,
Treasurer
/s/ Cheri Jacobs
- ---------------------------
Name:
106
<PAGE>
PSI HEALTH CARE, INC.,
a South Dakota corporation,
f/k/a Pulmonary Services, Inc.
[SIGNATURE ILLEGIBLE] By: /s/ Rebecca R. Irish
- --------------------------- ---------------------------
Name: Rebecca R. Irish,
Treasurer
/s/ Cheri Jacobs
- ---------------------------
Name:
PULMODOSE, INC., a Florida
corporation, f/k/a Constant
Home Health Care, Inc.
[SIGNATURE ILLEGIBLE] By: /s/ Rebecca R. Irish
- --------------------------- ---------------------------
Name: Rebecca R. Irish,
Treasurer
/s/ Cheri Jacobs
- ---------------------------
Name:
QUALITY HOME HEALTH CARE, INC.,
a Florida corporation
[SIGNATURE ILLEGIBLE] By: /s/ Rebecca R. Irish
- --------------------------- ---------------------------
Name: Rebecca R. Irish,
Treasurer
/s/ Cheri Jacobs
- ---------------------------
Name:
RCG INFORMATION SERVICES CORPORATION,
a Florida corporation
[SIGNATURE ILLEGIBLE] By: /s/ Rebecca R. Irish
- --------------------------- ---------------------------
Name: Rebecca R. Irish,
Treasurer
/s/ Cheri Jacobs
- ---------------------------
Name:
107
<PAGE>
REGENCY MEDICAL EQUIPMENT, INC., a
Florida corporation
[SIGNATURE ILLEGIBLE] By: /s/ Rebecca R. Irish
- --------------------------- ---------------------------
Name: Rebecca R. Irish,
Treasurer
/s/ Cheri Jacobs
- ---------------------------
Name:
RESPIRACARE MEDICAL EQUIPMENT,
INC., a Florida corporation
[SIGNATURE ILLEGIBLE] By: /s/ Rebecca R. Irish
- --------------------------- ---------------------------
Name: Rebecca R. Irish,
Treasurer
/s/ Cheri Jacobs
- ---------------------------
Name:
RESPITECH HOME HEALTH CARE,
INC., a Wyoming corporation
[SIGNATURE ILLEGIBLE] By: /s/ Rebecca R. Irish
- --------------------------- ---------------------------
Name: Rebecca R. Irish,
Treasurer
/s/ Cheri Jacobs
- ---------------------------
Name:
RESPIRATORY MEDICAL EQUIPMENT
OF GEORGIA, INC., a Florida
corporation
[SIGNATURE ILLEGIBLE] By: /s/ Rebecca R. Irish
- --------------------------- ---------------------------
Name: Rebecca R. Irish,
Treasurer
/s/ Cheri Jacobs
- ---------------------------
Name:
108
<PAGE>
RESPONSIVE HOME HEALTH CARE,
INC., a Florida corporation
[SIGNATURE ILLEGIBLE] By: /s/ Rebecca R. Irish
- --------------------------- ---------------------------
Name: Rebecca R. Irish,
Treasurer
/s/ Cheri Jacobs
- ---------------------------
Name:
RHEMA, INC., a Texas corporation
[SIGNATURE ILLEGIBLE] By: /s/ Rebecca R. Irish
- --------------------------- ---------------------------
Name: Rebecca R. Irish,
Treasurer
/s/ Cheri Jacobs
- ---------------------------
Name:
RHO MEDICAL EQUIPMENT, INC.,
a Florida corporation
[SIGNATURE ILLEGIBLE] By: /s/ Rebecca R. Irish
- --------------------------- ---------------------------
Name: Rebecca R. Irish,
Treasurer
/s/ Cheri Jacobs
- ---------------------------
Name:
RITT MEDICAL GROUP, INC., an Arizona
corporation
[SIGNATURE ILLEGIBLE] By: /s/ Rebecca R. Irish
- --------------------------- ---------------------------
Name: Rebecca R. Irish,
Treasurer
/s/ Cheri Jacobs
- ---------------------------
Name:
109
<PAGE>
RN HOME CARE MEDICAL EQUIPMENT
COMPANY, INC., a Florida
corporation, f/k/a RoTech/
Mississippi, Inc.
[SIGNATURE ILLEGIBLE] By: /s/ Rebecca R. Irish
- --------------------------- ---------------------------
Name: Rebecca R. Irish,
Treasurer
/s/ Cheri Jacobs
- ---------------------------
Name:
ROSWELL HOME MEDICAL, INC.,
a Florida corporation
[SIGNATURE ILLEGIBLE] By: /s/ Rebecca R. Irish
- --------------------------- ---------------------------
Name: Rebecca R. Irish,
Treasurer
/s/ Cheri Jacobs
- ---------------------------
Name:
ROTECH EMPLOYEE BENEFITS CORPORATION,
a Florida corporation, f/k/a Home
Health Care Supplement,Inc.
[SIGNATURE ILLEGIBLE] By: /s/ Rebecca R. Irish
- --------------------------- ---------------------------
Name: Rebecca R. Irish,
Treasurer
/s/ Cheri Jacobs
- ---------------------------
Name:
ROTECH HOME MEDICAL CARE, INC.,
a Florida corporation,
f/k/a L.T.E., Inc.
[SIGNATURE ILLEGIBLE] By: /s/ Rebecca R. Irish
- --------------------------- ---------------------------
Name: Rebecca R. Irish,
Treasurer
/s/ Cheri Jacobs
- ---------------------------
Name:
110
<PAGE>
ROTECH OXYGEN & MEDICAL
EQUIPMENT, INC.,
a Florida corporation
[SIGNATURE ILLEGIBLE] By:/s/ Rebecca R.Irish
--------------------------- --------------------------
Name: Rebecca R. Irish,
Treasurer
/s/ Cheri Jacobs
----------------------------
Name:
ROTECH REHABILITATION, INC.,
a Florida corporation
[SIGNATURE ILLEGIBLE] By: /s/ Rebecca R.Irish
--------------------------- --------------------------
Name: Rebecca R. Irish,
Treasurer
/s/ Cheri Jacobs
---------------------------
Name:
ROTECH/TEXAS, INC., a Florida
corporation
[SIGNATURE ILLEGIBLE]
--------------------------- By: /s/ Rebecca R.Irish.
Name: --------------------------
Rebecca R. Irish,
Treasurer
/s/ Cheri Jacobs
---------------------------
Name:
[SIGNATURE ILLEGIBLE]
--------------------------- ROTEX PHARMACEUTICALS, INC.,
Name: a Florida corporation
/s/ Cheri Jacobs By: /s/ Rebecca R. Irish
--------------------------- -------------------------
Name: Rebecca R. Irish,
Treasurer
111
<PAGE>
ROTH MEDICAL, INC.,
[SIGNATURE ILLEGIBLE] a Colorado corporation
--------------------------
Name: By: /s/ Rebecca R. Irish
--------------------------
Rebecca R. Irish,
Treasurer
/s/ Cheri Jacobs
---------------------------
Name:
[SIGNATURE ILLEGIBLE] ROTHERT'S HOSPITAL EQUIPMENT,
--------------------------- INC., a Kentucky corporation,
Name: f/k/a Covington Home Health
Care, Inc.
By: /s/ Rebecca R. Irish
/s/ Cheri Jacobs -------------------------
--------------------------- Rebecca R. Irish,
Name: Treasurer
[SIGNATURE ILLEGIBLE]
---------------------------
Name: SELECT HOME HEALTH CARE, INC.,
a Florida corporation
By: /s/ Rebecca R. Irish
/s/ Cheri Jacobs -------------------------
--------------------------- Rebecca R. Irish,
Name: Treasurer
[SIGNATURE ILLEGIBLE]
--------------------------- SENATOBIA FAMILY PRACTICE,
Name: INC., a Mississippi corporation
By: /s/ Rebecca R. Irish
/s/ Cheri Jacobs -------------------------
--------------------------- Rebecca R. Irish
Name Treasurer
112
<PAGE>
SIGMA MEDICAL EQUIPMENT, INC.,
a Florida corporation
By: /s/ Rebecca R.Irish
[SIGNATURE ILLEGIBLE] -------------------------
--------------------------- Rebecca R. Irish,
Name: Treasurer
/s/ Cheri Jacobs
---------------------------
Name:
SOUTH COUNTY PRIVATE DUTY
AGENCY, INC.,
a Texas corporation
By: /s/ Rebecca R.Irish
[SIGNATURE ILLEGIBLE] -------------------------
---------------------------
Name: Rebecca R. Irish,
Treasurer
/s/ Cheri Jacobs
---------------------------
Name:
SOUTHEASTERN HOME HEALTH, INC.,
a Florida corporation
By: /s/ Rebecca R. Irish
[SIGNATURE ILLEGIBLE] ------------------------
--------------------------- Rebecca R. Irish,
Name: Treasurer
/s/ Cheri Jacobs
---------------------------
Name:
SOUTHERN IV THERAPY, INC.,
a Florida corporation, f/k/a
Fricke Home Health Care, Inc.
[SIGNATURE ILLEGIBLE] By: /s/ Rebecca R.Irish
--------------------------- ------------------------------
Name: Rebecca R. Irish,
Treasurer
/s/ Cheri Jacobs
---------------------------
Name:
113
<PAGE>
SOUTHERN MEDICAL, INC.,
a Tennessee corporation,
f/k/a Volunteer Surgical, Inc.
[SIGNATURE ILLEGIBLE] By: /s/ Rebecca R.Irish
--------------------------- -------------------------
Name: Rebecca R. Irish,
Treasurer
/s/ Cheri Jacobs
---------------------------
Name:
STAT MEDICAL EQUIPMENT, INC.,
a Florida corporation
[SIGNATURE ILLEGIBLE] By: /s/ Rebecca R.Irish
--------------------------- -------------------------
Name: Rebecca R. Irish,
Treasurer
/s/ Cheri Jacobs
---------------------------
Name:
SUNSHINE HOME HEALTH CARE,
INC., a Florida corporation
[SIGNATURE ILLEGIBLE] By: /s/ Rebecca R.Irish
--------------------------- -------------------------
Name: Rebecca R. Irish,
Treasurer
/s/ Cheri Jacobs
---------------------------
Name:
THE TOWNE PHARMACY, INC.,
a West Virginia corporation
[SIGNATURE ILLEGIBLE] By: /s/ Rebecca R.Irish
--------------------------- -------------------------
Name: Rebecca R. Irish,
Treasurer
/s/ Cheri Jacobs
---------------------------
Name:
114
<PAGE>
THETA HOME HEALTH CARE, INC.,
a Florida corporation
[SIGNATURE ILLEGIBLE] By: /s/ Rebecca R.Irish
--------------------------- --------------------------
Name: Rebecca R. Irish,
Treasurer
/s/ Cheri Jacobs
---------------------------
Name:
THETA HOME HEALTH, INC.,
a Florida corporation, f/k/a
Piedmont Medical Supply, Inc.
[SIGNATURE ILLEGIBLE] By: /s/ Rebecca R.Irish
--------------------------- -------------------------
Name: Rebecca R. Irish,
Treasurer
/s/ Cheri Jacobs
---------------------------
Name:
UPSILON MEDICAL EQUIPMENT, INC.,
a Florida corporation
[SIGNATURE ILLEGIBLE] By: /s/ Rebecca R.Irish
--------------------------- -------------------------
Name: Rebecca R. Irish,
Treasurer
/s/ Cheri Jacobs
--------------------------
Name:
VALLEY MEDICAL, INC.,
a Utah corporation
[SIGNATURE ILLEGIBLE] By: /s/ Rebecca R.Irish
___________________________ --------------------------
Name: Rebecca R. Irish,
Treasurer
/s/ Cheri Jacobs
---------------------------
Name:
115
<PAGE>
VALUE ARE, INC., a Florida
corporation
[SIGNATURE ILLEGIBLE] By: /s/ Rebecca R.Irish
--------------------------- -------------------------
Name: Rebecca R. Irish,
Treasurer
/s/ Cheri Jacobs
---------------------------
Name:
VITALCARE HEALTH SERVICES,
INC., a Florida corporation,
f/k/a Enhanced Home Health
Care, Inc.
[SIGNATURE ILLEGIBLE] By: /s/ Rebecca R.Irish
--------------------------- --------------------------
Name: Rebecca R. Irish,
Treasurer
/s/ Cheri Jacobs
---------------------------
Name:
VITALCARE OF AMERICA, INC.,
a Texas corporation,
f/k/a AMT Acquisition, Inc.
[SIGNATURE ILLEGIBLE] By: /s/ Rebecca R.Irish
--------------------------- --------------------------
Rebecca R. Irish,
Name: Treasurer
/s/ Cheri Jacobs
---------------------------
Name:
VITALCARE OF FLORIDA, INC.,
a Florida corporation
[SIGNATURE ILLEGIBLE] By: /s/ Rebecca R.Irish
--------------------------- --------------------------
Name: Rebecca R. Irish,
Treasurer
/s/ Cheri Jacobs
---------------------------
Name:
116
<PAGE>
VITALCARE OF NEVADA, INC.,
a Nevada corporation
[SIGNATURE ILLEGIBLE] By: /s/ Rebecca R.Irish
--------------------------- -------------------------
Name: Rebecca R. Irish,
Treasurer
/s/ Cheri Jacobs
---------------------------
Name:
VITALCARE OF PENNSYLVANIA,
INC., a Pennsylvania corporation
[SIGNATURE ILLEGIBLE] /s/ Rebecca R.Irish
--------------------------- By:------------------------------
Name: Rebecca R. Irish,
Treasurer
/s/ Cheri Jacobs
---------------------------
Name:
VITALCARE OF TEXAS, INC.,
a Texas corporation
[SIGNATURE ILLEGIBLE] /s/ Rebecca R.Irish
--------------------------- By:------------------------------
Name: Rebecca R. Irish,
Treasurer
/s/ Cheri Jacobs
---------------------------
Name:
VITECH MEDICAL, INC., a Florida
corporation, f/k/a
Well-Care Services, Inc.
[SIGNATURE ILLEGIBLE] /s/ Rebecca R.Irish
--------------------------- By:------------------------------
Name: Rebecca R. Irish,
Treasurer
/s/ Cheri Jacobs
---------------------------
Name:
117
<PAGE>
WESTERN NORTH CAROLINA HOME
HEALTH CARE, INC., a Florida
corporation, f/k/a Miller/Lyerly
Home Health, Inc.
[SIGNATURE ILLEGIBLE] /s/ Rebecca R.Irish
--------------------------- By:------------------------------
Name: Rebecca R. Irish,
Treasurer
/s/ Cheri Jacobs
---------------------------
Name:
WHITES MEDICAL RENTALS, INC.,
a South Carolina corporation
[SIGNATURE ILLEGIBLE] /s/ Rebecca R.Irish
--------------------------- By:------------------------------
Name: Rebecca R. Irish,
Treasurer
/s/ Cheri Jacobs
---------------------------
Name:
WICHITA MEDICAL CARE, INC.,
a Kansas corporation
[SIGNATURE ILLEGIBLE] /s/ Rebecca R.Irish
--------------------------- By:------------------------------
Name: Rebecca R. Irish,
Treasurer
/s/ Cheri Jacobs
---------------------------
Name:
WOFFORD PHARMACEUTICAL SERVICES,
INC., an Alabama
corporation
[SIGNATURE ILLEGIBLE] /s/ Rebecca R.Irish
---------------------------
Name: By:------------------------------
Rebecca R. Irish,
Treasurer
/s/ Cheri Jacobs
---------------------------
Name:
118
<PAGE>
WOMEN'S HEALTH CARE SERVICES,
INC., a Florida corp
[SIGNATURE ILLEGIBLE] /s/ Rebecca R.Irish
--------------------------- By:--------------------------------
Name Rebecca R. Irish,
Treasurer
/s/ Cheri Jacobs
---------------------------
Name:
WORKER'S HEALTH CARE CLINIC,
INC., a Florida corporation
[SIGNATURE ILLEGIBLE] /s/ Rebecca R.Irish
--------------------------- By:-----------------------------
Name: Rebecca R. Irish,
Treasurer
/s/ Cheri Jacobs
---------------------------
Name:
ZETA HOME HEALTH CARE, INC.,
a Florida corporation
[SIGNATURE ILLEGIBLE] /s/ Rebecca R.Irish
--------------------------- By:----------------------------
Name: Rebecca R. Irish,
Treasurer
/s/ Cheri Jacobs
----------------------------
Name:
119
<PAGE>
ACKNOWLEDGMENT
--------------
STATE OF GEORGIA
COUNTY OF FULTON
On this the 3rd day of June, 1997, personally appeared Rebecca R. Irish, as
Treasurer of Rotech Medical Corporation, a Florida corporation (the "Borrower"),
and Treasurer of each of the Subsidiaries and before me, executed that certain
Second Amended and Restated Revolving Credit and Line of Credit Agreement (the
"Credit Agreement") dated June 3, 1997 by and among the Borrower and SunTrust
Bank, Central Florida, National Association, individually and as Agent,
NationsBank, N.A., Barnett Bank, N.A., Bank of America, FSB, AmSouth Bank of
Florida, Cooperatieve Centrale Raiffeisen-Boerenleenbank B.A., "Rabobank
Nederland", New York Branch, The Sumitomo Bank, Limited, Mellon Bank, N.A. and
Bank One Kentucky, N.A. (collectively, the "Lenders") as the Lenders, on behalf
of the Borrower and the Subsidiaries.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal.
/s/ Tonya Adams
---------------------------------------------
Signature of Notary Public, State of Georgia
Notary Public Cowota County, Georgia
My Commission Expires May 6, 2001
---------------------------------------------
(Print, Type or Stamp Commissioned Name of
Notary Public)
Personally Known _____; OR Produced
identification [X]
-----
Type of identification produced: Florida
------------
Drivers Licence
---------------------------------------------
(Notary Seal)
<PAGE>
[SIGNATURE PAGE TO SECOND AMENDED AND RESTATED REVOLVING CREDIT
AND LINE OF CREDIT AGREEMENT BETWEEN SUNTRUST, AS AGENT,
AND ROTECH MEDICAL CORPORATION]
Address for Notices: SUNTRUST BANK, CENTRAL FLORIDA, NATIONAL
ASSOCIATION,
individually and as Agent
200 S. Orange Avenue
6th Floor - SOAB
Orlando, Florida 32801 By: /s/ Janet P. Sammons
---------------------------------
Name: Janet P. Sammons
---------------------------
Title: V.P.
---------------------------
Attn: Mr. David E. Evans,
Vice President
Telex No. __________
Answerback: ________
Telecopy No. (407) 237-6897
Telephone No. (407) 237-5880
Payment Office:
200 S. Orange Avenue
6th Floor - SOAB
_________________________________________________
Revolving Loan Commitment: $ 65,000,000.00
Pro Rata Share of Revolving Loan Commitment: 22.41%
Line of Credit Commitment: $10,000,000.00
PRO RATA SHARE OF LINE OF CREDIT COMMITMENT: 100%
<PAGE>
ACKNOWLEDGMENT
--------------
STATE OF GEORGIA
COUNTY OF FULTON
On this the 3rd day of June, 1997, personally appeared Janet Sammons, as
Vice President of SunTrust Bank, Central Florida, National Association, a
national banking association ("SunTrust"), and before me, executed that certain
Second Amended and Restated Revolving Credit and Line of Credit Agreement (the
"Credit Agreement") dated June 3, 1997 by and among RoTech Medical Corporation,
as the Borrower and SunTrust, individually and as Agent, NationsBank, N.A.,
Barnett Bank, N.A., Bank of America, FSB, AmSouth Bank of Florida, Cooperatieve
Centrale Raiffeisen-Boerenleenbank B.A., "Rabobank Nederland", New York Branch,
The Sumitomo Bank, Limited, Mellon Bank, N.A. and Bank One Kentucky, N.A.
(collectively, the "Lenders"), as the Lenders, on behalf of SunTrust.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal.
/s/ Tonya Adams
---------------------------------------------
Signature of Notary Public, State of Georgia
_____________________________________________
(Print, Type or Stamp Commissioned Name of
Notary Public)
Personally known [X] ; OR Produced
---
identification _____
Type of identification produced:_____________
---------------------------------------------
(Notary Seal)
<PAGE>
[SIGNATURE PAGE TO SECOND AMENDED AND RESTATED REVOLVING CREDIT
AND LINE OF CREDIT AGREEMENT BETWEEN SUNTRUST, AS AGENT,
AND ROTECH MEDICAL CORPORATION]
Address for Notices: NATIONSBANK, N.A.
111 N. Orange Avenue, Ste. 100M
Orlando, Florida 32801 By: /s/ Rod Banks
------------------------------
Name: Rod Banks
----------------------------
Attn: Mr. Larry Healy Title: Executive Vice President
--------------------------
Senior Vice President
Telecopy No. 407-648-2988
Telephone No. 407-648-2865
Payment Office:
111 N. Orange Avenue, Ste. 100M
Orlando, Florida 32801
________________________________________________________________________________
Revolving Loan Commitment: $50,000,000.00
Pro Rata Share of Revolving Loan Commitment: 17.24%
Line of Credit Commitment: -0-
Pro Rata Share of Line of Credit Commitment: 0%
<PAGE>
ACKNOWLEDGMENT
--------------
STATE OF GEORGIA
COUNTY OF DE KALB
On this the 30th day of May, 1997, personally appeared Red Banks, as
Executive Vice President of NationsBank, N.A., a national banking association
("NationsBank"), and before me, executed that certain Second Amended and
Restated Revolving Credit and Line of Credit Agreement (the "Credit Agreement")
dated June 3, 1997 by and among RoTech Medical Corporation, as the Borrower and
SunTrust Bank, Central Florida, National Association individually and as Agent,
NationsBank, Barnett Bank of Central Florida, N.A., Bank of America, FSB,
AmSouth Bank of Florida, Cooperatieve Centrale Raiffeisen-Boerenleenbank B.A.,
"Rabobank Nederland", New York Branch, The Sumitomo Bank, Limited, Mellon Bank,
N.A. and Bank One Kentucky, N.A. (collectively, the "Lenders"), as the Lenders,
on behalf of NationsBank.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal.
/s/ Tanja A. Rodgers
---------------------------------------------
Signature of Notary Public, State of Georgia
_____________________________________________
(Print, Type or Stamp Commissioned Name of
Notary Public)
Personally known X; OR Produced
identification ____
Type of identification produced:_____________
_____________________________________________
(Notary Seal)
<PAGE>
[SIGNATURE PAGE TO SECOND AMENDED AND RESTATED REVOLVING CREDIT
AND LINE OF CREDIT AGREEMENT BETWEEN SUNTRUST, AS AGENT,
AND ROTECH MEDICAL CORPORATION]
Address for Notices: BARNETT BANK, N.A.
390 N. Orange Avenue, Ste. 700 CB
Post Office Box 3200
Orlando, Florida 32802-3200 By: /s/ Angela S. Harris
------------------------------
Name: Angela S. Harris
----------------------------
Title: Loan Closing Officer
---------------------------
Telecopy No. 407-420-2886
Telephone No. 407-420-2799
Payment Office:
Post Office Box 45264
Jacksonville, Florida 32232-5264
________________________________________________________________________________
Revolving Loan Commitment: $50,000,000.00
Pro Rata Share of Revolving Loan Commitment: 17.24%
Line of Credit Commitment: -0-
Pro Rata Share of Line of Credit Commitment: 0%
<PAGE>
ACKNOWLEDGMENT
--------------
STATE OF GEORGIA
COUNTY OF GLYNN
On this the 2nd day of June, 1997, personally appeared Angela S. Harris, as
Loan Closing Officer of Barnett Bank, N.A., a national banking association
("Barnett"), and before me, executed that certain Second Amended and Restated
Revolving Credit and Line of Credit Agreement (the "Credit Agreement") dated
June 3, 1997 by and among RoTech Medical Corporation, as the Borrower and
SunTrust Bank, Central Florida, National Association individually and as Agent,
NationsBank of Florida, N.A., Barnett, Bank of America, FSB, AmSouth Bank of
Florida, Cooperatieve Centrale Raiffeisen-Boerenleenbank B.A., "Rabobank
Nederland", New York Branch, The Sumitomo Bank, Limited, Mellon Bank, N.A. and
Bank One Kentucky, N.A. (collectively, the "Lenders"), as the Lenders, on behalf
of Barnett.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal.
/s/ Sandra H. Taylor
---------------------------------------------
Signature of Notary Public, State of Georgia
/s/ Sandra H. Taylor
---------------------------------------------
(Print, Type or Stamp Commissioned Name of
Notary Public)
Personally known X ; OR Produced
---
identification ____
Type of identification produced:-------------
---------------------------------------------
(Notary Seal) Notary Public Glynn County
Georgia
My Commission Expires June
27, 1999,
<PAGE>
OUT OF STATE CLOSING AFFIDAVIT
STATE OF GEORGIA
COUNTY OF GLYNN
Before me, the undersigned, a Notary Public in and for the county and
state aforesaid, personally appeared Angela S. Harris, the Loan Closing Officer
of Barnett Bank of Southeast Georgia, N.A., ("Agent"), who, being by me first
duly sworn, stated:
1. The Agent is the duly authorized agent of Barnett Bank, N.A., Central
Florida ("Barnett") for the purposes of accepting delivery of a certain Second
Amended and Restated Revolving Credit and Line of Credit Agreement by and among
Rotech Medical Corporation ("Borrower"); SunTrust Bank, Central Florida,
National Association; NationsBank of Florida, N.A; Barnett Bank, N.A.; Bank of
America, FSB; AmSouth Bank; Cooperatieve Centrale Raiffeisen-Boerenleenbank
B.A., "Rabobank Nederland" New York Branch; The Sumitomo Bank, Limited; Mellon
Bank, N.A.; and Bank One Kentucky, N.A. (collectively, the "Lenders") and
SunTrust, as Agent for the Lenders (the "Agreement")
2. Agent has this day received delivery of the Agreement in Glynn
County, Georgia.
DATED this 2nd day of June, 1997.
Barnett Bank of Southeast Georgia, N.A.
Angela S. Harris
----------------------------------
Print Name: /s/ Angela S. Harris
----------------------------
Sworn to and subscribed before me this
2nd day of June, 1997
/s/ Sandra H. Taylor
- ---------------------------------- [SEAL]
Notary Public
Print Name: Sandra H. Taylor
----------------------
State and County Aforesaid
My Commission Expires:
Notary Public Glynn County, Georgia
My Commission Expires June 27, 1999.
<PAGE>
[SIGNATURE PAGE TO SECOND AMENDED AND RESTATED REVOLVING CREDIT
AND LINE OF CREDIT AGREEMENT BETWEEN SUNTRUST, AS AGENT,
AND ROTECH MEDICAL CORPORATION]
Address for Notices: BANK OF AMERICA, FSB
Atlanta Regional Commercial Banking
1230 Peachtree Street
Suite 3600
Atlanta, Georgia 30309
By: /s/ John O. Deering
----------------------------
Name: John O. Deering
--------------------------
Title: Vice President
-------------------------
Attn: Mr. John Deering
Vice President
Telecopy No. 404-815-5919
Telephone No. 404-815-5928
Payment Office:
Bank of America
141 Mission Falls Lane
Box 14096
Fremont, California 94539
Attn: Mary Nelson
________________________________________________________________________________
Revolving Loan Commitment: $40,000,000.00
Pro Rata Share of Revolving Loan Commitment: 13.79%
Line of Credit Commitment: -0-
Pro Rata Share of Line of Credit Commitment: 0%
<PAGE>
ACKNOWLEDGMENT
--------------
STATE OF GEORGIA
COUNTY OF FULTON
On this the 3rd day of June, 1997, personally appeared John O. Deering, as
Vice President of Bank of America, FSB, a federal savings bank ("Bank of
America"), and before me, executed that certain Second Amended and Restated
Revolving Credit and Line of Credit Agreement (the "Credit Agreement") dated
June 3, 1997 by and among RoTech Medical Corporation, as the Borrower and
SunTrust Bank, Central Florida, National Association individually and as Agent,
NationsBank, N.A., Barnett Bank, N.A., Bank of America, AmSouth Bank of Florida,
Cooperatieve Centrale Raiffeisen-Boerenleenbank B.A., "Rabobank Nederland", New
York Branch, The Sumitomo Bank, Limited, Mellon Bank, N.A. and Bank One
Kentucky, N.A. (collectively, the "Lenders"), as the Lenders, on behalf of Bank
of America.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal.
/s/ Gail P. Carroll
---------------------------------------------
Signature of Notary Public, State of Georgia
/s/ GAIL P. CARROLL
---------------------------------------------
(Print, Type or Stamp Commissioned Name of
Notary Public)
Personally known [X] ; OR Produced
---
identification ____
Type of identification produced:-------------
---------------------------------------------
(Notary Seal)
<PAGE>
[SIGNATURE PAGE TO SECOND AMENDED AND RESTATED REVOLVING CREDIT
AND LINE OF CREDIT AGREEMENT BETWEEN SUNTRUST, AS AGENT,
AND ROTECH MEDICAL CORPORATION]
Address for Notices: AMSOUTH BANK OF FLORIDA
65 North Orange Avenue
Post Office Box 588001
Orlando, Florida 32858 By: /s/ Joseph M. Rusnic
-----------------------------
Name: Joseph M. Rusnic
---------------------------
Title: Senior Vice President
--------------------------
Attn: Mr. Tony Stiffler
Vice President - Commercial Banking
Telecopy No. 407-246-8946, Ext. 248
Telephone No. 407-649-8441
Payment Office:
65 North Orange Avenue
Orlando, Florida 32801
________________________________________________________________________________
Revolving Loan Commitment: $25,000,000.00
Pro Rata Share of Revolving Loan Commitment: 8.62%
Line of Credit Commitment: -0-
Pro Rata Share of Line of Credit Commitment: 0%
<PAGE>
ACKNOWLEDGMENT
--------------
STATE OF ALABAMA
COUNTY OF JEFFERSON
On this the 29 day of May, 1997, personally appeared JOSEPH M. RUSNIC, as
SENIOR VICE PRESIDENT of AmSouth Bank of Florida, a ALABAMA banking corporation
("AmSouth"), and before me, executed that certain Second Amended and Restated
Revolving Credit and Line of Credit Agreement (the "Credit Agreement") dated
June 3, 1997 by and among RoTech Medical Corporation, as the Borrower and
SunTrust Bank, Central Florida, National Association individually and as Agent,
NationsBank of Florida, N.A., Barnett Bank of Central Florida, N.A., Bank of
America, FSB, AmSouth, Cooperatieve Centrale Raiffeisen-Boerenleenbank B.A.,
"Rabobank Nederland", New York Branch, The Sumitomo Bank, Limited, Mellon Bank,
N.A. and Bank One Kentucky, N.A. (collectively, the "Lenders"), as the Lenders,
on behalf of AmSouth.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal.
/s/ Nancy C. Parsons
---------------------------------------------
Signature of Notary Public, State of Alabama
/s/ NANCY C. PARSONS
---------------------------------------------
(Print, Type or Stamp Commissioned Name of
Notary Public)
Personally known [X] ; OR Produced
---
identification ____
Type of identification produced:-------------
---------------------------------------------
(Notary Seal)
<PAGE>
[SIGNATURE PAGE TO SECOND AMENDED AND RESTATED REVOLVING CREDIT AND
LINE OF CREDIT AGREEMENT BETWEEN SUNTRUST, AS AGENT,
AND ROTECH MEDICAL CORPORATION]
Address for Notices COOPERATIEVE CENTRALE
of Advances, payments, etc. RAIFFEISEN-BOERENLEENBANK
under Article IV: B.A., "RABOBANK NEDERLAND",
NEW YORK BRANCH
245 Park Avenue
39th Floor
New York, NY 10167 By: /s/ W. Jeffrey Vollack
-----------------------------
Name: W. Jeffrey Vollack
---------------------------
Attn: Debra Rivers, Title: Vice President Manager
--------------------------
Customer Service Rep.
Telecopy No. 212-916-7930
Telephone No. 212-916-7845 By: /s/ Ian Reece
-----------------------------
Name: Ian Reece
---------------------------
Title: Senior Credit Officer
--------------------------
Address for Other Notices
under Articles VII and VIII, etc.:
One Atlantic Center
Suite 3450
1201 W. Peachtree Street
Atlanta, GA 30308-3400
Attn: Terrell Boyle,
Vice President
Telecopy No. 404-877-9150
Telephone No. 404-877-9106
Payment Office:
245 Park Avenue, 39th Floor
New York, NY 10167
________________________________________________________________________________
Revolving Loan Commitment: $20,000,000.00
Pro Rata Share of Revolving Loan Commitment: 6.90%
Line of Credit Commitment: -0-
Pro Rata Share of Line of Credit Commitment: 0%
<PAGE>
ACKNOWLEDGMENT
--------------
STATE OF NEW YORK
COUNTY OF NEW YORK
On this the 2nd day of June, 1997, personally appeared W. JEFFREY VOLLACK
and IAN REECE, as VICE PRESIDENT, MGR. and VICE PRESIDENT, SENIOR CREDIT, MGR,
respectively, of Cooperatieve Centrale Raiffeisen-Boerenleenbank B.A., "Rabobank
Nederland", New York Branch, a Dutch banking corporation ("Rabobank"), and
before me, executed that certain Second Amended and Restated Revolving Credit
and Line of Credit Agreement (the "Credit Agreement") dated June 3, 1997 by and
among RoTech Medical Corporation, as the Borrower and SunTrust Bank, Central
Florida, National Association individually and as Agent, NationsBank of Florida,
N.A., Barnett Bank of Central Florida, N.A., Bank of America, FSB, AmSouth Bank
of Florida, Rabobank, The Sumitomo Bank, Limited, Mellon Bank, N.A. and Bank One
Kentucky, N.A. (collectively, the "Lenders"), as the Lenders, on behalf of
Rabobank.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal.
/s/ Diana Wong
---------------------------------------------
Signature of Notary Public, State of New York
---------------------------------------------
(Print, Type or Stamp Commissioned Name of
Notary Public)
Personally known [X]; OR Produced
---
identification ____
Type of identification produced:_____________
---------------------------------------------
(Notary Seal)
<PAGE>
[SIGNATURE PAGE TO SECOND AMENDED AND RESTATED REVOLVING CREDIT
AND LINE OF CREDIT AGREEMENT BETWEEN SUNTRUST, AS AGENT,
AND ROTECH MEDICAL CORPORATION]
Address for Notices: THE SUMITOMO BANK, LIMITED
Tampa Representative Office
100 South Ashley Drive,
Suite 1780
Tampa, Florida 33602 By: /s/ Brian M. Smith
-----------------------------
Name: Brian M. Smith
---------------------------
Title: Senior Vice President
--------------------------
Attn: Mr. Allen L. Harvell, Jr.
Vice President and Manager,
U.S. Commercial Banking
Department By: /s/ Jeffrey Frost
-----------------------------
Name: Jeffrey Frost
---------------------------
Telecopy No. 813-229-6006 Title: Vice Presidents
--------------------------
Telephone No. 813-229-6372
Payment Office:
Chicago Administration Center
233 South Wacker Drive, Suite 5400
Chicago, IL 60606
Attn: Vice President and Manager
________________________________________________________________________________
Revolving Loan Commitment: $15,000,000.00
Pro Rata Share of Revolving Loan Commitment: 5.17%
Line of Credit Commitment: -0-
Pro Rata Share of Line of Credit Commitment: 0%
<PAGE>
ACKNOWLEDGMENT
--------------
STATE OF NEW YORK
COUNTY OF NEW YORK
On this the 30th day of May, 1997, personally appeared Brian M. Smith and
Jeffrey Frost, as Senior Vice President and Vice President, respecively, of The
Sumitomo Bank, Limited, a Japanese banking corporation ("Sumitomo"), and before
me, executed that certain Second Amended and Restated Revolving Credit and Line
of Credit Agreement (the "Credit Agreement") dated June 3, 1997 by and among
RoTech Medical Corporation, as the Borrower and SunTrust Bank, Central Florida,
National Association individually and as Agent, NationsBank of Florida, N.A.,
Barnett Bank of Central Florida, N.A., Bank of America, FSB, AmSouth Bank of
Florida, Cooperatieve Centrale Raiffeisen-Boerenleenbank B.A., "Rabobank
Nederland", New York Branch, Sumitomo, Mellon Bank, N.A. and Bank One Kentucky,
N.A. (collectively, the "Lenders"), as the Lenders, on behalf of Sumitomo.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal.
/s/ Alisa M. Hardy
---------------------------------------------
Signature of Notary Public, State of New York
---------------------------------------------
(Print, Type or Stamp Commissioned Name of
Notary Public)
Personally known ____; OR Produced
identification [X]
---
Type of identification produced: Driver's
------------
Licenses
---------------------------------------------
(Notary Seal)
<PAGE>
[SIGNATURE PAGE TO SECOND AMENDED AND RESTATED REVOLVING CREDIT AND LINE
OF CREDIT AGREEMENT BETWEEN SUNTRUST, AS AGENT,
AND ROTECH MEDICAL CORPORATION]
Address for Notices: MELLON BANK, N.A.
Two Mellon Bank Center
Room 152-0270
Pittsburgh, Pennsylvania 15259 By: /s/ Marsha Wicker
-----------------------------
Name: Marsha Wicker
---------------------------
Title: V.P.
--------------------------
Attn: Ms. Marsha Wicker
Vice President
Telecopy No. 412-234-9010
Telephone No. 412-234-3594
Payment Office:
THREE MELLON BANK CENTER
Room 153-2332
PittsBurgh Pa 15259
________________________________________________________________________________
Revolving Loan Commitment: $15,000,000.00
Pro Rata Share of Revolving Loan Commitment: 5.17%
Line of Credit Commitment: -0-
Pro Rata Share of Line of Credit Commitment: 0%
<PAGE>
ACKNOWLEDGMENT
--------------
STATE OF PENNSYLVANIA
COUNTY OF ALLEGHENY
On this the 2nd day of June, 1997, personally appeared Marsha Wicker, as
Vice President of Mellon Bank, N.A., a national banking association ("Mellon"),
and before me, executed that certain Second Amended and Restated Revolving
Credit and Line of Credit Agreement (the "Credit Agreement") dated June 3, 1997
by and among RoTech Medical Corporation, as the Borrower and SunTrust Bank,
Central Florida, National Association individually and as Agent, NationsBank of
Florida, N.A., Barnett Bank of Central Florida, N.A., Bank of America, FSB,
AmSouth Bank of Florida, Cooperatieve Centrale Raiffeisen-Boerenleenbank B.A.,
"Rabobank Nederland", New York Branch, The Sumitomo Bank, Limited, Mellon and
Bank One Kentucky, N.A. (collectively, the "Lenders"), as the Lenders, on behalf
of Rabobank.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal.
/s/ Theresa L. Toncich
---------------------------------------------
Signature of Notary Public, State of
Pennsylvania
---------------------------------------------
(Print, Type or Stamp Commissioned Name of
Notary Public)
Personally known X ; OR Produced
identification ____
Type of identification produced:-------------
---------------------------------------------
(Notary Seal)
<PAGE>
[SIGNATURE PAGE TO SECOND AMENDED AND RESTATED REVOLVING CREDIT
AND LINE OF CREDIT AGREEMENT BETWEEN SUNTRUST, AS AGENT,
AND ROTECH MEDICAL CORPORATION]
Address for Notices: BANK ONE KENTUCKY, N.A.
416 West Jefferson Street
Louisvile, Kentucky 40202 By: /s/ Todd D. Munson
-----------------------------
Name: Todd D. Munson
---------------------------
Title: SR. Vice President
--------------------------
Attn: Mr. Todd D. Munson
Senior Vice President
Telecopy No. 502-566-2367
Telephone No. 502-566-2640
Payment Office:
Attn: Cathy Harris
(502) 566-8146
- --------------------------
________________________________________________________________________________
Revolving Loan Commitment: $10,000,000.00
Pro Rata Share of Revolving Loan Commitment: 3.45%
Line of Credit Commitment: -0-
Pro Rata Share of Line of Credit Commitment: 0%
<PAGE>
ACKNOWLEDGMENT
--------------
STATE OF KENTUCKY ???????????
-----------
COUNTY OF JEFFERSON
On this the 3rd day of June, 1997, personally appeared ??????????? as
????????????? of Bank One Kentucky, N.A., a national banking association ("Bank
One"), and before me, executed that certain Second Amended and Restated
Revolving Credit and Line of Credit Agreement (the "Credit Agreement") dated
June 3, 1997 by and among RoTech Medical Corporation, as the Borrower and
SunTrust Bank, Central Florida, National Association individually and as Agent,
NationsBank of Florida, N.A., Barnett Bank of Central Florida, N.A., Bank of
America, FSB, AmSouth Bank of Florida, Cooperatieve Centrale Raiffeisen-
Boerenleenbank B.A., "Rabobank Nederland", New York Branch, The Sumitomo Bank,
Limited, Mellon Bank, N.A. and Bank One (collectively, the "Lenders"), as the
Lenders, on behalf of Bank One.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal.
/s/ Kathy P. Harris
---------------------------------------------
Signature of Notary Public, State of Kentucky
Notary Public, State at Large KY
My commission expires July 5, 1998
---------------------------------------------
(Print, Type or Stamp Commissioned Name of
Notary Public)
Personally known X; OR Produced
identification ____
Type of identification
produced:------------------------------------
---------------------------------------------
(Notary Seal)
<PAGE>
AFFIDAVIT OF OUT-OF-STATE DELIVERY
----------------------------------
STATE OF GEORGIA
COUNTY OF FULTON
I, Janet P. Sammons being first duly sworn, upon my oath, depose and
say:
1. That I am a/ Vice President of SunTrust Bank, Central Florida,
National Association ("SunTrust").
2. That on the 3rd day of June, 1997, I witnessed the execution by the
Borrower (as hereinafter defined) of that certain Second Amended and Restated
Revolving Credit and Line of Credit Agreement (the "Credit Agreement") dated
June 3, 1997 by and among RoTech Medical Corporation as the Borrower (the
"Borrower") and SunTrust, individually and as Agent, NationsBank, N.A., Barnett
Bank, N.A., Bank of America, FSB, AmSouth Bank of Florida, Cooperatieve Centrale
Raiffeisen-Boerenleenbank B.A., "Rabobank Nederland", New York Branch, The
Sumitomo Bank, Limited, Mellon Bank, N.A., and Bank One Kentucky, N.A.
(collectively, the "Lenders") as the Lenders.
3. That execution of the Credit Agreement took place in the City of
Atlanta, State of Georgia.
4. That I received by Federal Express or hand delivery, as the case may
be, original, executed Signature Pages to the Credit Agreement from each of the
Lenders except SunTrust.
5. That I accepted delivery of the Credit Agreement, including the
Signature Pages, on behalf of the Lenders in Atlanta, Georgia.
Janet P. Sammons
-----------------------------
Name: /s/ Janet P. Sammons
-----------------------
Title: V.P.
----------------------
Sworn to and subscribed before me this 3rd day of June, 1997.
---
/s/ Tonya Adams
-------------------------------------------------
Signature of Notary Public, State of Georgia
-------------------------------------------------
Stamp, Type or Print Commissioned Name of Notary
Public Personally Know: X ; or Produced
---
Indentification:_________________________________
Type of Identification:__________________________
(NOTARIAL SEAL)
<PAGE>
SCHEDULE OF EXHIBITS
--------------------
Exhibit A Form of Assignment and Acceptance
Exhibit B Copy of Existing Subsidiary Guaranty Agreement,
together with First Supplement thereto
Exhibit C Copy of Existing Contribution Agreement, together
with First Supplement thereto
Exhibit D Form of Line of Credit Note
Exhibit E Form of Revolving Credit Note
Exhibit F Form of Closing Certificate
Exhibit G Form of Opinion of Borrower's Counsel
Exhibit H Form of Joinder to this Agreement
Exhibit I Form of Supplement to Subsidiary Guaranty Agreement
Exhibit J Form of Negative Pledge
Exhibit K Form of Supplement to Contribution Agreement
Exhibit L Description of Redeemable Common Stock
<PAGE>
EXHIBIT "A"
FORM OF ASSIGNMENT AND ACCEPTANCE
---------------------------------
Reference is made to that certain Second Amended and Restated Revolving
Credit and Line of Credit Agreement dated as of June 3, 1997 (as may be amended,
modified or supplemented to the date hereof, the "Credit Agreement"), among
ROTECH MEDICAL CORPORATION, as Borrower, the lenders listed on the signature
pages thereof ("Lenders"), and SUNTRUST BANK, CENTRAL FLORIDA, NATIONAL
ASSOCIATION, as Agent. Terms defined in the Credit Agreement are used herein
with the same meanings.
1. Assignor (as identified below) hereby sells and assigns to Assignee
(as identified below), without recourse against Assignor, and Assignee
hereby purchases and assumes from Assignor, without recourse against
Assignor, effective as of the Effective Date hereinafter set forth,
the interests set forth below (collectively, the "Assigned Interest"),
in Assignor's rights and obligations under the Credit Agreement,
including without limitation, the below specified Revolving Loan
Commitment of Assignor on the Effective Date, and the below specified
Revolving Loans owing to Assignor that are outstanding on the
Effective Date, together with unpaid interest accrued on the assigned
Loans to the Effective Date, and the amount (if any) set forth below
of the fees referred to in Section 2.8 and Section 4.5(b) of the
Credit Agreement accrued to the Effective Date for the account of
Assignor. From and after the Effective Date, (a) Assignee shall be a
party to and be bound by the provisions of the Credit Agreement, and
to the extent of the interest assigned by this Assignment and
Acceptance, have the rights and obligations of a Lender thereunder and
under the Credit Documents (except for any such obligations that are
due and payable on, or that become due and payable before, the
effectiveness of this Assignment and Acceptance), and (b) Assignor
shall, to the extent of its interest assigned by this Assignment and
Acceptance and otherwise to the extent set forth in the foregoing
clause (a), relinquish its rights and be released from its obligations
under the Credit Agreement and the Credit Documents.
2. Each of the Assignor and the Assignee represents, warrants and agrees
to and with the other and the Agent as follows: (a) Assignor warrants
that it is the legal and beneficial owner of the interest being
assigned hereby free and clear of any adverse claim and that its
<PAGE>
Revolving Loan Commitment and the outstanding balances of its Loans
under such Facility, without giving effect to assignments thereof
which have not become effective, are as set forth below, (b) except as
set forth in (a), Assignor makes no representation or warranty and
assumes no responsibility with respect to any statements, warranties
or representations made in or in connection with the Credit Agreement,
or the execution, legality, validity, enforceability, genuineness,
sufficiency or value of the Credit Agreement or any other Credit
Document or any instrument or documents furnished pursuant thereto, or
the financial condition of the Borrower or any other Credit Party of
any of its obligations under the Credit Documents; (c) the Assignee
represents and warrants that it is legally authorized to enter into
this Assignment and Acceptance; (d) Assignee confirms that it has
received a copy of the Credit Agreement, such financial statements and
other documents and information as it has deemed appropriate to make
its own credit analysis and decision to enter into this Assignment and
Acceptance; (e) Assignee agrees that it will perform its obligations
as a Lender under the Credit Documents as required by the terms
thereof; and (f) Assignee appoints and authorizes the Agent to take
such actions as agent on its behalf and to exercise such powers under
the Credit Agreement and the other Credit Documents as are delegated
to the Agent by the terms of the Credit Documents and as are
reasonably incidental thereto.
3. This Assignment and Acceptance is being delivered to the Agent,
together with (a) the Notes evidencing the Loans included in the
Assigned Interest, and (b) a copy of the Assignment and Acceptance
after it is duly executed by each of the Assignee and the Assignor.
4. This Assignment shall be governed by and construed in accordance with
the laws of the State of Florida, without regard to the conflict of
laws principles thereof.
Date of Assignment:
Legal Name of Assignor:
Legal Name of Assignee:
2
<PAGE>
Assignee's Address (Including Telex and Telecopy Numbers) for Notices:
Assignee's Lending Office:
Effective Date of Assignment (may not be fewer than five (5)
Business Days after the date of the Assignment):
REVOLVING LOANS ASSIGNED:
Percentage of
Principal Amount Commitment
Facility Assigned Assigned
- -------- ---------------- --------
Revolving Loan $ %
Facility
Immediately after giving effect to this Assignment:
The aggregate amount of the Revolving Loan Commitment of
Assignor is $_____________________.
The aggregate amount of the Revolving Loan Commitment of Assignee is
$_____________________.
[NAME OF ASSIGNOR]
By:_____________________________
Name:
Title:
As Assignor
[NAME OF ASSIGNEE]
By:_____________________________
Name:
Title:
As Assignee
3
<PAGE>
CONSENTED TO:
SUNTRUST BANK, CENTRAL FLORIDA, NATIONAL ASSOCIATION
By:_____________________________________
Name:
Title:
As Agent
ROTECH MEDICAL CORPORATION
By:_____________________________________
Name:
Title:
As Borrower
4
<PAGE>
EXHIBIT "B"
SUBSIDIARY GUARANTY AGREEMENT
-----------------------------
See Attached.
<PAGE>
EXHIBIT "C"
CONTRIBUTION AGREEMENT
----------------------
See Attached.
<PAGE>
EXHIBIT "D"
-----------
LINE OF CREDIT NOTE
-------------------
June 3, 1997 $10,000,000.00
____________, ___________
FOR VALUE RECEIVED, the undersigned, ROTECH MEDICAL CORPORATION, a Florida
corporation (the "Borrower"), promises to pay to the order of SUNTRUST BANK,
CENTRAL FLORIDA, NATIONAL ASSOCIATION, a national banking association (the
"Bank") at the principal office of the Bank at 200 South Orange Avenue, Orlando,
Florida 32801, or at such other place as the holder hereof may designate by
notice in writing to Borrower, in immediately available funds in lawful money of
the United States of America on the sooner of (i) the Termination Date (as
defined in the Agreement hereinafter described) or (ii) acceleration of this
indebtedness as hereinafter provided, the lesser of (i) the principal sum of TEN
MILLION DOLLARS ($10,000,000.00), or (ii) so much thereof as shall have been
from time to time disbursed hereunder by the Bank in accordance with that
certain Second Amended Revolving Credit and Line of Credit Agreement dated as of
June 3, 1997 (as amended, modified or supplemented, the "Agreement") by and
among the Borrower, the Bank, and the other Lenders which are parties thereto
from time to time, and not theretofore repaid, as shown on the grid schedule
attached hereto (the "Grid Schedule").
In addition to principal, Borrower agrees to pay interest on the principal
amounts disbursed hereunder from time to time from the date of each disbursement
until paid at such simple rates of interest per annum and upon such dates as
provided for in the Agreement. Interest shall accrue on the outstanding
principal balance from the date hereof up to and through the date on which all
principal and interest hereunder is paid in full, and shall be computed on the
basis of the actual number of days elapsed in a 360-day year. Such interest is
to be paid to the Bank at its main office in Orlando, Florida.
This Line of Credit Note ("Note") evidences a loan incurred pursuant to the
terms and conditions of the Agreement to which reference is hereby made for a
full and complete description of such terms and conditions. All capitalized
terms used in this Note shall have the same meanings as set forth in the
Agreement.
Bank shall at all times have a right of set-off against any deposit
balances of Borrower in the possession of the Bank and the Bank may apply the
same against payment of this Note or any other indebtedness of Borrower to the
Bank. The payment of any indebtedness evidenced by this Note prior to the
Termination Date or demand shall not affect the enforceability of this Note as
to any future, different or other indebtedness incurred hereunder by the
Borrower. In the event the indebtedness evidenced by this
<PAGE>
Note is collected by legal action or through an attorney-at-law, the Bank shall
be entitled to recover from Borrower all costs of collection, including, without
limitation, reasonable attorneys' fees if collected by or through an
attorney-at-law.
Borrower acknowledges that the actual crediting of the amount of any
disbursement under the Agreement to an account of Borrower or recording such
amount in the Grid Schedule shall, in the absence of manifest error, constitute
presumptive evidence of such disbursement and that such advance was made and
borrowed under the Agreement. Such account records or Grid Schedule shall
constitute, in the absence of manifest error, presumptive evidence of principal
amounts outstanding and the payments made under the Agreement at any time and
from time to time, provided that the failure of Bank or any holder hereof to
record on the Grid Schedule or in such account the type or amount of any advance
shall not affect the obligation of the undersigned to repay such amount together
with interest thereon in accordance with this Note and the Agreement.
Upon the existence or occurrence of any Event of Default as defined in the
Agreement, the principal and all accrued interest hereof shall automatically
become, or may be declared, due and payable in the manner and with the effect
provided in the Agreement.
Prepayment of the Note in part or in whole is permitted subject to the
conditions set forth in the Agreement.
Failure or forbearance of Bank to exercise any right hereunder, or
otherwise granted by the Agreement or by law, shall not affect or release the
liability of Borrower hereunder, and shall not constitute a waiver of such right
unless so stated by Bank in writing. This Note shall be deemed to be made under,
and shall be construed in accordance with and governed by, the laws of the State
of Florida. Time is of the essence of this Note.
PRESENTMENT FOR PAYMENT, NOTICE OF DISHONOR AND PROTEST ARE HEREBY WAIVED.
Executed under hand and seal of the Borrower as of the day and year first
above written on this 3rd day of June, 1997.
ROTECH MEDICAL CORPORATION
By:________________________________
Name:___________________________
Title:__________________________
2
<PAGE>
ACKNOWLEDGMENT
--------------
STATE OF GEORGIA
COUNTY OF FULTON
On this the ____ day of June, 1997 personally appeared _______________, the
______________ of Rotech Medical Corporation, a Florida corporation, and before
me, executed the foregoing Line of Credit Note of even date in the principal
amount of TEN MILLION AND 00/100 DOLLARS ($10,000,000.00), payable to SunTrust
Bank, Central Florida, National Assoc iation.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal.
_____________________________________________
Signature of Notary Public, State of Georgia
_____________________________________________
(Print, Type or Stamp Commissioned Name of Notary Public)
Personally known ____; OR Produced identification ____
Type of identification produced:_________________________
_________________________________________________________
(Notary Seal)
3
<PAGE>
GRID SCHEDULE
-------------
LINE OF CREDIT NOTE
<TABLE>
<CAPTION>
============================================================================================================================
Unpaid
Amount of Principal
Amount of Advance Amount of Notation
Date Due Date Advance Interest Rate Repaid Advance Made by
============================================================================================================================
<S> <C> <C> <C> <C> <C> <C>
- ----------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------
============================================================================================================================
</TABLE>
<PAGE>
EXHIBIT "E"
-----------
REVOLVING CREDIT NOTE
---------------------
June 3, 1997 $ ________________
____________, ______________
FOR VALUE RECEIVED, the undersigned, ROTECH MEDICAL CORPORATION, a
Florida corporation (the "Borrower"), promises to pay to the order of
___________________, a ______________, (the "Bank") at the principal office of
the Bank at _________________ _________________________________, or at such
other place as the holder hereof may designate by notice in writing to Borrower,
in immediately available funds in lawful money of the United States of America,
on the sooner of (i) the Termination Date (as defined in the Agreement
hereinafter described), or (ii) acceleration of this indebtedness as hereinafter
provided, the lesser of (i) the principal sum of ____________________________
($_________) or (ii) so much thereof as shall have been from time to time
disbursed hereunder by the Bank in accordance with that certain Second Amended
and Restated Revolving Credit and Line of Credit Agreement dated as of June 3,
1997 (as amended, modified or supplemented, the "Agreement") by and among the
Borrower, the Bank, and the other Lenders which are parties thereto from time to
time, and not theretofore repaid, as shown on the grid schedule attached hereto
(the "Grid Schedule").
In addition to principal, Borrower agrees to pay interest on the
principal amounts disbursed hereunder from time to time from the date of each
disbursement until paid at such simple rates of interest per annum and upon such
dates as provided for in the Agreement. Interest shall accrue on the outstanding
principal balance from the date hereof up to and through the date on which all
principal and interest hereunder is paid in full, and shall be computed on the
basis of the actual number of days elapsed in a 360-day year. Such interest is
to be paid to the Bank at its main office in ____________, ___________.
This Revolving Credit Note ("Note") evidences a loan incurred pursuant
to the terms and conditions of the Agreement to which reference is hereby made
for a full and complete description of such terms and conditions. All
capitalized terms used in this Note shall have the same meanings as set forth in
the Agreement.
Bank shall at all times have a right of set-off against any deposit
balances of Borrower in the possession of the Bank and the Bank may apply the
same against payment of this Note or any other indebtedness of Borrower to the
Bank. The payment of any indebtedness evidenced by this Note prior to the
Termination Date or demand shall not affect the enforceability of this Note as
to any future, different or other indebtedness incurred hereunder by the
Borrower. In the event the indebtedness
<PAGE>
evidenced by this Note is collected by legal action or through an attorney-at-
law, the Bank shall be entitled to recover from Borrower all costs of
collection, including, without limitation, reasonable attorneys' fees if
collected by or through an attorney-at-law.
Borrower acknowledges that the actual crediting of the amount of any
disbursement under the Agreement to an account of Borrower or recording such
amount in the Grid Schedule shall, in the absence of manifest error, constitute
presumptive evidence of such disbursement and that such advance was made and
borrowed under the Agreement. Such account records or Grid Schedule shall
constitute, in the absence of manifest error, presumptive evidence of principal
amounts outstanding and the payments made under the Agreement at any time and
from time to time, provided that the failure of Bank or any holder hereof to
record on the Grid Schedule or in such account the type or amount of any advance
shall not affect the obligation of the undersigned to repay such amount together
with interest thereon in accordance with this Note and the Agreement.
Upon the existence or occurrence of any Event of Default as defined in
the Agreement, the principal and all accrued interest hereof shall automatically
become, or may be declared, due and payable in the manner and with the effect
provided in the Agreement.
Prepayment of the Note in part or in whole is permitted subject to the
conditions set forth in the Agreement.
Failure or forbearance of Bank to exercise any right hereunder, or
otherwise granted by the Agreement or by law, shall not affect or release the
liability of Borrower hereunder, and shall not constitute a waiver of such right
unless so stated by Bank in writing. This Note shall be deemed to be made under,
and shall be construed in accordance with and governed by, the laws of the State
of Florida. Time is of the essence of this Note.
PRESENTMENT FOR PAYMENT, NOTICE OF DISHONOR AND PROTEST ARE HEREBY
WAIVED.
Executed under hand and seal of the Borrower as of the day and year
first above written on this ____ day of __________, 1997.
ROTECH MEDICAL CORPORATION
By:________________________________
Name:___________________________
Title:__________________________
2
<PAGE>
ACKNOWLEDGMENT
--------------
STATE OF ____________)
COUNTY OF ___________)
On this the ____ day of ___________, 1997, personally appeared
______________________________, the ______________________ of Rotech Medical
Corporation, a Florida corporation, and before me, executed this Revolving
Credit Note in the principal amount of ____________________________________
($_____________), payable to _________________.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal.
_____________________________________________
Signature of Notary Public, State of ________
_____________________________________________
(Print, Type or Stamp Commissioned Name of
Notary Public)
Personally known ____; OR Produced
identification ____
Type of identification produced:_____________
_____________________________________________
(Notary Seal)
3
<PAGE>
GRID SCHEDULE
-------------
REVOLVING CREDIT NOTE
ADVANCES BEARING INTEREST
AT THE BASE RATE
<TABLE>
<CAPTION>
============================================================================================================================
Unpaid
Principal
Amount of Bearing Interest
Amount of Advance at the Above- Notation
Date Due Date Advance Repaid Referenced Rate Made by
============================================================================================================================
<S> <C> <C> <C> <C> <C>
- ----------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------
============================================================================================================================
</TABLE>
4
<PAGE>
GRID SCHEDULE
-------------
REVOLVING CREDIT NOTE
ADVANCES BEARING INTEREST
AT LIBOR (1 MONTH)
<TABLE>
<CAPTION>
============================================================================================================================
Unpaid
Principal
Amount of Bearing Interest
Amount of Advance at the Above- Notation
Date Due Date Advance Repaid Referenced Rate Made by
============================================================================================================================
<S> <C> <C> <C> <C> <C>
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</TABLE>
5
<PAGE>
GRID SCHEDULE
-------------
REVOLVING CREDIT NOTE
ADVANCES BEARING INTEREST
AT LIBOR (2 MONTHS)
<TABLE>
<CAPTION>
============================================================================================================================
Unpaid
Principal
Amount of Bearing Interest
Amount of Advance at the Above- Notation
Date Due Date Advance Repaid Referenced Rate Made by
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<S> <C> <C> <C> <C> <C>
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</TABLE>
6
<PAGE>
GRID SCHEDULE
-------------
REVOLVING CREDIT NOTE
ADVANCES BEARING INTEREST
AT LIBOR (3 MONTHS)
<TABLE>
<CAPTION>
============================================================================================================================
Unpaid
Principal
Amount of Bearing Interest
Amount of Advance at the Above- Notation
Date Due Date Advance Repaid Referenced Rate Made by
============================================================================================================================
<S> <C> <C> <C> <C> <C>
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</TABLE>
7
<PAGE>
GRID SCHEDULE
-------------
REVOLVING CREDIT NOTE
ADVANCES BEARING INTEREST
AT LIBOR (6 MONTHS)
<TABLE>
<CAPTION>
============================================================================================================================
Unpaid
Principal
Amount of Bearing Interest
Amount of Advance at the Above- Notation
Date Due Date Advance Repaid Referenced Rate Made by
============================================================================================================================
<S> <C> <C> <C> <C> <C>
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</TABLE>
8
<PAGE>
EXHIBIT "F"
-----------
FORM OF
CLOSING CERTIFICATE
-------------------
Pursuant to Section 5.1 of the Second Amended and Restated Revolving
Credit and Line of Credit Agreement dated as of June 3, 1997 (the "Credit
Agreement") among ROTECH MEDICAL CORPORATION, a Florida corporation (the
"Borrower"), SUNTRUST BANK, CENTRAL FLORIDA, NATIONAL ASSOCIATION, as Agent, and
the other Lenders at any time and lending institutions listed on the signature
pages thereto, the undersigned in their respective capacities as officers,
directors, or authorized signatories of the Borrower and each Material
Subsidiary hereby certify to the Lenders and the Agent as follows (capitalized
terms used herein having the same meanings as assigned to such terms in the
Credit Agreement):
1. All representations and warranties contained in the Credit Agreement
are true and correct in all material respects on and as of the date
hereof.
2. After giving effect to the Loans to be made to the Borrower pursuant
to the Credit Agreement on the date hereof, no Default or Event of
Default has occurred and is continuing and no condition, event, act or
omission which, with the giving of notice or the lapse of time or
both, would constitute a Default or Event of Default which under the
Credit Agreement or any other Credit Documents has occurred and is
continuing or exists as of the date hereof.
3. As of the date hereof, the Borrower and each Material Subsidiary has
complied with all its duties and obligations and all of the conditions
set forth in the Credit Agreement and each of the other Credit
Documents executed by each of them, in connection with the Credit
Agreement.
4. Since the date of the audited financial statements of the Consolidated
Companies described in Section 6.3 of the Credit Agreement, there has
been no change which has had or could reasonably be expected to have a
Materially Adverse Effect.
5. Except as may be described on Schedule 6.5 of the Credit Agreement, no
action or proceeding has been instituted or is pending before any
court or other governmental authority, or, to the knowledge of the
Borrower, threatened (i) which reasonably could be expected to have a
Materially Adverse Effect, or (ii) seeking to prohibit or restrict one
or more Credit Party's ownership or operation of any portion of its
businesses or assets, where such portion or portions of
<PAGE>
such businesses or assets, as the case may be, constitute a material
portion of the total businesses or assets of the Consolidated
Companies.
6. The Loans to be made on the date hereof are being used solely for the
purposes provided in the Credit Agreement, and such Loans and use of
proceeds thereof will not contravene, violate or conflict with, or
involve the Agent or any Lender in a violation of, any law, rule,
injunction, or regulation, or determination of any court of law or
other governmental authority, applicable to the Borrower.
7. The conditions precedent set forth in Sections 5.1 and 5.2 of the
Credit Agreement have been or will be satisfied (or have been waived
pursuant to the terms of the Credit Agreement) prior to or
concurrently with the making of the Loans under the Credit Agreement
on the date hereof.
8. The execution, delivery and performance by the Credit Parties of the
Credit Documents will not violate any Requirement of Law or cause a
breach or default under any of their respective Contractual
Obligations.
9. Each of the Credit Parties has the corporate power and authority to
make, deliver and perform the Credit Documents to which it is a party
and has taken all necessary corporate action to authorize the
execution, delivery and performance of such Credit Documents. No
consents or authorization of, or filing with, any Person (including,
without limitation, any governmental authority), is required in
connection with the execution, delivery or performance by any Credit
Party, or the validity or enforceability against any Credit Party, of
the Credit Documents, other than such consents, authorizations or
filings which have been made or obtained.
This Certificate executed and delivered on behalf of the Borrower and the
Material Subsidiaries this 3rd day of June, 1997.
ATTEST ROTECH MEDICAL CORPORATION
___________________________ By:___________________________
William A. Walker II, Stephen P. Griggs,
Secretary President
(CORPORATE SEAL)
2
<PAGE>
AS OFFICERS, DIRECTORS AND/OR
AUTHORIZED SIGNATORIES OF EACH
OF THE MATERIAL SUBSIDIARIES:
ATTEST
_______________________________ By:__________________________
Stephen P. Griggs, Rebecca R. Irish,
President or Vice President Treasurer
3
<PAGE>
EXHIBIT "G"
-----------
FORM OF OPINION OF BORROWER'S COUNSEL
-------------------------------------
[LETTERHEAD OF BORROWER'S COUNSEL]
June 3, 1997
To: SunTrust Bank, Central Florida, National Association, as Agent and
each of the Lenders (the "Lenders") who are parties to the Credit Agreement
referenced below, and each assignee thereof that becomes a "Lender" as
provided therein
Re: Second Amended and Restated Revolving Credit and Line of Credit
Agreement dated as of June 3, 1997, among Rotech Medical Corporation
(and joined in by its subsidiaries), SunTrust Bank, Central Florida,
National Association ("SunTrust"), NationsBank, N.A., Barnett Bank,
N.A., Bank of America, FSB, AmSouth Bank of Florida, Cooperateive
Centrale Raiffeisen-Boerenleenbank B.A., "Rabobank Nederland", New
York Branch, The Sumitomo Bank, Limited, Mellon Bank, N.A. and Bank
One Kentucky, N.A., individually, and SunTrust, as Agent for the
Lenders thereunder (the "Amended Credit Agreement")
Ladies and Gentlemen:
We have acted as counsel for RoTech Medical Corporation, a Florida
corporation (the "Borrower"), and its subsidiaries set forth in Exhibit "A"
(collectively known as the "Subsidiaries" and individually known as a
"Subsidiary"), in connection with the modification and increase of certain loan
facilities (the "Loans") made available by the Lenders to the Borrower pursuant
to that certain Amended Revolving Credit and Line of Credit Agreement (the
"Existing Credit Agreement") dated as of June 4, 1996 entered into by and among
the Borrower and the Lenders and joined in by the Subsidiaries, and the increase
thereof by $100,000,000 to the maximum aggregate principal amount of
$300,000,000 pursuant to the above-referenced Amended Credit Agreement.
This opinion is furnished to you pursuant to Section 5.1 of the Amended
Credit Agreement. Unless the context clearly requires otherwise, all capitalized
terms used but not defined herein that are used or defined in the Amended Credit
Agreement are used herein as so used or defined therein.
We previously acted as counsel for the Borrower and the Subsidiaries in
connection with the closing of the original Loans as of December 29, 1995 and
the increase and amendment thereof as
<PAGE>
SunTrust Bank, Central Florida, National Association
[Date]
Page 2
____________________________________________________
of June 4, 1996. In such capacity, we have previously executed and delivered in
favor of the Bank opinions of counsel dated as of December 29, 1995 and as of
June 4, 1996 (the "Prior Opinion Letters").
In our capacity as counsel to the Borrower and the Subsidiaries, we have
examined, among other things, originals or copies certified to our satisfaction
as being true copies of the following documents required to be delivered in
connection with the increase and modification of the Loans and the Amended
Credit Agreement (hereinafter collectively referred to as the "Second Amended
Credit Documents"):
1. Revolving Credit Note in the face amount of $65,000,000 executed by
the Borrower in favor of SunTrust Bank, Central Florida, National
Association, dated June 3, 1997 and out-of-state acknowledgment and
Affidavit of Out-of-State Delivery;
2. Revolving Credit Note in the face amount of $50,000,000 executed by
the Borrower in favor of NationsBank, N.A., dated June 3, 1997 and
out-of-state acknowledgment and Affidavit of Out-of-State Delivery;
3. Revolving Credit Note in the face amount of $50,000,000 executed by
the Borrower in favor of Barnett Bank, N.A., dated June 3, 1997 and
out-of-state acknowledgment and Affidavit of Out-of-State Delivery;
4. Revolving Credit Note in the face amount of $40,000,000 executed by
the Borrower in favor of Bank of America, FSB, dated June 3, 1997 and
out-of-state acknowledgment and Affidavit of Out-of-State Delivery;
5. Revolving Credit Note in the face amount of $25,000,000 executed by
the Borrower in favor of AmSouth Bank of Florida, dated June 3, 1997
and out-of-state acknowledgment and Affidavit of Out-of-State
Delivery;
6. Revolving Credit Note in the face amount of $20,000,000 executed by
the Borrower in favor of Cooperateive Centrale Raiffeisen-
Boerenleenbank B.A., "Rabobank Nederland", New York Branch, dated June
3, 1997 and out-of-state acknowledgment and Affidavit of Out-of-State
Delivery;
<PAGE>
SunTrust Bank, Central Florida, National Association
[Date]
Page 3
____________________________________________________
7. Revolving Credit Note in the face amount of $15,000,000 executed by
the Borrower in favor of The Sumitomo Bank, Limited, dated June 3,
1997 and out-of-state acknowledgment and Affidavit of Out-of-State
Delivery;
8. Revolving Credit Note in the face amount of $15,000,000 executed by
the Borrower in favor of Mellon Bank, N.A., dated June 3, 1997 and
out-of-state acknowledgment and Affidavit of Out-of-State Delivery;
9. Revolving Credit Note in the face amount of $10,000,000 executed by
the Borrower in favor of Bank One Kentucky, N.A., dated June 3, 1997
and out-of-state acknowledgment and Affidavit of Out-of-State
Delivery;
10. Line of Credit Note in the face amount of $10,000,000.00 executed by
the Borrower in favor of SunTrust Bank, Central Florida, National
Association dated June 3, 1997 and out-of-state acknowledgment and
Affidavit of Out-of-State Delivery;
11. The Amended Credit Agreement;
12. Second Supplement to Subsidiary Guaranty Agreement dated June 3, 1997,
made by the Borrower's Subsidiaries acquired or formed since the date
of the Existing Credit Agreement (the "Additional Subsidiaries");
13. Second Supplement to Contribution Agreement dated June 3, 1997, made
by the Additional Subsidiaries;
14. Certificate of the Secretary of the Borrower dated June 3, 1997;
15. Certificate of the Secretary of each of the Additional Subsidiaries
dated June 3, 1997;
16. Closing Certificate of the Borrower and the Material Subsidiaries
dated June 3, 1997; and
17. Agreement Not to Sell or Encumber Assets dated June 3, 1997, made by
the Additional Subsidiaries.
We have also reviewed the Credit Documents and the Amended Credit Documents
(as defined in the Prior Opinion Letters). The Second Amended Credit Documents,
the Amended Credit Documents and
<PAGE>
SunTrust Bank, Central Florida, National Association
[Date]
Page 4
____________________________________________________
the Credit Documents are hereinafter collectively referred to as the "Credit
Documents".
In connection with this opinion, we have assumed the genuineness of all
signatures and the authenticity of all items submitted to us as originals and
the conformity with originals of all items submitted to us as copies, the
accuracy of certification of public officials, governmental agencies, corporate
officers and individuals and statements of fact on which we are relying and all
other matters stated as having been assumed in the Prior Opinion Letter.
Furthermore, we have examined such corporate documents and records of the
Borrower and the Subsidiaries, certificates and records of public officials and
other documents and records and received such information and certificates from
officers and representatives of the Borrower and the Subsidiaries and made such
investigations of law as we have deemed necessary or appropriate for the
purposes of this opinion.
Based and relying solely upon the foregoing, and subject to the
qualifications and assumptions stated in this letter, we are of the opinion
that:
1. The Borrower and any Subsidiary listed on Exhibit "A" which has an "M"
noted to the left of the name of such Subsidiary (collectively known as the
"Material Subsidiaries") are corporations duly formed and validly existing under
the laws of the States of their incorporation. For Subsidiaries other than the
Material Subsidiaries (collectively known as the "Non-Material Subsidiaries"),
we have no knowledge that any of the Non-Material Subsidiaries are not duly
formed nor validly existing under the laws of the States of their incorporation,
nor have we been informed by the Borrower, after making inquiry of the Borrower,
that any of the Non-Material Subsidiaries are not duly formed nor validly
existing as of the date of this letter.
2. The Borrower and the Subsidiaries have full corporate powers, rights,
authority and legal rights to enter into, execute and deliver, and to be bound
by and perform their obligations under the Credit Documents to which they are
parties.
3. The execution and delivery by the Borrower and the Subsidiaries of the
Credit Documents to which they are a party and the consummation of the
transactions contemplated by the provisions thereof, have each been duly
authorized by all necessary corporate action on the part of the Borrower and the
Subsidiaries. No authorization, consent, approval, license or declaration or
filing
<PAGE>
SunTrust Bank, Central Florida, National Association
[Date]
Page 5
____________________________________________________
with any court or governmental department, commission, board, bureau, agency or
instrumentality is required in connection with the execution and delivery of the
Credit Documents by the Borrower and the Subsidiaries or the consummation by the
Borrower and the Subsidiaries of the transactions therein contemplated.
4. The individuals executing the Credit Documents on behalf of the
Borrower and the Subsidiaries have the required power and authority to do so on
behalf of the entities for which they are signing.
5. Neither the execution and delivery by the Borrower or the Subsidiaries
of the Credit Documents to which the Borrower or the Subsidiaries are parties
and which are required to be delivered in connection therewith nor the
consummation by the Borrower or the Subsidiaries of the transactions therein
contemplated nor the compliance by the Borrower or the Subsidiaries with the
terms, conditions and provisions thereof will (a) conflict with or result in a
breach of any of the terms, conditions or provisions of the (i) articles of
incorporation or by-laws of the Borrower or the Subsidiaries or (ii) any
applicable law or governmental ordinance, statute, rule or regulation or (iii)
any order, writ, injunction or decree of any court or governmental
instrumentality or (iv) to the best of our knowledge, any material agreement,
indenture or instrument to which the Borrower or the Subsidiaries are parties or
by which they or any of their properties are bound or to which they or any of
their respective properties are subject or constitute a default thereunder or
(b) to the best of our knowledge, result in the creation or imposition of any
Lien on any of the properties or revenues of the Borrower or the Subsidiaries.
6. The Credit Documents have been duly executed and delivered by the
Borrower and the Subsidiaries and, subject to the limitations and qualifications
set forth herein, constitute legal, valid and binding obligations of the parties
executing same under the laws of Florida, enforceable in accordance with their
respective terms, except as the enforceability of any of the foregoing may be
limited by bankruptcy, insolvency, reorganization, moratorium or other similar
laws or equitable principles affecting the enforcement of creditors' rights
generally or by laws or judicial decisions limiting such enforceability.
7. To the best of our knowledge, there are no actions, suits or
proceedings against or affecting the Borrower, any of the Subsidiaries, either
pending or threatened, involving the validity or enforceability of the Credit
Documents. Neither the Borrower
<PAGE>
SunTrust Bank, Central Florida, National Association
[Date]
Page 6
____________________________________________________
nor any of the Subsidiaries are, to the best of our knowledge, in default under
any other material agreement which would be a default under any of the Credit
Documents. Further, neither the Borrower nor any of the Subsidiaries are, to the
best of our knowledge, in default with respect to any order, writ, judgment,
injunction, decree or demand of any court or any governmental authority.
We are licensed to practice law only in the State of Florida. Accordingly,
the foregoing opinion applies only insofar as the laws of the State of Florida.
We express no opinion with respect to the laws of any other jurisdiction.
This opinion is furnished solely for your benefit and the benefit of your
counsel, and may not be relied upon by any other person or entity or for any
other purpose without the express written permission of the undersigned.
Very truly yours,
WINDERWEEDLE, HAINES, WARD &
WOODMAN, P.A.
<PAGE>
EXHIBIT "H"
FORM OF JOINDER BY SUBSIDIARIES
-------------------------------
JOINDER BY SUBSIDIARY
---------------------
The undersigned, being and constituting a Subsidiary of RoTech Medical
Corporation ("RoTech"), does hereby join in and agree to be bound by all
provisions applicable to such Subsidiary of that certain Second Amended and
Restated Revolving Credit and Line of Credit Agreement (the "Credit Agreement"),
dated as of June 3, 1997, by and between SunTrust Bank, Central Florida,
National Association, individually and as Agent (the "Agent"), and the other
Lenders from time to time parties thereto and RoTech with joinder by all
existing Subsidiaries of RoTech.
The undersigned Subsidiary of RoTech hereby agrees to execute and deliver
to the Agent a Supplement to Guaranty Agreement in the form of Exhibit I to the
---------
Credit Agreement, a Supplement to Contribution Agreement in the form of Exhibit
-------
K to the Credit Agreement and a Negative Pledge, in the form of Exhibit J to the
- - ---------
Credit Agreement.
Dated this _______ day of ____________, 199_.
ATTEST
____________________________ By:______________________________
Name:_______________________ Name:_________________________
Title:______________________ Title:________________________
(CORPORATE SEAL)
<PAGE>
EXHIBIT "I"
FORM OF
SUPPLEMENT TO
SUBSIDIARY GUARANTY AGREEMENT
-----------------------------
THIS SUPPLEMENT TO SUBSIDIARY GUARANTY AGREEMENT (this "Supplement"),
dated as of _________________, 199_, made by _______________________, a
___________ corporation (whether one or more, collectively, the "Additional
Guarantor"), in favor of SUNTRUST BANK, CENTRAL FLORIDA, NATIONAL ASSOCIATION,
a national banking association, in its capacity as agent for Lenders at any time
parties to the Credit Agreement (as hereinafter defined) (the "Agent") and each
assignee thereof becoming a "Lender" as provided therein (the "Lenders"; the
Lenders and the Agent being collectively referred to herein as the "Guaranteed
Parties").
W I T N E S S E T H:
--------------------
WHEREAS, ROTECH MEDICAL CORPORATION, a Florida corporation (the
"Borrower"), the Lenders and the Agent are parties to a Revolving Credit and
Line of Credit Agreement, dated as of December 29, 1995, as amended and restated
in its entirety by an Amended and Restated Revolving Credit and Line of Credit
Agreement, dated as of June 4, 1996 and as further amended and restated in its
entirety by a Second Amended and Restated Revolving Credit and Line of Credit
Agreement dated as of June 3, 1997 (as the same may hereafter be amended,
restated, supplemented or otherwise modified from time to time, the "Credit
Agreement") pursuant to which the Lenders have made commitments to make loans to
the Borrower;
WHEREAS, certain Subsidiaries (the "Subsidiary Guarantors") of the
Borrower have executed and delivered a Subsidiary Guaranty Agreement dated as of
December 29, 1995, as supplemented by a First Supplement dated as of June 4,
1996 (as supplemented, the "Subsidiary Guaranty") pursuant to which the
Subsidiary Guarantors have agreed to guarantee all of the obligations of the
Borrower under the Credit Agreement and the other Credit Documents (as defined
in the Credit Agreement);
WHEREAS, the Borrower, the Subsidiary Guarantors and the Additional
Guarantor share an identity of interests as members of a consolidated group of
companies engaged in substantially similar businesses; the Borrower provides
certain centralized financial, accounting and management services to the
Additional Guarantor; the making of the loans will facilitate expansion and
enhance the overall financial strength and stability of the Borrower's corporate
group, including the Additional Guarantor; and by virtue of intercompany
advances and loans, the financial accommodations to
<PAGE>
the Borrower under the Credit Agreement shall inure to the direct and material
benefit of the Additional Guarantor; and
WHEREAS, it is a condition subsequent to the Lenders' obligation to
make loans to the Borrower under the Credit Agreement that the Additional
Guarantor execute and deliver to the Agent this Supplement, and the Additional
Guarantor desires to execute and deliver this Supplement to satisfy such
condition subsequent;
NOW, THEREFORE, in consideration of the premises and in order to
induce the Lenders to make the Loans to the Borrower under the Credit Agreement,
the Additional Guarantor hereby agrees as follows:
I. DEFINED TERMS. Capitalized terms not otherwise defined herein which
-------------
are used in the Subsidiary Guaranty are used herein with the meanings given to
such terms in the Subsidiary Guaranty and any capitalized terms not otherwise
defined herein which are used in the Credit Agreement are used herein with the
meanings given to such terms in the Credit Agreement.
II. ADDITIONAL GUARANTOR. The Additional Guarantor agrees that it shall
--------------------
be and become a Guarantor for all purposes of the Subsidiary Guaranty and shall
be fully liable thereunder to the Agent and the other Guaranteed Parties to the
same extent and with the same effect as though the Additional Guarantor had been
one of the Guarantors originally executing and delivering the Subsidiary
Guaranty. Without limiting the foregoing, the Additional Guarantor hereby
jointly and severally (with respect to the guaranties made by the Subsidiary
Guarantors under the Subsidiary Guaranty), irrevocably and unconditionally,
guarantees the punctual and full payment when due, whether at stated maturity by
acceleration or otherwise, of all Loans and all other Obligations owing by the
Borrower to the Lenders and the Agent, or any of them, jointly or severally,
under the Credit Agreement, the Notes and the other Credit Documents, including
all renewals, extensions, modifications and refinancings thereof, now or
hereafter owing, whether for principal, interest, fees, expenses or otherwise,
and any and all reasonable out-of-pocket expenses (including reasonable
attorneys' fees actually incurred and reasonable out-of-pocket expenses whether
suit be brought or not, including reasonable attorneys' fees, costs and expenses
if an appeal is taken) incurred by the Agent or any other Guaranteed Party in
enforcing any rights under the Subsidiary Guaranty (as supplemented hereby),
subject, however, to the limitations expressly provided in the Subsidiary
Guaranty in Section 15 thereof. All references in the Subsidiary Guaranty to
"Guarantors" or any "Guarantor", shall be deemed to include and to refer to the
Additional Guarantor.
2
<PAGE>
III. GOVERNING LAW; SUBMISSION TO JURISDICTION; FULL FAITH AND CREDIT;
-----------------------------------------------------------------
WAIVER OF JURY TRIAL.
- --------------------
A. THIS SUPPLEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY THE LAWS OF
THE STATE OF FLORIDA (WITHOUT GIVING EFFECT TO THE CONFLICT OF LAW PRINCIPLES
THEREOF).
B. ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS SUPPLEMENT,
THE SUBSIDIARY GUARANTY OR OTHERWISE RELATED HERETO MAY BE BROUGHT IN THE
CIRCUIT COURT OF ORANGE COUNTY OF THE STATE OF FLORIDA OR IN THE DISTRICT COURT
OF THE UNITED STATES OF AMERICA FOR THE MIDDLE DISTRICT OF FLORIDA, AND, BY
EXECUTION AND DELIVERY OF THIS SUPPLEMENT, THE ADDITIONAL GUARANTOR HEREBY
CONSENTS, FOR ITSELF AND IN RESPECT OF ITS PROPERTY, TO THE JURISDICTION OF THE
AFORESAID COURTS SOLELY FOR THE PURPOSE OF ADJUDICATING ITS RIGHTS OR THE RIGHTS
OF THE AGENT OR OTHER GUARANTEED PARTIES WITH RESPECT TO THIS SUPPLEMENT, THE
SUBSIDIARY GUARANTY OR ANY DOCUMENT RELATED HERETO. THE ADDITIONAL GUARANTOR
HEREBY IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING, WITHOUT LIMITATION, ANY
OBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON
---------
CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY ACTION OR
- ----------
PROCEEDING IN SUCH RESPECTIVE JURISDICTIONS IN RESPECT OF THIS SUPPLEMENT, THE
SUBSIDIARY GUARANTY OR ANY DOCUMENT RELATED THERETO. NOTHING HEREIN SHALL
AFFECT THE RIGHT OF SUCH AGENT TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY
LAW OR TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST THE ADDITIONAL
GUARANTOR IN ANY OTHER JURISDICTION.
C. TO THE EXTENT THAT ANY GUARANTEED PARTY OBTAINS ANY JUDGMENT
AGAINST THE ADDITIONAL GUARANTOR UNDER THIS SUPPLEMENT AND THE SUBSIDIARY
GUARANTY, THE ADDITIONAL GUARANTOR DOES HEREBY AGREE THAT SUCH JUDGMENT SHALL BE
ENTITLED TO "FULL FAITH AND CREDIT" WITH THE SAME FORCE AND EFFECT AS IF SUCH
JUDGMENT WAS RENDERED AGAINST SUCH ADDITIONAL GUARANTOR BY A COURT OR OTHER
TRIBUNAL LOCATED IN THE DOMICILE OF SUCH ADDITIONAL GUARANTOR, IF DIFFERENT FROM
THAT IN WHICH SUCH JUDGMENT IS RENDERED. THE ADDITIONAL GUARANTOR HEREBY AGREES
TO THE VALIDITY AND ENFORCEABILITY OF ANY SUCH JUDGMENT AND SHALL NOT SEEK TO
CHALLENGE OR "GO BEHIND" THE FACE OF SUCH JUDGMENT.
D. TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE ADDITIONAL
GUARANTOR HEREBY KNOWINGLY, VOLUNTARILY, INTENTIONALLY AND IRREVOCABLY WAIVES
ALL RIGHT OF TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT
OF OR IN CONNECTION WITH THIS SUPPLEMENT, THE SUBSIDIARY GUARANTY OR ANY OTHER
CREDIT DOCUMENT OR ANY MATTER ARISING IN CONNECTION HEREUNDER OR THEREUNDER.
THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE GUARANTEED PARTIES TO EXTEND
CREDIT TO OR OTHERWISE BECOME OR REMAIN A CREDITOR OF THE BORROWER. FURTHER,
GUARANTORS HEREBY CERTIFY THAT NO REPRESENTATIVE OR AGENT OF THE GUARANTEED
PARTIES NOR ANY COUNSEL FOR THE GUARANTEED PARTIES HAS REPRESENTED,
3
<PAGE>
EXPRESSLY OR OTHERWISE, THAT THE GUARANTEED PARTIES WOULD NOT, IN THE EVENT OF
SUCH LITIGATION, SEEK TO ENFORCE THIS WAIVER OF RIGHT OF JURY TRIAL PROVISION.
NO REPRESENTATIVE OR AGENT OF THE GUARANTEED PARTIES NOR COUNSEL FOR THE
GUARANTEED PARTIES HAS THE AUTHORITY TO WAIVE, CONDITION OR MODIFY THIS
PROVISION.
IN WITNESS WHEREOF, the Additional Guarantor has caused this
Supplement to be duly executed and delivered under seal by its duly authorized
officers as of the date first above written.
Address for Notices: ADDITIONAL GUARANTOR:
- -------------------- ---------------------
____________________________
_______________________
_______________________
_______________________ By:_______________________________
Name:__________________________
Title:_________________________
Attest:___________________________
Name:______________________
Title:_____________________
[CORPORATE SEAL]
4
<PAGE>
EXHIBIT "J"
-----------
FORM OF NEGATIVE PLEDGE
-----------------------
Prepared by and Return to:
- -------------------------
Charles T. Brumback, Jr., Esq.
Akerman, Senterfitt & Eidson, P.A.
P.O. Box 231
Orlando, FL 32802-0231
AGREEMENT NOT TO SELL OR ENCUMBER ASSETS
----------------------------------------
THIS AGREEMENT NOT TO SELL OR ENCUMBER ASSETS entered into as of the ____
day of ____________, 199__, by and between ___________________________, a
_____________ corporation, having an address of ___________________ (the
"Company") and SUNTRUST BANK, CENTRAL FLORIDA, NATIONAL ASSOCIATION, a national
banking association having its principal office at 200 S. Orange Avenue,
Orlando, Florida 32801 ("SunTrust"), as agent for the Lenders at any time
parties to the Credit Agreement referenced below (collectively, the "Lenders").
W I T N E S S E T H:
-------------------
WHEREAS, the Lenders have agreed to extend to ROTECH MEDICAL CORPORATION
(the "Borrower") a revolving line of credit loan in the maximum aggregate
principal amount of $290,000,000.00 (the "Revolving Loan"), SunTrust has agreed
to act as the agent for the Revolving Loan and SunTrust has agreed to extend to
the Borrower a revolving line of credit loan in the maximum principal amount of
$10,000,000.00 (the "Line of Credit Loan"; and collectively with the Revolving
Loan, the "Loans") pursuant to the terms and conditions set forth in a certain
Second Amended and Restated Revolving Credit and Line of Credit Agreement dated
as of June 3, 1997 by and between the Lenders and the Borrower (the "Credit
Agreement"); and
WHEREAS, as a condition of making the Revolving Loan and the Line of Credit
Loan, the Lenders require that all the assets of the Company (the "Assets") be
owned free and clear of all liens and encumbrances except those presently in
existence and that the Assets not be sold during the term of the Credit
Agreement, except in the ordinary course of business as permitted in the Credit
Agreement; and
WHEREAS, the Company has determined that it is in its best interests that
the Loans be extended to the Borrower by the Lenders and that it continue to
hold and not sell or encumber the Assets.
NOW, THEREFORE, in consideration of the premises herein contained, the
Company does hereby state to and agree with the Lenders as follows:
<PAGE>
1. Ownership of Assets. That the Company is the owner of the Assets
-------------------
(except assets sold in the ordinary course of business subsequent to the date of
the Company's most recent financial statements hereinafter mentioned) subject to
no encumbrances or liens whatsoever except for those shown on the Company's most
recent audited financial statements provided to the Lenders in connection with
the Loans.
2. Agreement Not to Sell or Encumber. That, during the term of the Credit
---------------------------------
Agreement (which, by definition, includes any amendments, supplements,
modifications or restatements thereof), the Company shall not, without the prior
written consent of the Lenders:
a. Sell or enter into any agreement to sell the Assets, or any
portion thereof except in the ordinary course of business as permitted by the
Credit Agreement.
b. Encumber, agree to encumber or permit to be encumbered in any way
whatsoever the Assets, or any portion thereof.
c. Agree or enter into any other agreement of any nature whatsoever
granting to any person any interest whatsoever in the Assets, or any portion
thereof.
IN WITNESS WHEREOF, the Company has executed this Agreement Not to Sell or
Encumber Assets on the day and year first above mentioned.
______________________________
Signed, sealed and delivered
in the presence of:
______________________________ By:___________________________
Signature of Witness Name:_____________________
Title:____________________
______________________________
Print Name of Witness
____________________________________
____________________________________
______________________________
Signature of Witness
______________________________ (CORPORATE SEAL)
Print Name of Witness
2
<PAGE>
STATE OF FLORIDA )
)
COUNTY OF __________)
The foregoing instrument was acknowledged before me this ____ day of
____________, 199__ by ______________________ as the ________________ of
______________________, on behalf of the corporation.
____________________________________________________
Signature of Notary Public, State of Florida
_____________________________________________________
(Print/Type/Stamp Commissioned Name of Notary Public)
Personally known ____; OR Produced identification ____
Type of identification produced:_____________________
(Notarial Seal)
3
<PAGE>
EXHIBIT "K"
-----------
FORM OF
SUPPLEMENT TO CONTRIBUTION AGREEMENT
------------------------------------
SUPPLEMENT NO. __ dated as of ____________________, 199_, to the
CONTRIBUTION AGREEMENT dated as of December 29, 1995, as supplemented by First
Supplement dated as of June 4, 1996 (as supplemented, the "Contribution
Agreement") by and among ROTECH MEDICAL CORPORATION, a Florida corporation ("the
Borrower"), each of the subsidiaries of the Borrower party thereto (together
with any successors, referred to herein individually as a "Guarantor" and
collectively as "Guarantors") and SUNTRUST BANK, CENTRAL FLORIDA, NATIONAL
ASSOCIATION, as Agent (the "Agent") for the Lenders parties to the Revolving
Credit and Line of Credit Agreement dated as of December 29, 1995, among the
Borrower, the Lenders and the Agent, as amended and restated in its entirety by
the Amended and Restated Revolving Credit and Line of Credit Agreement dated as
of June 4, 1996 and as further amended and restated in its entirety by the
Second Amended and Restated Revolving Credit and Line of Credit Agreement dated
as of JUne 3, 1997 (as amended, modified or supplemented from time to time, the
"Credit Agreement"; capitalized terms used herein but not otherwise defined
herein have the meanings assigned to such terms in the Credit Agreement or the
Contribution Agreement, as the case may be).
Guarantors have entered into the Contribution Agreement in order to induce
the Lenders to make the Loans. Pursuant to Section 7.10 of the Credit Agreement,
each Material Subsidiary incorporated in the United States that was not in
existence or not a Material Subsidiary or incorporated in the United States on
the date thereof is required to enter into the Contribution Agreement as a
Guarantor upon becoming a Material Subsidiary of the Borrower incorporated in
the United States. Section 14 of the Contribution Agreement provides that
additional Subsidiaries of the Borrower may become Guarantors under the
Contribution Agreement by execution and delivery of an instrument in the form of
this Supplement. The undersigned ("New Guarantor") is a Subsidiary of the
Borrower incorporated in the United States and is executing this Supplement in
accordance with the requirements of the Credit Agreement to become a Guarantor
under the Contribution Agreement in order to induce the Lenders to make
additional Loans and as consideration for the Loans previously made.
Accordingly, Agent and New Guarantor agree as follows:
SECTION 1. JOINDER TO CONTRIBUTION AGREEMENT. In accordance with Section
---------------------------------
14 of the Contribution Agreement, New Guarantor by its signature below becomes a
Guarantor under the Contribution Agreement with the same force and effect as if
originally named therein as a Guarantor, and New Guarantor hereby agrees to all
the terms and provisions of the Contribution Agreement applicable to it as a
Guarantor thereunder. Each
<PAGE>
reference to a "Guarantor" in the Contribution Agreement shall be deemed to
include New Guarantor. The Contribution Agreement is hereby incorporated herein
by reference.
SECTION 2. ENFORCEABILITY. This Supplement has been duly authorized,
--------------
executed and delivered by New Guarantor and constitutes a legal, valid and
binding obligation of New Guarantor, enforceable against it in accordance with
its terms, except as the enforceability thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting creditors
rights generally and by general principles of equity (regardless of whether such
enforceability is considered in a proceeding at law or in equity).
SECTION 3. COUNTERPARTS. This Supplement and any amendments, waivers,
------------
consents or supplements may be executed in any number of counterparts and by the
different parties hereto in separate counterparts, each of which when so
executed and delivered shall be deemed an original, but all such counterparts
shall constitute but one and the same instrument.
SECTION 4. EFFECTIVE DATE. This Supplement shall become effective upon
--------------
the execution of a counterpart hereof by each of the parties hereto, and written
or telephonic notification of such execution and authorization of delivery
thereof has been received by New Guarantor and Agent.
SECTION 5. RATIFICATION OF CONTRIBUTION AGREEMENT. Except as expressly
--------------------------------------
supplemented hereby, the Contribution Agreement shall remain in full force and
effect.
SECTION 6. CHOICE OF LAW. THIS SUPPLEMENT SHALL BE GOVERNED BY, AND
-------------
SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
FLORIDA WITHOUT REGARD TO THE CONFLICT OF LAWS PRINCIPLES THEREOF.
SECTION 7. SEVERABILITY. In case any provision in or obligation under
------------
this Supplement shall be invalid, illegal or unenforceable in any jurisdiction,
the validity, legality and enforceability of the remaining provisions or
obligations, or of such provision or obligation in any other jurisdiction, shall
not in any way be affected or impaired thereby.
SECTION 8. NOTICES. All communications and notices hereunder shall be in
-------
writing and given as provided in Section 16 of the Contribution Agreement. All
communications and notices hereunder to New Guarantor shall be given to it at
the address set forth under its signature.
SECTION 9. FEES AND EXPENSES. New Guarantor agrees to reimburse Agent for
-----------------
its reasonable out-of-pocket expenses in connection with this Supplement,
including the reasonable fees, disbursements and other charges of counsel for
Agent, whether suit be brought or not, and all reasonable attorneys' fees, costs
and expenses if an appeal is taken.
<PAGE>
IN WITNESS WHEREOF, New Guarantor and Agent have duly executed this
Supplement to Contribution Agreement as of the day and year first above written.
NEW GUARANTOR:
--------------
_________________________________
By:______________________________
Name:
Title:
Address: ________________________
_________________________________
_________________________________
AGENT:
------
SUNTRUST BANK, CENTRAL FLORIDA,
NATIONAL ASSOCIATION, AS AGENT
By:______________________________
Name:
Title:
<PAGE>
REVOLVING CREDIT NOTE
---------------------
June 3, 1997 $ 65,000,000.00
Atlanta, Georgia
FOR VALUE RECEIVED, the undersigned, ROTECH MEDICAL CORPORATION, a
Florida corporation (the "Borrower"), promises to pay to the order of
NATIONSBANK, N.A., a national banking association, (the "Bank") at the office of
the Bank at 111 N. Orange Avenue, Suite 100M, Orlando, Florida 32801, or at such
other place as the holder hereof may designate by notice in writing to Borrower,
in immediately available funds in lawful money of the United States of America,
on the sooner of (i) the Termination Date (as defined in the Agreement
hereinafter described), or (ii) acceleration of this indebtedness as hereinafter
provided, the lesser of (i) the principal sum of FIFTY MILLION AND NO/100
DOLLARS ($50,000,000.00) or (ii) so much thereof as shall have been from time to
time disbursed hereunder by the Bank in accordance with that certain Second
Amended and Restated Revolving Credit and Line of Credit Agreement dated as of
June 3, 1997 (as amended, modified or supplemented, the "Agreement") by and
among the Borrower, the Bank, and the other Lenders which are parties thereto
from time to time, and not theretofore repaid, as shown on the grid schedule
attached hereto (the "Grid Schedule").
In addition to principal, Borrower agrees to pay interest on the
principal amounts disbursed hereunder from time to time from the date of each
disbursement until paid at such simple rates of interest per annum and upon such
dates as provided for in the Agreement. Interest shall accrue on the outstanding
principal balance from the date hereof up to and through the date on which all
principal and interest hereunder is paid in full, and shall be computed on the
basis of the actual number of days elapsed in a 360-day year. Such interest is
to be paid to the Bank at its office in Orlando, Florida.
This Revolving Credit Note ("Note") evidences a loan incurred pursuant
to the terms and conditions of the Agreement to which reference is hereby made
for a full and complete description of such terms and conditions. All
capitalized terms used in this Note shall have the same meanings as set forth in
the Agreement.
Bank shall at all times have a right of set-off against any deposit
balances of Borrower in the possession of the Bank and the Bank may apply the
same against payment of this Note or any other indebtedness of Borrower to the
Bank. The payment of any indebtedness evidenced by this Note prior to the
Termination Date or demand shall not affect the enforceability of this Note as
to any future, different or other indebtedness incurred hereunder by the
Borrower. In the event the indebtedness evidenced by this Note is collected by
legal action or through an
<PAGE>
attorney-at-law, the Bank shall be entitled to recover from Borrower all costs
of collection, including, without limitation, reasonable attorneys' fees if
collected by or through an attorney-at-law.
Borrower acknowledges that the actual crediting of the amount of any
disbursement under the Agreement to an account of Borrower or recording such
amount in the Grid Schedule shall, in the absence of manifest error, constitute
presumptive evidence of such disbursement and that such advance was made and
borrowed under the Agreement. Such account records or Grid Schedule shall
constitute, in the absence of manifest error, presumptive evidence of principal
amounts outstanding and the payments made under the Agreement at any time and
from time to time, provided that the failure of Bank or any holder hereof to
record on the Grid Schedule or in such account the type or amount of any advance
shall not affect the obligation of the undersigned to repay such amount together
with interest thereon in accordance with this Note and the Agreement.
Upon the existence or occurrence of any Event of Default as defined in
the Agreement, the principal and all accrued interest hereof shall automatically
become, or may be declared, due and payable in the manner and with the effect
provided in the Agreement.
Prepayment of the Note in part or in whole is permitted subject to the
conditions set forth in the Agreement.
Failure or forbearance of Bank to exercise any right hereunder, or
otherwise granted by the Agreement or by law, shall not affect or release the
liability of Borrower hereunder, and shall not constitute a waiver of such right
unless so stated by Bank in writing. This Note shall be deemed to be made under,
and shall be construed in accordance with and governed by, the laws of the State
of Florida. Time is of the essence of this Note.
PRESENTMENT FOR PAYMENT, NOTICE OF DISHONOR AND PROTEST ARE HEREBY
WAIVED.
THIS REVOLVING CREDIT NOTE RENEWS AND REPLACES THAT CERTAIN REVOLVING
CREDIT NOTE DATED JUNE 4, 1996 IN THE FACE AMOUNT OF $40,000,000.00 EXECUTED BY
THE BORROWER IN FAVOR OF THE BANK, WHICH NOTE WAS EXEMPT FROM FLORIDA
DOCUMENTARY STAMP TAX.
Executed under hand and seal of the Borrower as of the day and year
first above written on this 3rd day of June, 1997.
ROTECH MEDICAL CORPORATION
By: /s/ Rebecca R. Irish
---------------------------------
Rebecca R. Irish,
Treasurer
2
<PAGE>
ACKNOWLEDGMENT
--------------
STATE OF GEORGIA
COUNTY OF FULTON
On this the 3rd day of June, 1997, personally appeared Rebecca R. Irish,
---
the Treasurer of Rotech Medical Corporation, a Florida corporation (the
"Borrower"), and before me, executed this Revolving Credit Note in the principal
amount of FIFTY MILLION AND NO/100 DOLLARS, ($50,000,000.00), payable to
NATIONSBANK, N.A., on behalf of the Borrower.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal.
/s/ Tonya Adams
--------------------------------------------
Signature of Notary Public, State of Georgia
____________________________________________
(Print, Type or Stamp Commissioned Name of
Notary Public)
Personally known ; OR Produced
----
identification X
-----
Type of identification produced: Florida Dl
----------
--------------------------------------------
(Notary Seal)
3
<PAGE>
GRID SCHEDULE
-------------
REVOLVING CREDIT NOTE
ADVANCES BEARING INTEREST
AT THE BASE RATE
<TABLE>
<CAPTION>
================================================================================
Unpaid
Principal
Amount of Bearing Interest
Amount of Advance at the Above- Notation
Date Due Date Advance Repaid Referenced Rate Made by
================================================================================
<S> <C> <C> <C> <C> <C>
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
================================================================================
</TABLE>
4
<PAGE>
GRID SCHEDULE
-------------
REVOLVING CREDIT NOTE
ADVANCES BEARING INTEREST
AT LIBOR (1 MONTH)
<TABLE>
<CAPTION>
================================================================================
Unpaid
Principal
Amount of Bearing Interest
Amount of Advance at the Above- Notation
Date Due Date Advance Repaid Referenced Rate Made by
================================================================================
<S> <C> <C> <C> <C> <C>
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
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- --------------------------------------------------------------------------------
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- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
================================================================================
</TABLE>
5
<PAGE>
GRID SCHEDULE
-------------
REVOLVING CREDIT NOTE
ADVANCES BEARING INTEREST
AT LIBOR (2 MONTHS)
<TABLE>
<CAPTION>
================================================================================
Unpaid
Principal
Amount of Bearing Interest
Amount of Advance at the Above- Notation
Date Due Date Advance Repaid Referenced Rate Made by
================================================================================
<S> <C> <C> <C> <C> <C>
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
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- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
================================================================================
</TABLE>
6
<PAGE>
GRID SCHEDULE
-------------
REVOLVING CREDIT NOTE
ADVANCES BEARING INTEREST
AT LIBOR (3 MONTHS)
<TABLE>
<CAPTION>
================================================================================
Unpaid
Principal
Amount of Bearing Interest
Amount of Advance at the Above- Notation
Date Due Date Advance Repaid Referenced Rate Made by
================================================================================
<S> <C> <C> <C> <C> <C>
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
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- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
================================================================================
</TABLE>
7
<PAGE>
GRID SCHEDULE
-------------
REVOLVING CREDIT NOTE
ADVANCES BEARING INTEREST
AT LIBOR (6 MONTHS)
<TABLE>
<CAPTION>
================================================================================
Unpaid
Principal
Amount of Bearing Interest
Amount of Advance at the Above- Notation
Date Due Date Advance Repaid Referenced Rate Made by
================================================================================
<S> <C> <C> <C> <C> <C>
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
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- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
================================================================================
</TABLE>
8
<PAGE>
AFFIDAVIT OF OUT-OF-STATE DELIVERY
----------------------------------
STATE OF GEORGIA
COUNTY OF FULTON
I, Janet P. Sammons, being first duly sworn, upon my oath, depose and
----------------
say:
1. That I am a/an V.P. of SunTrust Bank, Central Florida, National
----
Association.
2. That on the 3rd day of June, 1997, I witnessed the execution of that
---
certain Revolving Credit Note, dated June 3rd, 1997, in the face amount of Fifty
Million and No/100 Dollars ($50,000,000.00) payable by RoTech Medical
Corporation, as Maker, to NATIONSBANK, N.A., as Payee (the "Note").
3. That execution of the Note took place in the City of Atlanta, the
State of Georgia.
4. That I accepted delivery of the Note on behalf of the Payee in
Atlanta, Georgia.
/s/ Janet P. Sammons
------------------------------
Name: Janet P. Sammons
-------------------------
Title: V.P.
------------------------
Subscribed and sworn before me this 3rd day of June, 1997.
/s/ Tonya Adams
---------------------------------------------------
Signature of Notary Public - State of Georgia
---------------------------------------------------
Print, Type or Stamp Commissioned Name of Notary
Public
Personally Known:[X] or Produced
---
Identification:______
Type of Identification:____________________________
(NOTARIAL SEAL)
9
<PAGE>
B
<PAGE>
REVOLVING CREDIT NOTE
---------------------
June 3, 1997 $ 50,000,000.00
Atlanta, Georgia
FOR VALUE RECEIVED, the undersigned, ROTECH MEDICAL CORPORATION, a
Florida corporation (the "Borrower"), promises to pay to the order of
NATIONSBANK, N.A., a national banking association, (the "Bank") at the office of
the Bank at 111 N. Orange Avenue, Suite 100M, Orlando, Florida 32801, or at such
other place as the holder hereof may designate by notice in writing to Borrower,
in immediately available funds in lawful money of the United States of America,
on the sooner of (i) the Termination Date (as defined in the Agreement
hereinafter described), or (ii) acceleration of this indebtedness as hereinafter
provided, the lesser of (i) the principal sum of FIFTY MILLION AND NO/100
DOLLARS ($50,000,000.00) or (ii) so much thereof as shall have been from time to
time disbursed hereunder by the Bank in accordance with that certain Second
Amended and Restated Revolving Credit and Line of Credit Agreement dated as of
June 3, 1997 (as amended, modified or supplemented, the "Agreement") by and
among the Borrower, the Bank, and the other Lenders which are parties thereto
from time to time, and not theretofore repaid, as shown on the grid schedule
attached hereto (the "Grid Schedule").
In addition to principal, Borrower agrees to pay interest on the
principal amounts disbursed hereunder from time to time from the date of each
disbursement until paid at such simple rates of interest per annum and upon such
dates as provided for in the Agreement. Interest shall accrue on the outstanding
principal balance from the date hereof up to and through the date on which all
principal and interest hereunder is paid in full, and shall be computed on the
basis of the actual number of days elapsed in a 360-day year. Such interest is
to be paid to the Bank at its office in Orlando, Florida.
This Revolving Credit Note ("Note") evidences a loan incurred pursuant
to the terms and conditions of the Agreement to which reference is hereby made
for a full and complete description of such terms and conditions. All
capitalized terms used in this Note shall have the same meanings as set forth in
the Agreement.
Bank shall at all times have a right of set-off against any deposit
balances of Borrower in the possession of the Bank and the Bank may apply the
same against payment of this Note or any other indebtedness of Borrower to the
Bank. The payment of any indebtedness evidenced by this Note prior to the
Termination Date or demand shall not affect the enforceability of this Note as
to any future, different or other indebtedness incurred hereunder by the
Borrower. In the event the indebtedness evidenced by this Note is collected by
legal action or through an
<PAGE>
attorney-at-law, the Bank shall be entitled to recover from Borrower all costs
of collection, including, without limitation, reasonable attorneys' fees if
collected by or through an attorney-at-law.
Borrower acknowledges that the actual crediting of the amount of any
disbursement under the Agreement to an account of Borrower or recording such
amount in the Grid Schedule shall, in the absence of manifest error, constitute
presumptive evidence of such disbursement and that such advance was made and
borrowed under the Agreement. Such account records or Grid Schedule shall
constitute, in the absence of manifest error, presumptive evidence of principal
amounts outstanding and the payments made under the Agreement at any time and
from time to time, provided that the failure of Bank or any holder hereof to
record on the Grid Schedule or in such account the type or amount of any advance
shall not affect the obligation of the undersigned to repay such amount together
with interest thereon in accordance with this Note and the Agreement.
Upon the existence or occurrence of any Event of Default as defined in
the Agreement, the principal and all accrued interest hereof shall automatically
become, or may be declared, due and payable in the manner and with the effect
provided in the Agreement.
Prepayment of the Note in part or in whole is permitted subject to the
conditions set forth in the Agreement.
Failure or forbearance of Bank to exercise any right hereunder, or
otherwise granted by the Agreement or by law, shall not affect or release the
liability of Borrower hereunder, and shall not constitute a waiver of such right
unless so stated by Bank in writing. This Note shall be deemed to be made under,
and shall be construed in accordance with and governed by, the laws of the State
of Florida. Time is of the essence of this Note.
PRESENTMENT FOR PAYMENT, NOTICE OF DISHONOR AND PROTEST ARE HEREBY
WAIVED.
THIS REVOLVING CREDIT NOTE RENEWS AND REPLACES THAT CERTAIN REVOLVING
CREDIT NOTE DATED JUNE 4, 1996 IN THE FACE AMOUNT OF $40,000,000.00 EXECUTED BY
THE BORROWER IN FAVOR OF THE BANK, WHICH NOTE WAS EXEMPT FROM FLORIDA
DOCUMENTARY STAMP TAX.
Executed under hand and seal of the Borrower as of the day and year
first above written on this 3rd day of June, 1997.
ROTECH MEDICAL CORPORATION
By: /s/ Rebecca R. Irish
-----------------------------
Rebecca R. Irish,
Treasurer
2
<PAGE>
ACKNOWLEDGMENT
--------------
STATE OF GEORGIA
COUNTY OF FULTON
On this the 3rd day of June, 1997, personally appeared Rebecca R. Irish,
the Treasurer of Rotech Medical Corporation, a Florida corporation (the
"Borrower"), and before me, executed this Revolving Credit Note in the principal
amount of FIFTY MILLION AND NO/100 DOLLARS, ($50,000,000.00), payable to
NATIONSBANK, N.A., on behalf of the Borrower.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal.
/s/ Tonya Adams
---------------------------------------------
Signature of Notary Public, State of Georgia
---------------------------------------------
(Print, Type or Stamp Commissioned Name of
Notary Public)
Personally known ____; OR Produced
identification X
-----
Type of identification produced: Fla. DL
---------
_____________________________________________
(Notary Seal)
3
<PAGE>
GRID SCHEDULE
-------------
REVOLVING CREDIT NOTE
ADVANCES BEARING INTEREST
AT THE BASE RATE
<TABLE>
<CAPTION>
=========================================================================================
Unpaid
Principal
Amount of Bearing Interest
Amount of Advance at the Above- Notation
Date Due Date Advance Repaid Referenced Rate Made by
=========================================================================================
<S> <C> <C> <C> <C> <C>
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
-
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
=========================================================================================
</TABLE>
4
<PAGE>
GRID SCHEDULE
-------------
REVOLVING CREDIT NOTE
ADVANCES BEARING INTEREST
AT LIBOR (1 MONTH)
<TABLE>
<CAPTION>
=========================================================================================
Unpaid
Principal
Amount of Bearing Interest
Amount of Advance at the Above- Notation
Date Due Date Advance Repaid Referenced Rate Made by
=========================================================================================
<S> <C> <C> <C> <C> <C>
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
-
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
-
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
=========================================================================================
</TABLE>
5
<PAGE>
GRID SCHEDULE
-------------
REVOLVING CREDIT NOTE
ADVANCES BEARING INTEREST
AT LIBOR (2 MONTHS)
<TABLE>
<CAPTION>
=========================================================================================
Unpaid
Principal
Amount of Bearing Interest
Amount of Advance at the Above- Notation
Date Due Date Advance Repaid Referenced Rate Made by
=========================================================================================
<S> <C> <C> <C> <C> <C>
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
_
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
_
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
=========================================================================================
</TABLE>
6
<PAGE>
GRID SCHEDULE
-------------
REVOLVING CREDIT NOTE
ADVANCES BEARING INTEREST
AT LIBOR (3 MONTHS)
<TABLE>
<CAPTION>
=========================================================================================
Unpaid
Principal
Amount of Bearing Interest
Amount of Advance at the Above- Notation
Date Due Date Advance Repaid Referenced Rate Made by
=========================================================================================
<S> <C> <C> <C> <C> <C>
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
_
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
_
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
=========================================================================================
</TABLE>
7
<PAGE>
GRID SCHEDULE
-------------
REVOLVING CREDIT NOTE
ADVANCES BEARING INTEREST
AT LIBOR (6 MONTH)
<TABLE>
<CAPTION>
=========================================================================================
Unpaid
Principal
Amount of Bearing Interest
Amount of Advance at the Above- Notation
Date Due Date Advance Repaid Referenced Rate Made by
=========================================================================================
<S> <C> <C> <C> <C> <C>
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
_
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
_
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
=========================================================================================
</TABLE>
8
<PAGE>
REVOLVING CREDIT NOTE
---------------------
June 3, 1997 $ 50,000,000.00
Atlanta, Georgia
FOR VALUE RECEIVED, the undersigned, ROTECH MEDICAL CORPORATION, a
Florida corporation (the "Borrower"), promises to pay to the order of
NATIONSBANK, N.A., a national banking association, (the "Bank") at the office of
the Bank at 111 N. Orange Avenue, Suite 100M, Orlando, Florida 32801, or at such
other place as the holder hereof may designate by notice in writing to Borrower,
in immediately available funds in lawful money of the United States of America,
on the sooner of (i) the Termination Date (as defined in the Agreement
hereinafter described), or (ii) acceleration of this indebtedness as hereinafter
provided, the lesser of (i) the principal sum of FIFTY MILLION AND NO/100
DOLLARS ($50,000,000.00) or (ii) so much thereof as shall have been from time to
time disbursed hereunder by the Bank in accordance with that certain Second
Amended and Restated Revolving Credit and Line of Credit Agreement dated as of
June 3, 1997 (as amended, modified or supplemented, the "Agreement") by and
among the Borrower, the Bank, and the other Lenders which are parties thereto
from time to time, and not theretofore repaid, as shown on the grid schedule
attached hereto (the "Grid Schedule").
In addition to principal, Borrower agrees to pay interest on the
principal amounts disbursed hereunder from time to time from the date of each
disbursement until paid at such simple rates of interest per annum and upon such
dates as provided for in the Agreement. Interest shall accrue on the outstanding
principal balance from the date hereof up to and through the date on which all
principal and interest hereunder is paid in full, and shall be computed on the
basis of the actual number of days elapsed in a 360-day year. Such interest is
to be paid to the Bank at its office in Orlando, Florida.
This Revolving Credit Note ("Note") evidences a loan incurred pursuant
to the terms and conditions of the Agreement to which reference is hereby made
for a full and complete description of such terms and conditions. All
capitalized terms used in this Note shall have the same meanings as set forth in
the Agreement.
Bank shall at all times have a right of set-off against any deposit
balances of Borrower in the possession of the Bank and the Bank may apply the
same against payment of this Note or any other indebtedness of Borrower to the
Bank. The payment of any indebtedness evidenced by this Note prior to the
Termination Date or demand shall not affect the enforceability of this Note as
to any future, different or other indebtedness incurred hereunder by the
Borrower. In the event the indebtedness evidenced by this Note is collected by
legal action or through an
<PAGE>
attorney-at-law, the Bank shall be entitled to recover from Borrower all costs
of collection, including, without limitation, reasonable attorneys' fees if
collected by or through an attorney-at-law.
Borrower acknowledges that the actual crediting of the amount of any
disbursement under the Agreement to an account of Borrower or recording such
amount in the Grid Schedule shall, in the absence of manifest error, constitute
presumptive evidence of such disbursement and that such advance was made and
borrowed under the Agreement. Such account records or Grid Schedule shall
constitute, in the absence of manifest error, presumptive evidence of principal
amounts outstanding and the payments made under the Agreement at any time and
from time to time, provided that the failure of Bank or any holder hereof to
record on the Grid Schedule or in such account the type or amount of any advance
shall not affect the obligation of the undersigned to repay such amount together
with interest thereon in accordance with this Note and the Agreement.
Upon the existence or occurrence of any Event of Default as defined in
the Agreement, the principal and all accrued interest hereof shall automatically
become, or may be declared, due and payable in the manner and with the effect
provided in the Agreement.
Prepayment of the Note in part or in whole is permitted subject to the
conditions set forth in the Agreement.
Failure or forbearance of Bank to exercise any right hereunder, or
otherwise granted by the Agreement or by law, shall not affect or release the
liability of Borrower hereunder, and shall not constitute a waiver of such right
unless so stated by Bank in writing. This Note shall be deemed to be made under,
and shall be construed in accordance with and governed by, the laws of the State
of Florida. Time is of the essence of this Note.
PRESENTMENT FOR PAYMENT, NOTICE OF DISHONOR AND PROTEST ARE HEREBY
WAIVED.
THIS REVOLVING CREDIT NOTE RENEWS AND REPLACES THAT CERTAIN REVOLVING
CREDIT NOTE DATED JUNE 4, 1996 IN THE FACE AMOUNT OF $30,000,000.00 EXECUTED BY
THE BORROWER IN FAVOR OF THE BANK, WHICH NOTE WAS EXEMPT FROM FLORIDA
DOCUMENTARY STAMP TAX.
Executed under hand and seal of the Borrower as of the day and year
first above written on this 3rd day of June, 1997.
ROTECH MEDICAL CORPORATION
By: /s/ Rebecca R. Irish
------------------------------
Rebecca R. Irish,
Treasurer
2
<PAGE>
ACKNOWLEDGMENT
--------------
STATE OF GEORGIA
COUNTY OF FULTON
On this the 3rd day of June, 1997, personally appeared Rebecca R. Irish,
the Treasurer of Rotech Medical Corporation, a Florida corporation (the
"Borrower"), and before me, executed this Revolving Credit Note in the principal
amount of FIFTY MILLION AND NO/100 DOLLARS, ($50,000,000.00), payable to BARNETT
BANK, N.A. on behalf of the Borrower.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal.
/s/ Tonya Adams
---------------------------------------------
Signature of Notary Public, State of Georgia
---------------------------------------------
STAMP (Print, Type or Stamp Commissioned Name of
APPEARS Notary Public)
HERE Personally known ____; OR Produced
identification X
-----
Type of identification produced: Fla. DL
---------
_____________________________________________
(Notary Seal)
3
<PAGE>
GRID SCHEDULE
-------------
REVOLVING CREDIT NOTE
ADVANCES BEARING INTEREST
AT THE BASE RATE
<TABLE>
<CAPTION>
=========================================================================================
Unpaid
Principal
Amount of Bearing Interest
Amount of Advance at the Above- Notation
Date Due Date Advance Repaid Referenced Rate Made by
=========================================================================================
<S> <C> <C> <C> <C> <C>
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
=========================================================================================
</TABLE>
4
<PAGE>
GRID SCHEDULE
-------------
REVOLVING CREDIT NOTE
ADVANCES BEARING INTEREST
AT LIBOR (1 MONTH)
<TABLE>
<CAPTION>
=========================================================================================
Unpaid
Principal
Amount of Bearing Interest
Amount of Advance at the Above- Notation
Date Due Date Advance Repaid Referenced Rate Made by
=========================================================================================
<S> <C> <C> <C> <C> <C>
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
=========================================================================================
</TABLE>
5
<PAGE>
GRID SCHEDULE
-------------
REVOLVING CREDIT NOTE
ADVANCES BEARING INTEREST
AT LIBOR (2 MONTH)
<TABLE>
<CAPTION>
=========================================================================================
Unpaid
Principal
Amount of Bearing Interest
Amount of Advance at the Above- Notation
Date Due Date Advance Repaid Referenced Rate Made by
=========================================================================================
<S> <C> <C> <C> <C> <C>
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
=========================================================================================
</TABLE>
6
<PAGE>
GRID SCHEDULE
-------------
REVOLVING CREDIT NOTE
ADVANCES BEARING INTEREST
AT LIBOR (3 MONTH)
<TABLE>
<CAPTION>
=========================================================================================
Unpaid
Principal
Amount of Bearing Interest
Amount of Advance at the Above- Notation
Date Due Date Advance Repaid Referenced Rate Made by
=========================================================================================
<S> <C> <C> <C> <C> <C>
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
=========================================================================================
</TABLE>
7
<PAGE>
GRID SCHEDULE
-------------
REVOLVING CREDIT NOTE
ADVANCES BEARING INTEREST
AT LIBOR (6 MONTH)
<TABLE>
<CAPTION>
=========================================================================================
Unpaid
Principal
Amount of Bearing Interest
Amount of Advance at the Above- Notation
Date Due Date Advance Repaid Referenced Rate Made by
=========================================================================================
<S> <C> <C> <C> <C> <C>
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
=========================================================================================
</TABLE>
8
<PAGE>
AFFIDAVIT OF OUT-OF-STATE DELIVERY
----------------------------------
STATE OF GEORGIA
COUNTY OF FULTON
I, Janet P Simmons, being first duly sworn, upon my oath, depose and say:
1. That I am a/an V.P. of SunTrust Bank, Central Florida, National
Association.
2. That on the 3rd day of June, 1997, I witnessed the execution of that
certain Revolving Credit Note, dated June 3, 1997, in the face amount of Fifty
Million and No/100 Dollars ($50,000,000.00) payable by RoTech Medical
Corporation, as Maker, to BARNETT BANK, N.A., as Payee (the "Note").
3. That execution of the Note took place in the City of Atlanta, the
State of Georgia.
4. That I accepted delivery of the Note on behalf of the Payee in
Atlanta, Georgia.
/s/ Janet P. Sammons
------------------------------
Name: Janet P. Sammons
-------------------------
Title: V.P.
------------------------
Subscribed and sworn before me this 3rd day of June, 1997.
/s/ Tonya Adams
---------------------------------------------
Signature of Notary Public, State of Georgia
---------------------------------------------
(Print, Type or Stamp Commissioned Name of
Notary Public)
Personally known ____; OR Produced
identification X
-----
Type of identification produced: Fla. DL
---------
_____________________________________________
(Notary Seal)
9
<PAGE>
REVOLVING CREDIT NOTE
---------------------
June 3, 1997 $ 25,000,000.00
Atlanta, Georgia
FOR VALUE RECEIVED, the undersigned, ROTECH MEDICAL CORPORATION, a
Florida corporation (the "Borrower"), promises to pay to the order of AMSOUTH
BANK OF FLORIDA, a Florida banking corporation, (the "Bank") at the office of
the Bank at 65 N. Orange Avenue, Orlando, Florida 32801, or at such other place
as the holder hereof may designate by notice in writing to Borrower, in
immediately available funds in lawful money of the United States of America, on
the sooner of (i) the Termination Date (as defined in the Agreement hereinafter
described), or (ii) acceleration of this indebtedness as hereinafter provided,
the lesser of (i) the principal sum of TWENTY-FIVE MILLION AND NO/100 DOLLARS
($25,000,000.00) or (ii) so much thereof as shall have been from time to time
disbursed hereunder by the Bank in accordance with that certain Second Amended
and Restated Revolving Credit and Line of Credit Agreement dated as of June 3,
1997 (as amended, modified or supplemented, the "Agreement") by and among the
Borrower, the Bank, and the other Lenders which are parties thereto from time to
time, and not theretofore repaid, as shown on the grid schedule attached hereto
(the "Grid Schedule") .
In addition to principal, Borrower agrees to pay interest on the
principal amounts disbursed hereunder from time to time from the date of each
disbursement until paid at such simple rates of interest per annum and upon such
dates as provided for in the Agreement. Interest shall accrue on the outstanding
principal balance from the date hereof up to and through the date on which all
principal and interest hereunder is paid in full, and shall be computed on the
basis of the actual number of days elapsed in a 360-day year. Such interest is
to be paid to the Bank at its office in Orlando, Florida.
This Revolving Credit Note ("Note") evidences a loan incurred pursuant
to the terms and conditions of the Agreement to which reference is hereby made
for a full and complete description of such terms and conditions. All
capitalized terms used in this Note shall have the same meanings as set forth in
the Agreement.
Bank shall at all times have a right of set-off against any deposit
balances of Borrower in the possession of the Bank and the Bank may apply the
same against payment of this Note or any other indebtedness of Borrower to the
Bank. The payment of any indebtedness evidenced by this Note prior to the
Termination Date or demand shall not affect the enforceability of this Note as
to any future, different or other indebtedness incurred hereunder by the
Borrower. In the event the indebtedness evidenced by this Note is collected by
legal action or through an attorney-at-law, the Bank shall be entitled to
recover from
<PAGE>
Borrower all costs of collection, including, without limitation, reasonable
attorneys' fees if collected by or through an attorney-at-law.
Borrower acknowledges that the actual crediting of the amount of any
disbursement under the Agreement to an account of Borrower or recording such
amount in the Grid Schedule shall, in the absence of manifest error, constitute
presumptive evidence of such disbursement and that such advance was made and
borrowed under the Agreement. Such account records or Grid Schedule shall
constitute, in the absence of manifest error, presumptive evidence of principal
amounts outstanding and the payments made under the Agreement at any time and
from time to time, provided that the failure of Bank or any holder hereof to
record on the Grid Schedule or in such account the type or amount of any advance
shall not affect the obligation of the undersigned to repay such amount together
with interest thereon in accordance with this Note and the Agreement.
Upon the existence or occurrence of any Event of Default as defined in
the Agreement, the principal and all accrued interest hereof shall automatically
become, or may be declared, due and payable in the manner and with the effect
provided in the Agreement.
Prepayment of the Note in part or in whole is permitted subject to the
conditions set forth in the Agreement.
Failure or forbearance of Bank to exercise any right hereunder, or
otherwise granted by the Agreement or by law, shall not affect or release the
liability of Borrower hereunder, and shall not constitute a waiver of such right
unless so stated by Bank in writing. This Note shall be deemed to be made under,
and shall be construed in accordance with and governed by, the laws of the State
of Florida. Time is of the essence of this Note.
PRESENTMENT FOR PAYMENT, NOTICE OF DISHONOR AND PROTEST ARE HEREBY
WAIVED.
Executed under hand and seal of the Borrower as of the day and year
first above written on this 3rd day of June, 1997.
ROTECH MEDICAL CORPORATION
By:/s/ Rebecca R. Irish
------------------------------
Rebecca R. Irish,
Treasurer
2
<PAGE>
ACKNOWLEDGMENT
--------------
STATE OF GEORGIA
COUNTY OF FULTON
On this the 3rd day of June, 1997, personally appeared Rebecca R. Irish,
---
the Treasurer of Rotech Medical Corporation (the "Borrower"), a Florida
corporation, and before me, executed this Revolving Credit Note in the principal
amount of TWENTY-FIVE MILLION AND NO/100 DOLLARS, ($25,000,000.00), payable to
AMSOUTH BANK OF FLORIDA, on behalf of the Borrower.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal.
/s/ Tonya Adams
-----------------------------------------------
Signature of Notary Public, State of Georgia
-----------------------------------------------
(Print, Type or Stamp Commissioned Name of
Notary Public)
Personally known ____; OR Produced
identification X
---
Type of identification produced : Florida Dl
--------------
-----------------------------------------------
(Notary Seal)
3
<PAGE>
GRID SCHEDULE
-------------
REVOLVING CREDIT NOTE
ADVANCES BEARING INTEREST
AT THE BASE RATE
<TABLE>
<CAPTION>
===========================================================================================================
Principal
Amount of Bearing Interest
Amount of Advance at the Above- Notation
Date Due Date Advance Repaid Referenced Rate Made by
===========================================================================================================
<S> <C> <C> <C> <C> <C>
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
===========================================================================================================
</TABLE>
4
<PAGE>
GRID SCHEDULE
-------------
REVOLVING CREDIT NOTE
ADVANCES BEARING INTEREST
AT LIBOR (1 MONTH)
<TABLE>
<CAPTION>
===========================================================================================================
Principal
Amount of Bearing Interest
Amount of Advance at the Above- Notation
Date Due Date Advance Repaid Referenced Rate Made by
===========================================================================================================
<S> <C> <C> <C> <C> <C>
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
===========================================================================================================
</TABLE>
5
<PAGE>
GRID SCHEDULE
-------------
REVOLVING CREDIT NOTE
ADVANCES BEARING INTEREST
AT LIBOR (2 MONTHS)
<TABLE>
<CAPTION>
===========================================================================================================
Principal
Amount of Bearing Interest
Amount of Advance at the Above- Notation
Date Due Date Advance Repaid Referenced Rate Made by
===========================================================================================================
<S> <C> <C> <C> <C> <C>
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
===========================================================================================================
</TABLE>
6
<PAGE>
GRID SCHEDULE
-------------
REVOLVING CREDIT NOTE
ADVANCES BEARING INTEREST
AT LIBOR (3 MONTHS)
<TABLE>
<CAPTION>
===========================================================================================================
Principal
Amount of Bearing Interest
Amount of Advance at the Above- Notation
Date Due Date Advance Repaid Referenced Rate Made by
===========================================================================================================
<S> <C> <C> <C> <C> <C>
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
===========================================================================================================
</TABLE>
7
<PAGE>
GRID SCHEDULE
-------------
REVOLVING CREDIT NOTE
ADVANCES BEARING INTEREST
AT LIBOR (6 MONTHS)
<TABLE>
<CAPTION>
===========================================================================================================
Principal
Amount of Bearing Interest
Amount of Advance at the Above- Notation
Date Due Date Advance Repaid Referenced Rate Made by
===========================================================================================================
<S> <C> <C> <C> <C> <C>
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
===========================================================================================================
</TABLE>
8
<PAGE>
AFFIDAVIT OF OUT-OF-STATE DELIVERY
----------------------------------
STATE OF GEORGIA
COUNTY OF FULTON
I, Janet P. Sammons , being first duly sworn, upon my oath, depose and
----------------
say:
1. That I am a/an V.P. of SunTrust Bank, Central Florida, National
-----
Association.
2. That on the 3rd day of June, 1997, I witnessed the execution of that
---
certain Revolving Credit Note, dated June 3, 1997, in the face amount of Twenty-
Five Million and No/100 Dollars ($25,000,000.00) payable by RoTech Medical
Corporation, as Maker, to AMSOUTH BANK OF FLORIDA, as Payee (the "Note").
3. That execution of the Note took place in the City of Atlanta, the State
of Georgia.
4. That I accepted delivery of the Note on behalf of the Payee in Atlanta,
Georgia.
/s/ Janet P. Sammons
--------------------------------
Name: Janet P. Sammons
---------------------------
Title: V.P.
--------------------------
Subscribed and sworn before me this 3rd day of June, 1997.
---
/s/ Tonya Adams
-------------------------------------------------
Signature of Notary Public - State of Georgia
-------------------------------------------------
Print, Type or Stamp Commissioned Name of Notary
Public
Personally Known: X or Produced
---------
Identification:______
Type of Identification:_________________________
(NOTARIAL SEAL)
9
<PAGE>
F
<PAGE>
REVOLVING CREDIT NOTE
---------------------
June 3, 1997 $ 20,000,000.00
Atlanta, Georgia
FOR VALUE RECEIVED, the undersigned, ROTECH MEDICAL CORPORATION, a
Florida corporation (the "Borrower"), promises to pay to the order of
COOPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK B.A., "RABOBANK NEDERLAND," NEW
YORK BRANCH, a Netherlands banking association, (the "Bank") at the office of
the Bank at 245 Park Avenue, New York, New York 10167-0062, or at such other
place as the holder hereof may designate by notice in writing to Borrower, in
immediately available funds in lawful money of the United States of America, on
the sooner of (i) the Termination Date (as defined in the Agreement hereinafter
described), or (ii) acceleration of this indebtedness as hereinafter provided,
the lesser of (i) the principal sum of TWENTY MILLION AND NO/100 DOLLARS
($20,000,000.00) or (ii) so much thereof as shall have been from time to time
disbursed hereunder by the Bank in accordance with that certain Second Amended
and Restated Revolving Credit and Line of Credit Agreement dated as of June 3,
1997 (as amended, modified or supplemented, the "Agreement") by and among the
Borrower, the Bank, and the other Lenders which are parties thereto from time to
time, and not theretofore repaid, as shown on the grid schedule attached hereto
(the "Grid Schedule").
In addition to principal, Borrower agrees to pay interest on the
principal amounts disbursed hereunder from time to time from the date of each
disbursement until paid at such simple rates of interest per annum and upon such
dates as provided for in the Agreement. Interest shall accrue on the outstanding
principal balance from the date hereof up to and through the date on which all
principal and interest hereunder is paid in full, and shall be computed on the
basis of the actual number of days elapsed in a 360-day year. Such interest is
to be paid to the Bank at its office in New York, New York.
This Revolving Credit Note ("Note") evidences a loan incurred pursuant
to the terms and conditions of the Agreement to which reference is hereby made
for a full and complete description of such terms and conditions. All
capitalized terms used in this Note shall have the same meanings as set forth in
the Agreement.
Bank shall at all times have a right of set-off against any deposit
balances of Borrower in the possession of the Bank and the Bank may apply the
same against payment of this Note or any other indebtedness of Borrower to the
Bank. The payment of any indebtedness evidenced by this Note prior to the
Termination Date or demand shall not affect the enforceability of this Note as
to any future, different or other indebtedness incurred hereunder by the
Borrower. In the event the indebtedness evidenced by this Note is collected by
legal action or through an
<PAGE>
attorney-at-law, the Bank shall be entitled to recover from Borrower all costs
of collection, including, without limitation, reasonable attorneys' fees if
collected by or through an attorney-at-law.
Borrower acknowledges that the actual crediting of the amount of any
disbursement under the Agreement to an account of Borrower or recording such
amount in the Grid Schedule shall, in the absence of manifest error, constitute
presumptive evidence of such disbursement and that such advance was made and
borrowed under the Agreement. Such account records or Grid Schedule shall
constitute, in the absence of manifest error, presumptive evidence of principal
amounts outstanding and the payments made under the Agreement at any time and
from time to time, provided that the failure of Bank or any holder hereof to
record on the Grid Schedule or in such account the type or amount of any advance
shall not affect the obligation of the undersigned to repay such amount together
with interest thereon in accordance with this Note and the Agreement.
Upon the existence or occurrence of any Event of Default as defined in
the Agreement, the principal and all accrued interest hereof shall automatically
become, or may be declared, due and payable in the manner and with the effect
provided in the Agreement.
Prepayment of the Note in part or in whole is permitted subject to the
conditions set forth in the Agreement.
Failure or forbearance of Bank to exercise any right hereunder, or
otherwise granted by the Agreement or by law, shall not affect or release the
liability of Borrower hereunder, and shall not constitute a waiver of such right
unless so stated by Bank in writing. This Note shall be deemed to be made under,
and shall be construed in accordance with and governed by, the laws of the State
of Florida. Time is of the essence of this Note.
PRESENTMENT FOR PAYMENT, NOTICE OF DISHONOR AND PROTEST ARE HEREBY
WAIVED.
This Revolving Credit Note renews and replaces that certain Revolving
Credit Note dated june 4, 1996 in the face amount of $20,000,000.00 executed by
the Borrower in favor of the Bank, which note was exempt from Florida
documentary stamp tax.
Executed under hand and seal of the Borrower as of the day and year
first above written on this 3rd day of June, 1997.
ROTECH MEDICAL CORPORATION
By:/s/ Rebecca R. Irish
-------------------------------
Rebecca R. Irish,
Treasurer
2
<PAGE>
ACKNOWLEDGMENT
--------------
STATE OF GEORGIA
COUNTY OF FULTON
On this the 3rd day of June, 1997, personally appeared Rebecca R.
Irish, the Treasurer of Rotech Medical Corporation, a Florida corporation (the
"Borrower"), and before me, executed this Revolving Credit Note in the principal
amount of TWENTY MILLION AND NO/100 DOLLARS, ($20,000,000.00), payable to
COOPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK B.A., "RABOBANK NEDERLAND," NEW
YORK BRANCH, on behalf of the Borrower.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal.
/s/ Tonya Adams
--------------------------------------------
Signature of Notary Public, State of Georgia
[STAMP APPEARS HERE]
_____________________________________________
(Print, Type or Stamp Commissioned Name of
Notary Public)
Personally known ____; OR Produced
identification x
---
Type of identification produced: Florida DL
----------
(Notary Seal)
3
<PAGE>
GRID SCHEDULE
-------------
REVOLVING CREDIT NOTE
ADVANCES BEARING INTEREST
AT THE BASE RATE
<TABLE>
<CAPTION>
===========================================================================================================
Unpaid
Principal
Amount of Bearing Interest
Amount of Advance at the Above- Notation
Date Due Date Advance Repaid Referenced Rate Made by
===========================================================================================================
<S> <C> <C> <C> <C> <C>
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
</TABLE>
4
<PAGE>
GRID SCHEDULE
-------------
REVOLVING CREDIT NOTE
ADVANCES BEARING INTEREST
AT LIBOR (1 MONTH)
<TABLE>
<CAPTION>
===========================================================================================================
Unpaid
Principal
Amount of Bearing Interest
Amount of Advance at the Above- Notation
Date Due Date Advance Repaid Referenced Rate Made by
===========================================================================================================
<S> <C> <C> <C> <C> <C>
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
</TABLE>
5
<PAGE>
GRID SCHEDULE
-------------
REVOLVING CREDIT NOTE
ADVANCES BEARING INTEREST
AT LIBOR (2 MONTHS)
<TABLE>
<CAPTION>
===========================================================================================================
Unpaid
Principal
Amount of Bearing Interest
Amount of Advance at the Above- Notation
Date Due Date Advance Repaid Referenced Rate Made by
===========================================================================================================
<S> <C> <C> <C> <C> <C>
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
===========================================================================================================
</TABLE>
6
<PAGE>
GRID SCHEDULE
-------------
REVOLVING CREDIT NOTE
ADVANCES BEARING INTEREST
AT LIBOR (3 MONTHS)
<TABLE>
<CAPTION>
===========================================================================================================
Unpaid
Principal
Amount of Bearing Interest
Amount of Advance at the Above- Notation
Date Due Date Advance Repaid Referenced Rate Made by
===========================================================================================================
<S> <C> <C> <C> <C> <C>
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
===========================================================================================================
</TABLE>
7
<PAGE>
GRID SCHEDULE
-------------
REVOLVING CREDIT NOTE
ADVANCES BEARING INTEREST
AT LIBOR (6 MONTHS)
<TABLE>
<CAPTION>
===========================================================================================================
Unpaid
Principal
Amount of Bearing Interest
Amount of Advance at the Above- Notation
Date Due Date Advance Repaid Referenced Rate Made by
===========================================================================================================
<S> <C> <C> <C> <C> <C>
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
===========================================================================================================
</TABLE>
8
<PAGE>
AFFIDAVIT OF OUT-OF-STATE DELIVERY
----------------------------------
STATE OF GEORGIA
COUNTY OF FULTON
I, Janet P Sammons, being first duly sworn, upon my oath, depose and
say:
1. That I am a/an V.P of SunTrust Bank, Central Florida, National
Association.
2. That on the 3rd day of June, 1997, I witnessed the execution of that
certain Revolving Credit Note, dated June 3, 1997, in the face amount of Twenty
Million and No/100 Dollars ($20,000,000.00) payable by RoTech Medical
Corporation, as Maker, to COOPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK B.A.,
"RABOBANK NEDERLAND," NEW YORK BRANCH, as Payee (the "Note").
3. That execution of the Note took place in the City of Atlanta, the State
of Georgia.
4. That I accepted delivery of the Note on behalf of the Payee in Atlanta,
Georgia.
/s/ Janet P. Sammons
--------------------------------------
Name: /s/ Janet P. Sammon
-------------------------------
Title: V.P
-------------------------------
Subscribed and sworn before me this 3rd day of June, 1997.
/s/ Tonya Adams
-------------------------------------------------------
Signature of Notary Public - State of Georgia
-------------------------------------------------------
Print, Type or Stamp Commissioned Name of Notary
Public
Personally KNOWN: X Produced
---
Identification:_______
Type of Identification:_______________________________
(NOTARIAL SEAL)
9
<PAGE>
REVOLVING CREDIT NOTE
---------------------
June 3, 1997 $ 15,000,000.00
Atlanta, Georgia
FOR VALUE RECEIVED, the undersigned, ROTECH MEDICAL CORPORATION, a
Florida corporation (the "Borrower"), promises to pay to the order of THE
SUMITOMO BANK, LIMITED, a Japanese banking corporation (the "Bank") at the
office of the Bank at 233 South Wacker Drive, Suite 5400, Chicago, IL 60606 or
at such other place as the holder hereof may designate by notice in writing to
Borrower, in immediately available funds in lawful money of the United States of
America, on the sooner of (i) the Termination Date (as defined in the Agreement
hereinafter described), or (ii) acceleration of this indebtedness as hereinafter
provided, the lesser of (i) the principal sum of FIFTEEN MILLION AND NO/100
DOLLARS ($15,000,000.00) or (ii) so much thereof as shall have been from time to
time disbursed hereunder by the Bank in accordance with that certain Second
Amended and Restated Revolving Credit and Line of Credit Agreement dated as of
June 3, 1997 (as amended, modified or supplemented, the "Agreement") by and
among the Borrower, the Bank, and the other Lenders which are parties thereto
from time to time, and not theretofore repaid, as shown on the grid schedule
attached hereto (the "Grid Schedule").
In addition to principal, Borrower agrees to pay interest on the
principal amounts disbursed hereunder from time to time from the date of each
disbursement until paid at such simple rates of interest per annum and upon such
dates as provided for in the Agreement. Interest shall accrue on the outstanding
principal balance from the date hereof up to and through the date on which all
principal and interest hereunder is paid in full, and shall be computed on the
basis of the actual number of days elapsed in a 360-day year. Such interest is
to be paid to the Bank at its office in Chicago, Illinois.
This Revolving Credit Note ("Note") evidences a loan incurred pursuant
to the terms and conditions of the Agreement to which reference is hereby made
for a full and complete description of such terms and conditions. All
capitalized terms used in this Note shall have the same meanings as set forth in
the Agreement.
Bank shall at all times have a right of set-off against any deposit
balances of Borrower in the possession of the Bank and the Bank may apply the
same against payment of this Note or any other indebtedness of Borrower to the
Bank. The payment of any indebtedness evidenced by this Note prior to the
Termination Date or demand shall not affect the enforceability of this Note as
to any future, different or other indebtedness incurred hereunder by the
Borrower. In the event the indebtedness evidenced by this Note is collected by
legal action or through an
<PAGE>
attorney-at-law, the Bank shall be entitled to recover from Borrower all costs
of collection, including, without limitation, reasonable attorneys' fees if
collected by or through an attorney-at-law.
Borrower acknowledges that the actual crediting of the amount of any
disbursement under the Agreement to an account of Borrower or recording such
amount in the Grid Schedule shall, in the absence of manifest error, constitute
presumptive evidence of such disbursement and that such advance was made and
borrowed under the Agreement. Such account records or Grid Schedule shall
constitute, in the absence of manifest error, presumptive evidence of principal
amounts outstanding and the payments made under the Agreement at any time and
from time to time, provided that the failure of Bank or any holder hereof to
record on the Grid Schedule or in such account the type or amount of any advance
shall not affect the obligation of the undersigned to repay such amount together
with interest thereon in accordance with this Note and the Agreement.
Upon the existence or occurrence of any Event of Default as defined in
the Agreement, the principal and all accrued interest hereof shall automatically
become, or may be declared, due and payable in the manner and with the effect
provided in the Agreement.
Prepayment of the Note in part or in whole is permitted subject to the
conditions set forth in the Agreement.
Failure or forbearance of Bank to exercise any right hereunder, or
otherwise granted by the Agreement or by law, shall not affect or release the
liability of Borrower hereunder, and shall not constitute a waiver of such right
unless so stated by Bank in writing. This Note shall be deemed to be made under,
and shall be construed in accordance with and governed by, the laws of the State
of Florida. Time is of the essence of this Note.
PRESENTMENT FOR PAYMENT, NOTICE OF DISHONOR AND PROTEST ARE HEREBY
WAIVED.
Executed under hand and seal of the Borrower as of the day and year
first above written on this 3rd day of June, 1997.
ROTECH MEDICAL CORPORATION
By: /s/ Rebecca R. Irish
--------------------------------
Rebecca R. Irish,
Treasurer
2
<PAGE>
ACKNOWLEDGMENT
--------------
STATE OF GEORGIA
COUNTY OF FULTON
On this the 3rd day of June, 1997, personally appeared Rebecca R.
Irish, the Treasurer of Rotech Medical Corporation, a Florida corporation (the
"Borrower"), and before me, executed this Revolving Credit Note in the principal
amount of Fifteen Million and No/100 Dollars, ($15,000,000.00), payable to
MELLON BANK, N.A., on behalf of the Borrower.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal.
/s/ Tonya Adams
--------------------------------------------
Signature of Notary Public, State of Georgia
Notary Public Cowota, Georgia
My Commission Expires May 6, 2001
____________________________________________
(Print, Type or Stamp Commissioned Name of
Notary Public)
Personally known ____; OR Produced
identification X
-
Type of identification produced: Florida DL
____________________________________________
(Notary Seal)
3
<PAGE>
GRID SCHEDULE
-------------
REVOLVING CREDIT NOTE
ADVANCES BEARING INTEREST
AT THE BASE RATE
<TABLE>
<CAPTION>
===========================================================================================================
Unpaid
Principal
Amount of Bearing Interest
Amount of Advance at the Above- Notation
Date Due Date Advance Repaid Referenced Rate Made by
===========================================================================================================
<S> <C> <C> <C> <C> <C>
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
</TABLE>
4
<PAGE>
GRID SCHEDULE
-------------
REVOLVING CREDIT NOTE
ADVANCES BEARING INTEREST
AT LIBOR (1 MONTH)
<TABLE>
<CAPTION>
============================================================================================================
Unpaid
Principal
Amount of Bearing Interest
Amount of Advance at the Above- Notation
Date Due Date Advance Repaid Referenced Rate Made by
===========================================================================================================
<S> <C> <C> <C> <C> <C>
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
</TABLE>
5
<PAGE>
GRID SCHEDULE
-------------
REVOLVING CREDIT NOTE
ADVANCES BEARING INTEREST
AT LIBOR (2 MONTHS)
<TABLE>
<CAPTION>
===========================================================================================================
Unpaid
Principal
Amount of Bearing Interest
Amount of Advance at the Above- Notation
Date Due Date Advance Repaid Referenced Rate Made by
===========================================================================================================
<S> <C> <C> <C> <C> <C>
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
</TABLE>
6
<PAGE>
GRID SCHEDULE
-------------
REVOLVING CREDIT NOTE
ADVANCES BEARING INTEREST
AT LIBOR (3 MONTHS)
<TABLE>
<CAPTION>
===========================================================================================================
Unpaid
Principal
Amount of Bearing Interest
Amount of Advance at the Above- Notation
Date Due Date Advance Repaid Referenced Rate Made by
===========================================================================================================
<S> <C> <C> <C> <C> <C>
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
</TABLE>
7
<PAGE>
GRID SCHEDULE
-------------
REVOLVING CREDIT NOTE
ADVANCES BEARING INTEREST
AT LIBOR (6 MONTHS)
<TABLE>
<CAPTION>
===========================================================================================================
Unpaid
Principal
Amount of Bearing Interest
Amount of Advance at the Above- Notation
Date Due Date Advance Repaid Referenced Rate Made by
===========================================================================================================
<S> <C> <C> <C> <C> <C>
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
</TABLE>
8
<PAGE>
AFFIDAVIT OF OUT-OF-STATE DELIVERY
----------------------------------
STATE OF GEORGIA
COUNTY OF FULTON
I, Janet P. Sammons, being first duly sworn, upon my oath, depose and
say:
1. That I am a/an V.P. of SunTrust Bank, Central Florida, National
Association.
2. That on the ___ day of June, 1997, I witnessed the execution of
that certain Revolving Credit Note, dated June 3, 1997, in the face amount of
Fifteen Million and No/100 Dollars ($15,000,000.00) payable by RoTech Medical
Corporation, as Maker, to MELLON BANK, N.A, as payee (the "Note").
3. That execution of the Note took place in the City of Atlanta, the
State of Georgia.
4. That I accepted delivery of the Note on behalf of the Payee in
Atlanta, Georgia.
/s/ Janet P Sammons
------------------------------
Name: Janet P Sammons
------------------------
Title: V.P.
-----------------------
Subscribed and sworn before me this 3rd day of June, 1997.
/s/ Tonya Adams
---------------------------------------------
Signature of Notary Public - State of Georgia
Notary Public Cowota County, Georgia
My Commission Expires May 6, 2001
_____________________________________________
Print, Type or Stamp Commissioned Name of
Notary Public
Personally Known: X or Produced
Identification:______
Type of Identification:______________________
(NOTARIAL SEAL)
9
<PAGE>
LINE OF CREDIT NOTE
-------------------
June 3, 1997 $10,000,000.00
Atlanta, Georgia
FOR VALUE RECEIVED, the undersigned, ROTECH MEDICAL CORPORATION, a
Florida corporation (the "Borrower"), promises to pay to the order of SUNTRUST
BANK, CENTRAL FLORIDA, NATIONAL ASSOCIATION, a national banking association (the
"Bank") at the principal office of the Bank at 200 South Orange Avenue, Orlando,
Florida 32801, or at such other place as the holder hereof may designate by
notice in writing to Borrower, in immediately available funds in lawful money of
the United States of America on the sooner of (i) the Termination Date (as
defined in the Agreement hereinafter described) or (ii) acceleration of this
indebtedness as hereinafter provided, the lesser of (i) the principal sum of TEN
MILLION DOLLARS ($10,000,000.00), or (ii) so much thereof as shall have been
from time to time disbursed hereunder by the Bank in accordance with that
certain Second Amended Revolving Credit and Line of Credit Agreement dated as of
June 3, 1997 (as amended, modified or supplemented, the "Agreement") by and
among the Borrower, the Bank, and the other Lenders which are parties thereto
from time to time, and not theretofore repaid, as shown on the grid schedule
attached hereto (the "Grid Schedule").
In addition to principal, Borrower agrees to pay interest on the
principal amounts disbursed hereunder from time to time from the date of each
disbursement until paid at such simple rates of interest per annum and upon such
dates as provided for in the Agreement. Interest shall accrue on the outstanding
principal balance from the date hereof up to and through the date on which all
principal and interest hereunder is paid in full, and shall be computed on the
basis of the actual number of days elapsed in a 360-day year. Such interest is
to be paid to the Bank at its main office in Orlando, Florida.
This Line of Credit Note ("Note") evidences a loan incurred pursuant
to the terms and conditions of the Agreement to which reference is hereby made
for a full and complete description of such terms and conditions. All
capitalized terms used in this Note shall have the same meanings as set forth in
the Agreement.
Bank shall at all times have a right of set-off against any deposit
balances of Borrower in the possession of the Bank and the Bank may apply the
same against payment of this Note or any other indebtedness of Borrower to the
Bank. The payment of any indebtedness evidenced by this Note prior to the
Termination Date or demand shall not affect the enforceability of this Note as
to any future, different or other indebtedness incurred hereunder by the
Borrower. In the event the indebtedness evidenced by this Note is collected by
legal action or through an attorney-at-law,
<PAGE>
the Bank shall be entitled to recover from Borrower all costs of collection,
including, without limitation, reasonable attorneys' fees if collected by or
through an attorney-at-law.
Borrower acknowledges that the actual crediting of the amount of any
disbursement under the Agreement to an account of Borrower or recording such
amount in the Grid Schedule shall, in the absence of manifest error, constitute
presumptive evidence of such disbursement and that such advance was made and
borrowed under the Agreement. Such account records or Grid Schedule shall
constitute, in the absence of manifest error, presumptive evidence of principal
amounts outstanding and the payments made under the Agreement at any time and
from time to time, provided that the failure of Bank or any holder hereof to
record on the Grid Schedule or in such account the type or amount of any advance
shall not affect the obligation of the undersigned to repay such amount together
with interest thereon in accordance with this Note and the Agreement.
Upon the existence or occurrence of any Event of Default as defined in
the Agreement, the principal and all accrued interest hereof shall automatically
become, or may be declared, due and payable in the manner and with the effect
provided in the Agreement.
Prepayment of the Note in part or in whole is permitted subject to the
conditions set forth in the Agreement.
Failure or forbearance of Bank to exercise any right hereunder, or
otherwise granted by the Agreement or by law, shall not affect or release the
liability of Borrower hereunder, and shall not constitute a waiver of such right
unless so stated by Bank in writing. This Note shall be deemed to be made under,
and shall be construed in accordance with and governed by, the laws of the State
of Florida. Time is of the essence of this Note.
PRESENTMENT FOR PAYMENT, NOTICE OF DISHONOR AND PROTEST ARE HEREBY
WAIVED.
THIS LINE OF CREDIT NOTE RENEWS AND REPLACES THAT CERTAIN LINE OF
CREDIT NOTE DATED DECEMBER 29, 1995 IN THE FACE AMOUNT OF $5,000,000.00 EXECUTED
BY THE BORROWER IN FAVOR OF THE BANK, WHICH NOTE WAS EXEMPT FROM FLORIDA
DOCUMENTARY STAMP TAX.
Executed under hand and seal of the Borrower as of the day and year
first above written on this 3rd day of June, 1997.
ROTECH MEDICAL CORPORATION
By: /s/ Rebecca R. Irish
---------------------------
Rebecca R. Irish,
Treasurer
2
<PAGE>
ACKNOWLEDGMENT
--------------
STATE OF GEORGIA
COUNTY OF FULTON
On this the 3rd day of June, 1997 personally appeared Rebecca R.
Irish, the Treasurer of Rotech Medical Corporation, a Florida corporation (the
"Borrower"), and before me, executed the foregoing Line of Credit Note of even
date in the principal amount of TEN MILLION AND 00/100 DOLLARS ($10,000,000.00),
payable to SunTrust Bank, Central Florida, National Association on behalf of the
Borrower.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal.
/s/ Tonya Adams
--------------------------------------------
Signature of Notary Public, State of Georgia
--------------------------------------------
(Print, Type or Stamp Commissioned Name of N
Notary Public)
Personally known ____; OR Produced
identification X
-----
Type of identification produced: Florida
-----------
Drivers Licence
--------------------------------------------
(Notary Seal)
3
<PAGE>
GRID SCHEDULE
-------------
LINE OF CREDIT NOTE
<TABLE>
<CAPTION>
==============================================================================================================
Unpaid
Amount of Principal
Amount of Advance Amount of Notation
Date Due Date Advance Interest Rate Repaid Advance Made by
==============================================================================================================
<S> <C> <C> <C> <C> <C> <C>
- --------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------
==============================================================================================================
</TABLE>
<PAGE>
AFFIDAVIT OF OUT-OF-STATE DELIVERY
----------------------------------
STATE OF GEORGIA
COUNTY OF FULTON
I, Janet P. Sammons, being first duly sworn, upon my oath, depose and
say:
1. That I am a/an V.P. of SunTrust Bank, Central Florida, National
Association.
2. That on the 3rd day of June, 1997, I witnessed the execution of
that certain Line of Credit Note, dated June 3, 1997, in the face amount of Ten
Million and No/100 Dollars ($10,000,000.00) payable by RoTech Medical
Corporation, as Maker, to SUNTRUST BANK, CENTRAL FLORIDA, NATIONAL ASSOCIAION,
as Payee (the "Note").
3. That execution of the Note took place in the City of Atlanta, the
State of Georgia.
4. That I accepted delivery of the Note on behalf of the Payee in
Atlanta, Georgia.
/s/ Janet P. Sammons
--------------------------------------
Name: Janet P. Sammons
--------------------------------
Title: V.P.
-------------------------------
Subscribed and sworn before me this 3rd day of June, 1997.
/s/ Tonya Adams
---------------------------------------------
Signature of Notary Public - State of Georgia
_____________________________________________
Print, Type or Stamp Commissioned Name of
Notary Public
Personally Known: [X] or Produced
-----
Identification:______
Type of Identification:______________________
(NOTARIAL SEAL)
<PAGE>
SECOND SUPPLEMENT TO CONTRIBUTION AGREEMENT
-------------------------------------------
SUPPLEMENT NO. 2 dated as of June 3, 1997, to the CONTRIBUTION AGREEMENT
dated as of December 29, 1995, as supplemented by First Supplement dated as of
June 4, 1996 (as supplemented, the "Contribution Agreement") by and among ROTECH
MEDICAL CORPORATION, a Florida corporation ("the Borrower"), each of the
subsidiaries of the Borrower party thereto (together with any successors,
referred to herein individually as a "Guarantor" and collectively as
"Guarantors") and SUNTRUST BANK, CENTRAL FLORIDA, NATIONAL ASSOCIATION, as Agent
(the "Agent") for the Lenders parties to the Revolving Credit and Line of Credit
Agreement dated as of December 29, 1995, among the Borrower, the Lenders and the
Agent, as amended and restated in its entirety by the Amended and Restated
Revolving Credit and Line of Credit Agreement dated as of June 4, 1996 and as
further amended and restated in its entirety by the Second Amended and Restated
Revolving Credit and Line of Credit Agreement dated as of June 3, 1997 (as
amended, modified or supplemented from time to time, the "Credit Agreement";
capitalized terms used herein but not otherwise defined herein have the meanings
assigned to such terms in the Credit Agreement or the Contribution Agreement, as
the case may be).
The Guarantors have entered into the Contribution Agreement in order
to induce the Lenders to make the Loans. As a condition of the modification and
renewal of the credit facility extended to the Borrower pursuant to the Credit
Agreement, each Subsidiary incorporated in the United States that was not in
existence or not a Material Subsidiary or incorporated in the United States on
June 4, 1996 is required to enter into the Contribution Agreement as an
additional Guarantor. Section 14 of the Contribution Agreement provides that
additional Subsidiaries of the Borrower may become Guarantors under the
Contribution Agreement by execution and delivery of an instrument in the form of
this Supplement. Each of the undersigned (whether one or more, collectively, the
"New Guarantor") is a Subsidiary of the Borrower incorporated in the United
States and is executing this Supplement in accordance with the requirements of
the Credit Agreement to become a Guarantor under the Contribution Agreement in
order to induce the Lenders to make additional Loans and as consideration for
the Loans previously made.
Accordingly, Agent and New Guarantor agree as follows:
SECTION 1. JOINDER TO CONTRIBUTION AGREEMENT. In accordance with Section
---------------------------------
14 of the Contribution Agreement, each New Guarantor by its signature below
becomes a Guarantor under the Contribution Agreement with the same force and
effect as if originally named therein as a Guarantor, and each New Guarantor
hereby agrees to all the terms and provisions of the Contribution Agreement
applicable to it as a Guarantor thereunder. Each reference to a "Guarantor" in
the Contribution Agreement shall be
<PAGE>
deemed to include New Guarantor. The Contribution Agreement is hereby
incorporated herein by reference.
SECTION 2. ENFORCEABILITY. This Supplement has been duly authorized,
--------------
executed and delivered by each New Guarantor and constitutes a legal, valid and
binding obligation of such New Guarantor, enforceable against it in accordance
with its terms, except as the enforceability thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting creditors rights generally and by general principles of equity
(regardless of whether such enforceability is considered in a proceeding at law
or in equity).
SECTION 3. COUNTERPARTS. This Supplement and any amendments, waivers,
------------
consents or supplements may be executed in any number of counterparts and by the
different parties hereto in separate counterparts, each of which when so
executed and delivered shall be deemed an original, but all such counterparts
shall constitute but one and the same instrument.
SECTION 4. EFFECTIVE DATE. This Supplement shall become effective upon the
--------------
execution of a counterpart hereof by each of the parties hereto, and written or
telephonic notification of such execution and authorization of delivery thereof
has been received by New Guarantor and Agent.
SECTION 5. RATIFICATION OF CONTRIBUTION AGREEMENT. Except as expressly
--------------------------------------
supplemented hereby, the Contribution Agreement shall remain in full force and
effect.
SECTION 6. CHOICE OF LAW. THIS SUPPLEMENT SHALL BE GOVERNED BY, AND SHALL
-------------
BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF FLORIDA
WITHOUT REGARD TO THE CONFLICT OF LAWS PRINCIPLES THEREOF.
SECTION 7. SEVERABILITY. In case any provision in or obligation under
------------
this Supplement shall be invalid, illegal or unenforceable in any jurisdiction,
the validity, legality and enforceability of the remaining provisions or
obligations, or of such provision or obligation in any other jurisdiction, shall
not in any way be affected or impaired thereby.
SECTION 8. NOTICES. All communications and notices hereunder shall be in
-------
writing and given as provided in Section 16 of the Contribution Agreement. All
communications and notices hereunder to each New Guarantor shall be given to it
at the address set forth beside its signature.
SECTION 9. FEES AND EXPENSES. Each New Guarantor agrees to reimburse
-----------------
Agent for its reasonable out-of-pocket expenses in connection with this
Supplement, including the reasonable fees, disbursements and other charges of
counsel for Agent, whether suit be brought or not, and all reasonable attorneys'
fees, costs and expenses if an appeal is taken.
2
<PAGE>
IN WITNESS WHEREOF, New Guarantor and Agent have duly executed this
Supplement to Contribution Agreement as of the day and year first above written.
Address for Notices NEW GUARANTOR:
- ------------------- --------------
ADAPTIVE MEDICAL, INC., a South
Carolina corporation
4506 L. B. McLeod Road
Orlando, Florida 32811
By: /s/ Rebecca R. Irish
--------------------------------
Rebecca R. Irish,
Treasurer
ALLIED MEDICAL SUPPLY, INC., an
Arizona corporation
4506 L. B. McLeod Road
Orlando, Florida 32811
By: /s/ Rebecca R. Irish
--------------------------------
Rebecca R. Irish,
Treasurer
ALWAYS MEDICAL EQUIPMENT, INC., a
Florida corporation
4506 L. B. McLeod Road
Orlando, Florida 32811
By: /s/ Rebecca R. Irish
--------------------------------
Rebecca R. Irish,
Treasurer
AMBASSADOR MEDICAL EQUIPMENT, INC.,
a Florida corporation
4506 L. B. McLeod Road
Orlando, Florida 32811
By: /s/ Rebecca R. Irish
--------------------------------
Rebecca R. Irish,
Treasurer
AMERICAN OXYGEN SERVICES, INC., a
Florida corporation
4506 L. B. McLeod Road
Orlando, Florida 32811
By: /s/ Rebecca R. Irish
--------------------------------
Rebecca R. Irish,
Treasurer
3
<PAGE>
APEX HEALTHCARE, INC., a Delaware
corporation
4506 L. B. McLeod Road
Orlando, Florida 32811
By: /s/ Rebecca R. Irish
--------------------------------
Rebecca R. Irish,
Treasurer
APEX HEALTHCARE OF ALABAMA, INC.,
an Alabama corporation
4506 L. B. McLeod Road
Orlando, Florida 32811
By: /s/ Rebecca R. Irish
--------------------------------
Rebecca R. Irish,
Treasurer
APEX HEALTHCARE OF LOUISIANA, INC.,
a Louisiana corporation
4506 L. B. McLeod Road
Orlando, Florida 32811
By: /s/ Rebecca R. Irish
--------------------------------
Rebecca R. Irish,
Treasurer
APEX HEALTHCARE OF MISSISSIPPI,
INC., a Mississippi corporation
4506 L. B. McLeod Road
Orlando, Florida 32811
By: /s/ Rebecca R. Irish
--------------------------------
Rebecca R. Irish,
Treasurer
BAUMANN PHARMACEUTICA SERVICES,
INC., an Alabama corporation
4506 L. B. McLeod Road
Orlando, Florida 32811
By: /s/ Rebecca R. Irish
--------------------------------
Rebecca R. Irish,
Treasurer
BERKELEY MEDICAL EQUIPMENT, INC., a
Florida corporation
4506 L. B. McLeod Road
Orlando, Florida 32811
By: /s/ Rebecca R. Irish
--------------------------------
Rebecca R. Irish,
Treasurer
4
<PAGE>
CABOT MEDICAL EQUIPMENT, INC., a
Florida corporation
4506 L. B. McLeod Road
Orlando, Florida 32811
By: /s/ Rebecca R. Irish
--------------------------------
Rebecca R. Irish,
Treasurer
CANYON STATE MEDICAL SUPPLIES,
INC., an Arizona corporation
4506 L. B. McLeod Road
Orlando, Florida 32811
By: /s/ Rebecca R. Irish
--------------------------------
Rebecca R. Irish,
Treasurer
CENTENNIAL MEDICAL EQUIPMENT, INC.,
a Florida corporation
4506 L. B. McLeod Road
Orlando, Florida 32811
By: /s/ Rebecca R. Irish
--------------------------------
Rebecca R. Irish,
Treasurer
CENTRAL HOME CARE, INC., a Kentucky
corporation
4506 L. B. McLeod Road
Orlando, Florida 32811
By: /s/ Rebecca R. Irish
--------------------------------
Rebecca R. Irish,
Treasurer
CHEROKEE HOME MEDICAL, INC., a
Georgia corporation
4506 L. B. McLeod Road
Orlando, Florida 32811
By: /s/ Rebecca R. Irish
--------------------------------
Rebecca R. Irish,
Treasurer
DON PAUL RESPIRATORY SERVICES,
INC., a Colorado corporation
4506 L. B. McLeod Road
Orlando, Florida 32811
By: /s/ Rebecca R. Irish
--------------------------------
Rebecca R. Irish,
Treasurer
5
<PAGE>
EXCEL MEDICAL OF AMES, INC., an
Iowa corporation
4506 L. B. McLeod Road
Orlando, Florida 32811
By: /s/ Rebecca R. Irish
--------------------------------
Rebecca R. Irish,
Treasurer
EXCEL MEDICAL OF FORT DODGE, INC.,
an Iowa corporation
4506 L. B. McLeod Road
Orlando, Florida 32811
By: /s/ Rebecca R. Irish
--------------------------------
Rebecca R. Irish,
Treasurer
EXCEL MEDICAL OF MARSHALLTOWN,
INC., an Iowa corporation
4506 L. B. McLeod Road
Orlando, Florida 32811
By: /s/ Rebecca R. Irish
--------------------------------
Rebecca R. Irish,
Treasurer
FAMLICARE HOME MEDICAL EQUIPMENT,
INC., a Georgia corporation
4506 L. B. McLeod Road
Orlando, Florida 32811
By: /s/ Rebecca R. Irish
--------------------------------
Rebecca R. Irish,
Treasurer
FIRSTCARE, INC., a Kansas
corporation
4506 L. B. McLeod Road
Orlando, Florida 32811
By: /s/ Rebecca R. Irish
--------------------------------
Rebecca R. Irish,
Treasurer
FISHER MEDICAL EQUIPMENT CO., INC.,
an Idaho corporation
4506 L. B. McLeod Road
Orlando, Florida 32811
By: /s/ Rebecca R. Irish
--------------------------------
Rebecca R. Irish,
Treasurer
6
<PAGE>
FOUR RIVERS HOME HEALTHCARE, INC.,
a Missouri corporation
4506 L. B. McLeod Road
Orlando, Florida 32811
By: /s/ Rebecca R. Irish
--------------------------------
Rebecca R. Irish,
Treasurer
GEORGIA MEDICAL RESOURCES, INC., a
Florida corporation
4506 L. B. McLeod Road
Orlando, Florida 32811
By: /s/ Rebecca R. Irish
--------------------------------
Rebecca R. Irish,
Treasurer
HAMILTON MEDICAL EQUIPMENT SERVICE,
INC., an Iowa corporation
4506 L. B. McLeod Road
Orlando, Florida 32811
By: /s/ Rebecca R. Irish
--------------------------------
Rebecca R. Irish,
Treasurer
HEALTH-MED, INC., a Mississippi
corporation
4506 L. B. McLeod Road
Orlando, Florida 32811
By: /s/ Rebecca R. Irish
--------------------------------
Rebecca R. Irish,
Treasurer
HOME HEALTH SERVICES COMPANY, INC.,
an Iowa corporation
4506 L. B. McLeod Road
Orlando, Florida 32811
By: /s/ Rebecca R. Irish
--------------------------------
Rebecca R. Irish,
Treasurer
INFUSION SERVICES, INC., an Alabama
corporation
4506 L. B. McLeod Road
Orlando, Florida 32811
By: /s/ Rebecca R. Irish
--------------------------------
Rebecca R. Irish,
Treasurer
7
<PAGE>
LAWRENCE MEDICAL EQUIPMENT, INC., a
Kansas corporation
4506 L. B. McLeod Road
Orlando, Florida 32811
By: /s/ Rebecca R. Irish
--------------------------------
Rebecca R. Irish,
Treasurer
MEDFIRST HEALTH PLANS OF LOUISIANA,
INC., a Louisiana corporation
4506 L. B. McLeod Road
Orlando, Florida 32811
By: /s/ Rebecca R. Irish
--------------------------------
Rebecca R. Irish,
Treasurer
MEDFIRST MEDICAL CENTERS, INC., a
Louisiana corporation
4506 L. B. McLeod Road
Orlando, Florida 32811
By: /s/ Rebecca R. Irish
--------------------------------
Rebecca R. Irish,
Treasurer
MEDCASE MANAGEMENT, INC., a
Louisiana corporation
4506 L. B. McLeod Road
Orlando, Florida 32811
By: /s/ Rebecca R. Irish
--------------------------------
Rebecca R. Irish,
Treasurer
NEUMANN'S HOME MEDICAL, INC., an
Illinois corporation
4506 L. B. McLeod Road
Orlando, Florida 32811
By: /s/ Rebecca R. Irish
--------------------------------
Rebecca R. Irish,
Treasurer
NORTH CENTRAL WASHINGTON
RESPIRATORY CARE SERVICES, INC., a
Washington corporation
4506 L. B. McLeod Road
Orlando, Florida 32811
By: /s/ Rebecca R. Irish
--------------------------------
Rebecca R. Irish,
Treasurer
8
<PAGE>
NORTHWEST HOME MEDICAL, INC., a
Idaho corporation
4506 L. B. McLeod Road
Orlando, Florida 32811
By: /s/ Rebecca R. Irish
--------------------------------
Rebecca R. Irish,
Treasurer
PEDI-CARE, INC., a Kansas
corporation
4506 L. B. McLeod Road
Orlando, Florida 32811
By: /s/ Rebecca R. Irish
--------------------------------
Rebecca R. Irish,
Treasurer
PRINCIPAL MEDICAL EQUIPMENT, INC.,
a Florida corporation
4506 L. B. McLeod Road
Orlando, Florida 32811
By: /s/ Rebecca R. Irish
--------------------------------
Rebecca R. Irish,
Treasurer
PROFESSIONAL BREATHING ASSOCIATES,
INC., a Michigan corporation
4506 L. B. McLeod Road
Orlando, Florida 32811
By: /s/ Rebecca R. Irish
--------------------------------
Rebecca R. Irish,
Treasurer
REGENCY MEDICAL EQUIPMENT, INC., a
Florida corporation
4506 L. B. McLeod Road
Orlando, Florida 32811
By: /s/ Rebecca R. Irish
--------------------------------
Rebecca R. Irish,
Treasurer
RITT MEDICAL GROUP, INC., an
Arizona corporation
4506 L. B. McLeod Road
Orlando, Florida 32811
By: /s/ Rebecca R. Irish
--------------------------------
Rebecca R. Irish,
Treasurer
9
<PAGE>
WOFFORD PHARMACEUTICAL SERVICES,
INC., an Alabama corporation
4506 L. B. McLeod Road
Orlando, Florida 32811
By: /s/ Rebecca R. Irish
--------------------------------
Rebecca R. Irish,
Treasurer
WORKER'S HEALTH CARE CLINIC, INC.,
a Florida corporation
4506 L. B. McLeod Road
Orlando, Florida 32811
By: /s/ Rebecca R. Irish
--------------------------------
Rebecca R. Irish,
Treasurer
AGENT:
------
SUNTRUST BANK, CENTRAL FLORIDA,
NATIONAL ASSOCIATION, AS AGENT
By: /s/ Janet P. Sammons
--------------------------------
Janet P. Sammons
Vice President
10
<PAGE>
SECOND SUPPLEMENT TO
SUBSIDIARY GUARANTY AGREEMENT
-----------------------------
THIS SECOND SUPPLEMENT TO SUBSIDIARY GUARANTY AGREEMENT (this
"Supplement"), dated as of June 3, 1997, made by ADAPTIVE MEDICAL, INC., a South
Carolina corporation, ALLIED MEDICAL SUPPLY, INC., an Arizona corporation,
ALWAYS MEDICAL EQUIPMENT, INC., a Florida corporation, AMBASSADOR MEDICAL
EQUIPMENT, INC., a Florida corporation, AMERICAN OXYGEN SERVICES, INC., a
Florida corporation, APEX HEALTHCARE, INC., a Delaware corporation, APEX
HEALTHCARE OF ALABAMA, INC., an Alabama corporation, APEX HEALTHCARE OF
LOUISIANA, INC., a Louisiana corporation, APEX HEALTHCARE OF MISSISSIPPI, INC.,
a Mississippi corporation, BAUMANN PHARMACEUTICAL SERVICES, INC., an Alabama
corporation, BERKELEY MEDICAL EQUIPMENT, INC., a Florida corporation, CABOT
MEDICAL EQUIPMENT, INC., a Florida corporation, CANYON STATE MEDICAL SUPPLIES,
INC., an Arizona corporation, CENTENNIAL MEDICAL EQUIPMENT, INC., a Florida
corporation, CENTRAL HOME CARE, INC., a Kentucky corporation, CHEROKEE HOME
MEDICAL, INC., a Georgia corporation, DON PAUL RESPIRATORY SERVICES, INC., a
Colorado corporation, EXCEL MEDICAL OF AMES, INC., an Iowa corporation, EXCEL
MEDICAL OF FORT DODGE, INC., an Iowa corporation, EXCEL MEDICAL OF MARSHALLTOWN,
INC., an Iowa corporation, FAMLICARE HOME MEDICAL EQUIPMENT, INC., a Georgia
corporation, FIRSTCARE, INC., a Kansas corporation, FISHER MEDICAL EQUIPMENT
CO., INC., an Idaho corporation, FOUR RIVERS HOME HEALTHCARE, INC., a Missouri
corporation, GEORGIA MEDICAL RESOURCES, INC., a Florida corporation, HAMILTON
MEDICAL EQUIPMENT SERVICE, INC., an Iowa corporation, HEALTH-MED, INC., a
Mississippi corporation, HOME HEALTH SERVICES COMPANY, INC., an Iowa
corporation, INFUSION SERVICES, INC., an Alabama corporation, LAWRENCE MEDICAL
EQUIPMENT, INC., a Kansas corporation, MEDFIRST HEALTH PLANS OF LOUISIANA, INC.,
a Louisiana corporation, MEDFIRST MEDICAL CENTERS, INC., a Louisiana
corporation, MEDCASE MANAGEMENT, INC., a Louisiana corporation, NEUMANN'S HOME
MEDICAL, INC., an Illinois corporation, NORTH CENTRAL WASHINGTON RESPIRATORY
CARE SERVICES, INC., a Washington corporation, NORTHWEST HOME MEDICAL, INC., a
California corporation, PEDI-CARE, INC., a Kansas corporation, PRINCIPAL MEDICAL
EQUIPMENT, INC., a Florida corporation, PROFESSIONAL BREATHING ASSOCIATES, INC.,
a Michigan corporation, REGENCY MEDICAL EQUIPMENT, INC., a Florida corporation,
RITT MEDICAL GROUP, INC., an Arizona corporation, WOFFORD PHARMACEUTICAL
SERVICES, INC., an Alabama corporation, WORKER'S HEALTH CARE CLINIC, INC., a
Florida corporation, (whether one or more, collectively, the "Additional
Guarantor"), in favor of SUNTRUST BANK, CENTRAL FLORIDA, NATIONAL ASSOCIATION, a
national banking association, in its capacity as agent for Lenders at any time
parties to the Credit Agreement (as hereinafter defined) (the "Agent") and each
assignee thereof becoming a "Lender" as provided therein (the "Lenders"; the
Lenders
<PAGE>
and the Agent being collectively referred to herein as the "Guaranteed
Parties").
W I T N E S S E T H:
--------------------
WHEREAS, ROTECH MEDICAL CORPORATION, a Florida corporation (the
"Borrower"), the Lenders and the Agent are parties to a Revolving Credit and
Line of Credit Agreement, dated as of December 29, 1995, as amended and restated
in its entirety by an Amended and Restated Revolving Credit and Line of Credit
Agreement, dated as of June 4, 1996 and as further amended and restated in its
entirety by a Second Amended and Restated Revolving Credit and Line of Credit
Agreement dated as of June 3, 1997 (as the same may hereafter be amended,
restated, supplemented or otherwise modified from time to time, the "Credit
Agreement") pursuant to which the Lenders have made commitments to make loans to
the Borrower;
WHEREAS, certain Subsidiaries (the "Subsidiary Guarantors") of the
Borrower have executed and delivered a Subsidiary Guaranty Agreement dated as of
December 29, 1995, as supplemented by First Supplement dated as of June 4, 1996
(as supplemented, the "Subsidiary Guaranty") pursuant to which the Subsidiary
Guarantors have agreed to guarantee all of the obligations of the Borrower under
the Credit Agreement and the other Credit Documents (as defined in the Credit
Agreement);
WHEREAS, the Borrower, the Subsidiary Guarantors and the Additional
Guarantor share an identity of interests as members of a consolidated group of
companies engaged in substantially similar businesses; the Borrower provides
certain centralized financial, accounting and management services to the
Additional Guarantor; the making of the loans will facilitate expansion and
enhance the overall financial strength and stability of the Borrower's corporate
group, including the Additional Guarantor; and by virtue of intercompany
advances and loans, the financial accommodations to the Borrower under the
Credit Agreement shall inure to the direct and material benefit of the
Additional Guarantor; and
WHEREAS, it is a condition subsequent to the Lenders' obligation to
make loans to the Borrower under the Credit Agreement that the Additional
Guarantor execute and deliver to the Agent this Supplement, and the Additional
Guarantor desires to execute and deliver this Supplement to satisfy such
condition subsequent;
NOW, THEREFORE, in consideration of the premises and in order to
induce the Lenders to make the Loans to the Borrower under the Credit Agreement,
the Additional Guarantor hereby agrees as follows:
2
<PAGE>
1. DEFINED TERMS. Capitalized terms not otherwise defined herein which
-------------
are used in the Subsidiary Guaranty are used herein with the meanings given to
such terms in the Subsidiary Guaranty and any capitalized terms not otherwise
defined herein which are used in the Credit Agreement are used herein with the
meanings given to such terms in the Credit Agreement.
2. ADDITIONAL GUARANTOR. Each Additional Guarantor agrees that it shall
--------------------
be and become a Guarantor for all purposes of the Subsidiary Guaranty and shall
be fully liable thereunder to the Agent and the other Guaranteed Parties to the
same extent and with the same effect as though such Additional Guarantor had
been one of the Guarantors originally executing and delivering the Subsidiary
Guaranty. Without limiting the foregoing, the Additional Guarantor hereby
jointly and severally (with respect to the guaranties made by the Subsidiary
Guarantors under the Subsidiary Guaranty), irrevocably and unconditionally,
guarantees the punctual and full payment when due, whether at stated maturity by
acceleration or otherwise, of all Loans and all other Obligations owing by the
Borrower to the Lenders and the Agent, or any of them, jointly or severally,
under the Credit Agreement, the Notes and the other Credit Documents, including
all renewals, extensions, modifications and refinancings thereof, now or
hereafter owing, whether for principal, interest, fees, expenses or otherwise,
and any and all reasonable out-of-pocket expenses (including reasonable
attorneys' fees actually incurred and reasonable out-of-pocket expenses whether
suit be brought or not, including reasonable attorneys' fees, costs and expenses
if an appeal is taken) incurred by the Agent or any other Guaranteed Party in
enforcing any rights under the Subsidiary Guaranty (as supplemented hereby),
subject, however, to the limitations expressly provided in the Subsidiary
Guaranty in Section 15 thereof. All references in the Subsidiary Guaranty to
"Guarantors" or any "Guarantor", shall be deemed to include and to refer to the
Additional Guarantor.
3. GOVERNING LAW; SUBMISSION TO JURISDICTION; FULL FAITH AND CREDIT;
-----------------------------------------------------------------
WAIVER OF JURY TRIAL.
- --------------------
(A) THIS SUPPLEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY THE LAWS OF
THE STATE OF FLORIDA (WITHOUT GIVING EFFECT TO THE CONFLICT OF LAW PRINCIPLES
THEREOF).
(B) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS SUPPLEMENT,
THE SUBSIDIARY GUARANTY OR OTHERWISE RELATED HERETO MAY BE BROUGHT IN THE
CIRCUIT COURT OF ORANGE COUNTY OF THE STATE OF FLORIDA OR IN THE DISTRICT COURT
OF THE UNITED STATES OF AMERICA FOR THE MIDDLE DISTRICT OF FLORIDA, AND, BY
EXECUTION AND DELIVERY OF THIS SUPPLEMENT, THE ADDITIONAL GUARANTOR HEREBY
CONSENTS, FOR ITSELF AND IN RESPECT OF ITS PROPERTY, TO THE JURISDICTION OF THE
AFORESAID COURTS SOLELY FOR THE PURPOSE OF ADJUDICATING ITS RIGHTS
3
<PAGE>
OR THE RIGHTS OF THE AGENT OR OTHER GUARANTEED PARTIES WITH RESPECT TO THIS
SUPPLEMENT, THE SUBSIDIARY GUARANTY OR ANY DOCUMENT RELATED HERETO. THE
ADDITIONAL GUARANTOR HEREBY IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING, WITHOUT
LIMITATION, ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF
FORUM NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY
- --------------------
ACTION OR PROCEEDING IN SUCH RESPECTIVE JURISDICTIONS IN RESPECT OF THIS
SUPPLEMENT, THE SUBSIDIARY GUARANTY OR ANY DOCUMENT RELATED THERETO. NOTHING
HEREIN SHALL AFFECT THE RIGHT OF SUCH AGENT TO SERVE PROCESS IN ANY OTHER MANNER
PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST
THE ADDITIONAL GUARANTOR IN ANY OTHER JURISDICTION.
(C) TO THE EXTENT THAT ANY GUARANTEED PARTY OBTAINS ANY JUDGMENT
AGAINST THE ADDITIONAL GUARANTOR UNDER THIS SUPPLEMENT AND THE SUBSIDIARY
GUARANTY, THE ADDITIONAL GUARANTOR DOES HEREBY AGREE THAT SUCH JUDGMENT SHALL BE
ENTITLED TO "FULL FAITH AND CREDIT" WITH THE SAME FORCE AND EFFECT AS IF SUCH
JUDGMENT WAS RENDERED AGAINST SUCH ADDITIONAL GUARANTOR BY A COURT OR OTHER
TRIBUNAL LOCATED IN THE DOMICILE OF SUCH ADDITIONAL GUARANTOR, IF DIFFERENT FROM
THAT IN WHICH SUCH JUDGMENT IS RENDERED. THE ADDITIONAL GUARANTOR HEREBY AGREES
TO THE VALIDITY AND ENFORCEABILITY OF ANY SUCH JUDGMENT AND SHALL NOT SEEK TO
CHALLENGE OR "GO BEHIND" THE FACE OF SUCH JUDGMENT.
(D) TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE ADDITIONAL
GUARANTOR HEREBY KNOWINGLY, VOLUNTARILY, INTENTIONALLY AND IRREVOCABLY WAIVES
ALL RIGHT OF TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT
OF OR IN CONNECTION WITH THIS SUPPLEMENT, THE SUBSIDIARY GUARANTY OR ANY OTHER
CREDIT DOCUMENT OR ANY MATTER ARISING IN CONNECTION HEREUNDER OR THEREUNDER.
THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE GUARANTEED PARTIES TO EXTEND
CREDIT TO OR OTHERWISE BECOME OR REMAIN A CREDITOR OF THE BORROWER. FURTHER,
GUARANTORS HEREBY CERTIFY THAT NO REPRESENTATIVE OR AGENT OF THE GUARANTEED
PARTIES NOR ANY COUNSEL FOR THE GUARANTEED PARTIES HAS REPRESENTED, EXPRESSLY OR
OTHERWISE, THAT THE GUARANTEED PARTIES WOULD NOT, IN THE EVENT OF SUCH
LITIGATION, SEEK TO ENFORCE THIS WAIVER OF RIGHT OF JURY TRIAL PROVISION. NO
REPRESENTATIVE OR AGENT OF THE GUARANTEED PARTIES NOR COUNSEL FOR THE GUARANTEED
PARTIES HAS THE AUTHORITY TO WAIVE, CONDITION OR MODIFY THIS PROVISION.
4
<PAGE>
IN WITNESS WHEREOF, the Additional Guarantor has caused this
Supplement to be duly executed and delivered under seal by its duly authorized
officers as of the date first above written.
Address for Notices NEW GUARANTOR:
- ------------------- --------------
ADAPTIVE MEDICAL, INC., a South Carolina
corporation
4506 L. B. McLeod Road
Orlando, Florida 32811
By: /s/ Rebecca R. Irish
----------------------------
Rebecca R. Irish,
Treasurer
ALLIED MEDICAL SUPPLY, INC., an Arizona
corporation
4506 L. B. McLeod Road
Orlando, Florida 32811
By: /s/ Rebecca R. Irish
----------------------------
Rebecca R. Irish,
Treasurer
ALWAYS MEDICAL EQUIPMENT, INC., a
Florida corporation
4506 L. B. McLeod Road
Orlando, Florida 32811
By: /s/ Rebecca R. Irish
----------------------------
Rebecca R. Irish,
Treasurer
AMBASSADOR MEDICAL EQUIPMENT, INC., a
Florida corporation
4506 L. B. McLeod Road
Orlando, Florida 32811
By: /s/ Rebecca R. Irish
----------------------------
Rebecca R. Irish,
Treasurer
AMERICAN OXYGEN SERVICES, INC., a
Florida corporation
4506 L. B. McLeod Road
Orlando, Florida 32811
By: /s/ Rebecca R. Irish
----------------------------
Rebecca R. Irish,
Treasurer
5
<PAGE>
APEX HEALTHCARE, INC., a Delaware
corporation
4506 L. B. McLeod Road
Orlando, Florida 32811
By: /s/ Rebecca R. Irish
----------------------------
Rebecca R. Irish,
Treasurer
APEX HEALTHCARE OF ALABAMA, INC., an
Alabama corporation
4506 L. B. McLeod Road
Orlando, Florida 32811
By: /s/ Rebecca R. Irish
----------------------------
Rebecca R. Irish,
Treasurer
APEX HEALTHCARE OF LOUISIANA, INC., a
Louisiana corporation
4506 L. B. McLeod Road
Orlando, Florida 32811
By: /s/ Rebecca R. Irish
----------------------------
Rebecca R. Irish,
Treasurer
APEX HEALTHCARE OF MISSISSIPPI, INC., a
Mississippi corporation
4506 L. B. McLeod Road
Orlando, Florida 32811
By: /s/ Rebecca R. Irish
----------------------------
Rebecca R. Irish,
Treasurer
BAUMANN PHARMACEUTICAL SERVICES, INC.,
an Alabama corporation
4506 L. B. McLeod Road
Orlando, Florida 32811
By: /s/ Rebecca R. Irish
----------------------------
Rebecca R. Irish,
Treasurer
6
<PAGE>
BERKELEY MEDICAL EQUIPMENT, INC., a
Florida corporation
4506 L. B. McLeod Road
Orlando, Florida 32811
By: /s/ Rebecca R. Irish
----------------------------
Rebecca R. Irish,
Treasurer
CABOT MEDICAL EQUIPMENT, INC., a
Florida corporation
4506 L. B. McLeod Road
Orlando, Florida 32811
By: /s/ Rebecca R. Irish
----------------------------
Rebecca R. Irish,
Treasurer
CANYON STATE MEDICAL SUPPLIES, INC., an
Arizona corporation
4506 L. B. McLeod Road
Orlando, Florida 32811
By: /s/ Rebecca R. Irish
----------------------------
Rebecca R. Irish,
Treasurer
CENTENNIAL MEDICAL EQUIPMENT, INC., a
Florida corporation
4506 L. B. McLeod Road
Orlando, Florida 32811
By: /s/ Rebecca R. Irish
----------------------------
Rebecca R. Irish,
Treasurer
CENTRAL HOME CARE, INC., a Kentucky
corporation
4506 L. B. McLeod Road
Orlando, Florida 32811
By: /s/ Rebecca R. Irish
----------------------------
Rebecca R. Irish,
Treasurer
7
<PAGE>
CHEROKEE HOME MEDICAL, INC., a Georgia
corporation
4506 L. B. McLeod Road
Orlando, Florida 32811
By: /s/ Rebecca R. Irish
----------------------------
Rebecca R. Irish,
Treasurer
DON PAUL RESPIRATORY SERVICES, INC., a
Colorado corporation
4506 L. B. McLeod Road
Orlando, Florida 32811
By: /s/ Rebecca R. Irish
----------------------------
Rebecca R. Irish,
Treasurer
EXCEL MEDICAL OF AMES, INC., an Iowa
corporation
4506 L. B. McLeod Road
Orlando, Florida 32811
By: /s/ Rebecca R. Irish
----------------------------
Rebecca R. Irish,
Treasurer
EXCEL MEDICAL OF FORT DODGE, INC., an
Iowa corporation
4506 L. B. McLeod Road
Orlando, Florida 32811
By: /s/ Rebecca R. Irish
----------------------------
Rebecca R. Irish,
Treasurer
EXCEL MEDICAL OF MARSHALLTOWN, INC., an
Iowa corporation
4506 L. B. McLeod Road
Orlando, Florida 32811
By: /s/ Rebecca R. Irish
----------------------------
Rebecca R. Irish,
Treasurer
8
<PAGE>
FAMLICARE HOME MEDICAL EQUIPMENT, INC.,
a Georgia corporation
4506 L. B. McLeod Road
Orlando, Florida 32811
By: /s/ Rebecca R. Irish
----------------------------
Rebecca R. Irish,
Treasurer
FIRSTCARE, INC., a Kansas corporation
4506 L. B. McLeod Road
Orlando, Florida 32811
By: /s/ Rebecca R. Irish
----------------------------
Rebecca R. Irish,
Treasurer
FISHER MEDICAL EQUIPMENT CO., INC., an
Idaho corporation
4506 L. B. McLeod Road
Orlando, Florida 32811
By: /s/ Rebecca R. Irish
----------------------------
Rebecca R. Irish,
Treasurer
FOUR RIVERS HOME HEALTHCARE, INC., a
Missouri corporation
4506 L. B. McLeod Road
Orlando, Florida 32811
By: /s/ Rebecca R. Irish
----------------------------
Rebecca R. Irish,
Treasurer
GEORGIA MEDICAL RESOURCES, INC., a
Florida corporation
4506 L. B. McLeod Road
Orlando, Florida 32811
By: /s/ Rebecca R. Irish
----------------------------
Rebecca R. Irish,
Treasurer
9
<PAGE>
HAMILTON MEDICAL EQUIPMENT SERVICE,
INC., an Iowa corporation
4506 L. B. McLeod Road
Orlando, Florida 32811
By: /s/ Rebecca R. Irish
----------------------------
Rebecca R. Irish,
Treasurer
HEALTH-MED, INC., a Mississippi
corporation
4506 L. B. McLeod Road
Orlando, Florida 32811
By: /s/ Rebecca R. Irish
----------------------------
Rebecca R. Irish,
Treasurer
HOME HEALTH SERVICES COMPANY, INC., an
Iowa corporation
4506 L. B. McLeod Road
Orlando, Florida 32811
By: /s/ Rebecca R. Irish
----------------------------
Rebecca R. Irish,
Treasurer
INFUSION SERVICES, INC., an Alabama
corporation
4506 L. B. McLeod Road
Orlando, Florida 32811
By: /s/ Rebecca R. Irish
----------------------------
Rebecca R. Irish,
Treasurer
LAWRENCE MEDICAL EQUIPMENT, INC., a
Kansas corporation
4506 L. B. McLeod Road
Orlando, Florida 32811
By: /s/ Rebecca R. Irish
----------------------------
Rebecca R. Irish,
Treasurer
10
<PAGE>
MEDFIRST HEALTH PLANS OF LOUISIANA,
INC., a Louisiana corporation
4506 L. B. McLeod Road
Orlando, Florida 32811
By: /s/ Rebecca R. Irish
----------------------------
Rebecca R. Irish,
Treasurer
MEDFIRST MEDICAL CENTERS, INC., a
Louisiana corporation
4506 L. B. McLeod Road
Orlando, Florida 32811
By: /s/ Rebecca R. Irish
----------------------------
Rebecca R. Irish,
Treasurer
MEDCASE MANAGEMENT, INC., a Louisiana
corporation
4506 L. B. McLeod Road
Orlando, Florida 32811
By: /s/ Rebecca R. Irish
----------------------------
Rebecca R. Irish,
Treasurer
NEUMANN'S HOME MEDICAL, INC., an
Illinois corporation
4506 L. B. McLeod Road
Orlando, Florida 32811
By: /s/ Rebecca R. Irish
----------------------------
Rebecca R. Irish,
Treasurer
NORTH CENTRAL WASHINGTON RESPIRATORY
CARE SERVICES, INC., a Washington
corporation
4506 L. B. McLeod Road
Orlando, Florida 32811
By: /s/ Rebecca R. Irish
----------------------------
Rebecca R. Irish,
Treasurer
11
<PAGE>
NORTHWEST HOME MEDICAL, INC., a Idaho
corporation
4506 L. B. McLeod Road
Orlando, Florida 32811
By: /s/ Rebecca R. Irish
----------------------------
Rebecca R. Irish,
Treasurer
PEDI-CARE, INC., a Kansas corporation
4506 L. B. McLeod Road
Orlando, Florida 32811
By: /s/ Rebecca R. Irish
----------------------------
Rebecca R. Irish,
Treasurer
PRINCIPAL MEDICAL EQUIPMENT, INC., a
Florida corporation
4506 L. B. McLeod Road
Orlando, Florida 32811
By: /s/ Rebecca R. Irish
----------------------------
Rebecca R. Irish,
Treasurer
PROFESSIONAL BREATHING ASSOCIATES, INC.,
a Michigan corporation
4506 L. B. McLeod Road
Orlando, Florida 32811
By: /s/ Rebecca R. Irish
----------------------------
Rebecca R. Irish,
Treasurer
REGENCY MEDICAL EQUIPMENT, INC., a
Florida corporation
4506 L. B. McLeod Road
Orlando, Florida 32811
By: /s/ Rebecca R. Irish
----------------------------
Rebecca R. Irish,
Treasurer
12
<PAGE>
RITT MEDICAL GROUP, INC., an Arizona
corporation
4506 L. B. McLeod Road
Orlando, Florida 32811
By: /s/ Rebecca R. Irish
----------------------------
Rebecca R. Irish,
Treasurer
WOFFORD PHARMACEUTICAL SERVICES, INC.,
an Alabama corporation
4506 L. B. McLeod Road
Orlando, Florida 32811
By: /s/ Rebecca R. Irish
----------------------------
Rebecca R. Irish,
Treasurer
WORKER'S HEALTH CARE CLINIC, INC., a
Florida corporation
4506 L. B. McLeod Road
Orlando, Florida 32811
By: /s/ Rebecca R. Irish
----------------------------
Rebecca R. Irish,
Treasurer
13
<PAGE>
Prepared by and Return to:
- -------------------------
Charles T. Brumback, Jr., Esq.
Akerman, Senterfitt & Eidson, P.A.
P.O. Box 231
Orlando, FL 32802-0231
AGREEMENT NOT TO SELL OR ENCUMBER ASSETS
----------------------------------------
THIS AGREEMENT NOT TO SELL OR ENCUMBER ASSETS entered into as of the 3rd
day of June, 1997, by and between the undersigned entities (collectively, the
"Companies") and SUNTRUST BANK, CENTRAL FLORIDA, NATIONAL ASSOCIATION, a
national banking association having its principal office at 200 S. Orange
Avenue, Orlando, Florida 32801 (the "Agent"), as agent for the Lenders at any
time parties to the Credit Agreement referenced below (collectively, the
"Lenders").
W I T N E S S E T H:
-------------------
WHEREAS, ROTECH MEDICAL CORPORATION, a Florida corporation (the
"Borrower"), the Lenders and the Agent are parties to a Revolving Credit and
Line of Credit Agreement, dated as of December 29, 1995, as amended and restated
in its entirety by an Amended and Restated Revolving Credit and Line of Credit
Agreement, dated as of June 4, 1996 and as further amended and restated in its
entirety by a Second Amended and Restated Revolving Credit and Line of Credit
Agreement dated as of June 3, 1997 (as the same may hereafter be amended,
restated, supplemented or otherwise modified from time to time, the "Credit
Agreement") pursuant to which the Lenders have made commitments to make
revolving credit and line of credit loans (the "Loans") to the Borrower; and
WHEREAS, certain Subsidiaries of the Borrower have previously executed
and delivered an Agreement Not to Sell or Encumber Assets dated as of December
29, 1995 and certain other Subsidiaries of the Borrower have previously executed
and delivered an Agreement Not to Sell or Encumber Assets dated as of June 4,
1996 pursuant to which such Subsidiaries have agreed to continue to hold and not
sell or encumber all of their assets; and
WHEREAS, as a condition of the modification and renewal of the Loans
extended to the Borrower pursuant to the Credit Agreement, the Lenders require
that all the assets of the Companies (the "Assets") be owned free and clear of
all liens and
<PAGE>
encumbrances except those presently in existence and that the Assets not be
sold during the term of the Credit Agreement, except in the ordinary course of
business as permitted in the Credit Agreement; and
WHEREAS, the Companies have determined that it is in their best interests
that the Loans be extended to the Borrower by the Lenders and that they continue
to hold and not sell or encumber the Assets.
NOW, THEREFORE, in consideration of the premises herein contained, the
Companies do hereby state to and agree with the Lenders as follows:
1. Ownership of Assets. That the Companies are the owner of the Assets
-------------------
(except assets sold in the ordinary course of business subsequent to the date of
each of the Company's most recent financial statements hereinafter mentioned)
subject to no encumbrances or liens whatsoever except for those shown on the
most recent audited financial statements of the Companies provided to the
Lenders in connection with the Loans.
2. Agreement Not to Sell or Encumber. That, during the term of the Credit
---------------------------------
Agreement (which, by definition, includes any amendments, supplements,
modifications or restatements thereof), the Companies shall not, without the
prior written consent of the Lenders:
a. Sell or enter into any agreement to sell the Assets, or any
portion thereof except in the ordinary course of business as permitted by the
Credit Agreement.
b. Encumber, agree to encumber or permit to be encumbered in any way
whatsoever the Assets, or any portion thereof.
c. Agree or enter into any other agreement of any nature whatsoever
granting to any person any interest whatsoever in the Assets, or any portion
thereof.
IN WITNESS WHEREOF, the Companies have executed this Agreement Not to Sell
or Encumber Assets on the day and year first above mentioned.
Address for Notices
- -------------------
ADAPTIVE MEDICAL, INC., a South
Carolina corporation
4506 L. B. McLeod Road
Orlando, Florida 32811
By:/s/ Rebecca R. Irish
-----------------------------------
Rebecca R. Irish,
Treasurer
2
<PAGE>
ALLIED MEDICAL SUPPLY, INC., an
Arizona corporation
4506 L. B. McLeod Road
Orlando, Florida 32811
By:/s/ Rebecca R. Irish
-----------------------------------
Rebecca R. Irish,
Treasurer
ALWAYS MEDICAL EQUIPMENT, INC., a
Florida corporation
4506 L. B. McLeod Road
Orlando, Florida 32811
By:/s/ Rebecca R. Irish
-----------------------------------
Rebecca R. Irish,
Treasurer
AMBASSADOR MEDICAL EQUIPMENT, INC., a
Florida corporation
4506 L. B. McLeod Road
Orlando, Florida 32811
By:/s/ Rebecca R. Irish
-----------------------------------
Rebecca R. Irish,
Treasurer
AMERICAN OXYGEN SERVICES, INC., a
Florida corporation
4506 L. B. McLeod Road
Orlando, Florida 32811
By:/s/ Rebecca R. Irish
-----------------------------------
Rebecca R. Irish,
Treasurer
APEX HEALTHCARE, INC., a Delaware
corporation
4506 L. B. McLeod Road
Orlando, Florida 32811
By:/s/ Rebecca R. Irish
----------------------------------
Rebecca R. Irish,
Treasurer
APEX HEALTHCARE OF ALABAMA, INC.,
an Alabama corporation
4506 L. B. McLeod Road
Orlando, Florida 32811
By:/s/ Rebecca R. Irish
-----------------------------------
Rebecca R. Irish,
Treasurer
3
<PAGE>
APEX HEALTHCARE OF LOUISIANA, INC.,
a Louisiana corporation
4506 L. B. McLeod Road
Orlando, Florida 32811
By:/s/ Rebecca R. Irish
-----------------------------------
Rebecca R. Irish,
Treasurer
APEX HEALTHCARE OF MISSISSIPPI,
INC., a Mississippi corporation
4506 L. B. McLeod Road
Orlando, Florida 32811
By:/s/ Rebecca R. Irish
-----------------------------------
Rebecca R. Irish,
Treasurer
BAUMANN PHARMACEUTICAL SERVICES,
INC., an Alabama corporation
4506 L. B. McLeod Road
Orlando, Florida 32811
By:/s/ Rebbecca R. Irish
-----------------------------------
Rebecca R. Irish,
Treasurer
BERKELEY MEDICAL EQUIPMENT, INC.,
a Florida corporation
4506 L. B. McLeod Road
Orlando, Florida 32811
By:/s/ Rebecca R. Irish
-----------------------------------
Rebecca R. Irish,
Treasurer
4
<PAGE>
CABOT MEDICAL EQUIPMENT, INC., a
Florida corporation
4506 L. B. McLeod Road
Orlando, Florida 32811
By:/s/ Rebecca R. Irish
-----------------------------------
Rebecca R. Irish,
Treasurer
CANYON STATE MEDICAL SUPPLIES,
INC., an Arizona corporation
4506 L. B. McLeod Road
Orlando, Florida 32811
By:/s/ Rebecca R. Irish
-----------------------------------
Rebecca R. Irish,
Treasurer
CENTENNIAL MEDICAL EQUIPMENT, INC.,
a Florida corporation
4506 L. B. McLeod Road
Orlando, Florida 32811
By:/s/ Rebecca R. Irish
-----------------------------------
Rebecca R. Irish,
Treasurer
CENTRAL HOME CARE, INC., a Kentucky
corporation
4506 L. B. McLeod Road
Orlando, Florida 32811
By:/s/ Rebecca R. Irish
-----------------------------------
Rebecca R. Irish,
Treasurer
CHEROKEE HOME MEDICAL, INC., a
Georgia corporation
4506 L. B. McLeod Road
Orlando, Florida 32811
By:/s/ Rebecca R. Irish
-----------------------------------
Rebecca R. Irish,
Treasurer
DON PAUL RESPIRATORY SERVICES,
INC., a Colorado corporation
4506 L. B. McLeod Road
Orlando, Florida 32811
By:/s/ Rebecca R. Irish
-----------------------------------
Rebecca R. Irish,
Treasurer
5
<PAGE>
EXCEL MEDICAL OF AMES, INC., an
Iowa corporation
4506 L. B. McLeod Road
Orlando, Florida 32811
By:/s/ Rebecca R. Irish
-----------------------------------
Rebecca R. Irish,
Treasurer
EXCEL MEDICAL OF FORT DODGE, INC.,
an Iowa corporation
4506 L. B. McLeod Road
Orlando, Florida 32811
By:/s/ Rebecca R. Irish
-----------------------------------
Rebecca R. Irish,
Treasurer
EXCEL MEDICAL OF MARSHALLTOWN,
INC., an Iowa corporation
4506 L. B. McLeod Road
Orlando, Florida 32811
By:/s/ Rebecca R. Irish
-----------------------------------
Rebecca R. Irish,
Treasurer
FAMLICARE HOME MEDICAL EQUIPMENT,
INC., a Georgia corporation
4506 L. B. McLeod Road
Orlando, Florida 32811
By:/s/ Rebecca R. Irish
-----------------------------------
Rebecca R. Irish,
Treasurer
FIRSTCARE, INC., a Kansas
corporation
4506 L. B. McLeod Road
Orlando, Florida 32811
By:/s/ Rebecca R. Irish
-----------------------------------
Rebecca R. Irish,
Treasurer
FISHER MEDICAL EQUIPMENT CO., INC.,
an Idaho corporation
4506 L. B. McLeod Road
Orlando, Florida 32811
By:/s/ Rebecca R. Irish
-----------------------------------
Rebecca R. Irish,
Treasurer
6
<PAGE>
FOUR RIVERS HOME HEALTHCARE, INC.,
a Missouri corporation
4506 L. B. McLeod Road
Orlando, Florida 32811
By:/s/ Rebecca R. Irish
-----------------------------------
Rebecca R. Irish,
Treasurer
GEORGIA MEDICAL RESOURCES, INC., a
Florida corporation
4506 L. B. McLeod Road
Orlando, Florida 32811
By:/s/ Rebecca R. Irish
-----------------------------------
Rebecca R. Irish,
Treasurer
HAMILTON MEDICAL EQUIPMENT SERVICE,
INC., an Iowa corporation
4506 L. B. McLeod Road
Orlando, Florida 32811
By:/s/ Rebecca R. Irish
-----------------------------------
Rebecca R. Irish,
Treasurer
HEALTH-MED, INC., a Mississippi
corporation
4506 L. B. McLeod Road
Orlando, Florida 32811
By:/s/ Rebecca R. Irish
-----------------------------------
Rebecca R. Irish,
Treasurer
HOME HEALTH SERVICES COMPANY, INC.,
an Iowa corporation
4506 L. B. McLeod Road
Orlando, Florida 32811
By:/s/ Rebecca R. Irish
-----------------------------------
Rebecca R. Irish,
Treasurer
INFUSION SERVICES, INC., an Alabama
corporation
4506 L. B. McLeod Road
Orlando, Florida 32811
By:/s/ Rebecca R. Irish
-----------------------------------
Rebecca R. Irish,
Treasurer
7
<PAGE>
LAWRENCE MEDICAL EQUIPMENT, INC., a
Kansas corporation
4506 L. B. McLeod Road
Orlando, Florida 32811
By:/s/ Rebecca R. Irish
-----------------------------------
Rebecca R. Irish,
Treasurer
MEDFIRST HEALTH PLANS OF LOUISIANA,
INC., a Louisiana corporation
4506 L. B. McLeod Road
Orlando, Florida 32811
By:/s/ Rebecca R. Irish
-----------------------------------
Rebecca R. Irish,
Treasurer
MEDFIRST MEDICAL CENTERS, INC., a
Louisiana corporation
4506 L. B. McLeod Road
Orlando, Florida 32811
By:/s/ Rebecca R. Irish
-----------------------------------
Rebecca R. Irish,
Treasurer
MEDCASE MANAGEMENT, INC., a
Louisiana corporation
4506 L. B. McLeod Road
Orlando, Florida 32811
By:/s/ Rebecca R. Irish
-----------------------------------
Rebecca R. Irish,
Treasurer
NEUMANN'S HOME MEDICAL, INC., an
Illinois corporation
4506 L. B. McLeod Road
Orlando, Florida 32811
By:/s/ Rebecca R. Irish
-----------------------------------
Rebecca R. Irish,
Treasurer
NORTH CENTRAL WASHINGTON
RESPIRATORY CARE SERVICES, INC., a
Washington corporation
4506 L. B. McLeod Road
Orlando, Florida 32811
By:/s/ Rebecca R. Irish
-----------------------------------
Rebecca R. Irish,
Treasurer
8
<PAGE>
NORTHWEST HOME MEDICAL, INC., a
Idaho corporation
4506 L. B. McLeod Road
Orlando, Florida 32811
By:/s/ Rebecca R. Irish
-----------------------------------
Rebecca R. Irish,
Treasurer
PEDI-CARE, INC., a Kansas
corporation
4506 L. B. McLeod Road
Orlando, Florida 32811
By:/s/ Rebecca R. Irish
-----------------------------------
Rebecca R. Irish,
Treasurer
PRINCIPAL MEDICAL EQUIPMENT, INC.,
a Florida corporation
4506 L. B. McLeod Road
Orlando, Florida 32811
By:/s/ Rebecca R. Irish
-----------------------------------
Rebecca R. Irish,
Treasurer
PROFESSIONAL BREATHING ASSOCIATES,
INC., a Michigan corporation
4506 L. B. McLeod Road
Orlando, Florida 32811
By:/s/ Rebecca R. Irish
----------------------------------
Rebecca R. Irish,
Treasurer
REGENCY MEDICAL EQUIPMENT, INC., a
Florida corporation
4506 L. B. McLeod Road
Orlando, Florida 32811
By:/s/ Rebecca R. Irish
----------------------------------
Rebecca R. Irish,
Treasurer
RITT MEDICAL GROUP, INC., an
Arizona corporation
4506 L. B. McLeod Road
Orlando, Florida 32811
By:/s/ Rebecca R. Irish
----------------------------------
Rebecca R. Irish,
Treasurer
9
<PAGE>
WOFFORD PHARMACEUTICAL SERVICES,
INC., an Alabama corporation
4506 L. B. McLeod Road
Orlando, Florida 32811
By:/s/ Rebecca R. Irish
----------------------------------
Rebecca R. Irish,
Treasurer
WORKER'S HEALTH CARE CLINIC, INC.,
a Florida corporation
4506 L. B. McLeod Road
Orlando, Florida 32811
By:/s/ Rebecca R. Irish
----------------------------------
Rebecca R. Irish,
Treasurer
STATE OF GEORGIA
COUNTY OF FULTON
The foregoing instrument was acknowledged before me the 3rd day of June,
1997, by Rebecca R. Irish as the Treasurer of each of the foregoing Companies
which are a party to this Agreement, on behalf of each Company.
/s/ Tonya Adams
-----------------------------------------------
Signature of Notary Public, State of Florida
-----------------------------------------------
(Print, Type or Stamp Commissioned Name of
Notary Public)
Personally known ____; OR Produced
identification X
---
Type of identification produced: Florida DL
_______________________________________________
(Notary Seal)
10
<PAGE>
CERTIFICATE OF THE SECRETARY
OF
ROTECH MEDICAL CORPORATION
The undersigned hereby certifies that:
1. He is the Secretary of ROTECH MEDICAL CORPORATION, a Florida
corporation, (the "Company") and that as such he is personally familiar with and
keeps control of, its charter, by-laws and minute books, and schedules meetings
of its Board of Directors;
2. The copy of the Articles of Incorporation attached as Exhibit "A" to
----------
that certain Certificate of the Secretary dated December 29, 1995, executed and
delivered by the undersigned is a true and correct copy of the Company's
Articles of Incorporation as in effect on the date hereof;
3. The copy of the By-Laws attached as Exhibit "B" to that certain
----------
Certificate of the Secretary dated December 29, 1995, executed and delivered by
the undersigned is a true and correct copy of the By-Laws of the Company as in
effect on the date hereof;
4. Attached hereto as Exhibit "A" is a true and correct copy of
----------
resolutions of the Board of Directors of the Company, duly adopted on June 3,
1997, either by unanimous written consent of the members of said Board of
Directors or at a meeting of the members of said Board of Directors at which a
quorum was present and acting throughout; such proceedings were conducted in
accordance with the Articles of Incorporation of the Company and said
resolutions have not been amended, rescinded, modified or revoked and are in
full force and effect as of the date hereof;
5. The persons listed below have been duly elected by the Board of
Directors of the Company to the offices set forth opposite their respective
names, have been duly qualified, and are presently serving as officers of the
Company in such capacities. The signatures set forth opposite their respective
names are true and correct specimens of their genuine signatures.
Title Name Signature
- ----- ---- ---------
President Stephen P. Griggs /s/ Stephen P. Griggs
----------------------------
Secretary William A. Walker II /s/ William A. Walker II
----------------------------
Treasurer Rebecca R. Irish /s/ Rebecca R. Irish
----------------------------
<PAGE>
IN WITNESS WHEREOF, the undersigned has executed this certificate in his
aforesaid capacity, this 3rd day of June, 1997.
/s/ William A. Irish II
-------------------------------------
William A. Walker II, Secretary
The undersigned, Treasurer of the Company, does hereby certify that (i)
William A. Walker II has been duly elected by the Board of Directors of the
Company to serve as Secretary, (ii) he has been duly qualified and is presently
serving the Company in such capacity, and (iii) the signature set forth above is
his genuine signature.
IN WITNESS WHEREOF, the undersigned has executed this certificate in her
aforesaid capacity, this 3rd day of June, 1997.
/s/ Rebecca R. Irish
-------------------------------------
Rebecca R. Irish, Treasurer
2
<PAGE>
EXHIBIT "A"
RESOLUTIONS OF THE BOARD OF DIRECTORS
OF
ROTECH MEDICAL CORPORATION
"WHEREAS, SUNTRUST BANK, CENTRAL FLORIDA, NATIONAL ASSOCIATION, a national
banking association ("SunTrust"), NATIONSBANK OF FLORIDA, N.A., N/K/A
NATIONSBANK, N.A. ("NationsBank"), NBD BANK ("NBD"), PNC BANK, KENTUCKY,
INC. ("PNC"), BARNETT BANK OF CENTRAL FLORIDA, N.A., N/K/A BARNETT BANK,
N.A. ("Barnett") and COOPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK B.A.,
"RABOBANK NEDERLAND", NEW YORK BRANCH ("Rabobank") (SunTrust, NationsBank,
Barnett and Rabobank are hereinafter collectively referred to as the
"Existing Lenders") previously extended to ROTECH MEDICAL CORPORATION, a
Florida corporation (the "Corporation"), revolving line of credit loans in
the maximum aggregate principal amount of $195,000,000 (the "Revolving
Loan"), SunTrust agreed to act as agent for the Revolving Loan, and
SunTrust previously extended to the Corporation a revolving line of credit
loan in the maximum principal amount of $5,000,000 (the "Line of Credit
Loan"; and collectively with the Revolving Loan, the "Loans"), all pursuant
to that certain Amended and Restated Revolving Credit and Line of Credit
Agreement dated as of June 4, 1996 by and between the Corporation, the
Existing Lenders and SunTrust, as Agent (the "Original Credit Agreement");
and
WHEREAS, the Corporation has requested that the Revolving Loan Commitment
be increased by $95,000,000 to the maximum aggregate principal amount of
$290,000,000, that the Line of Credit Commitment be increased by $5,000,000
to $10,000,000 and that certain of the financial covenants and other
covenants and provisions of the Original Credit Agreement be amended; and
WHEREAS, SunTrust has agreed to increase its Revolving Loan Commitment by
$10,000,000 to $65,000,000 and to increase its Line of Credit Commitment by
$5,000,000 to $10,000,000, NBD and PNC have decided to withdraw their
Commitments and no longer act as Lenders under the Original Credit
Agreement, Barnett has agreed to increase its Revolving Loan Commitment by
$20,000,000 to $50,000,000, NationsBank has agreed to increase its
commitment by $10,000,000 to $50,000,000 and Bank of America, FSB, AmSouth
Bank of Florida, The Sumitomo Bank, Limited, Mellon Bank, N.A., and Bank
One Kentucky, N.A. (the "New Lenders" and collectively with the Existing
Lenders, the "Lenders") have agreed to extend to the Borrower revolving
line of credit loans up to Revolving Loan
3
<PAGE>
Commitments of $40,000,000, $25,000,000, $15,000,000, $15,000,000 and
$10,000,000, respectively; and
WHEREAS, the Lenders are unwilling to consent to the Corporation's request
unless the Corporation (a) ratifies and approves the increase to the
Revolving Loan and the Line of Credit Loan, and (b) executes and delivers
to the Lenders a Second Amended and Restated Revolving Credit and Line of
Credit Agreement (the "Amended Credit Agreement"), appropriate promissory
notes to evidence the increase of the Revolving Loan (the "Revolving
Notes"), appropriate promissory note(s) to evidence the increase of the
Line of Credit Loan (the "Line of Credit Notes") and such other documents,
instruments or agreements as may be required or requested by the Lenders in
connection therewith; and
WHEREAS, it is in the best interests of this Corporation that it obtain the
increased Revolving Loans and Line of Credit Loans from the Lenders and
that the Original Credit Agreement be so amended and restated;
NOW, THEREFORE:
BE IT RESOLVED THAT this Corporation obtain the increased Revolving Loans
and Line of Credit Loans from the Lenders, and execute and deliver to the
Lenders the Amended Credit Agreement, the Revolving Notes, the Line of
Credit Notes and such other instruments, documents or agreements as may be
required or requested by the Lenders in connection therewith; and
BE IT FURTHER RESOLVED THAT any one of the Chief Executive Officer, the
President, any Vice-President, the Treasurer, the Secretary or any other
officer of this Corporation be and they hereby each and all are authorized,
empowered and directed in the name and on behalf of this Corporation and
with or without its corporate seal, to make, enter into, execute and
deliver with and to the Lenders the Amended Credit Agreement, the Revolving
Notes, the Line of Credit Notes and any other documents, instruments or
agreements which such officer in his/her sole discretion deems appropriate
and which may be requested or required by the Lenders in connection with
the Loans; and
BE IT FURTHER RESOLVED THAT any one of the Chief Executive Officer, the
President, any Vice-President, the Treasurer, the Secretary or any other
officer of this Corporation be and they hereby are each and all authorized
and directed in the name and on behalf of
4
<PAGE>
this Corporation to carry out and fulfill the purposes and intent of the
Resolutions contained herein including, but not limited to, the documents
and instruments set forth in these Resolutions; and
BE IT FURTHER RESOLVED THAT the Secretary (or any other officer) of this
Corporation be and he/she is hereby authorized and directed to furnish the
Lenders with a copy of the foregoing Resolutions and to certify the same,
and to certify that the provisions of said Resolutions are in conformity
with the Articles of Incorporation and By-Laws of this Corporation and that
said Resolutions are in full force and effect and have not been rescinded
or modified; and the Lenders shall be indemnified and saved harmless by
this Corporation from any and all claims, demands, expenses, costs and
damages resulting from or growing out of honoring or relying on the
signature or other authority (whether or not properly used) of any officer
whose name and signature was so certified, or refusing to honor any
signature or authority not so certified; and
BE IT FURTHER RESOLVED THAT the foregoing Resolutions are adopted in
addition to, and not in replacement or limitation of, and shall not be
limited by, any and all other Resolutions heretofore adopted by this
Corporation governing any transaction with or involving the Lenders, and
the foregoing Resolutions contained herein shall continue in force until
express written notice of their prospective recision or modification, as to
future transactions not then existing or committed for by the Lenders, has
been furnished to and received by the Lenders; and
BE IT FURTHER RESOLVED THAT any and all prior and existing agreements and
transactions by or on behalf of this Corporation with the Lenders be and
the same hereby are in all respects ratified, approved and confirmed."
5
<PAGE>
CERTIFICATE OF THE SECRETARY
OF
SUBSIDIARIES OF ROTECH MEDICAL CORPORATION
The undersigned hereby certifies that:
1. She is the Secretary of each of the corporations listed on Exhibit "A"
-----------
attached hereto (collectively, the "Additional Subsidiaries") and that as such
she is personally familiar with and keeps control of, its charter, by-laws and
minute books, and schedules meetings of its Board of Directors;
2. Attached hereto as Exhibit "B" are true and correct copies of the
-----------
Additional Subsidiaries' Articles of Incorporation as in effect on the date
hereof;
3. Attached hereto as Exhibit "C" are true and correct copies of the By-
-----------
Laws of the Additional Subsidiaries as in effect on the date hereof;
4. Attached hereto as Exhibit "D" are true and correct copies of joint
-----------
resolutions of the Boards of Directors of the Additional Subsidiaries, duly
adopted on June 3, 1997, either by unanimous joint written consent of the
members of each of said Boards of Directors or at a joint meeting of the members
of each of said Boards of Directors at which a quorum was present and acting
throughout; such proceedings were conducted in accordance with the Articles of
Incorporation of each Additional Subsidiary and said resolutions have not been
amended, rescinded, modified or revoked and are in full force and effect as of
the date hereof;
5. The persons listed below have been duly elected by the Board of
Directors of each Additional Subsidiary to the offices set forth opposite their
respective names, have been duly qualified, and are presently serving as
officers of each Additional Subsidiary in such capacities. The signatures set
forth opposite their respective names are true and correct specimens of their
genuine signatures.
Title Name Signature
- ----- ---- ---------
Assistant Stephen P. Griggs /s/ Stephen P. Griggs
---------------------
Secretary
Secretary Rebecca R. Irish /s/ Rebecca R. Irish
--------------------
Treasurer Rebecca R. Irish /s/ Rebecca R. Irish
--------------------
<PAGE>
IN WITNESS WHEREOF, the undersigned has executed this certificate in his
aforesaid capacity, this 3rd day of June, 1997.
/s/ Rebecca R. Irish
-----------------------------------------
Rebecca R. Irish, Secretary of the
Additional Subsidiaries
The undersigned, Assistant Secretary of each of the Additional
Subsidiaries, does hereby certify that (i) Rebecca R. Irish has been duly
elected by the Boards of Directors of the Additional Subsidiaries to serve as
Secretary for each, (ii) she has been duly qualified and is presently serving
each of the Additional Subsidiaries in such capacity, and (iii) the signature
set forth above is her genuine signature.
IN WITNESS WHEREOF, the undersigned has executed this certificate in his
aforesaid capacity, as of the 3rd day of June, 1997.
/s/ Stephen P. Griggs
-----------------------------------------
Stephen P. Griggs, Assistant Secretary
of the Additional Subsidiaries
2
<PAGE>
EXHIBIT "A"
The Additional Subsidiaries
---------------------------
Adaptive Medical, Inc.
Allied Medical Supply, Inc.
Always Medical Equipment, Inc.
Ambassador Medical Equipment, Inc.
American Oxygen Services, Inc.
Apex Healthcare, Inc.
Apex Healthcare of Alabama, Inc.
Apex Healthcare of Louisiana, Inc.
Apex Healthcare of Mississippi, Inc.
Baumann Pharmaceutical Services, Inc.
Berkeley Medical Equipment, Inc.
Cabot Medical Equipment, Inc.
Canyon State Medical Supplies, Inc.
Centennial Medical Equipment, Inc.
Central Home Care, Inc.
Cherokee Home Medical, Inc.
Don Paul Respiratory Services, Inc.
Excel Medical of Ames, Inc.
Excel Medical of Fort Dodge, Inc.
Excel Medical of Marshalltown, Inc.
Famlicare Home Medical Equipment, Inc.
Firstcare, Inc.
Fischer Medical Equipment Co., Inc.
Four Rivers Home Healthcare, Inc.
Georgia Medical Resources, Inc.
Hamilton Medical Equipment Service, Inc.
Health-Med, Inc.
Home Health Services Company, Inc.
Infusion Services, Inc.
Lawrence Medical Equipment, Inc.
MedFirst Health Plans of Louisiana, Inc.
MedFirst Medical Centers, Inc.
MedCase Management, Inc.
Neumann's Home Medical, Inc.
North Central Washington Respiratory Care Services, Inc.
Northwest Home Medical, Inc.
Pedi-Care, Inc.
Principal Medical Equipment, Inc.
Professional Breathing Associates, Inc.
Regency Medical Equipment, Inc.
Ritt Medical Group, Inc.
Wofford Pharmaceutical Services, Inc.
Worker's Health Care Clinic, Inc.
3
<PAGE>
EXHIBIT "B"
Articles of Incorporation
-------------------------
(See Attached.)
4
<PAGE>
EXHIBIT "C"
By-Laws
-------
(See Attached.)
5
<PAGE>
EXHIBIT "D"
Corporate Resolutions
---------------------
JOINT RESOLUTIONS OF THE BOARDS OF DIRECTORS
(Subsidiaries of ROTECH MEDICAL CORPORATION)
"WHEREAS, SUNTRUST BANK, CENTRAL FLORIDA, NATIONAL ASSOCIATION, a national
banking association ("SunTrust"), NATIONSBANK OF FLORIDA, N.A., N/K/A
NATIONSBANK, N.A. ("NationsBank"), NBD BANK ("NBD"), PNC BANK, KENTUCKY,
INC. ("PNC"), BARNETT BANK OF CENTRAL FLORIDA, N.A., N/K/A BARNETT BANK,
N.A. ("Barnett") AND COOPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK B.A.,
"RABOBANK NEDERLAND", NEW YORK BRANCH ("Rabobank") (SunTrust, NationsBank,
Barnett and Rabobank are hereinafter collectively referred to as the
"Existing Lenders"), previously extended to ROTECH MEDICAL CORPORATION (the
"Borrower") revolving line of credit loans in the maximum aggregate
principal amount of $195,000,000.00 (the "Revolving Loan"), SunTrust agreed
to be the agent for the Revolving Loan, and SunTrust previously extended to
the Borrower a revolving line of credit loan in the maximum principal
amount of $5,000,000.00 (the "Line of Credit Loan"; and collectively with
the Revolving Loan, the "Loans"), all pursuant to that certain Amended and
Restated Revolving Credit and Line of Credit Agreement dated as of June 4,
1996 by and between the Borrower, the Existing Lenders and SunTrust, as
Agent (the "Original Credit Agreement"); and
WHEREAS, the Loans are guaranteed by all of the Subsidiaries (the "Existing
Subsidiaries") of the Borrower which were in existence on the date of the
Original Credit Agreement pursuant to that certain Subsidiary Guaranty
Agreement dated as of December 29, 1995 as supplemented by that certain
First Supplement to Guaranty Agreement dated as of June 4, 1996, from the
Existing Subsidiaries in favor of the Agent and the Lenders and the
Contribution Agreement dated as of December 29, 1995 as supplemented by
that certain First Supplement to Contribution Agreement dated as of June 4,
1996 among the Borrower, the Agent and the Existing Subsidiaries
(collectively, the "Existing Guaranty Documents"); and
WHEREAS, the Borrower has requested that the Revolving Loan Commitment be
increased by $95,000,000 to the maximum aggregate principal amount of
$290,000,000, that the Line of Credit Commitment be increased by $5,000,000
to $10,000,000 and that certain of the financial covenants and other
covenants and provisions of the Original Credit Agreement be amended; and
WHEREAS, SunTrust has agreed to increase its Revolving Loan Commitment by
$10,000,000 to $65,000,000 and to increase its
6
<PAGE>
Line of Credit Commitment by $5,000,000 to $10,000,000, NBD and PNC have
decided to withdraw their Commitments and no longer act as Lenders under
the Original Credit Agreement, Barnett has agreed to increase its Revolving
Loan Commitment by $20,000,000 to $50,000,000, NationsBank has agreed to
increase its commitment by $10,000,000 to $50,000,000 and Bank of America,
FSB, AmSouth Bank of Florida, The Sumitomo Bank, Limited, Mellon Bank,
N.A., and Bank One Kentucky, N.A. (the "New Lenders" and collectively with
the Existing Lenders, the "Lenders") have agreed to extend to the Borrower
revolving line of credit loans up to a Revolving Loan Commitment of
$40,000,000, $25,000,000, $15,000,000, $15,000,000 and $10,000,000,
respectively; and
WHEREAS, it is also possible from time to time that the Lenders may make
further extensions of credit or loans to the Borrower provided, however
nothing contained in these Resolutions or otherwise received from the
Lenders at this time will obligate the Lenders to make any such future
extensions of credit or loans; and
WHEREAS, the Lenders are unwilling to consent to the Borrower's request
unless each Additional Subsidiary (i) joins in the Existing Guaranty
Documents in order to absolutely and unconditionally guarantee the Loans,
(ii) agrees to comply with all the terms of the loan documents executed in
connection with the Loans applicable to the Additional Subsidiaries, (iii)
agrees that in the event there are any future extensions of credit or
advances made to the Borrower that such future advances or loans would be
further guaranteed by the Additional Subsidiaries, (iv) grants to the
Lenders a negative pledge on all its assets and (v) executes and delivers
to the Lenders the Joinder of Subsidiaries (the "Joinder") to the Second
Amended and Restated Revolving Credit and Line of Credit Agreement by and
among the Borrower, SunTrust as Agent, and the Lenders of even date
herewith, a Supplement to Subsidiary Guaranty Agreement (the "Guaranty
Supplement"), a Supplement to Contribution Agreement (the "Contribution
Supplement", and, collectively with the Guaranty Supplement, the
"Supplements"), an Agreement Not to Sell or Encumber Assets (the "Negative
Pledge") and any other documents, instruments or agreements as may be
requested or required by the Lenders in connection with the Loans; and
WHEREAS, it is in the best interests of each Additional Subsidiary that the
Borrower obtain the increased Loans from the Lenders, and, to the extent
the Lenders should extend any future advances or loans to the Borrower in
the future, that said futures advances or loans be made;
7
<PAGE>
NOW, THEREFORE:
BE IT RESOLVED THAT each Additional Subsidiary (i) absolutely and
unconditionally guarantee the Revolving Loan in the maximum aggregate
principal amount of $290,000,000 extended to the Borrower by the Lenders,
the Line of Credit Loan in the maximum principal amount of $10,000,000
extended to the Borrower by SunTrust, as well as any future extensions of
credit or additional loans made by the Lenders to the Borrower, (ii) grant
a negative pledge on all its assets to the Lenders, (iii) comply with all
the provisions of the loan documents executed in connection with the Loans
applicable to it and (iv) execute and deliver to the Lenders the Joinder,
the Supplements, the Negative Pledge and any other documents, instruments
or agreements as may be requested or required by the Lenders in connection
with the Loans; and
BE IT FURTHER RESOLVED THAT any one of the President, any Vice-President,
the Treasurer, the Secretary or any other officer of each Additional
Subsidiary be and they hereby each and all are authorized, empowered and
directed in the name and on behalf of each Additional Subsidiary and with
or without its corporate seal, to make, enter into, execute and deliver
with and to the Lenders the Joinder, the Supplements guaranteeing all
obligations due or hereafter to become due the Lenders from the Borrower,
which obligations will include, but are not limited to, the Revolving Loan,
the Line of Credit Loan, as well as future extensions of credit or loans, a
Negative Pledge for each Additional Subsidiary, and any other instruments
or agreements which such officer in his/her sole discretion deems
appropriate and which may be requested or required by the Lenders in
connection with the Loans; and
BE IT FURTHER RESOLVED THAT any one of the President, any Vice-President,
the Treasurer, the Secretary or any other officer of each Additional
Subsidiary be and they hereby are each and all authorized and directed in
the name and on behalf of each Additional Subsidiary to carry out and
fulfill the purposes and intent of the Resolutions contained herein
including, but not limited to, the documents and instruments set forth in
these Resolutions; and
BE IT FURTHER RESOLVED THAT the Secretary (or any other officer) of each
Additional Subsidiary be and he/she is hereby authorized and directed to
furnish the Agent and/or the Lenders with a copy of the foregoing
Resolutions and to certify the same, and to certify that the provisions of
said Resolutions are in conformity with the Articles of Incorporation and
By-
8
<PAGE>
Laws of such Additional Subsidiary and that said Resolutions are in full
force and effect and have not been rescinded or modified; and the Lenders
shall be indemnified and saved harmless by each of the Additional
Subsidiaries from any and all claims, demands, expenses, costs and damages
resulting from or growing out of honoring or relying on the signature or
other authority (whether or not properly used) of any officer whose name
and signature was so certified, or refusing to honor any signature or
authority not so certified; and
BE IT FURTHER RESOLVED THAT the foregoing Resolutions are adopted in
addition to, and not in replacement or limitation of, and shall not be
limited by, any and all other Resolutions heretofore adopted by the
Additional Subsidiaries governing any transaction with or involving the
Lenders, and the foregoing Resolutions contained herein shall continue in
force until express written notice of their prospective recision or
modification, as to future transactions not then existing or committed for
by the Lenders, has been furnished to and received by the Lenders; and
BE IT FURTHER RESOLVED THAT any and all prior and existing agreements and
transactions by or on behalf of the Additional Subsidiaries with the
Lenders be and the same hereby are in all respects ratified, approved and
confirmed."
9
<PAGE>
CLOSING CERTIFICATE
Pursuant to Section 5.1 of the Second Amended and Restated Revolving
Credit and Line of Credit Agreement dated as of June 3, 1997 (the "Credit
Agreement") among ROTECH MEDICAL CORPORATION, a Florida corporation (the
"Borrower"), SUNTRUST BANK, CENTRAL FLORIDA, NATIONAL ASSOCIATION, as Agent, and
the other Lenders at any time and lending institutions listed on the signature
pages thereto, the undersigned in their respective capacities as officers,
directors, or authorized signatories of the Borrower and each Material
Subsidiary hereby certify to the Lenders and the Agent as follows (capitalized
terms used herein having the same meanings as assigned to such terms in the
Credit Agreement):
1. All representations and warranties contained in the Credit Agreement
are true and correct in all material respects on and as of the date
hereof.
2. After giving effect to the Loans to be made to the Borrower pursuant
to the Credit Agreement on the date hereof, no Default or Event of
Default has occurred and is continuing and no condition, event, act or
omission which, with the giving of notice or the lapse of time or
both, would constitute a Default or Event of Default which under the
Credit Agreement or any other Credit Documents has occurred and is
continuing or exists as of the date hereof.
3. As of the date hereof, the Borrower and each Material Subsidiary has
complied with all its duties and obligations and all of the conditions
set forth in the Credit Agreement and each of the other Credit
Documents executed by each of them, in connection with the Credit
Agreement.
4. Since the date of the audited financial statements of the Consolidated
Companies described in Section 6.3 of the Credit Agreement, there has
been no change which has had or could reasonably be expected to have a
Materially Adverse Effect.
5. Except as may be described on Schedule 6.5 of the Credit Agreement, no
action or proceeding has been instituted or is pending before any
court or other governmental authority, or, to the knowledge of the
Borrower, threatened (i) which reasonably could be expected to have a
Materially Adverse Effect, or (ii) seeking to prohibit or restrict one
or more Credit Party's ownership or operation of any portion of its
businesses or assets, where such portion or portions of such
businesses or assets, as the case may be, constitute a material
portion of the total businesses or assets of the Consolidated
Companies.
<PAGE>
6. The Loans to be made on the date hereof are being used solely for the
purposes provided in the Credit Agreement, and such Loans and use of
proceeds thereof will not contravene, violate or conflict with, or
involve the Agent or any Lender in a violation of, any law, rule,
injunction, or regulation, or determination of any court of law or
other governmental authority, applicable to the Borrower.
7. The conditions precedent set forth in Sections 5.1 and 5.2 of the
Credit Agreement have been or will be satisfied (or have been waived
pursuant to the terms of the Credit Agreement) prior to or
concurrently with the making of the Loans under the Credit Agreement
on the date hereof.
8. The execution, delivery and performance by the Credit Parties of the
Credit Documents will not violate any Requirement of Law or cause a
breach or default under any of their respective Contractual
Obligations.
9. Each of the Credit Parties has the corporate power and authority to
make, deliver and perform the Credit Documents to which it is a party
and has taken all necessary corporate action to authorize the
execution, delivery and performance of such Credit Documents. No
consents or authorization of, or filing with, any Person (including,
without limitation, any governmental authority), is required in
connection with the execution, delivery or performance by any Credit
Party, or the validity or enforceability against any Credit Party, of
the Credit Documents, other than such consents, authorizations or
filings which have been made or obtained.
This Certificate executed and delivered on behalf of the Borrower and the
Material Subsidiaries this 3rd day of June, 1997.
ATTEST ROTECH MEDICAL CORPORATION
/s/ Rebecca R. Irish By: /s/ Stephen P. Griggs
- ------------------------- ---------------------------------
Rebecca R. Irish, Stephen P. Griggs,
Treasurer President
(CORPORATE SEAL)
2
<PAGE>
AS OFFICERS, DIRECTORS AND/OR
ATTEST AUTHORIZED SIGNATORIES OF EACH
OF THE MATERIAL SUBSIDIARIES:
/s/ Stephen P. Griggs By: /s/ Rebecca R. Irish
- -------------------------- ---------------------------------
Stephen P. Griggs, Rebecca R. Irish,
President or Vice President Treasurer
3
<PAGE>
CLOSING STATEMENT
-----------------
BORROWER: ROTECH MEDICAL CORPORATION
LENDERS: SUNTRUST BANK, CENTRAL FLORIDA, NATIONAL ASSOCIATION,
NATIONSBANK OF FLORIDA, N.A., NBD BANK, PNC BANK, KENTUCKY,
INC., BARNETT BANK OF CENTRAL FLORIDA, N.A., MELLON BANK,
N.A. AND COOPERATIVE CENTRALE RAIFFEISEW-BOERENLEENBANK
"RABOBANK NEDERLAND," NEW YORK BRANCH
LOAN TRANSACTION: $195,000,000 Revolving Loans and $5,000,000 Line of Credit
Loan
DATE: June 4, 1996
<TABLE>
<CAPTION>
________________________________________________________________________________
CLOSING COSTS:
<S> <C>
Attorneys' Fees payable to $17,500.00
Akerman, Senterfitt & Eidson, P.A.
Miscellaneous Expenses (i.e. $ 2,500.00
duplicating, delivery charges, long
distance telephone, telecopy
charges, word processing/computer
service charges, etc.) payable to Akerman,
Senterfitt & Eidson, P.A.
Structuring and Syndication Fee payable $ P.O.C.
to SunTrust Capital Markets, Inc.
Expenses of SunTrust Capital Markets, Inc. $ P.O.C.
----------
TOTAL $20,000.00
==========
</TABLE>
_______________________________________________________________________________
By execution of this Loan Closing Statement, Borrower agrees and consents
to payment of the indicated fees, costs and expenses in accordance therewith.
Borrower further acknowledges and agrees to fulfill its obligation to pay any
reasonable further or additional fees, costs or expenses incurred by Agent, any
Lender, SunTrust Capital Markets, Inc., or their counsel in connection with any
unanticipated post-closing matters.
BORROWER: LENDERS:
ROTECH MEDICAL CORPORATION SUNTRUST BANK, CENTRAL FLORIDA, NATIONAL
ASSOCIATION, as Agent for Lenders
By:___________________________ By:_____________________________
Stephen P. Griggs, Randy P. Chesak,
President Vice President
<PAGE>
REVOLVING CREDIT NOTE
---------------------
June 3, 1997 $ 25,000,000.00
Atlanta, Georgia
FOR VALUE RECEIVED, the undersigned, ROTECH MEDICAL CORPORATION, a
Florida corporation (the "Borrower"), promises to pay to the order of AMSOUTH
BANK OF FLORIDA, a Florida banking corporation, (the "Bank") at the office of
the Bank at 65 N. Orange Avenue, Orlando, Florida 32801, or at such other place
as the holder hereof may designate by notice in writing to Borrower, in
immediately available funds in lawful money of the United States of America, on
the sooner of (i) the Termination Date (as defined in the Agreement hereinafter
described), or (ii) acceleration of this indebtedness as hereinafter provided,
the lesser of (i) the principal sum of TWENTY-FIVE MILLION AND NO/100 DOLLARS
($25,000,000.00) or (ii) so much thereof as shall have been from time to time
disbursed hereunder by the Bank in accordance with that certain Second Amended
and Restated Revolving Credit and Line of Credit Agreement dated as of June 3,
1997 (as amended, modified or supplemented, the "Agreement") by and among the
Borrower, the Bank, and the other Lenders which are parties thereto from time to
time, and not theretofore repaid, as shown on the grid schedule attached hereto
(the "Grid Schedule") .
In addition to principal, Borrower agrees to pay interest on the
principal amounts disbursed hereunder from time to time from the date of each
disbursement until paid at such simple rates of interest per annum and upon such
dates as provided for in the Agreement. Interest shall accrue on the outstanding
principal balance from the date hereof up to and through the date on which all
principal and interest hereunder is paid in full, and shall be computed on the
basis of the actual number of days elapsed in a 360-day year. Such interest is
to be paid to the Bank at its office in Orlando, Florida.
This Revolving Credit Note ("Note") evidences a loan incurred pursuant
to the terms and conditions of the Agreement to which reference is hereby made
for a full and complete description of such terms and conditions. All
capitalized terms used in this Note shall have the same meanings as set forth in
the Agreement.
Bank shall at all times have a right of set-off against any deposit
balances of Borrower in the possession of the Bank and the Bank may apply the
same against payment of this Note or any other indebtedness of Borrower to the
Bank. The payment of any indebtedness evidenced by this Note prior to the
Termination Date or demand shall not affect the enforceability of this Note as
to any future, different or other indebtedness incurred hereunder by the
Borrower. In the event the indebtedness evidenced by this Note is collected by
legal action or through an attorney-at-law, the Bank shall be entitled to
recover from
<PAGE>
EXHIBIT 11.0
COMPUTATION OF EARNINGS PER SHARE
<TABLE>
<CAPTION>
YEAR ENDED JULY 31
-----------------------------------------
<S> <C> <C> <C>
1997 1996 1995
Net income (A) $30,806,860 $20,555,775 $13,144,766
Net Income with conversion (B) $34,671,128 - -
Weighted average shares outstanding 24,059,091 23,164,857 20,182,042
Incremental shares--contingent shares 1,414,647 880,361 76,923
Incremental shares--stock options 878,638 611,782 425,035
----------- ----------- -----------
Subtotal (C) 26,352,376 24,657,000 20,684,000
Incremental shares--Contingent shares 381,476 549,000 300,000
Incremental shares--Stock options 15,269 0 0
Debenture shares 4,190,476 0 0
----------- ----------- -----------
Total (D) 30,939,597 25,206,000 20,984,000
=========== =========== ===========
Primary earnings per share:
Net Income (A/C) $ 1.17 $ 0.83 $ 0.64
=========== =========== ===========
Fully diluted earnings per share:
Net Income (A/D for 1996 and 1995) $ 1.12 $ 0.82 $ 0.63
(B/D for 1997) =========== =========== ===========
</TABLE>
<PAGE>
1997
ANNUAL REPORT
A HOME HEALTH CARE COMPANY
ROTECH MEDICAL CORPORATION AND SUBSIDIARIES
<PAGE>
<TABLE>
<CAPTION>
<S> <C>
TABLE OF CONTENTS
- --------------------------------------------------------------------------------
Consolidated Financial Statements............................................... 1
Financial Statement Schedule....................................................21
Report of Independent Certified Public Accountants..............................22
Selected Consolidated Financial Data............................................23
Management's Discussion and Analysis of Financial
Condition and Results of Operations........................................24
Selected Quarterly Consolidated Financial Data..................................28
Prices of Common Stock..........................................................28
</TABLE>
1
<PAGE>
CONSOLIDATED BALANCE SHEETS
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
JULY 31
1997 1996
----------------------------------------------
<S> <C> <C>
ASSETS
Current Assets:
Cash $ 12,819,471 $ 6,438,760
Accounts receivable:
Trade, less allowance for doubtful accounts of $23,718,000 in
1997 and $16,978,000 in 1996 112,341,406 83,486,610
Other 3,304,885 2,583,756
Inventories 23,357,451 15,191,011
Prepaid expenses 316,706 884,437
Income taxes receivable - 3,883,830
----------------------------------------------
Total Current Assets 152,139,919 112,468,404
Other Assets:
Intangible assets, less accumulated amortization of $33,9651,000
in 1997 and $18,163,000 in 1996 272,794,751 168,101,082
Other assets 4,557,580 8,630,288
----------------------------------------------
277,352,331 176,731,370
Property and equipment, less accumulated depreciation 131,239,570 85,414,544
----------------------------------------------
Total Assets $560,731,820 $374,614,318
==============================================
</TABLE>
See accompanying notes.
2
<PAGE>
CONSOLIDATED BALANCE SHEETS
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
JULY 31
1997 1996
------------------------------------------------------
<S> <C> <C>
LIABILITIES AND SHAREHOLDERS' EQUITY
Current Liabilities:
Accounts payable $ 14,919,853 $ 10,151,998
Accrued expenses and other liabilities 13,520,246 14,178,810
Notes payable to banks 180,991,047 52,055,008
Income taxes payable 2,476,822 -
Deferred income taxes 52,998 75,299
------------------------------------------------------
Total Current Liabilities 211,960,966 76,461,115
Deferred INCOME TAXES 20,734,609 11,831,155
Convertible Subordinated Debentures 110,000,000 110,000,000
Redeemable Common Stock 4,076,189 1,646,933
Shareholders' Equity:
Common Stock, par value $.0002 per share,
50,000,000 shares authorized, 24,222,427 in 1997
and 23,303,586 in 1996 4,853 4,669
Treasury stock (848,285) (814,535)
Additional paid-in capital 131,269,024 122,757,377
Retained earnings 83,534,464 52,727,604
------------------------------------------------------
213,960,056 174,675,115
------------------------------------------------------
Total Liabilities and Shareholders' Equity $560,731,820 $374,614,318
======================================================
</TABLE>
See accompanying notes.
3
<PAGE>
CONSOLIDATED STATEMENTS OF INCOME
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
YEAR ENDED JULY 31
1997 1996 1995
---------------------------------------------------------------------------
<S> <C> <C> <C>
Operating revenue $422,692,297 $263,029,963 $134,111,458
Cost and expenses:
Cost of revenue 105,564,558 71,012,877 36,287,811
Selling, general and administrative 208,976,965 127,357,013 66,477,381
Depreciation and amortization 44,017,317 26,519,480 9,565,238
Interest, net 13,560,897 5,228,318 835,462
---------------------- ---------------------- ---------------------
Total Costs and Expenses 372,119,737 230,117,688 113,165,892
Income before income taxes 50,572,560 32,912,275 20,945,566
Income tax expense 19,765,700 12,356,500 7,800,800
---------------------- ---------------------- ---------------------
Net income $ 30,806,860 $ 20,555,775 $ 13,144,766
====================== ====================== =====================
Net income per share:
Primary $1.17 $0.83 $0.64
Fully diluted $1.12 $0.82 $0.63
Weighted average number of shares
outstanding:
Primary 26,352,000 24,657,000 20,684,000
Fully diluted 30,940,000 25,206,000 20,984,000
</TABLE>
See accompanying notes.
4
<PAGE>
CONSOLIDATED STATEMENTS OF SHAREHOLDERS' EQUITY
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
COMMON STOCK ADDITIONAL
---------------------- TREASURY PAID-IN RETAINED
SHARES AMOUNT STOCK CAPITAL EARNINGS
-------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Balance at August 1, 1994 19,009,540 $3,818 $(814,535) $ 64,518,168 $19,613,012
Issuance of Common Stock in acquisitions of
subsidiaries 391,976 78 3,197,340
Issuance of Common Stock pursuant to Employee Stock
Compensation Plan 32,126 8 185,576
Issuance, repurchase and retirement of common stock
pursuant to exercise of stock options and related put
options 173,299 (318,507)
Issuance of Common Stock pursuant to exercise of stock
options 10,000 2 69,998
Issuance of Common Stock in Public Offering 3,400,000 680 49,884,817
Net income 13,144,766
-------------------------------------------------------------
Balance at July 31, 1995 22,843,642 4,586 (814,535) 118,029,198 32,439,271
Issuance of Common Stock in acquisitions of
subsidiaries 301,816 52 3,061,230
Issuance of Common Stock pursuant to Employee
Stock Compensation Plan 22,068 4 164,569
Issuance, repurchase and retirement of common stock
pursuant to exercise of stock options and related put
options 128,844 (267,442)
Issuance of Common Stock pursuant to exercise of stock
options 136,060 27 1,373,536
Net income 20,555,775
-------------------------------------------------------------
BALANCE AT JULY 31, 1996 23,303,586 4,669 (814,535) 122,757,377 52,727,604
ISSUANCE OF COMMON STOCK IN ACQUISITIONS OF
SUBSIDIARIES 854,574 171 8,108,892
ISSUANCE OF COMMON STOCK PURSUANT TO EMPLOYEE
Stock Compensation Plan 14,267 3 (33,750) 220,475
ISSUANCE OF COMMON STOCK PURSUANT TO EXERCISE OF STOCK
OPTIONS 50,000 10 182,280
NET INCOME 30,806,860
-------------------------------------------------------------
BALANCE AT JULY 31, 1997 24,222,427 $4,853 $(848,285) $131,269,024 $83,534,464
=============================================================
</TABLE>
See accompanying notes.
5
<PAGE>
CONSOLIDATED STATEMENTS OF CASH FLOWS
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
YEAR ENDED JULY 31
1997 1996 1995
------------------------------------------------------------------
<S> <C> <C> <C>
OPERATING ACTIVITIES
Net income $ 30,806,860 $ 20,555,775 $13,144,766
Adjustments to reconcile net income to net cash
provided by operations:
Depreciation 28,146,078 16,889,027 4,974,785
Amortization of intangible assets 15,871,239 9,630,453 4,590,453
Provision for doubtful accounts 19,822,000 7,544,000 4,499,000
Provision for deferred income taxes 8,881,153 4,887,810 4,617,315
Gain on sale of property and equipment - - (15,160)
Issuance of Common Stock as employee
compensation 220,478 164,573 255,583
Equity in income from affiliated company - - (910,246)
Changes in operating assets and liabilities:
Increase in trade accounts receivable (39,350,623) (24,220,623) (9,951,570)
(Increase) decrease in other receivables (418,875) (552,575) 364,006
(Increase) decrease in inventories (2,446,937) 658,504 (2,633,575)
(Increase) decrease in prepaid expenses 739,998 (111,228) 391,366
Increase in accounts payable 1,323,570 3,850,531 1,919,540
Decrease in accrued expenses and other liabilities
(135,799) (2,248,914) (1,181,063)
(Increase) decrease in income taxes
receivable/payable 6,360,742 479,797 (2,959,294)
------------------------------------------------------------------
Net cash provided by operating activities 69,819,884 37,527,130 17,105,906
</TABLE>
See accompanying notes.
6
<PAGE>
CONSOLIDATED STATEMENTS OF CASH FLOWS
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
YEAR ENDED JULY 31
1997 1996 1995
-------------------------------------------------------------
<S> <C> <C> <C>
INVESTING ACTIVITIES
Purchases of property and equipment (56,496,145) (29,621,755) (17,298,613)
Issuance of notes and other receivables - (4,078,350)
Payments for acquisitions of net assets, net of cash
acquired (136,588,104) (146,561,420) (55,643,515)
Proceeds from sale of property and equipment - - 68,167
Proceeds from option exercise 182,290 - -
Advances and deposits 526,746 (943,838) 391,368
-------------------------------------------------------------
Net cash used in investing activities (192,375,213) (181,205,363) (72,482,593)
FINANCING ACTIVITIES
Proceeds from notes payable to banks 128,936,040 188,773,070 109,037,900
Payments on notes payable to banks - (146,698,062) (103,155,900)
Proceeds from convertible subordinated debentures - 110,000,000 -
Payments for debt issuance costs - (3,200,000) -
Proceeds from issuance of Common Stock - 1,083,056 49,885,497
Repurchase of Common Stock - (418,354) (145,208)
-------------------------------------------------------------
Net cash provided by financing activities 128,936,040 149,539,710 55,622,289
-------------------------------------------------------------
Increase (decrease) in cash 6,380,711 5,861,477 245,602
Cash at beginning of year 6,438,760 577,283 331,681
Cash at end of year $ 12,819,471 $ 6,438,760 $ 577,283
=============================================================
Supplemental disclosures of cash flow information
Cash paid during the year for:
Interest, net 12,590,000 $ 3,976,000 $ 933,000
Income taxes 4,925,000 8,957,000 6,774,000
</TABLE>
See accompanying notes.
7
<PAGE>
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS - JULY 31, 1997
- --------------------------------------------------------------------------------
1. NATURE OF BUSINESS AND SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
NATURE OF BUSINESS
RoTech Medical Corporation (the "Company") was incorporated on September 1,
1981. The Company, through its subsidiaries, markets and provides home health
care products and services and rents home care equipment to patients. These
products and services, which are typically prescribed by a physician, include
home health care products (such as respiratory therapy equipment and
convalescent medical equipment) and home infusion therapy products and related
services.
On July 7, 1997 the Company announced that they entered into a definitive
merger agreement pursuant to which RoTech Medical Corporation will merge with
Integrated Health Services ("IHS"). Under terms of the agreement, IHS will issue
0.5806 shares of IHS Common Stock for each share of RoTech common stock
currently outstanding.
PRINCIPLES OF CONSOLIDATION
The consolidated financial statements include the accounts of RoTech
Medical Corporation and its wholly-owned subsidiaries. All significant
intercompany accounts and transactions have been eliminated in the consolidated
financial statements.
CONCENTRATIONS OF CREDIT RISK
Financial instruments, which potentially subject the Company to
concentrations of credit risk, consist principally of cash and accounts
receivable. The Company places its cash with high credit quality institutions.
Concentrations of credit risk with respect to accounts receivable is limited due
to the large number and geographic distribution of patients, third-party payors,
and clients. The Company's revenues are generated through 613 locations in 35
states. The Company generally does not require collateral or other security in
extending credit to patients; however, the Company routinely obtains assignments
of (or is otherwise entitled to receive) benefits receivable under the health
insurance programs, plans or policies of patients (e.g. Medicare, Medicaid,
commercial insurance and managed care organizations). Percentage revenues from
payor sources at July 31, 1997 were as follows:
Medicare 51%
Medicaid 10%
Commercial insurance 19%
Retail Sales 14%
Other 6%
FAIR VALUE OF FINANCIAL INSTRUMENTS
The carrying amounts of cash, accounts receivable, accounts payable and
notes payable to banks approximate fair value because of the short-term nature
of these items. Based on the current market rates offered for similar debt of
the same maturities, the carrying amount of the Company's Convertible
Subordinated Debentures approximates fair value at July 31, 1997.
The Company had $1.8 million of cash restricted due to statutory requirements at
July 31, 1997.
8
<PAGE>
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS - JULY 31, 1997
- --------------------------------------------------------------------------------
1. NATURE OF BUSINESS AND SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (CONTINUED)
REVENUE RECOGNITION
Revenues are reported on the accrual basis in the period in which services
are provided. Operating revenue represents the estimated net realizable amounts
from patients, third-party payors, and others for services rendered.
Rental income under short-term leasing arrangements is recognized on a
straight-line basis over the term of the lease and approximated $256,737,000,
$130,060,000 and $59,017,000 in 1997, 1996 and 1995, respectively. The
provision for doubtful accounts approximated $19,882,000, $7,544,000 and
$4,499,000 in 1997, 1996 and 1995, respectively.
INVENTORIES
Inventories consist principally of durable medical equipment, medical
supplies and pharmaceutical products and are stated at the lower of cost (first-
in, first-out method) or market.
PROPERTY AND EQUIPMENT
Property and equipment is stated at cost. Depreciation is provided on the
straight-line method over the estimated useful lives of the assets (generally
three to seven years). Rental equipment is depreciated over five years.
Amortization of leasehold improvements is included in depreciation.
INTANGIBLE ASSETS
Intangible assets consists of the following as of July 31, 1997:
Excess of cost over fair value of net
Assets acquired and liabilities assumed $272,255,597
Non-compete agreements 31,561,435
Other intangibles 2,928,894
------------
306,745,926
Less accumulated amortizaton 33,951,175
------------
$272,794,751
============
The excess of cost over the fair value of assets acquired and other
intangibles ("intangible assets") is being amortized over 5 to 25 years on a
straight-line basis. The Company annually evaluates the realizability of
intangible assets by utilizing an operating income realization test for the
applicable businesses acquired. In addition, the Company considers the effects
of external changes to the Company's business environment, including competitive
pressures, market erosion and technological and regulatory changes. the Company
believes its estimated intangible assets life is reasonable given the continuing
movement of patient care to noninstitutional settings, expanding demand due to
demographic trends, the emphasis of the Company on establishing significant
coverage in its markets, and other factors.
9
<PAGE>
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS - JULY 31, 1997
- --------------------------------------------------------------------------------
1. NATURE OF BUSINESS AND SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
(CONTINUED)
INCOME TAXES
Deferred income taxes are provided on elements of income that are
recognized for financial accounting purposes in periods different than when such
items are recognized for income tax purposes.
The Company accounts for income taxes using the asset and liability
method. Under the asset and liability method, deferred tax assets and
liabilities are recognized for the future tax consequences attributed to
differences between the financial statement carrying amounts of existing assets
and liabilities and their respective tax bases.
Deferred tax assets and liabilities are measured using enacted tax rates
expected to apply to taxable income in the years in which those temporary
differences are expected to be recovered or settled. The effect on deferred tax
assets and liabilities of a change in tax rates is recognized in income in the
period that includes the enactment date.
INCOME PER SHARE
On April 17, 1996, the Board of Directors of the Company declared a two-
for-one split of its Common Stock, payable on May 21, 1996. This was affected in
the form of a 100% dividend to shareholders of record on April 30, 1996.
Shareholders' equity has been restated to give retroactive recognition to the
stock split for all periods presented by reclassifying from additional paid in
capital to common stock, the par value of the additional shares arising from the
split. In addition, for all periods presented, all references in the
consolidated financial statements and footnotes thereto to number of shares, per
share amounts, weighted average shares outstanding, as well as stock option and
related price information have been restated to give retroactive effect to the
two-for-one stock split affected on May 21, 1996.
Income per share has been computed using the weighted average number of
shares of Common Stock outstanding during each period, including any Common
Stock equivalents resulting from outstanding stock options and warrants
calculated using the treasury stock method.
USE OF ESTIMATES
The preparation of financial statements in conformity with generally
accepted accounting principles requires management to make estimates and
assumptions that affect the reported amounts of assets and liabilities and
disclosure of contingent assets and liabilities at the date of the financial
statements and the reported amounts of revenues and expenses during the
reporting period. Actual results could differ from those estimates.
RECLASSIFICATIONS
Certain reclassifications have been made to the 1996 consolidated
financial statements to conform to the 1997 presentation.
10
<PAGE>
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS - JULY 31, 1997
- --------------------------------------------------------------------------------
NEW ACCOUNTING STANDARDS
In February 1997, FAS No. 128, "Earnings Per Share," was issued. FAS
No. 128, which supersedes Accounting Principles Board ("APB") Opinion No. 15,
requires a dual presentation of basic and diluted earnings per share on the face
of the income statement. Basic earnings per share excludes dilution and is
computed by dividing income or loss attributable to common stockholders by the
weighted-average number of common shares outstanding for the period. Diluted
earnings per share reflects the potential dilution that could occur if
securities or other contracts to issue common stock were exercised or converted
into common stock or resulted in the issuance of common stock that then shared
in the earning of the entity. Diluted earnings per share is computed similarly
to fully diluted earnings per share under APB Opinion No. 15, FAS No. 128 is
effective for financial statements issued for periods ending after December 15,
1997.
Has FAS No. 128 been adopted, pro forma basic earnings per share and pro forma
diluted earnings per share would have been as follows:
PRO FORMA EARNINGS PER SHARE
YEARS ENDED JUNE 30: BASIC DILUTED
1995 $ .65 $ .63
1996 $ .89 $ .82
1997 $1.28 $1.12
2. THIRD-PARTY RATE ADJUSTMENTS AND REVENUE
Approximately 61% in 1997, 60% in 1996, and 63% in 1995 of gross revenue
was derived under federal and state third-party reimbursement programs. A
portion of these revenues is based on cost reimbursement principles and is
subject to audit and retroactive adjustment by the respective third-party fiscal
intermediaries. In the opinion of management, retroactive adjustments, if any,
would not be material to the financial position or results of operations of the
Company.
3. ACQUISITIONS
During the fiscal year ended July 31, 1997, the Company issued 854,574
shares of its restricted Common Stock valued at $8,109,063, released 460,708
shares of its restricted Common Stock from escrow which is recorded as
Redeemable Common Stock (see Note 4) and is valued at $4,329,268, issued
889,391 shares of its restricted Common Stock which were placed in escrow
pending the attainment of certain operating profit thresholds (see Note 4), and
paid cash of approximately $124,272,000 to purchase the net assets of certain
home health care companies and all of the outstanding common stock of certain
home health companies.
The combined fair market values of those assets acquired and
(liabilities assumed) in 1997 are reflected in the following classifications on
the balance sheet:
Cash $ 2,013,000
Accounts receivable 14,907,000
Inventories 5,719,000
Prepaid expenses 172,000
Other assets 753,000
Property and equipment 17,509,000
Accounts payable, accrued expenses and other liabilities (11,444,000)
------------
Net assets acquired $ 29,629,000
============
Operating results of the acquired companies have been included in the
statements of income since the respective dates of acquisition. The acquisitions
have been accounted for by the purchase method of accounting. The excess of the
purchase price over the fair market values of the assets acquired and
liabilities assumed will be amortized over 5 to 25 years on a straight-line
basis.
The operations of entities acquired subsequent to July 31, 1997 (see
Note 15) are not included in the Company's historical statements of income as
presented herein. The net assets of those entities acquired subsequent to July
31, 1997 are also not included in the Company's balance sheet as of July 31,
1997. Operations of such entities are included in the accompanying pro forma
results.
The pro forma condensed combined statements of income were prepared as
if the purchases and sales had occurred on the first day of the respective
periods presented to illustrate the estimated combined effects of the various
Agreements for Purchase and Sales (Agreements) upon the Company. The pro forma
condensed combined statements of income presented are not necessarily indicative
of the results of operations that might have occurred had such transactions been
completed as of the date specified or of the results of operations of the
Company and its subsidiaries for any future period.
11
<PAGE>
No changes in operating revenue and expenses have been made to reflect
the results of any modification to operations that might have been made had the
Agreements been consummated on the aforesaid assumed effective date for purposes
of presenting pro forma results. The pro forma condensed combined statements of
income include amortization of intangible assets as if the Agreements had been
completed on the assumed effective date referred to above.
The pro forma condensed combined statements of income should be read in
conjunction with the audited consolidated financial statements and related notes
thereto included elsewhere herein.
(a) Amortization on intangible assets recorded in the combined acquisitions
(amortized over various lives from 5 to 25 years).
(b) Additional net interest expense related to borrowings for cash paid to
acquire combined entities.
(c) Adjustment to income tax expense for the tax expense relating to the net
income as adjusted for the combined acquired entities. Income taxes are
calculated on the basis that operations of the consolidated company could
be combined as one company for federal income tax purposes at the actual
historical rate for the period.
(d) Additional shares of the Company's Common Stock issued pursuant to the
Agreements; assumed issued on the first day of the respective years
presented.
<TABLE>
<CAPTION>
For the Year Ended July 31, 1997
-----------------------------------------------------------------------------------------------------
(Unaudited)
RoTech Medical
Corporation RoTech Medical
Consolidated Corporation
Year Ended Combined Acquired Pro Forma Combined Pro
July 31, 1997 Entities Adjustments Forma Results
-----------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Operating revenue $422,692,297 $79,240,442 - $501,932,739
Cost and expenses:
Cost of revenue 105,564,558 20,870,723 - 126,435,281
Selling, general and
administrative 208,976,965 42,491,050 - 251,468,015
-----------------------------------------------------------------------------------------------------
Depreciation and amortization 44,017,317 3,303,056 $ 2,778,680 (a) 50,099,053
Interest, net 13,560,897 983,438 4,620,771 (b) 19,165,106
-----------------------------------------------------------------------------------------------------
Total cost and expenses 372,119,737 67,648,267 7,399,451 447,167,455
Income before income taxes 50,572,560 11,592,175 (7,399,451) 54,765,284
Income tax expense 19,765,700 95,734 839,843 (c) 20,701,277
-----------------------------------------------------------------------------------------------------
Net Income $ 30,806,860 $11,496,441 $(8,239,294) $ 34,064,007
=====================================================================================================
Net Income Per Share:
Primary $ 1.17 $ 1.25
Fully diluted $ 1.12 $ 1.19
Weighted Average Number of
Shares Outstanding
Primary 26,352,000 854,000(d) 27,206,000
Fully diluted 30,940,000 854,000(d) 31,794,000
</TABLE>
12
<PAGE>
NOTES TO CONSOLIDATED FINANCIAL STATEMENT - JULY 31, 1997
- --------------------------------------------------------------------------------
3. ACQUISITIONS (CONTINUED)
<TABLE>
<CAPTION>
For the Year Ended July 31, 1996
------------------------------------------------------------------------------------------
(Unaudited)
RoTech
Medical RoTech
Corporation Medical
Consolidated Corporation
Year Ended Combined Pro Forma Combined Pro
July 31, 1996 Acquired Entities Adjustments Forma Results
----------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Operating revenue $263,029,963 $155,600,112 $418,630,075
Cost and expenses:
Cost of revenue 71,012,877 44,341,035 - 115,353,912
Selling, general and
administrative 127,357,013 82,081,812 - 209,438,825
----------------------------------------------------------------------------------------------------
Depreciation and amortization 26,519,480 6,017,179 $6,064,805(a) 38,601,464
Interest, net 5,228,318 1,960,407 9,407,817(b) 16,596,542
----------------------------------------------------------------------------------------------------
Total cost and expenses 230,117,688 134,400,433 15,472,622 379,990,743
Income before income taxes 32,912,275 21,199,679 (15,472,622) 38,639,332
Income tax expense 12,356,500 199,568 2,049,599(c) 14,605,667
----------------------------------------------------------------------------------------------------
Net Income $ 20,555,775 $ 21,000,111 $(17,522,221) $ 24,033,665
====================================================================================================
Net Income Per Share:
Primary $ 0.83 $ 0.94
Fully diluted $ 0.82 $ 0.92
Weighted Average Number of
Shares Outstanding
Primary 24,657,000 854,000(d) 25,511,000
Fully diluted 25,206,000 854,000(d) 26,060,000
</TABLE>
4. SHAREHOLDERS' EQUITY
The Company has 50,000,000 shares of Common Stock authorized at a par
value of $0.0002 per share. On May 21, 1996, the Company distributed a 100%
common stock dividend to shareholders of record as of April 30, 1996 to effect a
2-for-1 stock split. Shareholders' equity has been restated to give retroactive
recognition to the stock split for all periods presented by reclassifying from
additional paid-in capital to common stock the par value of the additional
shares arising from the split. In addition, for all periods presented, all
references in the consolidated financial statements and footnotes thereto to
number of shares, per share amounts, weighted average shares outstanding, as
well as stock option and related price information have been restated to give
retroactive effect to the split.
13
<PAGE>
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS - JULY 31, 1997
- --------------------------------------------------------------------------------
4. SHAREHOLDERS' EQUITY (CONTINUED)
On May 10, 1995, the Company completed a public offering of 3,400,000
shares of its Common Stock at $15.50 per share. The proceeds of the sale, after
deducting issuance costs, were $49,885,497. The Company used the proceeds to
reduce outstanding debts, to complete certain acquisitions and invested the
remainder in short-term interest-bearing obligations.
The Company utilizes its Common Stock as consideration in the
acquisition process along with cash payments. The Company issued the following
shares in the related fiscal years to effect purchases of home care companies:
Number of Shares Value of Shares
---------------- ---------------
1995 391,976 3,197,418
1996 301,816 3,061,282
1997 854,574 8,109,063
Certain additional shares of Common Stock are issued and held in escrow
pending the resolution of specific conditions set out in the related purchase
transactions. Such shares are not shown as outstanding until the contingency is
satisfied and amounted to 1,735,601 shares as of July 31, 1997.
The Company has issued certain common stock shares subject to put
options at the sole discretion of the shareholder at specified prices and are
recorded as Redeemable Common Stock. As of July 31, 1997, the Company had
422,651 shares outstanding subject to put options ranging in call prices from
$9.75 to $17.50. The put options expire at dates ranging from October 1997 to
December 1999.
The Company has an Employee Stock Compensation Plan designed to reward
employees with ownership in the Company in lieu of cash compensation. Shares
issued under the Plan amounted to 14,267 shares, 22,068 shares and 32,126
shares, in fiscal 1997, 1996 and 1995, respectively.
The Company has two plans under which stock options may be granted. The
1993 Stock Option Plan the ("1993 Plan") provides for the granting of up to
3,000,000 stock options to purchase common stock over a ten year period, at a
price of fair market value on the date of grant to key management employees of
the Company. The 1996 Key Employee Stock Option Plan ("1996 Plan") provides for
the granting of up to 1,000,000 stock options to purchase common stock over a 10
year period, at a price of fair market value on the date of grant to key
executive officers of the Company. The 1993 Plan and the 1996 Plan are
administered by the Stock Option Plan Committee ("the Committee") of the Board
of Directors of the Company. Options become exercisable at such times and in
such installments as granted by the Committee. Participants generally vest in
the options over a four-year period.
14
<PAGE>
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS - JULY 31, 1997
- --------------------------------------------------------------------------------
Information regarding the Company's stock option plans is summarized below:
<TABLE>
<CAPTION>
NUMBER OF OPTIONS
1993 PLAN 1996 PLAN PRICE PER SHARE
<S> <C> <C> <C>
Outstanding August 1, 1994 1,567,706 - 5.94 - 9.38
Granted - - -
Exercised (28,854) - 6.88 - 7.13
Canceled - - -
--------- --------- --------------
Outstanding July 31, 1995 1,538,852 - 5.94 - 9.38
Granted 682,000 600,000 11.38 - 19.13
Exercised (128,852) - 5.94 - 6.88
Canceled - - -
--------- --------- --------------
Outstanding July 31, 1996 2,092,000 600,000 $ 5.94 - 19.13
Granted 470,000 - 11.00 - 18.00
Exercised (50,000) - 5.94
Canceled (230,000) - 11.38 - 13.75
--------- --------- --------------
Outstanding July 31, 1997 2,282,000 600,000 $ 5.94 - 19.13
Exercisable at July 31, 1997 1,648,500 200,000 $ 5.94 - 19.13
Reserved for future grant 280,294 400,000 -
</TABLE>
The Company applies APB No. 25 and related interpretations in accounting for
its stock options. Accordingly, no compensation expense has been recognized in
connection with its stock options. Had compensation expense for the Company's
stock options been determined consistent with SFAS No. 123, the company's net
income and income per share would have been reduced to the pro forma amounts
indicated below:
<TABLE>
<CAPTION>
1997 1996
AS REPORTED PRO FORMA AS REPORTED PRO FORMA
<S> <C> <C> <C> <C>
Net income $30,806,860 $29,519,417 $20,555,775 $20,265,250
Primary income per share $ 1.17 $ 1.12 $ 0.83 $ 0.81
Fully diluted income per share $ 1.12 $ 1.07 $ 0.82 $ 0.79
</TABLE>
The fair value of the options, for purposes of the above pro forma
disclosure, was estimated on the date of grant or modification using the Black-
Scholes option pricing model and the following assumptions: a risk-free interest
rate of 6.02% weighted average expected lives of 5 years for options, 0%
dividend yield and volatility of 28%. The effects of applying SFAS No. 123 in
the pro forma income and income per share for 1997 and 1996 may not be
representative of the effects on such pro forma information for future years.
An acquisition transacted in fiscal 1992 included 50,048 warrants to
purchase the Company's Common Stock at $15.00 per share; 2,060 warrants were
exercised during fiscal year 1996 and the remaining warrants expired on November
30, 1995.
15
<PAGE>
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS - JULY 31, 1997
- --------------------------------------------------------------------------------
On July 1, 1995, the Company entered into a stock option agreement
("Agreement") with a firm which provides legal services to the Company (See Note
11). The Agreement issued the firm options to purchase up to, but not exceeding
in the aggregate, 20,000 shares of the Company's Common Stock at $13.88 per
share and 20,000 shares at $19.50 per share. The options are exercisable until
June 30, 2001.
During fiscal years 1993 and 1992, pursuant to employment agreements,
the Company issued 20,000 and 20,000, respectively, options to purchase its
Common Stock at prices ranging from $7.00 to $7.13 per share. All options issued
in 1992 were exercised during the year ended July 31, 1996. During the year
ended July 31, 1995, 10,000 of the 20,000 options issued in fiscal 1993 were
exercised.
5. PROPERTY AND EQUIPMENT
Property and equipment consists of the following:
<TABLE>
<CAPTION>
JULY 31
1997 1996
---------------------------
<S> <C> <C>
Rental equipment $162,444,404 $ 97,242,445
Furniture and equipment 37,205,958 24,377,848
Vehicles 12,001,940 8,249,870
Leasehold improvements 4,465,543 2,221,288
---------------------------
216,117,845 132,091,451
Less accumulated depreciation (84,878,275) (46,676,907)
---------------------------
$131,239,570 $ 85,414,544
===========================
</TABLE>
6. CURRENT NOTES PAYABLE TO BANKS
Current notes payable to banks at July 31, 1997 were $180,991,047 under
a $300,000,000 syndicated bank line of credit expiring on June 2, 1998. The rate
on July 31, 1997 and 1996 was 6.49% and 6.12%, respectively. The syndicated bank
line of credit is payable on demand and provides for an interest rate to be
selected by the Company based on LIBOR plus 0.75% or the prime rate.
The credit facility carries a negative pledge on all Company assets and
requires compliance by the Company with certain financial and negative
covenants, including a restriction on dividends. As of July 31, 1997, the
Company was in compliance with all covenants contained in the credit facility.
7. CONVERTIBLE SUBORDINATED DEBENTURES
On June 1, 1996, the Company issued $110,000,000 aggregate principal
amount of 5 1/4% Convertible Subordinated Debentures ("Debentures") due 2003
with interest payable on June 1 and December 1, commencing December 1, 1996. The
Debentures and related 4,190,476 shares of the Common Stock of the Company,
which are initially issuable upon conversion of the Debentures, were registered
with the Securities and Exchange Commission on September 11, 1996.
The Debentures are convertible into Common Stock of the Company at any
time after the 60/th/ day following the date of original issuance of the
Debentures and at or before maturity at a conversion price of $26.25 per share,
subject to adjustment in certain events, plus accrued interest. The Debentures
are
16
<PAGE>
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS - JULY 31, 1997
- --------------------------------------------------------------------------------
7. CONVERTIBLE SUBORDINATED DEBENTURES (CONTINUED)
redeemable at the option of the Company, in whole or in part, but not before
June 4, 1999. The Debentures do not provide for a sinking fund. The Company's
ability to repurchase the Debentures is dependent upon the Company's having
sufficient funds and may be limited by the terms of the Company's senior
indebtedness or the subordination provisions of the related indenture.
8. COMMITMENTS AND CONTINGENCIES
Lease Commitments
Rental expense approximated $14,492,000 $7,765,000, and $3,924,000 for
the years ended July 31, 1997, 1996, and 1995, respectively. Future minimum
rental commitments under leases, primarily for buildings, are as follows:
<TABLE>
<CAPTION>
FOR THE YEARS ENDING JULY 31
- ----------------------------
<S> <C>
1998 8,239,790
1999 6,442,878
2000 4,368,379
2001 2,626,044
2002 1,596,268
Thereafter 3,734,158
-----------
$27,007,517
===========
</TABLE>
Healthcare Regulatory Environment
A significant portion of the Company's revenues are reimbursed under the
Federal Medicare program. The Balanced Budget Act of 1997 enacted in August
1997, reduces the Medicare national payment limits for oxygen and oxygen
equipment used in home respiratory by 25% in 1998 and 30% (from 1997 levels) in
1999 and each subsequent year. Approximately 22% of RoTech's total revenues for
the year ended July 31, 1997 were derived from the provision of oxygen services
to Medicare patients.
Litigation
The Company is engaged in the defense of certain claims and lawsuits
arising out of the ordinary course and conduct of its business, the outcome of
which are not determinable at this time. The Company has insurance policies
covering such potential losses where such coverage is cost effective. In the
opinion of management, any liability that might be incurred by the Company upon
resolution of these claims and lawsuits will not, in the aggregate, have a
material adverse effect on its consolidated financial condition.
9. RETIREMENT BENEFITS
The company instituted a 401(k) Savings Plan ("Savings Plan") on May 1,
1996. The Savings Plan covers all full-time employees who have met certain
eligibility requirements and is funded by voluntary employee contributions and
by Company contributions equal to a certain percentage of employee
contributions. Employees' interests in company contributions vest over five
years. The cost of the Savings Plan was $300,000 and $26,000 for the fiscal
years ended July 31, 1997 and 1996, respectively.
17
<PAGE>
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS - JULY 31, 1997
- --------------------------------------------------------------------------------
10. INCOME TAXES
Income tax expense for the years ended July 31, consists of the
following:
<TABLE>
<CAPTION>
1997 1996 1995
------------------------------------
<S> <C> <C> <C>
Current
Federal $10,078,747 $ 6,796,500 $2,894,000
State 996,800 672,190 289,485
------------------------------------
11,075,547 7,468,690 3,183,485
Deferred
Federal 7,908,053 4,447,910 4,210,800
State 782,100 439,900 406,515
------------------------------------
8,690,153 4,887,810 4,617,315
------------------------------------
$19,765,700 $12,356,500 $7,800,800
====================================
</TABLE>
Deferred income taxes reflect the net tax effects of temporary
differences between the carrying amounts of assets and liabilities for financial
reporting purposes and the amounts used for income tax purposes. Provisions have
been made for deferred income taxes arising primarily from the use of different
depreciation methods for equipment and different lives for intangible assets for
financial and tax reporting purposes. Significant components of the Company's
deferred tax liabilities and assets as of July 31 are as follows:
<TABLE>
<CAPTION>
1997 1996
-------------- -------------
<S> <C> <C>
Deferred tax liabilities:
Tax over book depreciation $12,294,020 $ 7,046,700
Tax over book intangibles amortization 8,440,589 4,784,455
Prepaid insurance 52,998 75,299
------------------------------
Total deferred tax liabilities $20,787,607 11,906,454
==============================
Deferred tax assets:
Uniform capitalization 450,000 259,000
------------------------------
Total deferred tax assets 450,000 259,000
------------------------------
Net deferred tax liabilities $20,337,607 $11,647,454
==============================
</TABLE>
The Company's effective tax rate differs from the statutory rate for
the years ended July 31, as follows:
<TABLE>
<CAPTION>
1997 1996 1995
------------------------------------------
<S> <C> <C> <C>
Percentage of pre-tax income:
Statutory rate 35.0% 35.0% 35.0%
Increase (decrease) in tax rate resulting from:
State income taxes, net of federal income tax benefit 2.0 2.0 2.0
Amortization of nondeductible intangible assets 2.8 2.2 2.5
Other ( .8) (1.7) (2.3)
------------------------------------------
39.0% 37.5% 37.2%
==========================================
</TABLE>
18
<PAGE>
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS - JULY 31, 1997
- --------------------------------------------------------------------------------
11. RELATED PARTY TRANSACTIONS
The Company purchases certain products from companies owned by its chief
executive officer and shareholder. Such transactions amounted to approximately
$11,000, $74,000 and $55,000 for the years ended July 31, 1997, 1996 and 1995,
respectively. These same companies purchased approximately $11,000, $46,000 and
$28,000 of products from the Company for the fiscal years ended July 31, 1997,
1996 and 1995, respectively.
The Company leases certain facilities and equipment from companies owned
by certain directors, officers and shareholders. Rent expense under these
cancelable operating leases amounted to $540,000, $740,000 and $760,000 for the
years ended July 31, 1997, 1996 and 1995, respectively.
The Company executed a stock option agreement with a firm which provided
certain legal services in the amount of $362,000, $302,000, and $270,000 for the
years ended July 31, 1997, 1996 and 1995, respectively, to the Company. One of
the Company's directors and officers is a shareholder and officer of the firm.
(See Note 4.)
12. QUARTERLY FINANCIAL DATA (UNAUDITED)
The following is a summary of the quarterly results of operations for
the years ended July 31, 1997 and 1996:
<TABLE>
<CAPTION>
JULY 31, 1997
(IN THOUSANDS)
FIRST SECOND THIRD FOURTH
-------------------------------------------------------------
<S> <C> <C> <C> <C>
OPERATING REVENUE $90,307,483 $97,835,317 $109,431,604 $125,117,893
COST AND EXPENSES 80,055,510 86,117,894 96,186,134 109,760,199
INCOME TAX EXPENSE 3,900,500 4,442,003 4,979,163 6,444,034
-------------------------------------------------------------
NET INCOME $ 6,351,473 $ 7,275,420 $ 8,266,307 $ 8,913,660
=============================================================
NET INCOME PER SHARE:
PRIMARY $ 0.25 $ 0.28 $ 0.31 $ 0.33
FULLY DILUTED $ 0.25 $ 0.27 $ 0.30 $ 0.31
July 31, 1996
First Second Third Fourth
-------------------------------------------------------------
Operating revenue $45,119,179 $61,463,199 $ 72,983,865 $ 83,463,720
Cost and expenses 38,235,210 53,634,405 64,644,579 73,603,494
Income tax expense 2,560,836 2,897,599 2,897,933 4,000,132
-------------------------------------------------------------
Net income $ 4,323,133 $ 4,931,195 $ 5,441,353 $ 5,860,094
=============================================================
Net income per share:
Primary $ 0.18 $ 0.20 $ 0.22 $ 0.23
Fully diluted $ 0.18 $ 0.20 $ 0.22 $ 0.23
</TABLE>
19
<PAGE>
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS - JULY 31, 1997
- --------------------------------------------------------------------------------
13. ACCRUED EXPENSES AND OTHER LIABILITIES
Accrued expenses and other liabilities include:
<TABLE>
<CAPTION>
JULY 31
1997 1996
---------------------------
<S> <C> <C>
Accrued payroll expenses $ 3,597,502 $ 3,847,179
Deferred payments 2,914,520 2,978,161
Payments due on acquisition transactions - 3,200,000
Liabilities assumed through acquisitions 1,232,666 1,434,293
Accrued interest 2,001,820 1,232,086
Other accrued liabilities 3,773,738 1,487,091
---------------------------
13,520,246 $14,178,810
===========================
</TABLE>
14. OTHER ASSETS
In February 1995, the Company sold its investment in an affiliated
company. The Company's 49% ownership was accounted for by the equity method. The
approximate $1,400,000 net gain and certain operating expenses incurred to carry
the asset are recorded in selling, general and administrative expense.
15. SUBSEQUENT EVENTS
During the period August 1, 1997 to September 16, 1997, the Company
acquired the net assets or outstanding stock of 11 home health care companies
for approximately $13.2 million.
20
<PAGE>
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS - JULY 31, 1997
- --------------------------------------------------------------------------------
SCHEDULE II - VALUATION AND QUALIFYING ACCOUNTS
- -----------------------------------------------
<TABLE>
<CAPTION>
COLUMN C
-------------
COLUMN A COLUMN B ADDITIONS COLUMN D COLUMN E
- -----------------------------------------------------------------------------------------------------
CHARGED TO
BALANCE AT CHARGED TO OTHER BALANCE AT
BEGINNING OF COSTS AND ACCOUNTS DEDUCTIONS END OF
CLASSIFICATION PERIOD EXPENSES(1) DESCRIBE DESCRIBE (2) PERIOD
- -----------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
YEAR ENDED JULY 31, 1997:
DEDUCTED FROM ASSET ACCOUNTS:
ALLOWANCE FOR DOUBTFUL
ACCOUNTS $16,978,000 $19,882,000 $13,142,000 $23,718,000
Year ended July 31, 1996:
Deducted from asset accounts:
Allowance for doubtful
accounts $ 7,958,000 $ 7,544,000 - $(1,476,000) $16,978,000
Year ended July 31, 1995:
Deducted from asset accounts:
Allowance for doubtful
accounts $ 6,333,000 $ 4,499,000 - $ 2,874,000 $ 7,958,000
</TABLE>
(1) Certain amounts in each year are charged against gross operating revenue
and are not included herein.
(2) Uncollectible accounts written off, net of recoveries and net of the
allowance for doubtful accounts remaining at the respective fiscal year-end
recorded in conjunction with certain acquisitions.
21
<PAGE>
REPORT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
- --------------------------------------------------------------------------------
To the Board of Directors and Shareholders of
RoTech Medical Corporation
Orlando, Florida
We have audited the accompanying consolidated balance sheets of RoTech Medical
Corporation and subsidiaries (the "Company") as of July 31, 1997 and 1996, and
the related consolidated statements of income, shareholders' equity, and cash
flows for each of the three years in the period ended July 31, 1997. Our audits
also included the financial statement schedule, for the three-year period ended
July 31, 1997, presented on page 21. These consolidated financial statements
and financial statement schedule are the responsibility of the Company's
management. Our responsibility is to express an opinion on these consolidated
financial statements and the financial statement schedule based on our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements. An audit also includes
assessing the accounting principles used and significant estimates made by
management, as well as evaluating the overall financial statement presentation.
We believe that our audits provide a reasonable basis for our opinion.
In our opinion, such consolidated financial statements present fairly, in all
material respects, the financial position of RoTech Medical Corporation and
subsidiaries at July 31, 1997 and 1996, and the results of their operations and
their cash flows for each of the three years then ended in conformity with
generally accepted accounting principles. Also, in our opinion, such financial
statement schedule for the three-year period ended July 31, 1997, when
considered in relation to the basic consolidated financial statements taken as a
whole, presents fairly in all material respects the information set forth
therein.
DELOITTE & TOUCHE LLP
Orlando, Florida
September 18, 1997 (October 21, 1997 as to Note 1)
22
<PAGE>
SELECTED CONSOLIDATED FINANCIAL DATA
- --------------------------------------------------------------------------------
(in thousands, except per share and percentage amounts)
<TABLE>
<CAPTION>
Year Ended July 31
- --------------------------------------------------------------------------------------------------------------------------
1997 1996 1995 1994 1993
- --------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Statements of Income Data:
Operating revenue:
Home respiratory therapy & equipment $211,346 $110,118 $ 56,533 $ 41,579(a) $ 23,857(a)
Home medical equipment & supplies 122,581 92,062 32,305 (a) (a)
Home infusion therapy & other
pharmacy related services 59,177 41,498 33,554 25,492 21,715
Other products & services 29,588 19,352 11,719 4,399 2,811
- --------------------------------------------------------------------------------------------------------------------------
Total operating revenue 422,692 263,030 134,111 71,470 48,383
- --------------------------------------------------------------------------------------------------------------------------
Cost and expenses:
Cost of revenue 105,565 71,013 36,288 17,409 12,359
Selling, general and administrative 208,977 127,357 66,477 35,880 25,064
Depreciation and amortization 44,017 26,520 9,565 5,338 2,801
Interest 13,561 5,228 835 67 76
- --------------------------------------------------------------------------------------------------------------------------
Total cost and expenses 372,120 230,118 113,165 58,694 40,300
- --------------------------------------------------------------------------------------------------------------------------
Income before income taxes 50,572 32,912 20,946 12,776 8,083
Income tax expense 19,765 12,356 7,801 4,664 2,956
- --------------------------------------------------------------------------------------------------------------------------
Net income $ 30,807 $ 20,556 $ 13,145 $ 8,112 $ 5,127
- --------------------------------------------------------------------------------------------------------------------------
Net income per share:
Primary $ 1.17 $ 0.83 $ 0.64 $ 0.50 $ 0.38
Fully diluted $ 1.12 $ 0.82 $ 0.63 $ 0.50 $ 0.38
- --------------------------------------------------------------------------------------------------------------------------
Other Data:
Weighted average shares outstanding:
Primary 26,352 24,657 20,684 16,294 13,384
Fully diluted 30,940 25,206 20,984 16,294 13,384
- --------------------------------------------------------------------------------------------------------------------------
Balance Sheet Data:
Working Capital (59,821) $ 36,007 $ 41,587 $27,783 $18,203
Total Assets 560,732 374,614 175,425 94,433 40,019
Long-term Debt
(less current portion) 110,000 110,000 - - -
Shareholders' Equity 213,960 174,675 149,659 83,320 36,197
- --------------------------------------------------------------------------------------------------------------------------
</TABLE>
The Company has acquired various businesses in the five years shown above.
Results of these acquisitions' operations are included from the respective dates
acquired.
(a) A breakout of home respiratory therapy and equipment revenues and home
medical equipment and supplies was not available for the years ended July
31, 1994 and 1993. All revenue related to these two product lines has been
presented as "home respiratory therapy and equipment" for the years
indicated.
23
<PAGE>
MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF
OPERATION
- --------------------------------------------------------------------------------
FOR THE FISCAL YEARS ENDED JULY 31, 1997 AND 1996
Operating revenue increased 61% to $423 million for the fiscal year ended
July 31, 1997 ("fiscal 1997") from $263 million for the fiscal year ended July
31, 1996 ("fiscal 1996"). The increase in operating revenue is attributable to
acquisitions and expanded product and service lines in existing areas of
operation. Revenue from acquisitions in fiscal 1997 totaled $59 million.
During fiscal 1997, the Company added 174 home care locations and operated 589
home care locations in 35 states as of July 31, 1997. The Company continues to
employ a single sales force to maintain and develop both the home respiratory
therapy, other medical equipment, home infusion therapy and other pharmacy
related lines of business.
Operating revenue from home respiratory therapy and equipment increased 92%
to $211.3 million for fiscal 1997 from $110.1 million for fiscal 1996.
Operating revenue from home medical equipment and supplies increased 33% to
$122.6 million for fiscal 1997 from $92.1 million for fiscal 1996. The
increases in these two product lines were due mainly to increases in patient
bases throughout the Company's locations and increased marketing efforts in
certain locations acquired during fiscal year 1997 and 1996. The majority of
the Company's acquisitions are of businesses that operate primarily in these two
product lines.
Operating revenue from home infusion therapy and pharmacy related services
increased 43% to $59.2 million for fiscal 1997 from $41.5 million for fiscal
1996. Growth in this line of business should continue as the Company expands
its service areas.
Operating revenue from physician and other services increased 53% to $29.6
million for fiscal 1997, from $19.4 million for fiscal 1996. The Company
currently owns 24 physician practices and employs 29 primary care physicians.
These practices are clustered in two rural marketplaces. Growth in this line of
business should continue yet decline as a percentage of operating revenue as the
Company continues to acquire home health care operations.
Cost of revenue as a percentage of operating revenue decreased to 25.0% for
fiscal 1997 from 27.0% for fiscal 1996 due to changes in the product mix in the
last year resulting from mid-year fiscal 1996 and fiscal 1997 acquisitions.
Selling, general and administrative expenses as a percentage of operating
revenue increased to 49.4% for fiscal 1997 from 48.4% for fiscal 1996 due to an
increase in bad debt expense. Changes in the Company's mix of business also
affect these categories. For example, physician practices have no cost of
revenue and all expenses are of a selling, general and administrative nature.
Depreciation and amortization expense increased 66% to $44.0 million for
fiscal 1997 from $26.5 million for fiscal 1996. Depreciation and amortization
expense as a percentage of operating revenue was 10.4% for fiscal 1997 and 10.1%
for fiscal 1996. The dollar increase was attributable to the Company's purchase
of fixed and intangible assets resulting from various acquisitions and the fixed
assets needed for the increased rentals of equipment. All acquisitions in
fiscal 1997 were accounted for by the purchase method.
24
<PAGE>
MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF
OPERATION - CONTINUED
- --------------------------------------------------------------------------------
FOR THE FISCAL YEARS ENDED JULY 31, 1997 AND 1996 (CONTINUED)
Interest expense, net of interest income, increased to $13.6 million for
fiscal 1997 from $5.2 million for fiscal 1996. This increase resulted from the
Company borrowing monies to fund certain acquisitions along with the issuance of
the convertible subordinated debentures on June 1, 1996.
Income tax expense was provided at a 39.1% effective rate, compared to
37.5% the prior fiscal 1996.
Net income for fiscal 1997 was $30.8 million, a 50% increase over the $20.6
million for fiscal year 1996. Net income per share on a fully diluted basis
increased 37% to $1.12 for fiscal 1997 compared to $0.82 for fiscal 1995. The
weighted average number of shares on a fully diluted basis increased 23% to 30.9
million at July 31, 1997 from 25.2 million at July 31, 1996, primarily as a
result of shares issued in conjunction with certain acquisitions.
FOR THE FISCAL YEARS ENDED JULY 31, 1996 AND 1995
Operating revenue increased 96% to $263.0 million for the fiscal year ended
July 31, 1996 ("fiscal 1996") from $134.1 million for the fiscal year ended July
31, 1995 ("fiscal 1995"). The increase in operating revenue is attributable to
acquisitions and expanded product and service lines in existing areas of
operation. The Company continues to employ a single sales force to maintain and
develop both the home respiratory and other medical equipment and home infusion
therapy and other pharmacy related lines of business.
Operating revenue from home respiratory therapy and equipment and home
medical equipment and supplies increased 95% to $110.1 million for fiscal 1996
from $56.5 million for fiscal 1995. Operating revenue from home medical
equipment and supplies increased 185% to 92.1 million for fiscal 1996 from $32.3
million for fiscal 1995. The increase was due mainly to increases in patient
bases throughout the Company's locations and increased marketing efforts in
certain locations acquired during fiscal year 1995 and 1996. The majority of the
Company's acquisitions are of businesses that operate primarily in these two
product lines.
Operating revenue from home infusion therapy and pharmacy related services
increased 24% to $41.5 million for fiscal 1996 from $33.6 million for fiscal
1995.
Operating revenue from physician practices represented 7% of total
operating revenue for fiscal 1996, compared to 9% for fiscal 1995. At July 31,
1996, the Company owned 24 physician practices and employed 29 primary care
physicians. These practices are clustered in two rural marketplaces.
Cost of revenue as a percentage of operating revenue decreased to 27.0% for
fiscal 1996 from 27.1% for fiscal 1995 due to changes in the product mix in the
last year resulting from mid-year fiscal 1995 and fiscal 1996 acquisitions.
Selling, general and administrative expenses as a percentage of operating
revenue remained relatively stable at 48.4%, down from 49.6% for fiscal 1995 as
the revenue base has grown faster than the Company's costs. Changes in the
Company's mix of business also affect these categories. For example, physician
practices have no cost of revenue and all expenses are of selling, general and
administrative natures.
25
<PAGE>
MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF
OPERATION - CONTINUED
- --------------------------------------------------------------------------------
FOR THE FISCAL YEARS ENDED JULY 31, 1996 AND 1995 (CONTINUED)
Depreciation and amortization expense increased 177% to $26.5 million for
fiscal 1996 from $9.6 million for fiscal 1995. Depreciation and amortization
expense as a percentage of operating revenue was 10.1% for fiscal 1996 and 7.1%
for fiscal 1995. The dollar increase was attributable to the Company's purchase
of fixed and intangible assets resulting from various acquisitions and the fixed
assets needed for the increased rentals of equipment. All acquisitions in
fiscal 1996 were accounted for by the purchase method of accounting.
Interest expense, net of interest income, increased to $5.2 million for
fiscal 1996 from $835,000 for fiscal 1995. This increase resulted from the
Company borrowing monies to fund certain acquisitions along with the issuance of
the Convertible Subordinated Debentures on June 1, 1996.
Income tax expense was provided at a 37.5% effective rate, compared to
37.2% the prior fiscal 1995.
Net income for fiscal 1996 was $20.6 million, a 56.4% increase over the
$13.1 million for fiscal 1995. Net income per share on a fully diluted basis
increased 30.2% to $0.82 for fiscal 1996 compared to $0.63 for fiscal 1995. The
weighted average number of shares on fully diluted basis increased 20.1% to 25.2
million on July 31, 1996 from 21.0 million at July 31, 1995, primarily as a
result of the May 1995 public stock offerings and shares issued in conjunction
with certain acquisitions.
LIQUIDITY AND CAPITAL RESOURCES
At July 31, 1997, total current assets were $152.1 million and total
current liabilities were $212.0 million, resulting in a working capital deficit
of $59.8 million. This deficit results from the classification of the Company's
line of credit as a current liability. The Company's current ratio was 0.72 to
1 at July 31, 1997 compared to 1.47 to 1 at July 31, 1996. Net trade accounts
receivable increased $28.9 million in fiscal 1997, or 35%. This increase is
attributable to acquisitions of the net assets of many home health care
companies during the year and the 61% increase in operating revenue over the
prior year. The Company's days revenue outstanding on net accounts receivable
decreased to 81 days at July 31, 1997 from 92 days at July 31, 1996. Acquired
receivables remaining outstanding account for approximately 11 days revenue
outstanding at July 31, 1997 compared to 16 days revenue outstanding at July 31,
1996.
Current liabilities increased $135.5 million in fiscal 1997, as an
additional $129 million was borrowed on the syndicated bank line of credit. The
balance of the change was due to income taxes payable.
During fiscal 1997, the Company generated cash of $70 million from
operating activities primarily as a result of net income of $30.8 million along
with non-cash expenses of $73 million. Advances on the syndicated bank line of
credit were utilized to fund acquisitions and internal expansion. During fiscal
1997, the Company spent $137 million to acquire various home health care
companies and $56 million to purchase property and equipment, primarily rental
equipment, for operational needs. The Company has been financing its revenue
growth and increased working capital requirements with positive net cash
provided by operating activities and short-term borrowings.
26
<PAGE>
MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF
OPERATION - CONTINUED
- --------------------------------------------------------------------------------
LIQUIDITY AND CAPITAL RESOURCES (CONTINUED)
On June 1, 1996, the Company issued $110 million aggregate principal amount
of 5 1/4% convertible subordinated debentures ("debentures"). Upon receipt, the
proceeds were used to reduce the syndicated bank line of credit. The debentures
are due 2003 with interest payable on June 1 and December 1, commencing December
1, 1996. The debentures do not provide for a sinking fund. The Debentures are
convertible into Common Stock of the Company at any time after the 60/th/ day
following the date of original issuance of the debentures and at or before
maturity at a conversion price of $26.25 per share, subject to adjustment in
certain events, plus accrued interest. The Debentures are redeemable at the
option of the Company, in whole or in part, but not before June 4, 1999. The
Company's ability to repurchase the Debentures is dependent upon the Company's
having sufficient funds and may be limited by the terms of the Company's senior
indebtedness or the subordination provisions of the related indenture.
As of July 31, 1997, the Company had a syndicated bank line of credit of
$300 million, with approximately $113.5 million available for future borrowing,
as of September 16, 1997. The syndicated bank line of credit carries a negative
pledge on all Company assets, is payable on demand and provides for interest
rates, at the Company's election, of LIBOR plus .75%. The syndicated bank line
of credit requires compliance by the Company with certain financial and negative
covenants, including a restriction on dividends. As of July 31, 1997, the
Company was in compliance with all covenants contained in the credit facility.
Management believes that its credit capacity and cash flow from operations, will
be sufficient for the Company's projected growth in the near future.
27
<PAGE>
SELECTED QUARTERLY CONSOLIDATED FINANCIAL DATA
- --------------------------------------------------------------------------------
(in thousands, except per share amounts and prices of Common Stock)
<TABLE>
<CAPTION>
FIRST SECOND THIRD FOURTH
QUARTER QUARTER QUARTER QUARTER
- ---------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
YEAR ENDED JULY 31, 1997
OPERATING REVENUE $90,307 $ 97,835 $ 109,432 $125,118
NET INCOME 6,351 7,275 8,266 8,914
NET INCOME PER SHARE:
PRIMARY $ 0.25 $ 0.28 $ 0.31 $ 0.33
FULLY DILUTED $ 0.25 $ 0.27 $ 0.30 $ 0.31
WEIGHTED AVERAGE NUMBER
OF SHARES OUTSTANDING:
PRIMARY 25,547 26,432 26,580 26,850
FULLY DILUTED 25,858 30,944 31,194 31,572
- ---------------------------------------------------------------------------------------------------------------------------------
Year Ended July 31, 1996
Operating Revenue $45,119 $ 61,463 $ 72,984 $ 83,464
Net Income $ 4,323 $ 4,931 $ 5,441 $ 5,860
Net Income Per Share:
Primary $ 0.18 $ 0.20 $ 0.22 $ 0.23
Fully Diluted $ 0.18 $ 0.20 $ 0.22 $ 0.23
Weighted Average
Number of Share Outstanding:
Primary 23,646 24,489 24,927 25,565
Fully Diluted 24,381 25,204 25,299 25,940
- ---------------------------------------------------------------------------------------------------------------------------------
PRICES OF COMMON STOCK HIGH LOW
- ---------------------------------------------------------------------------------------------------------------------------------
FISCAL 1997 - QUARTER ENDED
OCTOBER 31, 1996 $ 18 1/2 $ 13 5/8
JANUARY 31, 1997 21 3/4 15 19/32
APRIL 30, 1997 20 3/8 14 1/2
JULY 31, 1997 20 1/16 14 7/8
- ---------------------------------------------------------------------------------------------------------------------------------
Fiscal 1996 - Quarter Ended
October 31, 1995 $ 15 $10 13/16
January 31, 1996 15 1/4 11 3/8
April 30, 1996 21 7/8 15
July 31, 1996 23 1/2 14 3/4
- ---------------------------------------------------------------------------------------------------------------------------------
</TABLE>
The Common Stock of the company has traded on the over-the-counter market
since December 9, 1985 and is quoted on the NASDAQ National Market System under
the symbol "ROTC". The prices presented in the above table are the high and low
closing sales prices on the over-the-counter market for the Company's Common
Stock as reported on the NASDAQ Market System. On October 21, 1997, there were
approximately 26,443,147 shares of Common Stock outstanding which were by
approximately 658 shareholders of record. On April 17, 1996, the Board of
Directors declared a two-for-one split of its Common Stock, payable on May 21,
1996. This was affected in the form of a 100% dividend to shareholders of
record on April 30, 1996 for all periods presented. All references to number of
weighted average shares outstanding per share amounts and prices in the tables
above have been restated to give retroactive effect to the two-for-one stock
split. The Company has not paid any cash dividends since formation. The Company
anticipates that for the foreseeable future, it will retain earnings in order to
finance the development of its business and that no cash dividends will be paid
on its Common Stock.
28
<PAGE>
NOTES
- --------------------------------------------------------------------------------
29
<PAGE>
<TABLE>
<CAPTION>
<S> <C>
Directors Stephen P. Griggs
Marc B. Levin
Marshall A. Elkins
Executive Officers Stephen P. Griggs
President
Marc B. Levin
Executive Vice President - Investor Relations
Marshall A. Elkins
Executive Vice President and General Counsel
C. Christian Winkle
Executive Vice President - Field Operations
Lawrence P. Cirka
Executive Vice President
Brian K. Davidson
Executive Vice President - Development
Anthony R. Masso
Executive Vice President - Managed Care
John Heller
Executive Vice President - Facility Operations
W. Bradley Bennett
Executive Vice President - Chief Accounting
Officer
Eleanor C. Harding
Executive Vice President - Finance
Virginia Dollard
Executive Vice President - Post Acute Network
Operations
C. Taylor Pickett
Executive Vice President
Corporate Office 4506 L. B. McLeod Road, Suite F
Orlando, FL 32811
(407) 841-2115
(800) 342-0416
Internet Address http://www.rotech.com
Attorneys Winderweedle, Haines, Ward & Woodman,
P. A.
390 North Orange Avenue, Suite 1490
Orlando, FL 32801
Auditors Deloitte & Touche LLP
200 South Orange Avenue, Suite 1800
Orlando, FL 32801
Financial Institution SunTrust Bank, Central Florida, N.A.
200 South Orange Avenue
Orlando, FL 32801
</TABLE>
30
<PAGE>
OUTSIDE BACK COVER
31
<PAGE>
Exhibit 22.1
ROTECH MEDICAL CORPORATION AND SUBSIDIARIES
A-1 Medical Equipment, Inc.
Abba Medical Equipment, Inc.
Advanced Imaging Center, Inc.
f\k\a Integral Home Health Care, Inc.
Allied Medical Supply, Inc.
Always Medical Equipment,Inc.
Ambassador Medical Equipment, Inc.
American Medical Rentals, Inc.
American Oxygen Services, Inc.
Anniston Health & Sickroom Supplies, Inc.
Atlantic Medical Equipment of Jacksonville, Inc.
Baumann Pharmaceutical Services, Inc.
Berkeley Medical Equipment, Inc.
Beta Medical Equipment, Inc.
Biocare Medical, Inc.
Breathing and Relief, Inc.
Brister's Medical Associates, Inc.
Bristers Pharmacy, Inc.
Brooksville Primary Care Clinic, Inc.
Camden Medical Supply, Inc.
Care Medical of New Jersey, Inc.
Care Medical Supplies, Inc.
Centennial Medical Equipment, Inc.
Charlotte Medical Supply, Inc.
CHI Medical Equipment, Inc.
Church Street Clinic, Inc.
Clinical Laboratory, Inc.
f\k\a Gorton Medical Clinic
Coastal Surgical, Inc.
Community Home Oxygen, Inc.
f\k\a Home Oxygen Care, Inc.
CPO2, Inc.
Cynthiana Medical Equipment, Inc.
f\k\a Delta Home Health Care, Inc.
Daniel Medical Systems, Inc.
Distinct Home Health Care, Inc.
<PAGE>
Doctors Management Group, Inc.
Don Paul Respiratory Services, Inc.
Drew Primary Care Clinic, Inc.
East Tennessee Infusion & Respiratory, Inc.
f/k/a Orlando Health & Medications, Inc.
Encore Home Health Care, Inc.
Epsilon Home Health Care, Inc.
Essential Home Health Care, Inc.
Eta Home Health Care, Inc.
Excel Medical of Ames, Inc.
Excel Medical of Fort Dodge, Inc.
Excel Medical of Marshalltown, Inc.
Family Care Specialists,Inc.
Famlicare Home Medical Equipment, Inc.
Fischer Medical Equipment C., Inc.
Four Rivers Home Healthcare, Inc.
Gate City Medical Equipment, Inc.
G & G Medical, Inc.
Greenville Primary Care Clinic, Inc.
Greenwood Multi-Specialty Clinic, Inc.
Grenada Doctors Clinic, Inc.
Grenada Family Doctors, Inc.
Hamilton Medical Equipment Service, Inc.
Headache Center of the West Coast, Inc.
Headache Management of America, Inc.
Headache & Pain Management Center, Inc.
Health & Medications at Home, Inc.
Health at Home, Inc.
Healthcare Business Solutions, Inc.
f/k/a Orlando Home Care, Inc.
Healthcare Claims Recovery, Inc.
f/k/a Jackson Medical Infusion, Inc.
f/k/a Southern Health & Medications, Inc.
Health Care Service of Mississippi, Inc.
f/k/a W.M.E., Inc.
Heartland Home Health Care, Inc.
f/k/a Preferential Home Health Care, Inc.
Holland Medical Services, Inc.
f/k/a Beneficial Home Health Care, Inc.
Hollandale Primary Care, Inc.
Home Care Solutions of Murray, Inc.
f/k/a Advantage Home Health Care, Inc.
Home Medical Supply, Inc.
f/k/a Bravo Home Health Care, Inc.
Home Medical Systems, Inc.
<PAGE>
Indianola Primary Care Clinic, Inc.
Infusion Services, Inc.
Intensive Home Care Nurses, Inc.
Intensive Home Care Services, Inc.
Internal Medicine Grand View, Inc.
Internal Medicine Services and Supplies, Inc.
f/k/a International Medical Supply, Inc.
International Therapeutic Services, Inc.
IOTA Medical Equipment, Inc.
KAPPA Medical Equipment, Inc.
LAMS, Inc.
LAMBDA Medical Equipment, Inc.
Lexington Primary Care, Inc.
Liberty Home Health Care, Inc.
Lovejoy Medical, Inc.
f/k/a Lexington Home Health Care, Inc.
MHB, Inc.
Macon Primary Care, Inc.
f/k/a Beta Home Health Care, Inc.
Major Medical Supply, Inc.
Medco Professional Services Corp.
MedCorp International, Inc.
Medic-Aire Medical Equipment, Inc.
Medical Electro-Therapeutics, Inc.
Merger Sub, Inc.
Murray Medical, Inc.
National Home Care, Inc.
National Medical Equipment Centers, Inc.
National Medicine Center-Groveland, Inc.
Nightingale Home Health Care, Inc.
f/k/a Premier Home Care, Inc.
f/k/a Southeastern Home Care, Inc.
North Florida Pain Institute, Inc.
f/k/a Good Home Health Care, Inc.
Omega Medical Equipment, Inc.
OMICRON Medical Equipment, Inc.
Oxygen of Oklahoma, Inc.
Oxygen Plus, Inc.
Oxygen Plus Medical Equipment, Inc.
Oxygen Therapy Associates, Inc.
PSI Health Care, Inc.
Perry Family Practice, Inc.
Perry/RMC Real Estate, Inc.
PHI Medical Equipment, Inc.
Physician's Formulary Services, Inc.
<PAGE>
Pioneer Medical Services,Inc.
Polk City Pharmacy, Inc.
Primary Home Health Care, Inc.
Primary Medical Equipment, Inc.
Professional Respiratory Home Healthcare, Inc.
PSI Health Care, Inc.
Pulmo-Dose, Inc.
f/k/a Constant Home Health Care, Inc.
Pulmonary HomeCare, Inc.
Quality Home Health Care, Inc.
RHO Medical Equipment, Inc.
RCG Information Services Corporation
Regency Medical Equipment
R N Home Care Medical Equipment Company, Inc.
Resp-A-Care
Respiracare Medical Equipment, Inc.
Respiratory Medical Equipment of Georgia, Inc.
Responsive Home Health Care, Inc.
Rhema, Inc.
Roswell Home Medical, Inc.
RoTech Employee Benefits, Corporation
f/k/a Home Health Care Supplement, Inc.
RoTech Home Medical Care, Inc.
f/k/a L.T.E., Inc.
RoTech Rehabilitation, Inc.
RoTech/Texas, Inc.
RoTex Pharmaceuticals, Inc.
Roth Medical, Inc.
Rothert's Hospital Equipment, Inc.
f/k/a Covington Home Health Care, Inc.
Select Home Health Care, Inc.
Senatobia Family Practice, Inc.
SIGMA Medical Equipment, Inc.
South County Private Duty Agency, Inc.
Southeastern Home Health, Inc.
Southern IV Therapy, Inc.
f/k/a Fricke Home Health Care, Inc.
Southern Medical, Inc.
f/k/a Volunteer Surgical, Inc.
Stat Medical Equipment, Inc.
Sunshine Home Health Care, Inc.
The Towne Pharmacy, Inc.
Theta Home Health Care, Inc.
Tupelo Home Health, Inc.
<PAGE>
f\k\a Piedmont Medical Supply, Inc.
UPSILON Medical Equipment, Inc.
Valley Medical, Inc.
Value Care, Inc.
VitalCare Health Services,Inc.
f\k\a Enhanced Home Health Care, Inc.
VitalCare of America,Inc.
f\k\a AMT Acquisition
VitalCare of Florida, Inc.
VitalCare of Nevada, Inc.
VitalCare of Pennsylvania, Inc.
VitalCare of Texas, Inc.
Vitech Medical, Inc.
f\k\a Well-Care Services, Inc.
Western North Carolina Home Health Care, Inc.
f\k\a Miller\Lyerly Home Health, Inc.
Whites Medical Rentals, Inc.
Wichita Medical Care, Inc.
Wofford Pharmaceutical Services, Inc.
Women's Health Care Services, Inc.
Worker's Health Care Clinic, Inc.
Zeta Home Health Care, Inc.
RoTech Oxygen & Medical Equipment, Inc.
Apex Healthcare, Inc.
Apex Healthcare of Alabama, Inc.
Apex Healthcare of Louisiana,Inc.
Apex Healthcare of Mississippi, Inc.
Central Home Care, Inc.
Adaptive Medical,Inc.
Firstcare, Inc.
Georgia Medical Resources, Inc.
Cherokee Home Medical, Inc.
Cabot Medical Equipment, Inc.
Canyon State Medical Supplies, Inc.
Home Health Services Company, Inc.
Lawrence Medical Equipment, Inc.
MedFirst Health Plans of Louisiana, Inc. (MHPLA)
MedFirst Medical Centers, Inc.
MedCase Management, Inc.
Ritt Medical Group,Inc.
Kilroy Company, Inc.
d\b\a National Home Medical Care, Inc.
Neumann's Home Medical, Inc.
Northwest Home Medical, Inc.
North Central Washington Respiratory Care Services, Inc.
<PAGE>
Pedi-Care, Inc.
Professional Breathing Associates, Inc.
RCL Support Services, Inc.
Health-Med, Inc.
Derocco's Medical Equipment Home Care, Inc.
Sun Medical Supply, Inc.
<TABLE> <S> <C>
<PAGE>
<ARTICLE> 5
<LEGEND>
This schedule contains summary financial information extracted from Annual Form
10-K and is qualified in its entirety by reference to such financial statements.
</LEGEND>
<S> <C> <C>
<PERIOD-TYPE> YEAR YEAR
<FISCAL-YEAR-END> JUL-31-1997 JUL-31-1996
<PERIOD-START> AUG-01-1996 AUG-01-1995
<PERIOD-END> JUL-31-1997 JUL-31-1996
<CASH> 12,819,471 6,438,760
<SECURITIES> 0 0
<RECEIVABLES> 139,364,291 103,048,366
<ALLOWANCES> (23,718,000) (16,978,000)
<INVENTORY> 23,357,451 15,191,011
<CURRENT-ASSETS> 152,139,919 112,468,404
<PP&E> 277,352,331 176,731,370
<DEPRECIATION> (131,239,570) (85,414,544)
<TOTAL-ASSETS> 560,731,820 374,614,318
<CURRENT-LIABILITIES> 211,960,966 76,461,115
<BONDS> 110,000,000 110,000,000
4,076,189 1,646,933
0 0
<COMMON> 213,960,056 174,675,115
<OTHER-SE> 0 0
<TOTAL-LIABILITY-AND-EQUITY> 560,731,820 374,614,318
<SALES> 422,692,297 263,029,963
<TOTAL-REVENUES> 422,692,297 263,029,963
<CGS> 105,564,558 71,012,877
<TOTAL-COSTS> 105,564,558 71,012,877
<OTHER-EXPENSES> 252,994,282 153,876,493
<LOSS-PROVISION> 0 0
<INTEREST-EXPENSE> 13,560,897 5,228,318
<INCOME-PRETAX> 50,572,560 32,912,275
<INCOME-TAX> 19,765,700 12,356,500
<INCOME-CONTINUING> 30,806,860 20,555,775
<DISCONTINUED> 0 0
<EXTRAORDINARY> 0 0
<CHANGES> 0 0
<NET-INCOME> 30,806,860 20,555,775
<EPS-PRIMARY> 1.17 .83
<EPS-DILUTED> 1.12 .82
</TABLE>
