EXHIBIT 99.2
AMENDMENT XX. 0
XXXXXXXXX Xx. 0 (this "Amendment") dated as of August 15, 2002, under
the $300,000,000 Credit Agreement dated as of April 20, 2001 (as heretofore
amended, the "Credit Agreement") among KINDRED HEALTHCARE OPERATING, INC.
(formerly named Vencor Operating, Inc.) (the "Borrower"), KINDRED HEALTHCARE,
INC. (formerly named Vencor, Inc.) ("Kindred"), the LENDERS party thereto and
JPMORGAN CHASE BANK (formerly The Chase Manhattan Bank, successor-by-merger to
Xxxxxx Guaranty Trust Company of New York), as Administrative Agent and
Collateral Agent.
W I T N E S S E T H:
WHEREAS, the parties hereto desire to amend certain provisions of the
Credit Agreement, as provided herein;
NOW, THEREFORE, the parties hereto agree as follows:
Section 1. Defined Terms; References. Unless otherwise specifically
defined herein, each term used herein which is defined in the Credit Agreement
has the meaning assigned to such term in the Credit Agreement. Each reference to
"hereof", "hereunder", "herein" and "hereby" and each other similar reference
and each reference to "this Agreement" and each other similar reference
contained in the Credit Agreement shall, after this Amendment becomes effective,
refer to the Credit Agreement as amended hereby.
Section 2. Defined Terms. (a) The definition of "Temporary Cash
Investment" in Section 1.01 of the Credit Agreement is amended by inserting the
phrase "or one of its agencies" after the words "United States" in the proviso
to clause (i), by replacing the reference to "S&P and" in clause (v) with a
reference to "S&P," and by inserting the following new clause at the end of such
definition: "and (vii) corporate bonds issued by a corporation (other than any
Ventas Company, any Vencor Company or any Affiliate) organized under the laws of
the United States or any State thereof with a rating of "A2" (or higher) by
Xxxxx'x or "A" (or higher) by S&P, maturing within 60 months from the date of
acquisition; provided that the aggregate market value of investments of the type
described in clauses (iv) and (vii) shall be limited at all times to no more
than 40% of the aggregate market value of all Temporary Cash Investments at such
time, and the aggregate market value of such investments in any one issuer shall
be limited at all times to no more than 5% of the aggregate market value of such
investments at such time".
Section 3. Capital Expenditures. The table appearing in Section 6.04 of
the Credit Agreement is amended and restated in its entirety to read as follows:
Fiscal Year Amount
----------- ------
2001 $ 75,000,000
2002 $ 75,000,000
2003 $ 90,000,000
2004 $ 90,000,000
2005 $ 95,000,000
2006 $ 95,000,000
2007 $100,000,000
2008 $100,000,000
Section 4. Restricted Payments. Section 7.07(a)(ii) is amended to read
in full as follows:
"the Issuer may declare or make Restricted Payments to Vencor for the
purchase, redemption or other acquisition or retirement for value (any of the
foregoing, a "permitted acquisition") of Equity Interests of Vencor; provided
that the aggregate amount paid to Vencor pursuant to this clause (ii) for the
permitted acquisitions of such Equity Interests held by (A) officers, directors
or employees or former officers, directors or employees (or their estates or
beneficiaries under their estates), upon death, disability, retirement,
severance or termination of employment and (B) Ventas, to the extent required to
satisfy the requirements of Article XII of Vencor's Amended and Restated
Certificate of Incorporation does not exceed an aggregate amount of $500,000;
and provided further that the aggregate amount paid to Vencor pursuant to this
clause (ii) does not exceed an aggregate amount of $35,500,000;"
Section 5. Prepayment. The Borrower hereby agrees that, on the
Amendment Effective Date (as defined below), it shall prepay Loans pursuant to
Section 2.07 of the Credit Agreement in an aggregate principal amount of at
least $50,000,000, together with accrued and unpaid interest thereon to the
extent required by Section 2.07(c) of the Credit Agreement (the "Prepayment").
The Required Lenders waive any further notice of such prepayment that would
otherwise be required by Section 2.07 of the Credit Agreement. The Prepayment
shall be subject to Section 2.08(c) of the Credit Agreement.
Section 6. Representations Correct; No Default. Kindred and the
Borrower each represents and warrants that (i) the representations and
warranties contained in the Financing Documents are true as though made on and
as of the date hereof and will be true on and as of the Amendment Effective Date
as though made on and as of such date, (ii) no Default has occurred and is
continuing on the date hereof and no Default will occur or be continuing on the
Amendment Effective Date and (iii) the Prepayment is permitted under the terms
of the Exit Facility.
Section 7. Counterparts; Effectiveness. (a) This Amendment may be
signed in any number of counterparts, each of which shall be an original, with
the same effect as if the signatures thereto and hereto were upon the same
instrument.
(b) This Amendment shall become effective as of the date hereof on the
date (the
"Amendment Effective Date") when the Administrative Agent shall have received
(i) the Prepayment and (ii) duly executed counterparts hereof signed by Kindred,
the Borrower and the Required Lenders (or, in the case of any Lender as to which
an executed counterpart shall not have been received, the Administrative Agent
shall have received telegraphic, telex or other written confirmation from such
party of execution of a counterpart hereof by such Lender).
(c) No later than the first Business Day after the Fee Determination
Date (as defined below), the Borrower shall pay the Administrative Agent, in
immediately available funds for the account of each Lender that has evidenced
its agreement hereto as provided in clause (b) by 2:00 P.M. (New York City time)
on the later of (i) August 26, 2002 and (ii) the date the Administrative Agent
issues a notice to the Lenders saying this Amendment has become effective (such
later date, the "Fee Determination Date"), an amendment fee in an amount equal
to 0.10% of the aggregate outstanding principal amount of such Lender's Loans
(as of the Amendment Effective Date (after giving effect to the Prepayment)).
(d) Except as expressly set forth herein, the waivers and amendments
contained herein shall not constitute a waiver or amendment of any term or
condition of the Credit Agreement or any other Financing Document, and all such
terms and conditions shall remain in full force and effect and are hereby
ratified and confirmed in all respects.
Section 8. Governing Law. THIS AMENDMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed by their respective authorized officers as of the day and year
first above written.
KINDRED HEALTHCARE OPERATING, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxxx
----------------------------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Senior Vice President, Chief Financial
Officer and Treasurer
KINDRED HEALTHCARE, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxxx
----------------------------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Senior Vice President, Chief Financial
Officer and Treasurer
JPMORGAN CHASE BANK,
as Administrative Agent and as Lender
By: /s/ Xxxx Xxx Xxx
---------------------------------------
Name: Xxxx Xxx Xxx
Title: Vice President
AIM FLOATING RATE FUND
By: INVESCO Senior Secured Management, Inc.
As Attorney in fact
By: /s/ Xxxxxx X. X. Xxxxx
-------------------------------------------
Name: Xxxxxx X. X. Xxxxx
Title: Authorized Signatory
AVALON CAPITAL LTD.
By: INVESCO Senior Secured Management, Inc.
As Portfolio Advisor
By: /s/ Xxxxxx X. X. Xxxxx
-------------------------------------------
Name: Xxxxxx X. X. Xxxxx
Title: Authorized Signatory
AVALON CAPITAL LTD. 2
By: INVESCO Senior Secured Management, Inc.
As Portfolio Advisor
By: /s/ Xxxxxx X. X. Xxxxx
-------------------------------------------
Name: Xxxxxx X. X. Xxxxx
Title: Authorized Signatory
BEAR XXXXXXX & CO., INC.
By: /s/ Xxxx X. XxXxxxxxx
------------------------------------------------
Name: Xxxx X. XxXxxxxxx
Title: Senior Managing Director
BANK OF AMERICA, N.A.
By: _________________________
Name:
Title:
CERES II FINANCE LTD.
By: INVESCO Senior Secured Management, Inc.
As Sub-Managing Agent (Financial)
By: /s/ Xxxxxx X. X. Xxxxx
-------------------------------------------
Name: Xxxxxx X. X. Xxxxx
Title: Authorized Signatory
CHARTER VIEW PORTFOLIO
By: INVESCO Senior Secured Management, Inc.
As Investment Advisor
By: /s/ Xxxxxx X. X. Xxxxx
-------------------------------------------
Name: Xxxxxx X. X. Xxxxx
Title: Authorized Signatory
DB STRUCTURED PRODUCTS, INC.
By: /s/ Xxxxxxxxx X. Xxxxxx
------------------------------------------------
Name: Xxxxxxxxx X. Xxxxxx
Title:
GOLDENTREE HIGH YIELD MASTER FUND, LTD
By: /s/ Xxxxxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxxxxx X. Xxxxxx
Title:
CONTINENTAL CASUALTY COMPANY
By:/s/ Xxxxxxx X. Xxxxxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President
PRESIDENT & FELLOWS OF HARVARD
COLLEGE
BY: REGIMENT CAPITAL MANAGEMENT,
LLC, as its Investment Advisor
By: REGIMENT CAPITAL ADVISORS, LLC
Its Manager and pursuant to delegated
authority
By: /s/ Xxxxxxx X. Xxxxxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: President
REGIMENT CAPITAL, LTD.
BY: REGIMENT CAPITAL MANAGEMENT,
LLC, as its Investment Advisor
By: REGIMENT CAPITAL ADVISORS, LLC
its manager and pursuant to delegated
authority
By: /s/ Xxxxxxx X. Xxxxxxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: President
SUNAMERICA CORPORATION
By: ____________________________
Name:
Title:
DIVERSIFIED CREDIT PORTFOLIO LTD.
By: INVESCO Senior Secured Management, Inc.
as Investment Adviser
By: /s/ Xxxxxx X. X. Xxxxx
---------------------------------------
Name: Xxxxxx X. X. Xxxxx
Title: Authorized Signatory
CERBERUS PARTNERS, L.P.
By: Cerberus Associates L.L.C.
Its: General Partner
By: /s/ Xxxx X. Neporent
-----------------------------------
Name: Xxxx X. Neporent
Title: Vice President
AG CAPITAL FUNDING PARTNERS, L.P.
By: /s/ Xxxx X. Xxxxxx
---------------------------------------
Name: Xxxx X. Xxxxxx
Title: Managing Director
LCM I LIMITED PARTNERSHIP
BY: LYON CAPITAL MANAGEMENT, LLC,
As Attorney-In-Fact
By: /s/ Farboud Tavangar
---------------------------------------
Name: Farboud Tavangar
Title: Senior Portfolio Manager
NORTHWOODS CAPITAL III, LIMITED
By: /s/ Xxxx X. Xxxxxx
---------------------------------------
Name: Xxxx X. Xxxxxx
Title: Managing Director
NORTHWOODS CAPITAL II, LIMITED
By: /s/ Xxxx X. Xxxxxx
----------------------------------
Name: Xxxx X. Xxxxxx
Title: Managing Director
NORTHWOODS CAPITAL, LIMITED
By:/s/ Xxxx X. Xxxxxx
---------------------------------------
Name: Xxxx X. Xxxxxx
Title: Managing Director
EMERALD ORCHARD LIMITED
By:________________________________________
Name:
Title:
CREDIT SUISSE FIRST BOSTON INTERNATIONAL
By: /s/ Xxxxxx Xxxxxxxx
-----------------------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Vice President, Operations
By: /s/ Xxxxx Xxxxxx
-----------------------------------------------
Name: Xxxxx Xxxxxx
Title: Vice President, Operations
FOOTHILL INCOME TRUST II, L.P.
By: FIT2 GP LLC, its General Partner
By: /s/ M. E. Xxxxxxx
-----------------------------------------------
Name: M. E. Xxxxxxx
Title: Managing Member
HIGHLAND LEGACY LIMITED
By:_____________________________________
Name:
Title:
HIGHLAND LOAN FUNDING V LTD.
By:___________________________________
Name:
Title:
GOLDENTREE HIGH YIELD OPPORTUNITIES
I, L.P.
By: /s/ Xxxxxxxxx X. Xxxxxx
-----------------------------------------------
Name: Xxxxxxxxx X. Xxxxxx
Title:
GOLDENTREE HIGH YIELD OPPORTUNITIES
II, L.P.
By: /s/ Xxxxxxxxx X. Xxxxxx
---------------------------------------
Name: Xxxxxxxxx X. Xxxxxx
Title:
RESTORATION FUNDING CLO, LTD.
By: __________________________
Name:
Title:
SEQUILS-LIBERTY, LTD.
By: INVESCO Senior Secured Management, Inc.
As Collateral Manager
By: /s/ Xxxxxx X. X. Xxxxx
------------------------------------------------
Name: Xxxxxx X. X. Xxxxx
Title: Authorized Signatory
XXX XXXXXX PRIME RATE INCOME TRUST
By: /s/ Xxxx Xxxxx
--------------------------------
Name: Xxxx Xxxxx
Title: Vice President
XXX XXXXXX SENIOR INCOME TRUST
By: /s/ Xxxx Xxxxx
-------------------------------
Name: Xxxx Xxxxx
Title: Vice President
XXX XXXXXX SENIOR FLOATING RATE
FUND
By: /s/ Xxxx Xxxxx
---------------------------------
Name: Xxxx Xxxxx
Title:
