Exhibit 99.2
AMENDMENT NUMBER 5 TO THE SECOND STANDSTILL AGREEMENT
DATED APRIL 12, 1999 AND
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AMENDMENT NUMBER 4 TO THE TOLLING AGREEMENT
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DATED APRIL 12, 1999
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These Amendments dated July 6, 1999 are made and entered into among Vencor,
Inc., a corporation organized under the laws of Delaware, for and on behalf of
itself and its various subsidiaries and affiliates, including, without
limitation, Vencor Operating, Inc., and for and on behalf of any of their
respective successors including, without limitation, any debtor or debtor-in-
possession in a bankruptcy case commenced under Title 11 of the United States
Bankruptcy Code (the "Bankruptcy Code") or any trustee appointed in any such
case (collectively, "Vencor"); and Ventas, Inc., a corporation organized under
the laws of Delaware, for an on behalf of itself and its various subsidiaries
and affiliates, including, without limitation, Ventas Realty, Limited
Partnership, and for an on behalf of any of their respective successors
including, without limitation, any debtor or debtor-in-possession in a
bankruptcy case commenced under the Bankruptcy Code or any trustee appointed in
any such case (collectively, "Ventas").
Xxxxxx Guaranty Trust Company of New York (the "Collateral Agent") is a
signatory hereto for the sole purpose of providing the confirmations and
agreements referred to in paragraph 1 hereof.
WHEREAS, Vencor and Ventas are in the process of attempting to resolve any
and all existing and potential claims that Vencor has asserted or might in the
future assert against Ventas (the "Vencor Claims"), the validity of which Ventas
has disputed, and any and all existing and potential claims that Ventas has
asserted or might in the future assert against Vencor
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(the "Ventas Claims"), the validity of which Vencor has disputed (the Vencor
Claims and the Ventas Claims are collectively referred to herein as the
"Claims");
WHEREAS, to that end Vencor and Ventas are parties to the certain Second
Standstill Agreement dated April 12, 1999 (as modified and amended to date, the
"Second Standstill Agreement") and that certain Tolling Agreement dated April
12, 1999 (as modified and amended to date, the "Tolling Agreement");
WHEREAS, on Sunday, June 6, 1999, by agreement of the parties, Ventas was
deemed to have delivered five notices of non-payment of rent (the "June Non-
Payment Notices") pursuant to paragraph 16.1(b) of the agreements referenced in
the first paragraph of each of the June Non-Payment Notices, such agreements
being collectively defined in the Second Standstill Agreement as the Five
Leases;
WHEREAS, the parties hereto wish to extend the cure period referred to in
Section 16.1 of the Five Leases with respect to the June Non-Payment Notices, to
extend certain other deadlines, to specify the cure period referred to in the
July Non-Payment Notices (as defined below), and to agree to certain other
matters to permit continued discussions concerning a consensual resolution of
their differences, subject to the conditions set forth below;
NOW, THEREFORE, in consideration of the premises and other good cause and
adequate consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
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Extension of the Second Standstill Period and the Cure Period in the Five Leases
1. The fifth numbered paragraph of the Second Standstill
Agreement shall be deleted and replaced with the following
paragraph:
a) Other than (i) Ventas' delivery on Friday May 7, 1999, after 5:00
p.m., by letters of T. Xxxxxxx Xxxxx, Vice President and General
Counsel of Ventas, of five notices of non-payment of rent (the "May
Non-Payment Notices") (which are not moot as a result of Vencor's
payment of Rent for the month of May 1999, in the manner agreed to by
the parties); (ii) the deemed delivery by Ventas of notices of non-
payment of rent as a result of Vencor's non-payment or late payment of
rent under the Five Leases for the month of June 1999 (the "June Non-
Payment Notices"); and (iii) the deemed delivery by Ventas of similar
notices of non-payment of rent as a result of Vencor's non-payment or
late payment of rent under the Five Leases for the month of July 1999
(the "July Non-Payment Notices"), during the period from the date of
the Second Standstill Agreement, April 12, 1999, through and including
the earlier of (A) the commencement by or against Vencor, as debtor,
of a voluntary or involuntary bankruptcy case under Title 11 of the
United States Code, or (B) 5:00 p.m. Eastern Daylight Savings Time on
August 5, 1999 (such period being referred to herein as the "Second
Standstill Period"), neither Vencor nor Ventas will file, commence,
serve, or otherwise initiate any civil action, arbitration proceeding,
or other similar action, litigation, case or proceeding of any kind,
character, or nature whatsoever (an "Action") against the other or any
third party, including, without limitation, any of Vencor's or Ventas'
current or former officers, directors, or employees, arising from or
relating to the Reorganization Agreement, any Ancillary Agreement, or
any of the Five Leases, or with respect to the various disputes
identified in Vencor's March 18, 1999 letter; nor shall Ventas
exercise any rights or remedies it may have against Vencor under any
of the Five Leases (including the giving of notices of termination
pursuant to Section 16.1 of the Five Leases or any of them) based on
Vencor's late payment of Rent (as that term is defined in the Five
Leases) due under the Five Leases, or based on any default arising
from or related to the disclosures made by Vencor to Ventas commencing
on or about March 30 and March 31, 1999 and continuing to the date
hereof.
b) Notwithstanding the foregoing, the Second Standstill Period shall
immediately terminate, and Vencor and Ventas may proceed to file such
Actions as either may choose, and Ventas may proceed to exercise such
rights or remedies as it may choose under any of the Five Leases
(including the giving of notices of termination pursuant to Section
16.1 of the Five Leases or any of them) in the event that:
(i) prior to 5:00 p.m. Eastern Daylight Savings Time on
July 8, 1999, Vencor has not paid to Ventas, in
immediately available funds, the sum of $3.5 million,
representing a portion of the Rent due to Ventas under the
Five Leases for the month of June 1999; or
(ii) prior to 5:00 p.m. Eastern Daylight Savings Time on
July 9, 1999, Vencor has not paid to Ventas, in
immediately available funds, (a) the additional sum of
$1.0 million, representing an additional portion of the
Rent due to Ventas under the Five
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Leases for the month of June 1999, and (b) an additional
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sum, if any, equal to the amount by which Vencor's actual
cumulative July daily cash flow on July 8, 1999 exceeded
Vencor's projected cumulative July daily cash flow for
July 8, 1999 (as reflected on the schedule of projected
cumulative July daily cash flow provided by Vencor to
Ventas on July 6, 1999 and signed by Xxxxxxx Xxxxxxxxxxx
and Xxxxxx X. Xxxxxx (the "Cash Flow Projection");
provided, however, that such sum shall be limited to a
positive amount equal to (y) $50,000,000, less (z) the
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outstanding aggregate borrowings under Vencor's Revolving
Credit Facility on July 9, 1999; provided further; any
payment made pursuant to this subparagraph (ii)(b) shall
be applied to the installments of June 1999 Rent due under
this paragraph 1(b) in the reverse order of scheduled
payment of such installment; or
(iii) prior to 5:00 p.m. Eastern Daylight Savings Time on
July 12, 1999, Vencor has not paid to Ventas, in
immediately available funds, the additional sum of $1.0
million, representing an additional portion of the Rent
due to Ventas under the Five Leases for the month of June
1999; or
(iv) prior to 5:00 p.m. Eastern Daylight Savings Time on
July 13, 1999, Vencor has not paid to Ventas, in
immediately available funds, the additional sum of $1.0
million, representing an additional portion of the Rent
due to Ventas under the Five Leases for the month of June
1999; or
(v) prior to 5:00 p.m. Eastern Daylight Savings Time on
July 14, 1999, Vencor has not paid to Ventas, in
immediately available funds, (a) the additional sum of
$1.0 million, representing an additional portion of the
Rent due to Ventas under the Five Leases for the month of
June 1999, and (b) an additional sum, if any, equal to the
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amount by which Vencor's actual cumulative July daily cash
flow on July 13, 1999 exceeded Vencor's projected
cumulative July daily cash flow for July 13, 1999 (as
reflected on the Cash Flow Projection; provided, however,
that such sum shall be limited to a positive amount equal
to (y) $50,000,000, less (z) the outstanding aggregate
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borrowings under Vencor's Revolving Credit Facility on
July 14, 1999; provided further; any payment made pursuant
to this subparagraph (vii)(b) shall be applied to the
installments of June 1999 Rent due under this paragraph 1
(b) in the reverse order of scheduled payment of such
installment; or
(vi) prior to 5:00 p.m. Eastern Daylight Savings Time on
July 15, 1999, Vencor has not paid to Ventas, in
immediately available funds, the additional sum of $1.0
million, representing an additional portion of the Rent
due to Ventas under the Five Leases for the month of June
1999; or
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(vii) prior to 5:00 p.m. Eastern Daylight Savings Time on
July 16, 1999, Vencor has not paid to Ventas, in
immediately available funds, the additional sum of $1.0
million, representing an additional portion of the Rent
due to Ventas under the Five Leases for the month of June
1999; or
(viii) prior to 5:00 p.m. Eastern Daylight Savings Time on
July 19, 1999, Vencor has not paid to Ventas, in
immediately available funds, (a) the additional sum of
$2.0 million, representing an additional portion of the
Rent due to Ventas under the Five Leases for the month of
June 1999 and (b) an additional sum, if any, equal to the
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amount by which Vencor's actual cumulative July daily cash
flow on July 16, 1999 exceeded Vencor's projected
cumulative July daily cash flow for July 16, 1999 (as
reflected on the Cash Flow Projection; provided, however,
that such sum shall be limited to a positive amount equal
to (y) $50,000,000, less (z) the outstanding aggregate
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borrowings under Vencor's Revolving Credit Facility on
July 19, 1999; provided further; any payment made pursuant
to this subparagraph (viii)(b) shall be applied to the
installments of June 1999 Rent due under this paragraph
1(b) in the reverse order of scheduled payment of such
installment; or
(ix) prior to 5:00 p.m. Eastern Daylight Savings Time on
July 20, 1999, Vencor has not paid to Ventas, in
immediately available funds, the additional sum of $2.0
million, representing an additional portion of the Rent
due to Ventas under the Five Leases for the month of June
1999; or
(x) prior to 5:00 p.m. Eastern Daylight Savings Time on
July 21, 1999, Vencor has not paid to Ventas, in
immediately available funds, the additional sum of $2.0
million, representing an additional portion of the Rent
due to Ventas under the Five Leases for the month of June
1999; or
(xi) prior to 5:00 p.m. Eastern Daylight Savings Time on
July 22, 1999, Vencor has not paid to Ventas, in
immediately available funds, the additional sum of
$3,382,526, representing the balance of the Rent due to
Ventas under the Five Leases for the month of June 1999 or
has not otherwise paid the Rent due to Ventas under the
Five Leases for the month of June 1999; or
(xii) prior to 5:00 p.m. Eastern Daylight Savings Time on each
Business Day of the Second Standstill Period occurring
after July 6, 1999, Vencor has not provided to Ventas a
daily cash flow statement for the month of July, 1999
reflecting Vencor's daily and cumulative cash receipts,
daily and cumulative cash disbursements and cash position
and outstanding aggregate
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borrowings under Vencor's Revolving Credit Facility, all
as of the prior Business Day.
(c) Ventas further agrees that, subject to the acceleration
provisions provided for hereinbelow, if Vencor or the Leasehold
Mortgagee (as defined in the Five Leases) pays the Rent for the month
of June 1999 in the installment amounts and within five (5) days of
the installment dates provided for herein, then such payment shall be
deemed to be a timely cure, within the meaning of Section 16.1 of the
Five Leases and the June Non-Payment Notices, and that, in such event,
no Event of Default (as that term is used in the June Non-Payment
Notices and defined in the Five Leases) shall have occurred with
respect to the late payment or non-payment of Rent for the month of
June 1999. Notwithstanding anything to the contrary contained herein,
Ventas shall not send a notice of termination pursuant to paragraph
16.1 of the Five Leases, or any of them, based upon Vencor's non-
payment or late payment of Rent for the month of June 1999 so long as
Vencor or the Leasehold Mortgagee has a right to cure or has cured
such non-payment or late payment of Rent for the month of June 1999.
In addition, and notwithstanding anything to the contrary contained
herein, in the event Vencor shall fail to pay any installment amount
hereunder on the original installment date specified herein, then that
installment amount together with the balance of the unpaid Rent for
June 1999 shall become immediately due and payable on and as of such
date, without need for any further notice or demand, and Vencor's and
the Leasehold Mortgagee's right to cure the non-payment or late
payment of Rent for June 1999 is and shall be limited solely to the
right during the five days after such installment date to pay the full
amount of the total unpaid Rent for June 1999. This subparagraph 5(c)
shall only apply to the June Non-Payment Notices and to the non-
payment or late payment of the June 1999 Rent under the Five Leases.
(d) The Collateral Agent hereby confirms to Ventas and Vencor that it
is the collateral agent for the Leasehold Mortgagee and that it is
authorized to make the confirmations and agreements contained herein.
Ventas, Vencor, and the Collateral Agent (for and on behalf of the
Leasehold Mortgagee) confirm and agree that the period of time within
which Vencor or the Leasehold Mortgagee is entitled to cure the
failure of Vencor to pay Rent for the month of June 1999 under this
agreement and the Five Leases in order to prevent a termination of the
Five Leases will expire at 5:00 p.m. Eastern Daylight Savings Time on
the fifth day after the first to occur, if any, of the installment
dates set forth above on which the prescribed installment amount of
Rent is not timely paid.
(e) Ventas, Vencor and the Collateral Agent hereby agree that (i) the
June Non-Payment Notices, copies of which are attached hereto as
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Exhibits A through E, are hereby deemed for all purposes to have been
given by Ventas and received by Vencor and the Collateral Agent as of
June 6, 1999 without need for any further act or delivery by Ventas,
and (ii) the July Non-payment Notices, copies of which are attached
hereto as Exhibits F through J, are hereby deemed for all purposes to
have been given by Ventas and received by Vencor and the Collateral
Agent on and as of July 6, 1999, without need for any further act or
delivery by Ventas.
(f) Ventas further agrees that if Vencor or the Leasehold Mortgagee
pays the Rent for the month of July 1999 on or before August 10, 1999,
at 5:00 p.m. Eastern Daylight Savings Time then such payment shall be
deemed to be a timely cure, within the meaning of Section 16.1 of the
Five Lease and the July Non-Payment Notices, and that, in such event,
no Event of Default (as that term is used in the July Non-Payment
Notices and defined in the Five Leases) shall have occurred with
respect to the late payment or non-payment of Rent for the month of
July 1999. Notwithstanding anything to the contrary contained herein,
Ventas shall not send a notice of termination pursuant to paragraph
16.1 of the Five Leases, or any of them, based upon Vencor's non-
payment or late payment of Rent for the month of July 1999 so long as
Vencor or the Leasehold Mortgagee has a right to cure or has cured
such non-payment or late payment of Rent for the month of July 1999.
This subparagraph 5(f) shall only apply to the July Non-Payment
Notices and to the non-payment or late payment of the July 1999 Rent
under the Five Leases.
(g) Ventas, Vencor, and the Collateral Agent (for and on behalf of
the Leasehold Mortgagee) confirm and agree that the period of time by
which Vencor or the Leasehold Mortgagee is entitled to cure the
failure of Vencor to pay Rent for the month of July 1999 under this
Agreement and the Five Leases in order to prevent a termination of the
Five Leases will expire at 5:00 p.m. Eastern Daylight Savings Time on
August 10, 1999.
Amendment to Tolling Agreement
2. The first numbered paragraph of the Tolling Agreement shall
be deleted and replaced with the following paragraph:
Any Vencor Claim, including, without limitation, those arising or
available under the Bankruptcy Avoidance Provisions (defined
below) that Vencor could otherwise assert against Ventas if
Vencor were a debtor in a case under the Bankruptcy Code
commenced on the date hereof, and whether arising under the
Bankruptcy Code or under other applicable federal or state law,
shall not be prejudiced, impaired, or waived by Vencor's failure
to commence such a bankruptcy case, and any and all statutes of
limitations, repose, or other legal or equitable constraints on
the time by which such a bankruptcy case or pleading
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initiating any Vencor Claim (including, without limitation, a
cause of action under (S)548 of the Bankruptcy Code) shall be
tolled during the period of time from April 12, 1999 to and
including the earlier of (i) 5:00 p.m. Eastern Daylight Savings
Time on August 5, 1999, or (ii) the earlier time and date on
which the Second Standstill Period (as defined in the Second
Standstill Agreement) shall automatically terminate as a result
of Vencor's nonpayment or late payment of rent (as provided for
in paragraph 5 of the Second Standstill Agreement, the provisions
of which are hereby incorporated by reference) (the "Tolling
Period"). For all purposes herein, both the first and last day of
the Tolling Period shall be deemed to be contained in the Tolling
Period.
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Counterparts
3. This Second Standstill Agreement may be executed in one or more
counterparts and by facsimile, each of which counterparts shall be deemed
an original hereof, but all of which together shall constitute one
agreement.
4. These Amendments adopt the ninth numbered paragraph of the Second
Standstill Agreement as the choice of law provision for these Amendments.
CONFIRMED AND AGREED TO AS OF THE DATE FIRST ABOVE WRITTEN BY:
VENCOR, INC. VENTAS, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxxxx By: /s/ T. Xxxxxxx Xxxxx
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Name: Xxxxxxx X. Xxxxxxxxxxx Name: T. Xxxxxxx Xxxxx
Title: Senior Vice President & Title: Vice President
Chief Financial Officer
XXXXXX GUARANTY TRUST COMPANY
OF NEW YORK, as Collateral Agent for the
Leasehold Mortgagee
By: /s/ Unn Xxxxxxx
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Name: Unn Xxxxxxx
Title: Vice President
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