EXHIBIT 10.1
[EXECUTION COPY]
$120,000,000 CREDIT AGREEMENT
dated as of
April 20, 2001
among
VENCOR OPERATING, INC.
(to be renamed Kindred Healthcare Operating, Inc.)
VENCOR, INC.
(to be renamed Kindred Healthcare, Inc.)
THE LENDERS PARTY HERETO
THE SWINGLINE BANK PARTY HERETO
THE LC ISSUING BANKS PARTY HERETO
XXXXXX GUARANTY TRUST COMPANY OF NEW YORK,
as Administrative Agent and Collateral Agent
and
GENERAL ELECTRIC CAPITAL CORPORATION,
as Documentation Agent and Collateral Monitoring Agent
--------------------------------------------------------------------------------
Arranged by
X. X. Xxxxxx Securities Inc.
ARTICLE 1
Definitions
Section 1.01. Defined Terms................................................ 2
Section 1.02. Accounting Terms and Determinations.......................... 45
Section 1.03. Definitions from Disclosure Statement........................ 45
Section 1.04. Types of Loans............................................... 45
Section 1.05. Other Definitional Provisions................................ 45
ARTICLE 2
The Facility
Section 2.01. Commitments to Lend.......................................... 46
Section 2.02. Notice of Borrowing.......................................... 46
Section 2.03. Notice to Lenders: Funding of Loans.......................... 46
Section 2.04. Notes........................................................ 48
Section 2.05. Interest Rates............................................... 49
Section 2.06. Method of Electing Interest Rates............................ 49
Section 2.07. Letters of Credit............................................ 51
Section 2.08. Swingline Loans.............................................. 59
Section 2.09. Fees......................................................... 61
Section 2.10. Final Maturity of Loans...................................... 62
Section 2.11. Mandatory Commitment Reductions; Prepayments of Loans........ 62
Section 2.12. Optional Prepayments......................................... 72
Section 2.13. Termination or Reduction of Commitments...................... 72
Section 2.14. General Provisions as to Payments............................ 72
Section 2.15. Funding Losses............................................... 73
Section 2.16. Computation of Interest and Fees............................. 74
Section 2.17. Regulation D Compensation.................................... 74
Section 2.18. Release of Security Interest in Assets Being Sold............ 75
Section 2.19. Borrowing Base Advance Rate Adjustments...................... 75
ARTICLE 3
Conditions
Section 3.01. Effectiveness of this Agreement; Closing..................... 76
Section 3.02. Credit Events................................................ 80
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ARTICLE 4
Representations and Warranties
Section 4.01. Corporate Existence and Power............................................. 81
Section 4.02. Corporate and Governmental Authorization; No Contravention................ 81
Section 4.03. Binding Effect............................................................ 82
Section 4.04. Security Interests........................................................ 82
Section 4.05. Financial Information..................................................... 82
Section 4.06. Litigation................................................................ 83
Section 4.07. Compliance with ERISA..................................................... 83
Section 4.08. Taxes..................................................................... 83
Section 4.09. Compliance with Laws...................................................... 83
Section 4.10. No Regulatory Restrictions on Borrowing................................... 84
Section 4.11. Environmental Matters..................................................... 84
Section 4.12. Full Disclosure........................................................... 84
Section 4.13. Information as to Equity Interest and Instruments......................... 85
Section 4.14. Representations in Other Financing Documents.............................. 85
Section 4.15. Margin Stock.............................................................. 85
Section 4.16. Properties................................................................ 85
Section 4.17. Existing Indebtedness..................................................... 86
ARTICLE 5
Affirmative Covenants
Section 5.01. Information............................................................... 86
Section 5.02. Maintenance of Property................................................... 91
Section 5.03. Insurance................................................................. 91
Section 5.04. Compliance with Law, Etc.................................................. 92
Section 5.05. Maintenance of Existence, Rights, Etc..................................... 92
Section 5.06. Designation of Unrestricted Subsidiaries.................................. 92
Section 5.07. Guarantees by Future Restricted Subsidiaries.............................. 94
Section 5.08. Future Assets to Be Added to Collateral................................... 94
Section 5.09. Casualty Events........................................................... 96
Section 5.10. Ranking................................................................... 96
Section 5.11. Use of Proceeds and Letters of Credit..................................... 96
Section 5.12. Borrowing Base Reviews.................................................... 97
Section 5.13. Environmental Matters..................................................... 97
Section 5.14. Post-Closing.............................................................. 98
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ARTICLE 6
Financial Covenants
Section 6.01. Fixed Charge Coverage Ratio (EBITDAR)................................. 99
Section 6.02. Total Leverage Ratio.................................................. 100
Section 6.03. Minimum EBITDAR....................................................... 101
Section 6.04. Minimum Consolidated Net Worth........................................ 102
Section 6.05. Capital Expenditures.................................................. 102
ARTICLE 7
Negative Covenants
Section 7.01. Limitation on Debt..................................................... 102
Section 7.02. Negative Pledge........................................................ 105
Section 7.03. Consolidations, Mergers and Asset Sales................................ 106
Section 7.04. Limitations on Transactions with Affiliates............................ 108
Section 7.05. Limitation on Restrictions Affecting Subsidiaries...................... 110
Section 7.06. Limitation on Sale or Issuance of Equity Interests of Restricted
Subsidiaries........................................................ 111
Section 7.07. Restricted Payments.................................................... 111
Section 7.08. Limitations on Acquisitions and Investment............................. 113
Section 7.09. No Change of Fiscal Periods............................................ 115
Section 7.10. Limitation on Business................................................. 115
Section 7.11. Limitation on Sale and Leaseback Transactions.......................... 115
Section 7.12. No Modification of Certain Documents Without Consent................... 116
Section 7.13. Limitation on Cash Not Held in Collateral Accounts or Concentration
Accounts............................................................ 117
Section 7.14. Limitation of Designated Interest Rate Agreements...................... 117
Section 7.15. No Voluntary Prepayments of Other Debt................................. 117
Section 7.16. Payments for Consents.................................................. 117
ARTICLE 8
Defaults
Section 8.01. Events of Default...................................................... 118
Section 8.02. Notice of Default...................................................... 123
Section 8.03. Enforcement Notice..................................................... 123
Section 8.04. Cash Cover............................................................. 123
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ARTICLE 9
The Agents
Section 9.01. Appointment and Authorization................................ 124
Section 9.02. Agents and Affiliates........................................ 124
Section 9.03. Action by Agents............................................. 124
Section 9.04. Consultation with Experts.................................... 125
Section 9.05. Liability of Agents.......................................... 125
Section 9.06. Indemnification.............................................. 125
Section 9.07. Credit Decision.............................................. 125
Section 9.08. Agents' Fees................................................. 126
Section 9.09. Successor Agents............................................. 126
Section 9.10. Collateral Agents............................................ 127
ARTICLE 10
Changes in Circumstances
Section 10.01. Basis for Determining Interest Rate Inadequate or Unfair..... 127
Section 10.02. Illegality................................................... 128
Section 10.03. Increased Cost and Reduced Return............................ 128
Section 10.04. Taxes........................................................ 130
Section 10.05. Base Rate Loans Substituted for Affected Euro-Dollar Loans... 132
Section 10.06. Substitution of Lenders...................................... 132
ARTICLE 11
Miscellaneous
Section 11.01. Notices...................................................... 134
Section 11.02. No Waiver.................................................... 134
Section 11.03. Expenses; Indemnification.................................... 134
Section 11.04. Sharing of Set-offs.......................................... 136
Section 11.05. Amendments and Waivers....................................... 137
Section 11.06. Successors and Assigns....................................... 139
Section 11.07. Margin Stock................................................. 141
Section 11.08. GOVERNING LAW; SUBMISSION TO JURISDICTION.................... 141
Section 11.09. Counterparts; Integration.................................... 142
Section 11.10. WAIVER OF JURY TRIAL......................................... 142
Section 11.l1. Confidentiality.............................................. 142
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SCHEDULES
Commitment Schedule
Schedule 1 - Restricted Subsidiaries, Insurance Subsidiaries,
Excluded Partnerships (as of the Closing Date)
Schedule 2 - Existing Affiliate Agreements
Schedule 3 - Owned Property
Schedule 4 - Initial Master Lease Properties; Other Leased Property;
Third Party Leases
Schedule 5 - Management Contracts
Schedule 6 - Permitted Investments
Schedule 7 - Local Real Estate Counsel
Schedule 8 - Litigation
Schedule 9 - Existing Debt (as of the Closing Date)
Schedule 10 - Debt not held in Concentration Accounts or Pledged
Schedule 11 - Post-Closing Deliveries
Schedule 12 - Minimum Consolidated EBITDAR
Schedule 13 - Maximum Cumulative Capital Expenditure
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EXHIBITS
Exhibit A-l - Form of Note
Exhibit A-2 - Form of Swingline Note
Exhibit B - Form of Security Agreement
Exhibit C - Form of Subsidiary Guaranty Agreement
Exhibit D - Form of Vencor Guaranty Agreement
Exhibit E - Form of Intercreditor Agreement
Exhibit F-l - Form of Opinion of the General Counsel of Vencor and
the Borrower
Exhibit F-2 - Form of Opinion of the Vice President of Corporate
Legal Affairs of Vencor and the Borrower
Exhibit G - Form of Opinion of Clear-y, Xxxxxxxx, Xxxxx &
Xxxxxxxx, Special Counsel for Vencor and the Borrower
Exhibit H - Form of Opinion of Morris, Nichols, Arsht & Xxxxxxx,
Special Counsel for Vencor and the Borrower
Exhibit I - Form of Opinion of Local Real Estate Counsel
Exhibit J - Form of Subordination Provisions
Exhibit K - Form of Assignment Agreement
Exhibit L - Form of Borrowing Base Certificate
Exhibit M - Form of Prepayment Notice
Exhibit N - Form of Notice of Borrowing
Exhibit 0 - Form of Notice of Swingline Borrowing
Exhibit P - Form of Notice of Interest Rate Election
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CREDIT AGREEMENT
This CREDIT AGREEMENT is dated as of April 20, 2001 and entered into by
and among VENCOR OPERATING, INC. (to be renamed Kindred Healthcare Operating,
Inc.), a Delaware corporation (together with its successors, the "Borrower"),
VENCOR, INC. (to be renamed Kindred Healthcare, Inc.), a Delaware corporation
(together with its successors, "Vencor"), the LENDERS party hereto, the
SWINGLINE BANK party hereto, the LC ISSUING BANKS party hereto, XXXXXX GUARANTY
TRUST COMPANY OF NEW YORK, as Administrative Agent and Collateral Agent, and
GENERAL ELECTRIC CAPITAL CORPORATION, as Documentation Agent and Collateral
Monitoring Agent.
WHEREAS, on September 13, 1999, Vencor, the Borrower and certain of
Vencor's other subsidiaries (collectively, the "Debtors") filed with the Court
(such term and other capitalized terms used in these recitals without definition
having the meanings set forth in Sections 1.01 through 1.05 of this Agreement)
voluntary petitions for relief under the Bankruptcy Code, such proceedings being
jointly administered under Case Nos. 99-03199 (MFW) through 99-03327 (MFW) (the
"Chapter 11 Cases");
WHEREAS, the Debtors' Plan of Reorganization as confirmed by the Court
provides, inter alia, for the Borrower and certain of its subsidiaries to enter
into an exit facility which will provide working capital for the Borrower and
such subsidiaries after the Effective Date;
WHEREAS, in connection with the foregoing and the continuing business
of itself and its Restricted Subsidiaries, the Borrower has requested a
$120,000,000 revolving credit facility;
WHEREAS, the Borrower proposes to use the proceeds of said revolving
credit facility to provide loans and letters of credit for working capital and
other general corporate purposes of the Borrower and its Restricted Subsidiaries
after the Closing Date, including without limitation, to make any payments
(scheduled or otherwise) in respect of the PIP Claim and other pre-petition
claims payable pursuant to the Plan of Reorganization that, pursuant thereto,
will not be paid in full on the Effective Date;
WHEREAS, the obligations of the Borrower under the foregoing facility
and certain interest rate hedging arrangements are to be (a) secured by
substantially all the Borrower's assets and (b) guaranteed by Vencor and the
Borrower's Restricted Subsidiaries; and each of such guarantees is to be secured
by substantially all the assets of the relevant guarantor;
WHEREAS, on the Closing Date the Borrower will, pursuant to the Plan of
Reorganization, also issue $300,000,000 aggregate principal amount of notes to
its pre-petition senior lenders pursuant to the Senior Secured Credit Agreement;
and
WHEREAS, the Lenders are willing to extend the foregoing revolving
credit facility to the Borrower, the LC Issuing Banks are willing to issue
letters of credit thereunder and the Swingline Bank is willing to make Swingline
Loans thereunder, all on the terms and conditions provided herein;
NOW, THEREFORE, in consideration of the premises and the agreements,
provisions and covenants herein contained, the parties hereto agree as follows:
ARTICLE 1
Definitions
Section 1.0l. Defined Terms. The following terms, as used herein, have
the following meanings:
"Account" has the meaning set forth in Section 1 of the Security
Agreement.
"Account Control Agreement" has the meaning set forth in Section 1 of
the Security Agreement.
"Account Debtor" means any Person who is obligated to the Borrower or
any Restricted Subsidiary under, with respect to, or on account of, an Account.
"Account Party" means for each Letter of Credit, the party identified
as the Account Party for such Letter of Credit pursuant to Section 2.07(c).
"Accounts Receivable Advance Rate" means the amount determined in
accordance with Section 2.19.
"Acquisition" means (i) any Investment by the Borrower or any of its
Restricted Subsidiaries in a Person whereby such Person becomes a Restricted
Subsidiary of the Borrower or whereby such Person is merged with and into the
Borrower or a Restricted Subsidiary or (ii) an acquisition by the Borrower or
any of its Restricted Subsidiaries of the property and assets of any Person that
constitutes substantially all of the assets of such Person, or any division,
line of
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business, Healthcare Facility or other business unit of such Person; when used
in relation to Vencor, "Acquisition" has a comparable meaning except that
references to the Borrower shall be read as Vencor and Vencor may, unless
otherwise prohibited hereunder, make Acquisitions involving any Vencor
Unrestricted Subsidiary.
"Actual Purchase Price" has the meaning set forth in Section
2.11(b)(iii).
"Adjusted Consolidated Debt for Borrowed Money" means at any date the
sum of (i) Consolidated Debt for Borrowed Money at such date plus (ii) eight
times the Consolidated Rental Expense for the four Fiscal Quarters then most
recently ended; provided that, at any date prior to the end of the fourth full
Fiscal Quarter following the Closing Date, the Consolidated Rental Expense to be
multiplied by eight shall be determined as of the end of the then most recently
ended Fiscal Quarter on an Annualized Basis.
"Adjusted Consolidated Net Income" means, for any period, Consolidated
Net Income for such period, adjusted to exclude therefrom, without duplication,
(i) gains or losses from Asset Sales net of related tax effects and (ii) any net
income (or loss) of any Person (other than a Restricted Subsidiary) in which the
Borrower or any Restricted Subsidiary has an ownership interest, except that
such Person's net income shall not be excluded if (and to the extent that) such
Person pays dividends or distributions in cash to the Borrower or any of its
Restricted Subsidiaries during such period.
"Administrative Agent" means Xxxxxx, in its capacity as administrative
agent for the Lenders under the Financing Documents, and its successors in such
capacity.
"Administrative Questionnaire" means, with respect to each Lender, an
administrative questionnaire in the form prepared by the Administrative Agent,
duly completed by such Lender and submitted to the Administrative Agent (with a
copy to the Borrower).
"Affiliate" means any Person (other than a Subsidiary) directly or
indirectly controlling, controlled by or under common control with the Borrower.
As used in this definition, the term "control" means possession, directly or
indirectly, of the power to vote 10% or more of any class of voting securities
of a Person or to direct or cause the direction of the management or policies of
a Person, whether through the ownership of voting securities, by contract or
otherwise. The fact that Ventas and Vencor may have many stockholders in common
will not be deemed to constitute "common control" for purposes of this
definition unless stockholders possessing, directly or indirectly, the power to
vote
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more than 10% of Vencor's outstanding common stock and more than 10% of Ventas'
outstanding common stock attempt to influence Vencor's management or policies in
a manner which is, or could reasonably be expected to be, favorable to any
Ventas Company. Notwithstanding anything to the contrary in this definition, no
individual shall be deemed an Affiliate of any Person solely by reason of his or
her being an employee, officer or director of such Person.
"Agents" means the Documentation Agent, the Administrative Agent, the
Collateral Agent and the Collateral Monitoring Agent.
"Aggregate LC Exposure" means, at any time, the sum, without
duplication, of (i) the aggregate amount that is (or may thereafter become)
available for drawing under all Letters of Credit outstanding at such time and
(ii) the aggregate unpaid principal amount of all LC Reimbursement Obligations
outstanding at such time.
"Agreement" means this Credit Agreement dated as of April 20, 2001, as
it may hereafter be amended, supplemented or otherwise modified from time to
time.
"Annualized Basis" means that, when a provision hereof provides that
Consolidated EBITDAR, Consolidated Interest Expense, Consolidated Rental
Expense or Consolidated EBITDA is to be calculated as of a date (the "relevant
date") prior to the end of the fourth full Fiscal Quarter following the Closing
Date for a period of four consecutive Fiscal Quarters ending on the relevant
date, (i) Consolidated EBITDAR, Consolidated Interest Expense, Consolidated
Rental Expense or Consolidated EBITDA, as the case may be, shall be calculated
for the period from the end of the month in which the Closing Date occurs to
the relevant date (a "short period") and (ii) the amount so calculated shall be
multiplied by a fraction of which the numerator is 12 and the denominator is
the number of whole calendar months in such short period.
"Applicable Margin" means (i) with respect to any Euro-Dollar Loan, the
Euro-Dollar Margin and (ii) with respect to any Base Rate Loan, the Base Rate
Margin.
"Applicable Laws" means all applicable provisions of constitutions,
statutes, laws, rules, treaties, regulations and orders of all Governmental
Authorities and all applicable orders, rules and decrees of courts and
arbitrators.
"Applicable Lending Office" means, with respect to any Lender, (i) in
the case of its Base Rate Loans and its participations in Letters of Credit, its
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Domestic Lending Office and (ii) in the case of its Euro-Dollar Loans, its
Euro-Dollar Lending Office.
"Asset Sale" means any sale, lease or other transfer (including any
such transaction effected by way of merger or consolidation) of any asset by the
Borrower or any Restricted Subsidiary, including without limitation any
sale-leaseback transaction, whether or not involving a capital lease, but
excluding (i) any sale of inventory, cash, cash equivalents and other cash
management investments and obsolete, unused or unnecessary equipment, in each
case in the ordinary course of business, (ii) any transfer of assets by the
Borrower to any Restricted Subsidiary or by any Restricted Subsidiary to the
Borrower or another Restricted Subsidiary, (iii) any transfer of assets or
related series of transfers of assets involving cash proceeds of less than
$350,000 and (iv) with respect to a lease of any property (including any Master
Lease Property), surrender to or repossession by the lessor of such property, or
the termination of the lease relating to such property by the lessor; provided
that, in the case of any event referred to in clause (iv), any cash proceeds
received by the Borrower and its Restricted Subsidiaries in excess of $350,000
in connection with such event shall be deposited in a Collateral Account and
applied as set forth in Section 2.1l(a).
"Assignee" has the meaning set forth in Section 11.06(c).
"Assignment Agreement" means an Assignment Agreement in substantially
the form of Exhibit K annexed hereto.
"Atria" means Atria Communities, Inc., a Delaware corporation, and its
successors.
"Atria Shares" means all shares of common stock of Atria owned directly
or indirectly by the Borrower or any Restricted Subsidiary.
"Attributable Debt" means, in respect of a Sale and Leaseback
Transaction the present value, discounted at the interest rate implicit in the
Sale and Leaseback Transaction, of the total obligations of the lessee for
rental payments during the remaining term of the lease in the Sale and Leaseback
Transaction.
"Bankruptcy Code" means Title 11 of the United States Code entitled
"Bankruptcy", as now and hereafter in effect, or any successor statute.
"Base Rate" means, for any day, a rate per annum equal to the higher of
(i) the Prime Rate for such day and (ii) the sum of l/2 of 1% plus the Federal
Funds Rate for such day.
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"Base Rate Loan" means at any time a Loan which bears interest at such
time at a rate based on the Base Rate pursuant to the applicable Notice of
Borrowing or Notice of Interest Rate Election or the provisions of Article 10.
"Base Rate Margin" means a per annum rate equal to 3%.
"BHC Shares" means all shares of common and preferred stock of
Behavioral Healthcare Corporation, a Delaware Corporation, owned directly or
indirectly by the Borrower or any Restricted Subsidiary.
"Board of Directors" of a Person means the board or directors or
comparable governing body of such Person, or any committee thereof duly
authorized to act on its behalf.
"Borrower" has the meaning set forth in the introduction to this
Agreement.
"Borrowing" has the meaning set forth in Section 1.04.
"Borrowing Base" means at any time, subject to adjustment as provided
in Section 2.19, an amount equal to the sum of, without duplication:
(a) the Accounts Receivable Advance Rate multiplied by the
book value of the Hospital and Health Services Eligible Accounts, plus
(b) the Rehabilitation Accounts Receivable Advance Rate
multiplied by the book value of the Rehabilitation Eligible Accounts,
less
(c) Established Reserves and, effective immediately upon
notification thereof to the Borrower by the Collateral Monitoring
Agent, any other reserves established from time to time by the
Collateral Monitoring Agent in the exercise of its reasonable credit
judgment.
The Borrowing Base at any time shall be determined by reference to the most
recent Borrowing Base Certificate theretofore delivered to the Collateral
Monitoring Agent and the Administrative Agent, absent any manifest error in such
Borrowing Base Certificate, and on other information available to the Collateral
Monitoring Agent.
"Borrowing Base Certificate" means a certificate in the form of Exhibit
L or any other form approved by the Collateral Monitoring Agent, together with
all attachments contemplated thereby.
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"Business Day" means any day except a Saturday, Sunday or other day on
which commercial banks in New York, New York are authorized by law to close.
"Capital Lease" means a lease that would be capitalized on a balance
sheet of the lessee prepared in accordance with GAAP. "Capital Lease
Obligation" means the rental obligation under any Capital Lease.
"Casualty Event" means (i) any Condemnation Event with respect to any
property owned by or leased to the Borrower or any Restricted Subsidiary or
(ii) any damage to, or destruction of, any property owned by or leased to the
Borrower or any Restricted Subsidiary.
"Casualty Proceeds" means (i) with respect to any Condemnation Event,
all awards or payments received by the Borrower, any Restricted Subsidiary or
the Collateral Agent by reason of such Condemnation Event, including all amounts
received with respect to any transfer in lieu or anticipation of such
Condemnation Event or in settlement of any proceeding relating to such
Condemnation Event and (ii) with respect to any other Casualty Event, all
insurance proceeds or payments (excluding payments with respect to business
interruption) which the Borrower, any Restricted Subsidiary or the Collateral
Agent receives by reason of such other Casualty Event, less, in either case,
unreimbursed expenses or losses related to the Casualty Event, including any
payment with respect to taxes actually paid or to become payable by the Borrower
and its Restricted Subsidiaries (as reasonably estimated by a Financial Officer)
in respect of such Casualty Event.
"CHAMPUS" shall mean, collectively, the Civilian Health and Medical
Program of the Uniformed Service, a program of medical benefits covering former
and active members of the uniformed services and certain of their dependents,
financed and administered by the United States Departments of Defense, Health
and Human Services and Transportation, and all laws, rules, regulations,
manuals, orders, guidelines or requirements pertaining to such program including
(a) all federal statutes (whether set forth in 10 U.S.C. (s)(s).1071-1106 or
elsewhere) affecting such program; and (b) all rules, regulations (including 32
C.F.R. (s) 199) manuals, orders and administrative, reimbursement and other
guidelines of all governmental authorities promulgated in connection with such
program (whether or not having the force of law), in each case as the same may
be amended, supplemented or otherwise modified from time to time.
"CHAMPUS Receivable" shall mean an Account payable pursuant to CHAMPUS.
"CHAMPVA" shall mean, collectively, the Civilian Health and Medical
Program of the Department of Veteran Affairs, a program of medical benefits
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covering retirees and dependents of former members of the armed services
administered by the United States Department of Veteran Affairs, and all laws,
rules, regulations, manuals, orders, guidelines or requirements pertaining to
such program including (a) all federal statutes (whether set forth in 38 U.S.C.
(S)1713 or elsewhere) affecting such program or, to the extent applicable to
CHAMPVA; and (b) all rules, regulations (including 38 C.F.R. ((s)) 17.54),
manuals, orders and administrative, reimbursement and other guidelines of all
governmental authorities promulgated in connection with such program (whether or
not having the force of law), in each case as the same may be amended,
supplemented or otherwise modified from time to time.
"Chapter 11 Cases" has the meaning set forth in the Whereas clauses.
"Closing" means the closing hereunder on the Closing Date.
"Closing Date" means the date on which the Administrative Agent shall
have received the documents specified in or pursuant to Section 3.01 and the
other conditions specified in Section 3.01 shall have been satisfied or waived.
"Collateral" means all property, real and personal, tangible and
intangible, with respect to which Liens are created or purportedly created
pursuant to the Collateral Documents.
"Collateral Accounts" has the meaning set forth in Section 1 of the
Security Agreement .
"Collateral Agent" means Xxxxxx,in its capacity as collateral agent for
the holders of the Secured Obligations under the Financing Documents, and its
successors in such capacity.
"Collateral Documents" means the Security Agreement, the Security
Agreement Supplements, the Mortgages or similar instruments (other than any UCC
financing statements) delivered pursuant hereto or thereto.
"Collateral Monitoring Agent" means General Electric Capital
Corporation, in its capacity as collateral monitoring agent for the holders of
Secured Obligations under the Financing Documents, and its successors in such
capacity.
"Commitment" means (i) with respect to any Lender listed on the
Commitment Schedule, the amount (if any) set forth therein opposite the name of
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such Lender under the heading "Commitment" and (ii) with respect to any Assignee
of a Commitment, the amount of the transferor Lender's Commitment assigned to
such Assignee pursuant to Section 10.06 or 11.06(c), in each case as such amount
may be reduced from time to time pursuant to Section 2.11 or 2.13 or changed as
a result of an assignment pursuant to Section 10.06 or 11.06(c). The term
"Commitment" does not include the Swingline Commitment.
"Commitment Fee Rate" means a rate per annum equal to 0.50%.
"Commitment Schedule" means the Commitment Schedule attached hereto.
"Concentration Accounts" has the meaning set forth in Section 6(a) of
the Security Agreement.
"Condemnation Event" means any condemnation or other taking or
temporary or permanent requisition of any property, any interest therein or
right appurtenant thereto, or any change of grade affecting any property, as the
result of the exercise of any right of condemnation or eminent domain. A
transfer to a governmental authority in lieu or anticipation of condemnation
shall be deemed to be a Condemnation Event.
"Consolidated Capital Expenditures" means, for any period, the gross
additions to property, plant and equipment and other capital expenditures of the
Borrower and its Restricted Subsidiaries for such period, as the same are or
would be reflected in a consolidated statement of cash flows of the Borrower and
its Restricted Subsidiaries for such period; provided that the amount paid by
the Borrower or any Restricted Subsidiary for any Acquisition and any amount of
Reinvestable Proceeds applied pursuant to clauses (A)(3) or (A)(4) of Section
2.11 (a) shall not be included in the calculation of the amount of Consolidated
Capital Expenditures.
"Consolidated Debt for Borrowed Money" means at any date the sum,
without duplication, of (x) the aggregate amount of Debt of the types described
in clauses (i), (ii) and (iv) of the definition of "Debt" which is Debt of the
Borrower and its Restricted Subsidiaries, (y) the aggregate amount of Debt of
the type described in clause (vi) of the definition of "Debt" which is
non-contingent Debt of the Borrower and its Restricted Subsidiaries and (z) the
aggregate amount of Guarantees by the Borrower and its Restricted Subsidiaries
with respect to Debt of others of the types described in clauses (i), (ii) and
(iv) of the definition of Debt and non-contingent Debt of others of the type
described in clause (vi) of the definition of Debt, all determined on a
consolidated basis as of such date after excluding accrued interest for the then
current period not yet due and payable.
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"Consolidated EBITDA" means, for any period, Adjusted Consolidated Net
Income for such period plus, to the extent deducted in determining Adjusted
Consolidated Net Income for such period, the sum of (i) Consolidated Interest
Expense, (ii) income tax expense and (iii) depreciation, amortization and other
similar non-cash charges.
"Consolidated EBITDAR" means, for any period, Consolidated EBITDA for
such period plus, to the extent deducted in determining Consolidated EBITDA for
such period, the sum of (i) Consolidated Rental Expense and (ii) non-cash
compensation expense and minus (iii) any cash paid during such period in respect
of non-cash compensation expense accrued during any prior period; provided that
(x) Consolidated EBITDAR shall be calculated so as to exclude the effect of any
income or expense that (A) is classified as extraordinary, (B) is reported
separately as an unusual or non-recurring item, (C) is attributable to
discontinued operations or (D) represents the effect of an accounting change on
prior periods, in each case in accordance with GAAP, and (y) if any Restricted
Subsidiary of the Borrower is subject to a limitation (other than pursuant to
the terms of the Financing Documents, the Senior Secured Credit Agreement or the
"Financing Documents" as defined therein) in any period binding on such
Restricted Subsidiary which limits such Restricted Subsidiary's ability to pay
dividends or make other distributions or pay any Debt owed to the Borrower or
any other Restricted Subsidiary, or to make loans or advances to the Borrower or
any other Restricted Subsidiary or to create incur, assume or suffer to exist
any Lien upon any of its property, assets or revenues to secure the obligations
of the Borrower or any other Restricted Subsidiary under any Financing Document,
Consolidated EBITDAR for such period shall be adjusted to exclude any portion
thereof that is attributable to such Restricted Subsidiary and that, as a result
of such limitation, it would be prohibited from paying, directly or indirectly,
to the Borrower or any other Restricted Subsidiary at the end of such period.
"Consolidated Interest Expense" means, for any period, the interest
expense of the Borrower and its Restricted Subsidiaries, determined on a
consolidated basis for such period; provided that Consolidated Interest Expense
shall not (i) include interest capitalized in accordance with GAAP or (ii) be
reduced by any interest income.
"Consolidated Net Income" means, for any period, the net income of the
Borrower and its Restricted Subsidiaries, determined on a consolidated basis for
such period.
"Consolidated Net Worth" means, at any date, the consolidated
stockholders' equity of the Borrower and its Restricted Subsidiaries determined
as of such date.
10
"Consolidated Rental Expense" means, for any period, the total rental
expense for operating leases of the Borrower and its Restricted Subsidiaries,
determined on a consolidated basis for such period; provided that Consolidated
Rental Expense shall not be reduced by any rental income.
"Consolidated Subsidiary" means, as to any Person at any date, any
Subsidiary or other entity the accounts of which would be consolidated with
those of such Person in its consolidated financial statements if such statements
were prepared as of such date. Unless otherwise specified, "Consolidated
Subsidiary" means a Consolidated Subsidiary of the Borrower.
"Cornerstone" means Cornerstone Insurance Company, a Cayman Islands
corporation.
"Cost Report Liability Reserve" means, without duplication for any
other reserve hereunder, a reserve which shall reduce availability under the
Borrowing Base by (i) the cost report liability of the Borrower and its
Restricted Subsidiaries for Fiscal Year 2000 and each Fiscal Year thereafter and
(ii) the cost report liability of the Borrower and its Restricted Subsidiaries
for all years prior to Fiscal Year 2000 in respect of Medicaid, in each case, as
determined by the Collateral Monitoring Agent in its reasonable credit judgment.
"Court" means the United States Bankruptcy Court for the District of
Delaware.
"Credit Event" means (i) the making of a Loan or Swingline Loan, (ii)
the issuance of a Letter of Credit or (iii) the extension of the expiry date of
a Letter of Credit.
"Credit Parties" means the Borrower and the Guarantors, collectively.
"Debt" of any Person means, without duplication, (i) all obligations of
such Person for borrowed money, (ii) all obligations of such Person evidenced by
bonds, debentures, notes or other similar instruments, (iii) all obligations of
such Person to pay the deferred purchase price of property or services, (iv) all
obligations of such Person as lessee under Capital Leases, (v) all obligations
of such Person to purchase securities which arise out of or in connection with
the sale of the same or substantially similar securities, (vi) all obligations
of such Person (whether contingent or noncontingent) to reimburse any Lender or
other Person in respect of amounts paid under a letter of credit, banker's
acceptance or similar instrument, (vii) all obligations secured by a Lien on any
asset of such Person, whether or not such Debt is otherwise an obligation of
such Person, and (viii) all Guarantees by such Person of obligations of another
Person (each such
11
Guarantee to constitute Debt in an amount equal to the maximum amount of such
other Person's obligations Guaranteed thereby); provided that neither (a) trade
accounts payable nor (b) amounts owed to patients or residents arising in the
ordinary course of business nor (c) obligations arising in respect of insurance
policies or performance or surety bonds which are not themselves Guarantees of
Debt (nor drafts, acceptances or similar instruments evidencing the same nor
obligations in respect of letters of credit supporting the payment of the same)
nor (d) guarantees of any obligation of the Borrower or a Restricted Subsidiary
pursuant to an operating lease shall constitute Debt.
"Default" means any condition or event that constitutes an Event of
Default or that with the giving of notice or lapse of time or both would, unless
cured or waived, become an Event of Default.
"Default Rate" means on any day the rate of interest that would be
payable on the Loans on such day pursuant to Section 2.05(c).
"Designated Equity Proceeds" has the meaning specified in Section
2.1l(b).
"Designated Interest Rate Agreements" means any Interest Rate Agreement
designated by the Borrower, in a notice to the Collateral Agent, as a Designated
Interest Rate Agreement for purposes of the Financing Documents.
"DIP Facility" means the Debtor-In-Possession Credit Agreement dated as
of September 13, 1999, as amended through the Closing Date, among certain of
the Credit Parties and the lenders and agents named therein.
"Discharge Letter" means Vencor's letter dated the date hereof
addressed to Xxxxxx as Collateral Agent.
"Disclosure Statement" means the Vencor Companies' Fourth Amended
Disclosure Statement dated December 14, 2000 filed with the Court.
"Disclosure Statement Hearing" means the hearing held by the Court on
December 14, 200O at which the Disclosure Statement was approved.
"Disqualified Equity Interests" means Equity Interests that by their
terms or upon the happening of any event are (a) required to be redeemed or
redeemable at the option of the holder prior to the Revolving Credit Termination
Date for consideration other than Qualified Equity Interests or (b) convertible
at the option of the holder into Disqualified Equity Interests or exchangeable
for Debt.
12
"Documentation Agent" means General Electric Capital Corporation, in
its capacity as documentation agent for the Lenders under the Financing
Documents, and its successors in such capacity.
"dollars" or "$" means United States dollars or such other coin or
currency as shall be legal tender for the payment of public or private debt in
the United States.
"Domestic Lending Office" means, as to each Lender, its office located
at its address set forth in its Administrative Questionnaire (or identified in
its Administrative Questionnaire as its Domestic Lending Office) or such other
office as such Lender may hereafter designate as its Domestic Lending Office by
notice to the Borrower and the Administrative Agent.
"Eastern Time" means local time in the Eastern time zone of the United
States.
"EBITDA" means, when used with respect to any Healthcare Facility for
any period, the net income attributable to the operations of such Healthcare
Facility during such period, plus, to the extent deducted in determining such
net income, the sum of (i) interest expense, (ii) income tax expense and (iii)
depreciation, amortization and other similar non-cash charges.
"EBITDAR" means, when used with respect to any Healthcare Facility for
any period, the net income attributable to the operations of such Healthcare
Facility during such period, plus, to the extent deducted in determining such
net income, the sum of (i) interest expense, (ii) income tax expense, (iii)
rental expense and (iv) depreciation, amortization and other similar non-cash
charges; provided that EBITDAR shall be calculated so as to exclude the effect
of any income or expense that (A) is classified as extraordinary, (B) is
reported separately as an unusual or non-recurring item, (C) is attributable to
discontinued operations or (D) represents the effect of an accounting change on
prior periods, in each case in accordance with GAAP, as such amounts relate to
such Healthcare Facility for such period.
"Eligible Accounts" means at the time of determination thereof all
Accounts that satisfy at the time of creation and continue to meet the same at
the time of such determination the criteria established from time to time by the
Collateral Monitoring Agent in its reasonable credit judgment. Initially,
Eligible Accounts shall not include any of the following Accounts:
13
(a) any Account that does not arise from the sale of goods or the
performance of services by the Borrower or any Restricted Subsidiary in the
ordinary course of its business;
(b) any Account that does not comply with all applicable legal
requirements, including, without limitation, all laws, rules, regulations and
orders of any governmental or judicial authority (including any Account due from
an Account Debtor located in the States of Indiana, New Jersey or Minnesota,
unless the Borrower or the applicable Restricted Subsidiary (at the time the
Account was created and at all times thereafter) (i) had filed and has
maintained effective a current notice of business activities report with the
appropriate office or agency of the State of Indiana, New Jersey or Minnesota,
as applicable, or (ii) was and has continued to be exempt from filing such
report and has provided the Collateral Monitoring Agent with reasonably
satisfactory evidence thereof);
(c) any Account (i) upon which the Borrower's or the applicable
Restricted Subsidiary's right to receive payment is not absolute or is
contingent upon the fulfillment of any condition whatsoever by the Borrower or
such Restricted Subsidiary or (ii) as to which the Borrower or the applicable
Restricted Subsidiary is not able to bring suit or otherwise enforce its
remedies against the Account Debtor through judicial or administrative process
or (iii) if the Account represents a progress billing consisting of an invoice
for goods sold or used or services rendered pursuant to a contract under which
the Account Debtor's obligation to pay that invoice is subject to the Borrower's
or the applicable Restricted Subsidiary's completion of further performance
under such contract or is subject to the equitable lien of a surety bond issuer;
(d) to the extent that any defense, counterclaim, setoff or dispute
is asserted as to such Account;
(e) any Account that is not a true and correct statement of bona fide
indebtedness incurred in the amount of the Account for merchandise sold to or
services rendered and accepted by the applicable Account Debtor;
(f) any Account with respect to which an invoice, reasonably
acceptable to the Collateral Monitoring Agent in form and substance, has not
been sent on a timely basis to the applicable Account Debtor according to the
Borrower's or the applicable Restricted Subsidiary's normal invoicing and
timing procedures;
(g) any Account that (i) is not owned by the Borrower or the
applicable Restricted Subsidiary or (ii) is subject to any right, claim,
security interest or other interest of any other Person, other than Liens in
favor of the Collateral Agent, on
14
behalf of itself and the Lenders and Liens in favor of the Senior Secured
Collateral Agent, on behalf of itself and lenders under the Senior Secured
Credit Agreement;
(h) any Account that arises from a sale to any director, officer,
other employee or Affiliate of the Borrower or any Restricted Subsidiary;
(i) any Account due from an Account Debtor that is not domiciled in
the United States and (if not a natural person) organized under the laws of the
United States or any political subdivision thereof;
(j) to the extent the Borrower or any Subsidiary thereof is liable
for goods sold or services rendered by the applicable Account Debtor to the
Borrower or any Subsidiary thereof but only to the extent of the potential
offset;
(k) any Account that arises with respect to goods that are delivered
on a xxxx-and-hold, cash-on-delivery basis or placed on consignment, guaranteed
sale or other terms by reason of which the payment by the Account Debtor is or
may be conditional;
(1) any Account that is in default; provided that, without limiting
the generality of the foregoing, an Account shall be deemed in default upon the
occurrence of any of the following or if such Account is not payable by a Third
Party Payor:
(i) any Account not paid within 120 days following its
original invoice date; or
(ii) the Account Debtor obligated upon such Account suspends
business, makes a general assignment for the benefit of creditors or
fails to pay its debts generally as they come due; or
(iii) a petition is filed by or against any Account Debtor
obligated upon such Account under any bankruptcy law or any other
federal, state or foreign (including any provincial) receivership,
insolvency relief or other law or laws for the relief of debtors;
(m) any Account that is the obligation of an Account Debtor if 50% or
more of the dollar amount of all Accounts owing by that Account Debtor are
ineligible under the other criteria set forth in this definition;
(n) any Account as to which Collateral Agent's Lien thereon, on
behalf of itself and Lenders, is not a first priority perfected Lien;
15
(o) any Account as to which any of the applicable representations or
warranties in the Financing Documents are untrue;
(p) to the extent such Account is evidenced by an instrument or
chattel paper (each as defined in the UCC) or a judgment;
(q) to the extent such Account exceeds any credit limit established
by the Collateral Monitoring Agent in its reasonable credit judgment following
prior notice of such limit by the Collateral Monitoring Agent to the Borrower;
(r) (i) that portion of any Account in respect of which there has
been, or should have been, in accordance with GAAP, established by the Borrower
a contra account whether in respect of contractual allowances, audit
adjustments, anticipated discounts or otherwise, or (ii) any Account which is a
Third Party Insurance Account and is due from an Account Debtor to whom the
Borrower or any Restricted Subsidiary owes a trade payable, but only to the
extent of such account or trade payable, or (iii) any Account which the Borrower
or any Restricted Subsidiary knows is subject to the exercise by an Account
Debtor of any right of recession, set-off, recoupment, counterclaim or defense,
whether arising out of transactions concerning the provision of medical services
or otherwise, provided that this clause (iii) shall not apply to adjustments in
the ordinary course with respect to Government Receivables, or (iv) the portion
of any Account in respect of which there is no right to payment from any Third
Party Payor;
(s) any Account due from any Third Party Payor (i) in respect of
which a credit loss has been recognized or reserved by the Borrower or any
Restricted Subsidiary, or (ii) that, except in the case of a Government
Receivable, is the United States or any state government or any department,
agency or instrumentality thereof, unless the Borrower or the applicable
Restricted Subsidiary has complied in all respects with the Federal Assignment
of Claims Act of 1940 or the corresponding provision of any applicable state
law;
(t) any Account that is payable in any currency other than dollars;
or
(u) any Account that is otherwise unacceptable to the Collateral
Monitoring Agent, in its reasonable credit judgment.
"Eligible Account" shall also include any Account that meets all the eligibility
criteria set forth above (other than the criteria set forth in clause (f) of
this definition) but only if such Account (i) arises from services performed by
the Borrower or a Restricted Subsidiary at a long term acute care hospital owned
or operated by the Borrower or such Restricted Subsidiary and (ii) is invoiced
within
16
31 days following the date such Account is recognized as revenue by the Borrower
or the applicable Restricted Subsidiary; provided that any Account which is not
paid within 151 days following the original service date to which such Account
relates shall not be an "Eligible Account" pursuant to this paragraph.
"Eligible Assignee" means any Person which is either (i) (a) a commercial
bank organized under the laws of the United States or any state thereof having
unimpaired capital and surplus of not less than $500,000,000; (b) a savings and
loan association or savings bank organized under the laws of the United States
or any state thereof having unimpaired capital and surplus of not less than
$500,000,000; (c) a commercial bank organized under the laws of any other
country or a political subdivision thereof having unimpaired capital and surplus
of not less than $500,000,000; provided that (x) such bank is acting through a
branch or agency located in the United States or (y) such bank is organized
under the laws of a country that is a member of the Organization for Economic
Cooperation and Development or a political subdivision of such country; or (d)
an "accredited investor" (as defined in Regulation D under the Securities Act)
which extends credit as one of its businesses including, but not limited to,
insurance companies, mutual funds and lease financing companies and having
unimpaired capital and surplus of not less than $100,000,000; or (ii) a Lender
or an Affiliate of a Lender; provided that no Vencor Company, no Ventas Company
and no Affiliate of any of them shall be an Eligible Assignee; and provided
further that Eligible Assignee shall mean and include any other Person
designated as such pursuant to the prior written consent of the Administrative
Agent (such consent not to be unreasonably withheld or delayed).
"Encumbrance Letter" means Vencor's letter dated the date hereof addressed
to Xxxxxx, as Collateral Agent and Senior Secured Collateral Agent, and First
American Title Insurance Company.
"Enforceable Judgment" means a judgment or order of a court or arbitral or
regulatory authority as to which the period, if any, during which the
enforcement of such judgment or order is stayed shall have expired. A judgment
or order which is under appeal or as to which the time in which to perfect an
appeal has not expired shall not be deemed an Enforceable Judgment so long as
enforcement thereof is effectively stayed pending the outcome of such appeal or
the expiration of such period, as the case may be.
"Enforcement Notice" means a notice delivered by the Administrative Agent
to the Collateral Agent pursuant to Section 8.03 directing the Collateral Agent
to exercise one or more specific rights or remedies under the Collateral
Documents.
17
"Environmental Laws" means any and all federal, state, local and
foreign statutes, laws, judicial decisions, regulations, ordinances, rules,
judgments, orders, decrees, codes, plans, injunctions, permits, concessions,
grants, franchises, licenses, agreements and governmental restrictions relating
to the environment or to the effect of the environment on human health or to
emissions, discharges or releases of pollutants, contaminants, Hazardous
Substances or wastes into the environment, including ambient air, surface
water, ground water or land, or otherwise relating to the manufacture,
processing, distribution, use, treatment, storage, disposal, transport or
handling of pollutants, contaminants, Hazardous Substances or wastes or the
clean-up or other remediation thereof.
"Environmental Liabilities" means any and all liabilities of or
relating to the Borrower or any of the Guarantors (including any entity which
is, in whole or in part, a predecessor of the Borrower or any of the
Guarantors), whether vested or unvested, contingent or fixed, actual or
potential, known or unknown, which arise under or relate to matters covered by
Environmental Laws.
"Equity Interest" means (i) in the case of a corporation, any shares of
its capital stock, (ii) in the case of a limited liability company, any
membership interest therein, (iii) in the case of a partnership, any partnership
interest (whether general or limited) therein, (iv) in the case of any other
business entity, any participation or other interest in the equity or profits
thereof or (v) any warrant, option or other right to acquire any Equity Interest
described in the foregoing clauses (i), (ii), (iii) and (iv).
"Equity Issuance" means any issuance or sale by Vencor of any Equity
Interest in Vencor other than (i) Equity Interests issued to or otherwise
acquired by directors, officers and employees of Vencor or any of its
Subsidiaries pursuant to stock option, restricted stock and similar compensation
plans approved by the Board of Directors of Vencor or (ii) Equity Interests
issued as contemplated by the Plan of Reorganization (including without
limitation common stock of Vencor issued upon the exercise of New Warrants).
"Equity Receipt Date" has the meaning set forth in Section 2.1l(b).
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended, or any successor statute.
"ERISA Group" means the Vencor Companies and all members of a
controlled group of corporations and all trades or businesses (whether or not
incorporated) under common control which, together with any Vencor Company, are
treated as a single employer under Section 414 of the Internal Revenue Code.
18
"Escrow Agreement" means the Escrow Agreement dated as of the date
hereof among the Borrower, Vencor, the Collateral Agent and First American Title
Insurance Company, as escrow agent, as in effect on the date hereof.
"Established Reserves" means, collectively, each of the following
reserves against Eligible Accounts: (i) the Cost Report Liability Reserve, (ii)
the PIP Limitation Reserve, (iii) the PIP Reserve and (iv) the Interest Rate
Agreement Reserve.
"Euro-Dollar Business Day" means any Business Day on which commercial
banks are open for international business (including dealings in dollar
deposits) in London.
"Euro-Dollar Lending Office" means, as to each Lender, its office,
branch or affiliate located at its address set forth in its Administrative
Questionnaire (or identified in its Administrative Questionnaire as its
Euro-Dollar Lending Office) or such other office, branch or affiliate of such
Lender as it may hereafter designate as its Euro-Dollar Lending Office by notice
to the Borrower and the Administrative Agent.
"Euro-Dollar Loan" means at any time a Loan which bears interest at
such time at a rate based on the London Interbank Offered Rate pursuant to the
applicable Notice of Borrowing or Notice of Interest Rate Election.
"Euro-Dollar Margin" means a rate per annum equal to 4%.
"Euro-Dollar Reserve Percentage" means for any day that percentage
(expressed as a decimal) which is in effect on such day, as prescribed by the
Board of Governors of the Federal Reserve System (or any successor), for
determining the maximum reserve requirement for a member bank of the Federal
Reserve System in New York City with deposits exceeding five billion dollars in
respect of "Eurocurrency liabilities" (or in respect of any other category of
liabilities which includes deposits by reference to which the interest rate on
Euro-Dollar Loans is determined or any category of extensions of credit or other
assets which includes loans by a non-United States office of any Lender to
United States residents).
"Event of Default" means any event defined as an "Event of Default" in
Section 8.01.
"Evergreen Letter of Credit" means a Letter of Credit that is
automatically renewed or extended unless the relevant LC Issuing Bank gives
19
notice to the account party and/or beneficiary thereof stating that such Letter
of Credit will not be extended or renewed.
"Excluded Partnership" means each of the general and limited
partnerships and each of the limited liability companies identified on Schedule
1 hereto as an Excluded Partnership; provided that any such partnership or
limited liability company shall cease to be an Excluded Partnership at such time
as (i) the grant of a security interest in the partnership interests or limited
liability company interests thereof and a guaranty of the Obligations by such
entity shall no longer constitute a material violation of a valid and
enforceable restriction in favor of a third party or (ii) the required consents
to such grant and such guaranty shall have been obtained.
"Excluded PIP Repayments" means any optional repayment of the principal
of the PIP Claim that are (a) directly funded with the Net Cash Proceeds of an
Asset Sale or Equity Issuance or a payment out of the original amount deposited
and held in escrow under the Tax Refund Escrow Agreement or (b) made at a time
when the aggregate cash balances of the Borrower and its Restricted Subsidiaries
as of the last Business Day of the most recently ended month exceed $100,000,000
(as reflected in the Borrower's consolidated balance sheet as at the end of such
month and consistent with the Borrower's historical cash management practices).
"Executive Officer" means any "executive officer" (within the meaning
of Rule 3b-7 under the Securities Exchange Act) of the Borrower.
"Existing Affiliate Agreements" means the agreements listed in Schedule
2 hereto.
"Facility" means the credit facility provided to the Borrower under
Sections 2.01(a), 2.07 and 2.08 and the other provisions hereof relating to
Loans, Letters of Credit and Swingline Loans.
"Federal Funds Rate" means, for any day, the rate per annum (rounded
upward, if necessary, to the nearest l/l00th of 1%) equal to the weighted
average of the rates on overnight Federal funds transactions with members of the
Federal Reserve System arranged by Federal funds brokers on such day, as
published by the Federal Reserve Bank of New York on the Business Day next
succeeding such day, provided that (i) if such day is not a Business Day, the
Federal Funds Rate for such day shall be such rate on such transactions on the
next preceding Business Day as so published on the next succeeding Business Day,
and (ii) if no such rate is so published on such next succeeding Business Day,
the Federal Funds Rate for
20
such day shall be the average rate quoted to the Administrative Agent on such
day on such transactions as determined by the Administrative Agent.
"Fee Mortgages" means fee mortgages substantially in the form of
Exhibit G to the Security Agreement relating to (i) the Owned Properties and
(ii) any other real property owned in fee by the Borrower or any Guarantor
which is required to be so encumbered to secure the Obligations pursuant to
Section 5.08.
"Financial Accommodations" means arrangements for the extension of
credit or other financial accommodation to the Borrower or one or more of the
Guarantors, including committed or uncommitted lines of credit for advances or
other financial accommodation, letters of credit, performance and surety bonds
and the like, committed or uncommitted agreements for the purchase of accounts
receivable or other financial assets, with or without recourse or repurchase
obligation, forward and future contracts for purchase of bullion or foreign
currencies and other similar arrangements and interest rate swaps and other
similar arrangements, but excluding (i) trade accounts payable arising in the
ordinary course of business and (ii) Debt, Letters of Credit and Commitments
under this Agreement.
"Financial Officer" means the principal financial officer, principal
accounting officer or treasurer of the Borrower.
"Financing Documents" means this Agreement (including the Schedules and
Exhibits hereto), the Notes, the Swingline Note, the Guaranty Agreements and
the Collateral Documents.
"Fiscal Quarter" means a fiscal quarter of the Borrower or of Vencor,
as the context may require.
"Fiscal Year" means a fiscal year of the Borrower or of Vencor, as the
context may require.
"Fixed Charge Coverage Ratio (EBITDA)" means, on any date (the
"transaction date"), the ratio of(x) Consolidated EBITDA for the four
consecutive Fiscal Quarters ended immediately prior to the transaction date (the
"reference period") to (y) Consolidated Interest Expense for the reference
period; provided that, at any transaction date prior to the end of the fourth
full Fiscal Quarter following the Closing Date, the foregoing amounts shall be
determined as of the end of the then most recently ended Fiscal Quarter on an
Annualized Basis. In making the foregoing calculation,
21
(a) pro forma effect will be given to any Debt incurred during
or after the reference period to the extent the Debt is outstanding or
is to be incurred on the transaction date as if the Debt had been
incurred on the first day of the reference period;
(b) pro forma calculations of interest on Debt bearing a
floating interest rate will be made as if the rate in effect on the
transaction date (taking into account any Interest Rate Agreement
applicable to the Debt if the Interest Rate Agreement has a remaining
term of at least 12 months) had been the applicable rate for the entire
reference period;
(c) Consolidated Interest Expense related to any Debt no longer
outstanding or to be repaid or redeemed on the transaction date, except
for Consolidated Interest Expense accrued during the reference period
under the Facility to the extent of the Commitments in effect on the
transaction date, will be excluded;
(d) pro forma effect will be given to
(i) the creation, designation or redesignation of
Restricted and Unrestricted Subsidiaries,
(ii) the acquisition or disposition of companies,
divisions or lines of businesses by the Borrower and its
Restricted Subsidiaries, including any acquisition or disposition
of a company, division or line of business since the beginning of
the reference period by a Person that became a Restricted
Subsidiary after the beginning of the reference period, and
(iii) the discontinuation of any discontinued
operations,
that have occurred since the beginning of the reference period as if
such events had occurred, and, in the case of any disposition, the
proceeds thereof applied, on the first day of the reference period. To
the extent that pro forma effect is to be given to an acquisition or
disposition of a company, division or line of business, the pro forma
calculation will be based upon the most recent four full fiscal
quarters for which the relevant financial information is available.
"Free Cash Flow" means, for any period, the sum (without duplication)
of (i) Consolidated EBITDA for such period minus (ii) Consolidated Capital
Expenditures for such period minus (iii) the cash consideration paid to make any
Acquisition during such period (excluding cash paid by the application of
22
Reinvestable Proceeds pursuant to clause (A)(4) of Section 2.11(a) or by the
application of amounts transferred to the Borrower pursuant to Section 2.11(b))
minus (iv) cash interest payable by the Borrower and its Restricted Subsidiaries
with respect to such period minus (v) the amount of cash income taxes payable by
the Borrower and its Restricted Subsidiaries with respect to such period and
minus (vi) the aggregate principal amount of Debt repaid by the Borrower and its
Restricted Subsidiaries during such period, excluding (1) repayments of loans
under the Facility to the extent the Commitments would permit the amount repaid
to be reborrowed and (2) Excluded PIP Repayments; provided that the deduction
for Consolidated Capital Expenditures for the first, second and third Fiscal
Quarters of a Fiscal Year will be the greater of (x) one-quarter, one-half and
three-quarters, as the case may be, of the actual budgeted amount of
Consolidated Capital Expenditure for such Fiscal Year (such budgeted amount not
to exceed the amount set forth in Schedule 13 for such Fiscal Year) and (x) the
actual Consolidated Capital Expenditures for such Fiscal Quarter.
"GAAP" means at any time generally accepted accounting principles as
then in effect in the United States, applied on a basis consistent (except for
changes concurred in by the Borrower's independent public accountants) with the
Most Recent Audited Financial Statements.
"Government Receivables" shall mean collectively, any and all Accounts
which are (a) Medicare Receivables, (b) Medicaid Receivables, (c) TRICARE
Receivables, (d) CHAMPUS Receivables, (e) VA Receivables or (f) any other
Receivables payable by a Governmental Authority approved by the Collateral
Monitoring Agent, which approval shall not be unreasonably withheld.
"Governmental Approvals" means all authorizations, consents, approvals,
licenses and exemptions of, registrations and filings with, and reports to, all
Governmental Authorities.
"Governmental Authority" means any nation, province, state or political
subdivision thereof, and any government or any Person exercising executive,
legislative, regulatory or administrative functions of or pertaining to
government, and any corporation or other entity owned or controlled, through
stock or capital ownership or otherwise, by any of the foregoing.
"Group of Loans" means at any time a group of Loans consisting of (i)
all Loans that are Base Rate Loans at such time or (ii) all Loans that are
Euro-Dollar Loans having the same Interest Period at such time; provided that,
if a Loan of any particular Lender is converted to or made as a Base Rate Loan
pursuant to Section 10.02 or 10.05, such Loan shall be included in the same
Group or Groups of
23
Loans from time to time as it would have been in if it had not been so converted
or made.
"Guarantee" by any Person means any obligation, contingent or
otherwise, of such Person directly or indirectly guaranteeing any Debt of any
other Person and, without limiting the generality of the foregoing, any
obligation, direct or indirect, contingent or otherwise, of such Person (i) to
purchase or pay (or advance or supply funds for the purchase or payment of) such
Debt (whether arising by virtue of partnership arrangements, by agreement to
keep-well, to purchase assets, goods, securities or services, to take-or-pay, or
to maintain financial statement conditions or otherwise), (ii) to reimburse a
bank for drawings under a letter of credit for the purpose of paying such Debt
or (iii) entered into for the purpose of assuring in any other manner the holder
of such Debt of the payment thereof or to protect such holder against loss in
respect thereof (in whole or in part); provided that the term "Guarantee" shall
not include endorsements for collection or deposit in the ordinary course of
business. The term "Guarantee", when used as a verb, has a corresponding
meaning.
"Guarantors" means Vencor and the Subsidiary Guarantors.
"Guaranty Agreements" means the Vencor Guaranty Agreement and the
Subsidiary Guaranty Agreements.
"Hazardous Substances" means any toxic, radioactive, corrosive or
otherwise hazardous substance, including petroleum, its derivatives, by-products
and other hydrocarbons, or any substance having any constituent elements
displaying any of the foregoing characteristics, whether or not regulated under
Environmental Laws.
"Health Services Division" means the Borrower's health services
division, which provides long-term care services through the operation of
nursing centers and a rehabilitation therapy business.
"Healthcare Facility" means (i) a hospital, outpatient clinic, nursing
center, assisted or independent living community, long-term care facility or any
other facility that is used or useful in the provision of healthcare or
custodial care services, (ii) any healthcare business affiliated or associated
with a Healthcare Facility (as defined in clause (i)) or (iii) any business
related or ancillary to the provision of healthcare services or the operation of
a Healthcare Facility (as defined in clause (i)) including, but not limited to,
contract therapy services, as well as hospice and home care services.
24
"Hospital and Health Services Eligible Accounts" means Eligible
Accounts of the Borrower or a Restricted Subsidiary arising solely from the
Health Services Division or the Hospital Division; provided that Hospital and
Health Services Eligible Accounts shall not at any time include any Accounts
arising from the Borrower's or a Restricted Subsidiary's (i) rehabilitation
therapy business, (ii) SleepCor business divisions, including sleep diagnostic
services and related MPI and cardiovascular operations, (iii) Enteral services
or (iv) business operations or divisions which have been discontinued.
"Hospital Division" means the Borrower's hospital division, which
provides long-term acute care to medically complex patients through the
operation of hospitals and an institutional pharmacy business.
"Indemnitee" has the meaning set forth in Section 11.03(b).
"Initial Master Lease Properties" means the Healthcare Facilities
identified as the "Initial Master Lease Properties" on Schedule 4 hereto.
"Insurance Subsidiary" means any insurance company that becomes a
Subsidiary of the Borrower on or after the Closing Date.
"Intercreditor Agreement" means a Subordination and Intercreditor
Agreement among the Borrower, Vencor, the Collateral Agent and the Senior
Secured Collateral Agent, substantially in the form of Exhibit E hereto.
"Interest Hedge Counterparty" means the counterparty under any
Designated Interest Rate Agreement.
"Interest Period" means with respect to each Euro-Dollar Loan, a period
commencing on the date of borrowing specified in the applicable Notice of
Borrowing or on the date specified in the applicable Notice of Interest Rate
Election and ending one, two, three or six months thereafter, as the Borrower
may elect in the applicable notice; provided that:
(a) any Interest Period that would otherwise end on a day that is
not a Euro-Dollar Business Day shall be extended to the next succeeding
Euro-Dollar Business Day unless such day falls in another calendar
month, in which case such Interest Period shall end on the next
preceding Euro-Dollar Business Day;
(b) any Interest Period that begins on the last Euro-Dollar
Business Day of a calendar month (or on a day for which there is no
numerically corresponding day in the calendar month at the end of such
25
Interest Period) shall, subject to clause (c) of this proviso, end on
the last Euro-Dollar Business Day of a calendar month; and
(c) any Interest Period that would otherwise end after the
Revolving Credit Termination Date shall end on the Revolving Credit
Termination Date.
"Interest Rate Agreement" means any interest rate protection agreement,
interest rate future, interest rate option, interest rate swap, interest rate
cap or other interest rate hedge arrangement, to or under which the Borrower or
any of its Restricted Subsidiaries is a party or a beneficiary on the date
hereof or becomes a party or a beneficiary hereafter.
"Interest Rate Agreement Reserve" means a reserve which shall reduce
availability under the Borrowing Base by, as of any date of determination, an
amount equal to the aggregate amount that would be payable by the Borrower and
the Guarantors to the Interest Hedge Counter-parties in the event the Designated
Interest Rate Agreements were terminated as of such date, as determined by the
Collateral Monitoring Agent in its reasonable credit judgment.
"Interest Type" has the meaning set forth in Section 1.04.
"Internal Revenue Code" means the Internal Revenue Code of 1986, as
amended from time to time, or any successor statute.
"Investment" means, with respect to any Person (the "Investor"), any
investment by the Investor in any other Person, whether by means of share
purchase, capital contribution, loan, advance, purchase of Debt, payment in
respect of a Guarantee of Debt, time deposit or otherwise.
"Kingfish Transaction" means the proposed sale by Vencor and certain of
its Subsidiaries of the Kingfish Properties (as defined in the motion for entry
of an order filed by Vencor and certain of its Subsidiaries with the Court on
November 10, 1999 (the "Kingfish Motion"), as the same may be amended from time
to time so long as the motion as so amended shall not reflect any change from
the Kingfish Motion that, in the reasonable judgment of the Required Lenders, is
adverse in any material respect to the Borrower or any Guarantor or to the
Lenders) (i) in accordance with the order of the Court approving such sale or
(ii) at any time on or after the Effective Date, substantially in accordance
with the memorandum describing such sale delivered to the Administrative Agent
on or prior to the date hereof.
26
"LC Exposure" means, with respect to any Lender at any time, its
Percentage of the Aggregate LC Exposure at such time.
"LC Fee Rate" means a rate per annum equal to 4%.
"LC Indemnitees" has the meaning set forth in Section 2.07(n).
"LC Issuing Bank" means (i) Xxxxxx and (ii) any other Lender designated
as an "LC Issuing Bank" for purposes hereof in a notice to the Administrative
Agent signed by the Borrower and such Lender, acting in each case in the
capacity of an LC Issuing Bank under the letter of credit facility described in
Section 2.07, and their respective successors.
"LC Office" means, with respect to any LC Issuing Bank, the office at
which it books any Letter of Credit issued by it.
"LC Payment Date" has the meaning set forth in Section 2.07(h).
"LC Reimbursement Obligations" means, at any time, all obligations of
the Borrower to reimburse the LC Issuing Banks pursuant to Section 2.07 for
amounts paid by the LC Issuing Banks in respect of drawings under Letters of
Credit, including any portion of any such obligation to which a Lender has
become subrogated pursuant to Section 2.07(j)(i).
"Leasehold Mortgages" means leasehold mortgages, substantially in the
form of Exhibit F to the Security Agreement, relating to (i) the Initial Master
Lease Properties and the Other Leased Properties and (ii) leases of any other
real properties leased by the Borrower or any Guarantor which are required to be
so encumbered to secure the Obligations pursuant to Section 5.08.
"Lender" means each bank or other financial institution listed on the
Commitment Schedule, each Assignee which becomes a "Lender" for purposes hereof
pursuant to Section 10.06 or 11.06(c), and their respective successors. The term
"Lender" does not include the Swingline Bank in its capacity as such.
"Lender Parties" means the Lenders, the LC Issuing Banks, the Swingline
Bank and the Agents.
"Letter of Credit" means any letter of credit issued hereunder by an LC
Issuing Bank on or after the Closing Date.
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such asset or
27
any other arrangement (other than a right of set-off, recoupment, counterclaim
or similar right) the economic effect of which is to give a creditor
preferential access to such asset to satisfy its claim. For purposes of this
Agreement, the Borrower and any Guarantor shall be deemed to own subject to a
Lien any asset that it has acquired or holds subject to the interest of a vendor
or lessor under any conditional sale agreement or other title retention
agreement relating to such asset or any Capital Lease.
"Lien Grantor" means the Borrower or a Guarantor that grants a Lien on
any of its property pursuant to the Collateral Documents.
"Loan" means a loan made by a Lender pursuant to Section 2.01(a);
provided that, if any such loan or loans (or portions thereof) are combined or
subdivided pursuant to a Notice of Interest Rate Election, the term "Loan" shall
refer to the combined principal amount resulting from such combination or to
each of the separate principal amounts resulting from such subdivision, as the
case may be. The term "Loan" does not include a Swingline Loan.
"London Interbank Offered Rate" has the meaning set forth in Section
2.05(b).
"Management Contracts" means the management contracts pursuant to which
the Borrower and the Guarantors manage Healthcare Facilities as set forth in
Schedule 5 hereto.
"Margin Stock" has the meaning set forth in Regulation U.
"Master Lease Agreements" means the Amended Ventas Leases and any lease
agreements pursuant to which one or more Master Lease Leased Properties (as
defined in the Amended Ventas Leases) are leased, whether under an Amended
Ventas Lease or other leases pursuant to the terms of such Amended Ventas
Leases, in each case, as amended from time to time after the Closing Date in
accordance with the terms thereof.
"Master Lease Property" means (i) the Initial Master Lease Properties
and (ii) any properties added after the Closing Date to the properties leased
under a Master Lease Agreement.
"Material Adverse Effect" means a material adverse effect on (i) the
business, condition (financial or otherwise), results of operations, performance
or properties of (A) prior to the Closing Date, Vencor and its Subsidiaries and
(B) on and after the Closing Date, the Borrower and its Restricted Subsidiaries,
in each case, taken as a whole, since September 30, 2000, (ii) the validity,
binding effect
28
or enforceability of any Financing Document, (iii) the validity, perfection or
priority of the Liens on any material part of the Collateral created or
purportedly created under the Collateral Documents or (iv) the ability of the
Borrower or Vencor, or the ability of the Restricted Subsidiaries taken as a
whole, to perform their respective obligations under any Financing Document;
provided that a Material Adverse Effect shall not be deemed to have occurred
solely on account of (a) any events, occurrences and circumstances set forth in
the Disclosure Statement, (b) the commencement or continuation of the Chapter 11
Cases and (c) the termination of the lease of one or more Healthcare Facilities
under a Master Lease Agreement, or the surrender or repossession of one or more
Healthcare Facilities leased thereunder, prior to the scheduled termination
thereof (the Fiscal Quarter in which such termination, surrender or repossession
occurs, the "Current Fiscal Quarter"), unless the EBITDAR attributable to all
Healthcare Facilities then being terminated, surrendered or repossessed (other
than in respect of any voluntary termination of a lease of a Healthcare Facility
at a time when no Event of Default (as defined in the Master Lease Agreement)
exists thereunder or is reasonably likely to occur or any termination of a lease
of a Healthcare Facility pursuant to a purchase option exercised in accordance
with the terms thereof), and the EBITDAR attributable to all Healthcare
Facilities with respect to which such a termination, surrender or repossession
occurred during the Current Fiscal Quarter and the most recently ended period of
four consecutive Fiscal Quarters exceed, in the aggregate, 5% of Consolidated
EBITDAR during such period of four consecutive Fiscal Quarters (the foregoing
amounts to be calculated in accordance with Section 8.01(h)).
"Material Debt" means Debt (other than Debt arising under this
Agreement) of the Borrower or one or more of the Guarantors, arising in one or
more related or unrelated transactions, in an aggregate outstanding amount
(excluding accrued interest) of $2,500,000 or more.
"Material Plan" means at any time a Plan or Plans having aggregate
Unfunded Liabilities in excess of $1,000,000.
"Material Real Property" means (i) any real property with a fair market
value exceeding, in the case of real property relating to a Healthcare Facility
that is a hospital, $6,000,000, or in the case of any other real property,
$3,000,000, in either case, which is acquired by the Borrower or a Guarantor
after the Closing Date and not sold to a Person (other than the Borrower or a
Guarantor) within 90 days after such acquisition or (ii) any real property
leased to the Borrower or a Guarantor for the first time after the Closing Date
if the projected EBITDA (as reasonably estimated by a Financial Officer) for the
Healthcare Facility to which such lease relates for the twelve months following
the date on which a leasehold report is delivered to the Administrative Agent
pursuant to Section 5.08(c) is
29
equal to or exceeds $1,000,000 with respect to any leased Healthcare Facility
that is a hospital and $500,000 with respect to any other leased Healthcare
Facility.
"Medicaid" means the medical assistance program established by Title
XIX of the Social Security Act (42 U.S.C. (S)(S) 1396 et seq.) and any statutes
succeeding thereto.
"Medicaid Receivable" has the meaning set forth in Section 1 of the
Security Agreement.
"Medicaid Regulations" means, collectively, (i) all federal statutes
(whether set forth in Title XIX of the Social Security Act or elsewhere)
affecting Medicaid, (ii) all applicable provisions of all federal rules,
regulations, manuals and orders all of Governmental Authorities promulgated
pursuant to or in connection with the statutes described in clause (i) above and
all federal administrative, reimbursement and other guidelines of all
Governmental Authorities having the force of law promulgated pursuant to or in
connection with the statutes described in clause (i) above, (iii) all state
statutes and plans for medical assistance enacted in connection with the
statutes and provisions described in clauses (i) and (ii) above, and (iv) all
applicable provisions of all rules, regulations, manuals and orders of all
Governmental Authorities promulgated pursuant to or in connection with the
statutes described in clause (iii) above and all state administrative,
reimbursement and other guidelines of all Governmental Authorities having the
force of law promulgated pursuant to or in connection with the statutes
described in clause (iii) above, in each case as may be amended or supplemented.
"Medicare" means the health insurance program for the aged and disabled
established by Title XVIII of the Social Security Act (42 U.S.C. (S)(S) 1995 et
seq.) and any statutes succeeding thereto.
"Medicare Receivable" has the meaning set forth in Section 1 of the
Security Agreement.
"Medicare Regulations" means, collectively, all federal statutes
(whether set forth in Title XVIII of the Social Security Act or elsewhere)
affecting Medicare, together with all applicable provisions of all rules,
regulations, manuals and orders and administrative, reimbursement and other
guidelines having the force of law of all Governmental Authorities (including
without limitation, Health and Human Services ("HHS"), Health Care Finance
Administration, the Office of the Inspector General for HHS, or any Person
succeeding to the functions of any of the foregoing) promulgated pursuant to or
in connection with any of the foregoing having the force of law, as each may be
amended or supplemented.
30
"Minority-Owned Affiliate" means any Person (other than a Restricted
Subsidiary) in which (i) the Borrower and its Restricted Subsidiaries own 10%
or more of any class of capital stock or other Equity Interests or (ii) the
Borrower or any Restricted Subsidiary is a general partner.
"Moody's" means Xxxxx'x Investors Service, Inc.
"Xxxxxx" means Xxxxxx Guaranty Trust Company of New York and its
successors and assigns.
"Mortgages" means the Leasehold Mortgages and Fee Mortgages,
collectively.
"Most Recent Audited Financial Statements" means (i) at any time before
audited consolidated financial statements of the Borrower and its Restricted
Subsidiaries have been delivered pursuant to Section 5.01(a), the audited
consolidated financial statements of Vencor and its Consolidated Subsidiaries as
of December 31,200O and (ii) at any time after audited consolidated financial
statements of the Borrower and its Restricted Subsidiaries have been delivered
pursuant to Section 5.01(a), the most recent audited consolidated financial
statements of the Borrower and its Restricted Subsidiaries so delivered.
"Most Recent Financial Statements" means (i) at any time before
consolidated financial statements of the Borrower and its Restricted
Subsidiaries (whether audited or unaudited) have been delivered pursuant to
Section 5.01(a) or Section 5.01(b), the audited consolidated financial
statements of Vencor and its Consolidated Subsidiaries as of December 31, 2000,
and upon delivery pursuant to Section 5.01(a), the consolidated financial
statements of Vencor and its Consolidated Subsidiaries as of March 31, 2001 and
(ii) at any time after consolidated financial statements of the Borrower and its
Restricted Subsidiaries have been delivered pursuant to Section 5.01(a) or
Section 5.01(b), the most recent consolidated financial statements of the
Borrower and its Restricted Subsidiaries so delivered.
"Multiemployer Plan" means at any time an employee pension benefit plan
within the meaning of Section 4001(a)(3) of ERISA to which any member of the
ERISA Group is then making or accruing an obligation to make contributions or
has within the preceding five plan years made contributions, including for these
purposes any Person which ceased to be a member of the ERISA Group during such
five year period.
31
"Net Borrowing Availability" means, as of any date of determination,
the lesser of (i) an amount equal to the aggregate Commitments of all Lenders as
of such date and (ii) the Borrowing Base in effect as of such date, in each
case, less the aggregate Outstanding Amount of all the Lenders as of such date.
"Net Cash Proceeds" means, with respect to any Asset Sale (other than
the Kingfish Transaction) or Equity Issuance, an amount equal to the cash
proceeds received by the Borrower and its Restricted Subsidiaries in respect of
such Asset Sale or by Vencor in respect of such Equity Issuance (including any
cash proceeds received as income or other cash proceeds of any noncash proceeds
of such Asset Sale), less:
(i) any expenses reasonably incurred by the Borrower and its
Restricted Subsidiaries in respect of such Asset Sale or by Vencor in respect of
such Equity Issuance (including reasonable attorneys' fees and expenses); and
(ii) in the case of any Asset Sale, (x) the amount of any Debt secured
by a Lien on any asset disposed of in such Asset Sale and discharged from the
proceeds thereof and (y) any payment with respect to taxes actually paid or to
become payable by the Borrower and its Restricted Subsidiaries (as reasonably
estimated by a Financial Officer) in respect of such Asset Sale.
"Non-Recourse Debt" means Debt as to which (i) neither the Borrower nor
any Restricted Subsidiary provides any Guarantee and as to which the lenders
have been notified in writing that they will not have any recourse to the stock
or assets of the Borrower or any Restricted Subsidiary and (ii) no default
thereunder would, as such, constitute a default under any Debt of the Borrower
or any Restricted Subsidiary.
"Note" means a promissory note of the Borrower payable to the order of
a Lender evidencing the Borrower's obligation to repay the Loans made by such
Lender. Each Note shall be substantially in the form of Exhibit A-1 hereto
(modified as provided in Section 2.04(b), if applicable). "Notes" means any or
all of such promissory notes, as the context may require.
"Notice of Borrowing" means a Notice of Borrowing (as defined in
Section 2.02) or a Notice of Swingline Borrowing (as defined in Section
2.08(b)).
"Notice of Interest Rate Election" has the meaning set forth in Section
2.06(a).
"Obligations" means all obligations of every nature of the Borrower or
any Guarantor under or in connection with the Financing Documents and the
32
Designated Interest Rate Agreements, including without limitation, any liability
of the Borrower on any claim, whether or not the right to payment in respect of
such claim is reduced to judgment, liquidated, unliquidated, fixed or
contingent, matured, disputed, undisputed, legal, equitable, secured or
unsecured, and whether or not such claim is discharged, stayed or otherwise
affected by any bankruptcy, insolvency, reorganization or other similar
proceeding. Without limiting the generality of the foregoing, the Obligations of
the Borrower and a Guarantor include (a) the obligation to pay principal,
interest, charges, expenses, fees, attorneys' fees and disbursements,
indemnities and other amounts payable by the Borrower or such Guarantor under
any Financing Document or Designated Interest Rate Agreement, (b) the obligation
to reimburse all amounts drawn under a Letter of Credit and (c) the obligation
to reimburse any amount in respect of any of the foregoing that any Agent or any
Lender, in its sole discretion, may elect to pay or advance on behalf of the
Borrower or such Guarantor in accordance with the terms of any Financing
Document.
"Organizational Documents" means (i) with respect to any corporation,
its certificate or articles of incorporation, by-laws and other constitutional
documents, including the certificate of designation for any series of its
preferred stock, (ii) with respect to any limited liability company, its
articles of organization and operating agreement, or other comparable documents
however named, and (iii) with respect to any partnership, its partnership
agreement.
"Other Leased Properties" means the Healthcare Facilities identified as
the "Other Leased Properties" on Schedule 4 hereto.
"Owned Properties" means each of the Healthcare Facilities identified
as the "Owned Properties" on Schedule 3 hereto.
"Outstanding Amount" means, with respect to any Lender at any time, the
sum of (i) the aggregate outstanding principal amount of its Loans, (ii) its
Percentage of the aggregate outstanding principal amount of the Swingline Loans
(if any) and (iii) its LC Exposure, all determined at such time after giving
effect to any prior assignments by or to such Lender pursuant to Section 10.06
or 11.06(c).
"Parent" means, with respect to any Lender, any Person controlling such
Lender.
"Participant" has the meaning set forth in Section 11.06(b).
"Payment Blockage Period" has the meaning set forth in Section 11.03(b)
of the Senior Secured Credit Agreement (as in effect on the date hereof).
33
"PBGC" means the Pension Benefit Guaranty Corporation or any entity
succeeding to any or all of its functions under ERISA.
"Percentage" means, with respect to any Lender at any time, the
percentage which the amount of its Commitment at such time represents of the
aggregate amount of all the Commitments at such time. At any time after the
Commitments shall have terminated, the term "Percentage" shall refer to a
Lender's Percentage immediately before such termination, adjusted to reflect
any subsequent assignments pursuant to Section 10.06 or 11.06(c).
"Permitted Delinquent Account Assignments" means assignments for
collection from time to time of Accounts (other than Eligible Accounts) in the
ordinary course of business of the Borrower and its Restricted Subsidiaries and
consistent with past practice.
"Permitted Encumbrances" means, with respect to any property (including
any leasehold interest) owned by the Borrower or any Restricted Subsidiary:
(a) Liens for taxes, assessments or other governmental charges not yet
due or which are being contested in good faith and by appropriate proceedings
if adequate reserves with respect thereto are maintained on the books of the
Borrower or such Restricted Subsidiary in accordance with GAAP;
(b) carriers', warehousemen's, mechanics', materialmens, repairmens' or
other like Liens arising by operation of law in the ordinary course of business
so long as (A) the underlying obligations are not overdue for a period of more
than 60 days or (B) such Liens are being contested in good faith and by
appropriate proceedings and adequate reserves with respect thereto are
maintained on the books of the Borrower or such Restricted Subsidiary in
accordance with GAAP;
(c) Liens arising in the ordinary course of business and consistent
with past practice in connection with deposits with trade creditors, landlords,
bonding companies and other similar deposits;
(d) Liens arising in the ordinary course of business in connection with
the Borrower's cash management system; provided that the aggregate principal
amount of Debt secured by this clause (d) shall not at any time exceed
$10,000,000;
34
(e) judgment liens, and Liens securing appeal bonds or letters of
credit issued in support of or in lieu of appeal bonds, so long as no Event of
Default then exists under Section 801(k);
(f) other Liens or title defects in respect of real property (including
matters which an accurate survey might disclose and exceptions to title set
forth in title insurance with respect to the Mortgages) which (A) do not secure
Debt and (B) do not materially detract from the value of such property or
materially impair the use thereof by the Borrower or such Restricted Subsidiary
in the operation of its business; and
(g) other Liens and other title defects listed on the schedule to the
Encumbrance Letter; provided that such Liens and title defects are paid,
discharged, removed or reserved against in accordance with the provisions of,
and within the time periods (if any) specified in, the Encumbrance Letter.
"Permitted Intercompany Debt" means Debt of the Borrower or any
Restricted Subsidiary owed to the Borrower or any Wholly Owned Restricted
Subsidiary so long as such Debt continues to be owed to the Borrower or any
Wholly Owned Restricted Subsidiary; provided that such Debt is either evidenced
by a promissory note (which note shall be subordinated to the Obligations in a
manner reasonably satisfactory to the Collateral Agent) or maintained in the
form of open account balances in which, in either case, the Collateral Agent has
a first priority perfected security interest under the Security Agreement at all
times until such security interest is released pursuant to Section 18 thereof.
"Permitted Investment" means:
(a) Investments existing on the Closing Date and set forth in Schedule
6 hereto;
(b) Temporary Cash Investments;
(c) any Investment in a then-existing Restricted Subsidiary;
(d) payroll, travel and other advances to directors, officers and
employees, in each case in the ordinary course of business, not in excess of
$1,000,000 outstanding at any time; provided that taxes payable in connection
with the issuance of Equity Interests of Vencor in the ordinary course of
business to such directors, officers and employees shall be excluded from the
calculation of the amount of Investments outstanding under this clause (d) so
long as such taxes are not owing for more than 30 days;
35
(e) working capital loans to, and other Investments in, Minority-
Owned Affiliates and any other Investment in any Person engaged in any business
related to or ancillary to the provision of healthcare services or the operation
of a Healthcare Facility (as defined in clause (i) of the definition of
"Healthcare Facility"), so long as the aggregate amount of all Investments made
after the Closing Date pursuant to this clause (e) outstanding at any time
during each of the periods referred to below shall not exceed the amount set
forth opposite such period:
Period Amount
--------------------------------------------------------------------------------
Closing Date to but excluding first anniversary thereof: $ 1,000,000
--------------------------------------------------------------------------------
First anniversary of Closing Date to but excluding second $ 2,000,000
anniversary thereof:
--------------------------------------------------------------------------------
Second anniversary of Closing Date to but excluding third $ 3,000,000
anniversary thereof:
--------------------------------------------------------------------------------
Third anniversary of Closing Date to but excluding fourth $ 4,000,000
anniversary thereof:
--------------------------------------------------------------------------------
Thereafter: $ 5,000,000
--------------------------------------------------------------------------------
(f) Investments received as non-cash consideration in an Asset Sale
made pursuant to and in compliance with Section 7.03(d).
"Permitted Liens" means Liens permitted to exist under Section 7.02.
"Permitted Taxes" means all taxes, however denominated, including any
interest, additions to tax or penalties that may become payable in respect
thereof, imposed by any federal, state, local or foreign government or any
agency or political subdivision of any such government, which taxes shall
include, without limiting the generality of the foregoing, all income taxes
(including, but not limited to, United States federal income taxes and state
income taxes), payroll and employee withholding taxes, unemployment insurance,
social security, severance, sales and use taxes, excise taxes, customs,
environmental, license, franchise taxes, gross receipts taxes, occupation taxes,
real and personal property taxes, capital taxes, stamp taxes, transfer taxes, ad
valorem taxes, withholding taxes, workers' compensation, estimated, alternative
or add-on minimum taxes, and other obligations of the same or of a similar
nature, whenever arising.
36
"Person" means an individual, a corporation, a limited liability
company, a partnership, an association, a trust or any other entity or
organization, including a government or political subdivision or an agency or
instrumentality thereof.
"PIP Liability" means, at any time, the liability of the Borrower and
its Subsidiaries based on periodic interim payment reviews for overpayments of
Medicare reimbursements.
"PIP Limitation Reserve" means, without duplication for any other
reserve hereunder, a reserve which shall reduce availability under the Borrowing
Base by an amount equal to the bi-weekly periodic interim payments from Medicare
in respect of nursing centers, as determined by the Collateral Monitoring Agent
in its reasonable credit judgment.
"PIP Reserve" means, without duplication for any other reserve
hereunder, a reserve which shall reduce availability under the Borrowing Base by
an amount equal to the PIP Liability for the then current year, as determined by
the Collateral Monitoring Agent in its reasonable credit judgment.
"Plan" means at any time an employee pension benefit plan (other than a
Multiemployer Plan) which is covered by Title IV of ERISA or subject to the
minimum funding standards under Section 412 of the Internal Revenue Code and
either (i) is maintained, or contributed to, by any member of the ERISA Group
for employees of any member of the ERISA Group or (ii) has at any time within
the preceding five years been maintained, or contributed to, by any Person which
was at such time a member of the ERISA Group for employees of any Person which
was at such time a member of the ERISA Group.
"Plan of Reorganization" means the Fourth Amended Joint Plan of
Reorganization attached as Exhibit A to the Disclosure Statement (together with
the Plan Supplement), as amended through and including the Confirmation Date.
"Plan Supplement" means the Fourth Amended Plan Supplement relating to
the Plan of Reorganization filed with the Court on December 29, 2000.
"Proposed Purchase Price" has the meaning set forth in Section 2.1
l(b)(i).
"Prepayment Notice" means a properly completed Prepayment Notice,
substantially in the form of Exhibit M hereto.
"Prime Rate" means the rate of interest publicly announced by the
Administrative Agent from time to time as its prime rate. The parties hereto
agree
37
that the rate publicly announced by the Administrative Agent from time to time
as its Prime Rate is an index or base rate and shall not necessarily be its
lowest or best rate charged to its customers or other banks.
"Qualification" means, with respect to any report of independent public
accountants covering financial statements, a qualification to such report (such
as a "subject to" or "except for" statement therein) (i) resulting from a
limitation on the scope of examination of such financial statements or the
underlying data, (ii) as to the capability of the Person whose financial
statements are being examined to continue operations as a going concern or (iii)
which could be eliminated by changes in financial statements or notes thereto
covered by such report (such as, by the creation of or increase in a reserve or
a decrease in the carrying value of assets); provided that neither of the
following shall constitute a Qualification: (a) a consistency exception relating
to a change in accounting principles with which the independent public
accountants for the Person whose financial statements are being examined have
concurred or (b) a qualification relating to the outcome or disposition of any
uncertainty, including but not limited to threatened litigation, pending
litigation being contested in good faith, pending or threatened claims or other
contingencies, the impact of which litigation, claims, contingencies or
uncertainties cannot be determined with sufficient certainty to permit
quantification in such financial statements.
"Qualified Equity Interests" means all Equity Interests of a Person
other than Disqualified Equity Interests.
"Qualified Transaction" means any sale or other transfer of, or any
release of Liens relating to, any Accounts or any books or records relating
thereto, so long as (a) the Borrower delivers to the Collateral Monitoring Agent
(i) at least five Business Days prior to the proposed closing date of such
transaction, a draft Borrowing Base Certificate prepared on a pro forma basis
after giving effect to such transaction and (ii) on the closing date of such
transaction, a final Borrowing Base Certificate prepared on a pro forma basis
after giving effect to such transaction and (b) if the aggregate Outstanding
Amount of all Lenders exceeds the Borrowing Base in effect on the closing date
of such transaction after giving effect thereto, the Borrower prepays Loans and
Swingline Loans (or if no such Loans and Swingline Loans are outstanding,
deposits cash in a collateral account) as required by Section 2.11 (e)(ii).
"Quarterly Measurement Date" means the last day of a Fiscal Quarter.
"Register" has the meaning set forth in Section 11.06(e).
38
"Regulated Activity" means any generation, treatment, storage,
recycling, transportation or disposal of any Hazardous Substance.
"Regulation U" means Regulation U of the Board of Governors of the
Federal Reserve System, as in effect from time to time.
"Rehabilitation Accounts Receivable Advance Rate" means the amount
determined in accordance with Section 2.19.
"Rehabilitation Eligible Accounts" means Eligible Accounts of the
Borrower or a Restricted Subsidiary arising solely from the Borrower's or such
Restricted Subsidiary's rehabilitation therapy business.
"Reinvestable Proceeds" has the meaning set forth in Section 2.11(a).
"Related Fund" means, with respect to any Lender that is a fund that
invests in commercial loans, any other fund that invests in commercial loans and
is managed by the same investment advisor as such Lender or by an affiliate of
such investment advisor.
"Required Lenders" means, at any time, Lenders having more than 50% of
the aggregate amount of the Revolving Credit Exposures at such time.
"Restricted Investment" means any Investment or Acquisition other than
an Investment or Acquisition made pursuant to Section 7.08(a).
"Restricted Payment" means (i) any dividend or other distribution on
any Equity Interests of the Borrower or any Restricted Subsidiary (except
dividends payable solely in Equity Interests of the same class) and (ii) any
payment on account of the purchase, redemption, retirement or acquisition of any
Equity Interests of the Borrower or any Restricted Subsidiary.
"Restricted Subsidiary" means any Subsidiary of the Borrower other than
an Unrestricted Subsidiary; the initial Restricted Subsidiaries as of the
Closing Date are identified on Schedule 1 hereto.
"Revolving Credit Exposure" means, as to any Lender at any time:
(i) the amount of its Commitment (whether used or unused); or
(ii) if the Commitments have terminated in their entirety, its
Outstanding Xxxxxx,
00
all determined at such time after giving effect to any prior assignments by or
to such Lender pursuant to Section 10.06 or 11.06(c).
"Revolving Credit Termination Date" means the fifth anniversary of the
Closing Date or, if such day is not a Euro-Dollar Business Day, the next
preceding Euro-Dollar Business Day.
"S&P" means Standard and Poor's Ratings Services, a division of The
XxXxxx-Xxxx Companies, Inc.
"Sale and Leaseback Transaction" means, with respect to any Person, an
arrangement whereby such Person enters into a lease of property previously
transferred by such Person to the lessor.
"Satisfactory Plan of Reorganization" means the Plan of Reorganization
as approved in connection with the Disclosure Statement Hearing, without giving
effect to any subsequent amendments thereof.
"SEC" means the United States Securities and Exchange Commission.
"Secured Obligations" has the meaning set forth in Section 1 of the
Security Agreement.
"Securities Act" means the Securities Act of 1933, as amended from time
to time.
"Securities Exchange Act" means the Securities Exchange Act of 1934, as
amended from time to time.
"Security Agreement" means a Senior Security Agreement among the
Borrower, Vencor, the Restricted Subsidiaries and the Collateral Agent,
substantially in the form of Exhibit B hereto, as amended from time to time.
"Security Agreement Supplement" means a Senior Security Agreement
Supplement, substantially in the form of Exhibit A to the Security Agreement,
whereby the Borrower or a Guarantor grants (or confirms its grant of) a security
interest in additional Collateral to the Collateral Agent and, if the grantor of
such security interest is a Subsidiary that is not already a party to the
Security Agreement, such Subsidiary becomes a party thereto.
"Security Interests" has the meaning set forth in Section 1 of the
Security Agreement.
40
"Senior Secured Collateral Account" means a collateral account
maintained by the Senior Secured Collateral Agent pursuant to the Senior Secured
Credit Agreement.
"Senior Secured Collateral Agent" means at any time the Person acting
as the collateral agent under the Senior Secured Credit Agreement then in
effect.
"Senior Secured Credit Agreement" means the $300,000,000 Credit
Agreement dated as of the date hereof among Vencor, the Borrower and the
financial institutions party thereto, under which Xxxxxx acts as administrative
agent and collateral agent, and any refinancings, refundings and renewals
thereof permitted by this Agreement.
"Shell Subsidiary" means Stamford Health Associates, L.P., a
Connecticut limited partnership.
"Subsidiary" means, as to any Person, (i) any corporation or other
entity of which securities or other ownership interests having ordinary voting
power to elect a majority of the board of directors or other persons performing
similar functions are at the time directly or indirectly owned by such Person or
(ii) any limited liability company or partnership that, in accordance with GAAP,
is a Consolidated Subsidiary of such Person. Unless otherwise specified,
"Subsidiary" means a Subsidiary of the Borrower.
"Subsidiary Guarantor" means a current or future Restricted Subsidiary
that (i) guarantees the obligations of the Borrower under the Financing
Documents and the Designated Interest Rate Agreements, in each case, pursuant to
the Subsidiary Guaranty Agreement and (ii) grants a security interest in its
assets to the Collateral Agent under the Security Agreement to secure its
Subsidiary Guaranty.
"Subsidiary Guaranty" means a guaranty by a Subsidiary Guarantor that
the Borrower will perform its obligations under the Financing Documents and the
Designated Interest Rate Agreements, such guaranty to be set forth in the
Subsidiary Guaranty Agreement.
"Subsidiary Guaranty Agreement" means an instrument, substantially in
the form of Exhibit C hereto, setting forth the Subsidiary Guaranties of one or
more Subsidiary Guarantors.
"Supermajority Lenders" means, at any time, Lenders having 66 2/3% or
more of the aggregate amount of the Revolving Credit Exposures at such time.
41
"Swingline Availability Period" means the period from and including the
Closing Date to but excluding the Swingline Maturity Date.
"Swingline Bank" means Xxxxxx, in its capacity as the Swingline Bank
under the swingline facility described in Section 2.08, and its successors in
such capacity.
"Swingline Borrowing" means a borrowing of a Swingline Loan pursuant to
Section 2.08(a).
"Swingline Commitment" means the obligation of the Swingline Bank to
make Swingline Loans to the Borrower in an aggregate principal amount at any
one time outstanding not to exceed $10,000,000.
"Swingline Loan" means a loan made by the Swingline Bank pursuant to
Section 2.08(a).
"Swingline Maturity Date" means the day that is 30 days before the
Revolving Credit Termination Date.
"Swingline Note" has the meaning set forth in Section 2.08(d).
"Tax Allocation Agreement" means the Tax Allocation Agreement between
Vencor and Ventas entered into in connection with the reorganization of such
entities in 1998, as amended pursuant to the terms of the Tax Refund Escrow
Agreement.
"Tax Refund Escrow Agreement" means the Tax Refund Escrow Agreement
among certain Vencor Companies and certain Ventas Companies substantially in
the form of Exhibit 5 to the Plan Supplement that provides for the escrow and
use of certain tax refunds.
"Temporary Cash Investment" means any investment in (i) securities
issued, or directly and fully guaranteed or insured, by the United States or any
agency or instrumentality thereof; provided that the full faith and credit of
the United States is pledged in support thereof, (ii) time deposit accounts,
bankers' acceptances, certificates of deposit and money market deposits maturing
within 180 days of the date of acquisition thereof issued by any office located
in the United States of a bank or trust company which is organized or licensed
under the laws of the United States or any State thereof and which bank or trust
company has capital, surplus and undivided profits aggregating more than
$1,OOO,OOO,OOO and has outstanding debt which is rated "P-l" (or higher) by
Xxxxx'x or "A-l" (or higher) by S&P or any money-market fund sponsored by a
registered broker
42
dealer or mutual fund distributor, (iii) repurchase obligations with a term of
not more than 30 days for underlying securities of the types described in clause
(i) above entered into with an office located in the United States of a bank or
trust company meeting the qualifications described in clause (ii) above, (iv)
commercial paper, maturing not more than 180 days after the date of acquisition,
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, at the date of acquisition, of "P-l" (or higher) by
Xxxxx'x or "A-l" (or higher) by S&P, (v) securities with maturities of 6 months
or less from the date of acquisition issued or fully and unconditionally
guaranteed by any State, commonwealth or territory of the United States, or by a
political subdivision or taxing authority thereof, and rated at least "P-l" (or
higher) by Xxxxx'x or "A-l" (or higher) by S&P and (vi) money market funds which
invest substantially all of their assets in securities described in the
preceding clauses (i) through (v).
"Third Party Insurance Accounts" means, collectively, any and all
Accounts that are not Government Receivables.
"Third Party Leases" means the leases by the Borrower or a Guarantor
listed and identified as "Third Party Leases" in Schedule 4 hereto.
"Third Party Payor" shall mean any governmental entity, insurance
company, health maintenance organization, professional provider organization or
similar entity that is obligated to make payments on any Account.
"TRICARE" means, collectively, a program of medical benefits covering
former and active members of the uniformed services and certain of their
dependents, financed and administered by the United States Departments of
Defense, Health and Human Services and Transportation, which program was
formerly known as the Civilian Health and Medical Program of the Uniformed
Services (CHAMPUS), and all laws, rules, regulations, manuals, orders and
administrative, reimbursement and other guidelines of all governmental
authorities promulgated in connection with such program (whether or not having
the force of law), in each case as the same may be amended, supplemented or
otherwise modified from time to time.
"TRICARE Receivable" shall mean an Account payable pursuant to TRICARE.
"UCC" has the meaning set forth in Section 1 of the Security Agreement.
"UCP" means the Uniform Customs and Practice for Documentary Credits
(1993 Revision), International Chamber of Commerce Publication No. 500, or any
43
successor publication governing the rights and obligations of the parties in
connection with Letters of Credit.
"Unfunded Liabilities" means, with respect to any Plan at any time, the
amount (if any) by which (i) the value of all benefit liabilities under such
Plan, determined on a plan termination basis using the assumptions prescribed by
the PBGC for purposes of Section 4044 of ERISA, exceeds (ii) the fair market
value of all Plan assets allocable to such liabilities under Title I of ERISA
(excluding any accrued but unpaid contributions), all determined as of the then
most recent valuation date for such Plan, but only to the extent that such
excess represents a potential liability of a member of the ERISA Group to the
PBGC or any other Person under Title IV of ERISA.
"United States" means the United States of America, including the States
and the District of Columbia, but excluding its territories and possessions.
"Unrestricted Subsidiary" means any Subsidiary of the Borrower that at the
time of determination has previously been designated, and continues to be, an
Unrestricted Subsidiary in accordance with Section 5.06.
"VA Receivable" has the meaning set forth in Section 1 of the Security
Agreement.
"Vencor" has the meaning set forth in the introduction to this Agreement.
"Vencor Company" means Vencor or any Subsidiary of Vencor.
"Vencor Guaranty" means the guaranty by Vencor that the Borrower will
perform its obligations under the Financing Documents and the Designated
Interest Rate Agreements, such guaranty to be set forth in the Vencor Guaranty
Agreement.
"Vencor Guaranty Agreement" means an instrument, substantially in the form
of Exhibit D hereto, setting forth the Vencor Guaranty.
"Vencor Unrestricted Subsidiary" means any Subsidiary of Vencor other than
the Borrower and any of the Borrower's Subsidiaries.
"Ventas" means Ventas, Inc., a Delaware corporation.
"Ventas Company" means Ventas or any Subsidiary of Ventas.
44
"Wholly Owned" means, with respect to any Restricted Subsidiary, a
Restricted Subsidiary all of the outstanding capital stock of which (other than
any director's qualifying shares) is owned by the Borrower and one or more
Wholly Owned Restricted Subsidiaries (or a combination thereof).
Section 1.02. Accounting Terms and Determinations. Unless otherwise
specified herein, all accounting terms used herein shall be interpreted, all
accounting determinations hereunder shall be made, and all financial statements
required to be delivered hereunder shall be prepared in accordance with GAAP;
provided that, if the Borrower notifies the Administrative Agent that the
Borrower wishes to amend any provision hereof to eliminate the effect of any
change in GAAP on the operation of such provision (or if the Administrative
Agent notifies the Borrower that the Required Lenders wish to amend any
provision hereof for such purpose), then such provision shall be applied on the
basis of GAAP in effect immediately before the relevant change in GAAP became
effective, until either such notice is withdrawn or such provision is amended in
a manner satisfactory to the Borrower and the Required Lenders.
Section 1.03. Definitions from Disclosure Statement. Capitalized terms used
herein that are not defined herein but are defined in the Disclosure Statement
(including the Plan of Reorganization) have the meanings given in the Disclosure
Statement.
Section 1.04. Types of Loans. Loans hereunder are distinguished by their
Interest Type. The "Interest Type" of a Loan refers to whether such Loan is a
Euro-Dollar Loan or a Base Rate Loan. Identification of a Borrowing or Group of
Loans by Interest Type indicates that such Borrowing or Group of Loans is
comprised of Loans of the specified Interest Type. The term "Borrowing" denotes
the aggregation of Loans to be made to the Borrower by the Lenders pursuant to
Article 2 on the same day, all of which Loans are of the same Interest Type
(subject to Article 10) and, except in the case of Base Rate Loans, have the
same initial Interest Period. Borrowings are also classified for purposes hereof
by reference to the pricing of Loans comprising such Borrowing (e.g., a "Euro-
Dollar Borrowing" is a Borrowing comprised of Euro-Dollar Loans).
Section 1.05. Other Definitional Provisions. References in this Agreement
to "Articles", "Sections", "Schedules" or "Exhibits" are to Articles, Sections,
Schedules or Exhibits of or to this Agreement unless otherwise specifically
provided. Any of the terms defined in Section 1.01 may, unless the context
otherwise requires, be used in the singular or plural depending on the
reference. "Include", "includes" and "including" are deemed to be followed by
"without limitation" whether or not they are in fact followed by such words or
words of like import. "Writing", "written" and comparable terms refer to
printing, typing, facsimile and other means of reproducing words on paper.
45
References to any agreement or contract are to such agreement or contract as
amended, modified or supplemented from time to time (whether before, on or after
the Closing Date) in accordance with the terms hereof and thereof. "Hereto",
"herein" and "hereof" refer to this Agreement as amended from time to time.
ARTICLE 2
The Facility
Section 2.01. Commitments to Lend. (a) Revolving Credit Loans. Subject to
the terms and conditions set forth in this Agreement, each Lender severally
agrees to make loans to the Borrower pursuant to this subsection, from time to
time during the period from and including the Closing Date to but excluding the
Revolving Credit Termination Date; provided that, immediately after each such
loan is made (and after giving effect to any substantially concurrent
application of the proceeds thereof to repay outstanding Loans and Swingline
Loans), (i) such Lender's Outstanding Amount shall not exceed its Commitment and
(ii) the aggregate Outstanding Amount of all the Lenders shall not exceed the
Borrowing Base then in effect. Each Group of Loans borrowed under this
subsection shall be borrowed from the several Lenders ratably in proportion to
their respective Commitments. Within the limits specified in this subsection,
the Borrower may borrow pursuant to this subsection, repay such borrowing and
reborrow pursuant to this subsection.
(b) Amount of Each Borrowing. Each Borrowing under this Section 2.01 shall
be in an aggregate principal amount of (i) $5,000,000 or any larger multiple of
$1,000,000 in the case of a Euro-Dollar Borrowing or (ii) $1,000,000 or any
larger multiple of $100,000 in the case of a Base Rate Borrowing; provided that
(x) any Borrowing may be in an aggregate amount equal to the aggregate unused
amount of the Commitments and (y) if a Borrowing is made on the Swingline
Maturity Date, such Borrowing may be in the aggregate amount of the Swingline
Loans outstanding on such date.
Section 2.02. Notice of Borrowing. (a) The Borrower shall give the
Administrative Agent notice, substantially in the form of Exhibit N hereto (a
"Notice of Borrowing"), not later than 12:00 Noon (Eastern Time) on (x) the date
of each Base Rate Borrowing and (y) the third Euro-Dollar Business Day before
each Euro-Dollar Borrowing, specifying:
46
(i) the proposed date of such Borrowing, which shall be a Business
Day in the case of a Base Rate Borrowing or a Euro-Dollar Business Day in
the case of a Euro-Dollar Borrowing;
(ii) the aggregate amount of such Borrowing;
(iii) whether the Loans comprising such Borrowing are to be initially
Base Rate Loans or Euro-Dollar Loans; and
(iv) in the case of a Euro-Dollar Borrowing, the duration of the
initial Interest Period applicable thereto, subject to the provisions of
the definition of Interest Period.
No Notice of Borrowing shall create a new Group of Loans if, immediately after
giving effect thereto, there would be more than eight Groups of Loans (other
than Base Rate Loans) outstanding hereunder.
Section 2.03. Notice to Lenders; Funding of Loans. (a) Upon receipt of a
Notice of Borrowing, the Administrative Agent shall promptly notify each Lender
of the contents thereof and of such Lender's ratable share of such Borrowing.
Such Notice of Borrowing shall not thereafter be revocable by the Borrower.
(b) Not later than (i) 2:00 P.M. (Eastern Time) on the date of each Base
Rate Borrowing and (ii) 1:00 P.M. (Eastern Time) on the date of each other
Borrowing, each Lender participating in such Borrowing shall make available its
ratable share of such Borrowing, in Federal or other funds immediately available
in New York, New York, to the Administrative Agent at its address for payments
specified in or pursuant to Section 11.01. Unless the Administrative Agent
determines that any applicable condition specified in Article 3 has not been
satisfied, the Administrative Agent shall make such funds available to the
Borrower on such date at the Administrative Agent's aforesaid address; provided
that the Administrative Agent shall (i) to the extent required by Section
2.08(g), apply the funds so received from the Lenders to prepay all Swingline
Loans together with interest accrued thereon, and (ii) make the remainder of
such funds available to the Borrower on such date at the Administrative Agent's
aforesaid address.
(c) Unless the Administrative Agent shall have received, prior to the date
of any Borrowing, notice from a Lender that such Lender will not make available
to the Administrative Agent such Lender's share of such Borrowing, the
Administrative Agent may assume that such Lender has made such share available
to the Administrative Agent on the date of such Borrowing in accordance with
Section 2.03(b) and, in reliance upon such assumption, the Administrative Agent
47
may (but shall not be obligated to) make available to the Borrower on such date
a corresponding amount. If and to the extent that such Lender shall not have so
made such share available to the Administrative Agent, such Lender and the
Borrower severally agree to repay to the Administrative Agent forthwith on
demand such corresponding amount together with interest thereon, for each day
from the day such amount is made available to the Borrower until the day such
amount is repaid to the Administrative Agent, at (i) in the case of the
Borrower, a rate per annum equal to the higher of the Federal Funds Rate and the
interest rate applicable thereto pursuant to Section 2.05, and (ii) in the case
of such Lender, a rate per annum equal to (x) for each day from the day such
amount is made available to the Borrower to the third succeeding Business Day,
inclusive, the Federal Funds Rate for such day as determined by the
Administrative Agent and (y) for each day thereafter until the day such amount
is repaid to the Administrative Agent, the Base Rate for such day. If such
Lender shall repay such corresponding amount to the Administrative Agent, the
amount so repaid shall constitute such Lender's Loan included in such Borrowing
for purposes of this Agreement.
Section 2.04. Notes. (a) Each Lender's Loans shall be evidenced by a single
Note payable to the order of such Lender for the account of its Applicable
Lending Office.
(b) Each Lender may, by notice to the Borrower and the Administrative
Agent, request that its Loans of a particular Interest Type be evidenced by a
separate Note. Each such Note shall be substantially in the form of Exhibit A-1
hereto, with appropriate modifications to reflect the fact that it evidences
solely Loans of the relevant Interest Type. Each reference in this Agreement to
the "Note" of such Lender shall be deemed to refer to and include any or all of
such Notes, as the context may require.
(c) Upon receipt of each Lender's Note pursuant to Section 3.01(b), the
Administrative Agent shall forward such Note to such Lender. Each Lender shall
record the date, amount and Interest Type of each Loan made by it and the date
and amount of each payment of principal made by the Borrower with respect
thereto, and may, in connection with any transfer or enforcement of its Note,
endorse on the schedule forming a part thereof appropriate notations to evidence
the foregoing information with respect to the then outstanding Loans evidenced
by such Note; provided that neither the failure of any Lender to make any such
recordation or endorsement nor any error therein shall affect the obligations of
the Borrower under any Financing Document. Each Lender is hereby irrevocably
authorized by the Borrower and the Guarantors so to endorse its Note and to
attach to and make a part of its Note a continuation of any such schedule as and
when required.
48
Section 2.05. Interest Rates. (a) Each Base Rate Loan shall bear interest
on the outstanding principal amount thereof, for each day from and including the
day such Loan is made (or is converted from a Euro-Dollar Loan to a Base Rate
Loan) to but excluding the day it becomes due (or is converted to a Euro-Dollar
Loan), at a rate per annum equal to the sum of the Applicable Margin for such
day plus the Base Rate for such day. Such interest shall be payable monthly in
arrears on the last Business Day of each calendar month.
(b) Each Euro-Dollar Loan shall bear interest on the outstanding principal
amount thereof, for each day during each Interest Period applicable thereto, at
a rate per annum equal to the sum of the Applicable Margin for such day plus the
London Interbank Offered Rate applicable to such Interest Period. Such interest
shall be payable for each Interest Period on the last day thereof and, if such
Interest Period is longer than three months, three months after the first day
thereof.
The "London Interbank Offered Rate" applicable to any Interest Period means
the rate per annum (rounded upwards, if necessary, to the nearest 1/100 of 1%)
appearing on Telerate Page 3750 (or any successor page) as the London interbank
offered rate for deposits in dollars at approximately 11:00 A.M. (London time)
two Euro-Dollar Business Days before the first day of such Interest Period for a
term comparable to such Interest Period; provided that, if more than one rate is
specified on such Telerate Page, the applicable rate shall be the arithmetic
mean of all such rates. If for any reason no such rate is available on such
Telerate Page, the applicable London Interbank Offered Rate shall be determined
in accordance with the preceding sentence on the basis of the comparable rate or
rates appearing on Reuters Screen LIBO Page.
(c) (i) Upon the occurrence of an Event of Default of the type referred to
in Section 8.01(a), 8.01(b) or 8.01(n) or (ii) after the continuance for seven
consecutive days of any other Event of Default, then for so long as such Event
of Default shall be continuing and not waived, each Loan and Swingline Loan
shall bear interest on the outstanding principal amount thereof, payable on
demand, for each day until such Event of Default has been cured, at a rate per
annum equal to the sum of 2.5% plus the Base Rate Margin plus the Base Rate for
such day.
Section 2.06. Method of Electing Interest Rates. (a) The Loans included in
each Borrowing shall bear interest initially at the type of rate specified by
the Borrower in the applicable Notice of Borrowing. Thereafter, the Borrower may
from time to time elect to change or continue the type of interest rate borne by
each Group of Loans (subject in each case to the provisions of Article 10), as
follows:
49
(i) if such Loans are Base Rate Loans, the Borrower may elect to
convert such Loans to Euro-Dollar Loans as of any Euro-Dollar Business Day;
provided that notice of such election may not be given if an Event of
Default shall have occurred and be continuing on the third Euro-Dollar
Business Day before such conversion is to be effective; and
(ii) if such Loans are Euro-Dollar Loans, the Borrower may elect to
convert such Loans to Base Rate Loans or elect to continue such Loans as
Euro-Dollar Loans for an additional Interest Period, in each case effective
on the last day of the then current Interest Period applicable to such
Loans.
Each such election shall be made by delivering a notice substantially in the
form of Exhibit P (a "Notice of Interest Rate Election") to the Administrative
Agent not later than 12:00 Noon (Eastern Time) on the third Euro-Dollar Business
Day before the conversion or continuation selected in such notice is to be
effective. A Notice of Interest Rate Election may, if it so specifies, apply to
only a portion of the aggregate principal amount of the relevant Group of Loans;
provided that (i) such portion is allocated ratably among the Loans comprising
such Group, (ii) the portion to which such notice applies, and the remaining
portion to which it does not apply, are each at least $5,000,000 (if such
portion is to be comprised of Euro-Dollar Loans) or at least $1,000,000 (if
such portion is to be comprised of Base Rate Loans) and (iii) immediately after
giving effect to such Notice of Interest Rate Election, there shall be no more
than eight Groups of Loans (other than Base Rate Loans) outstanding hereunder.
(b) Each Notice of Interest Rate Election shall specify:
(i) the Group of Loans (or portion thereof) to which such notice
applies, including the Interest Type of such Loans;
(ii) the date on which the conversion or continuation selected in
such notice is to be effective, which shall comply with the applicable
clause of Section 2.06(a);
(iii) if the Loans comprising such Group are to be converted, the new
Interest Type of such Loans and, if such Loans are to be converted to Euro-
Dollar Loans, the duration of the initial Interest Period applicable
thereto; and
(iv) if such Loans are to be continued as Euro-Dollar Loans for an
additional Interest Period, the duration of such additional Interest
Period.
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Each Interest Period specified in a Notice of Interest Rate Election shall
comply with the provisions of the definition of Interest Period.
(c) Upon receipt of a Notice of Interest Rate Election from the
Borrower pursuant to Section 2.06(a), the Administrative Agent shall promptly
notify each Lender of the contents thereof and such notice shall not thereafter
be revocable by the Borrower. If the Borrower fails to deliver a timely Notice
of Interest Rate Election to the Administrative Agent for any Group of
Euro-Dollar Loans, such Loans shall be converted to Base Rate Loans on the last
day of the then current Interest Period applicable thereto.
SECTION 2.07. Letters of Credit. (a) Issuance of Letters of Credit.
Subject to the terms and conditions set forth in this Agreement, any LC Issuing
Bank may, but shall not be obligated to, issue a letter of credit at the request
of the Borrower pursuant to this subsection, from time to time during the period
from and including the Closing Date to but excluding the date that is 30 days
before the Revolving Credit Termination Date; provided that, immediately after
each such letter of credit is issued and participations therein are sold to the
Lenders as provided in this subsection:
(i) the Aggregate LC Exposure shall not exceed $40,000,000;
(ii) in the case of each Lender, its Outstanding Amount shall
not exceed its Commitment; and
(iii) the aggregate Outstanding Amount of all the Lenders shall
not exceed the Borrowing Base then in effect.
Upon the issuance by any LC Issuing Bank of a Letter of Credit pursuant to this
subsection, such LC Issuing Bank shall be deemed, without further action by any
party hereto, to have sold to each other Lender, and each such Lender shall be
deemed, without further action by any party hereto, to have purchased from such
LC Issuing Bank, a participation in such Letter of Credit, on the terms
specified in this Section, equal to such Lender's Percentage thereof.
(b) Expiry Dates. No Letter of Credit shall have an expiry date later
than the close of business on the earlier of (i) the date that is one year after
such Letter of Credit is issued (or, in the case of any renewal or extension
thereof, one year after such renewal or extension) and (ii) the date that is the
fifth Business Day before the Revolving Credit Termination Date.
(c) Notice of Proposed Issuance. With respect to each Letter of
Credit, the Borrower shall give the relevant LC Issuing Bank and the
Administrative Agent at least three Business Days' prior notice (i) specifying
the date such Letter
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of Credit is to be issued, (ii) specifying the amount (which shall not be less
than $50,000) and describing the proposed terms of such Letter of Credit and the
nature of the transactions proposed to be supported thereby and (iii) specifying
the Account Party for such Letter of Credit, which may be any Vencor Company or
any partnership in which any Vencor Company is a general partner or any other
entity managed by a Vencor Company.
(d) Conditions to Issuance. No LC Issuing Bank shall issue any Letter
of Credit unless:
(i) such Letter of Credit shall be satisfactory in form and
substance to such LC Issuing Bank;
(ii) the Borrower shall have executed and delivered such other
instruments and agreements relating to such Letter of Credit as such LC
Issuing Bank shall have reasonably requested;
(iii) if the Account Party for such Letter of Credit is not the
Borrower, such Account Party shall have executed and delivered such
other instruments and agreements relating to such Letter of Credit as
such LC Issuing Bank shall have reasonably requested;
(iv) such LC Issuing Bank shall have confirmed with the
Administrative Agent on the date of such issuance that the limitations
specified in clauses (i), (ii) and (iii) of Section 2.07(a) will not be
exceeded immediately after such Letter of Credit is issued; and
(v) such LC Issuing Bank shall not have been notified in
writing by any Vencor Company, any Agent or the Required Lenders
expressly to the effect that any condition specified in clause (ii) or
(iii) of Section 3.02 is not satisfied at the time such Letter of
Credit is to be issued.
(e) Notice of Proposed Extensions of Expiry Dates. The relevant LC
Issuing Bank or the Borrower shall give the Administrative Agent at least three
Business Days' notice before such LC Issuing Bank extends (or allows an
automatic extension of) the expiry date of any Letter of Credit issued by it
(whether such extension results from a request therefor by the Borrower or, in
the case of an Evergreen Letter of Credit, from the absence of a request by the
Borrower for the termination thereof). Such notice shall (i) identify such
Letter of Credit, (ii) specify the date on which such extension is to be made
(or the last day on which such LC Issuing Bank can give notice to prevent such
extension from occurring) and (iii) specify the date to which such expiry date
is to be so extended. Upon receipt of such notice, the Administrative Agent
shall promptly notify each Lender of the contents thereof. No LC Issuing Bank
shall extend (or allow the
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extension of) the expiry date of any Letter of Credit if (x) the extended expiry
date would be after (A) the date that is one year after the date on which such
Letter of Credit is to be extended or (B) the date that is the fifth Business
Day before the Revolving Credit Termination Date or (y) such LC Issuing Bank
shall have been notified by any Vencor Company, any Agent or the Required
Lenders expressly to the effect that any condition specified in clause (ii) or
(iii) of Section 3.02 is not satisfied at the time such Letter of Credit is to
be extended.
(f) Notice of Actual Issuances and Extensions. Promptly upon issuing
any Letter of Credit or extending any Letter of Credit (or allowing any
Evergreen Letter of Credit to be extended), the relevant LC Issuing Bank will
notify the Administrative Agent of the date of such Letter of Credit, the amount
thereof, the beneficiary or beneficiaries thereof and the expiry date or
extended expiry date thereof. Upon receipt of such notice the Administrative
Agent shall promptly notify each Lender of the contents thereof and the amount
of such Lender's participation in the relevant Letter of Credit. Promptly upon
issuing any Letter of Credit, the relevant LC Issuing Bank will send a copy of
such Letter of Credit to the Administrative Agent.
(g) Fees. (i) The Borrower shall pay to the Administrative Agent, for
the account of the Lenders ratably in accordance with their respective
Percentages, a letter of credit fee, calculated for each day at the LC Fee Rate,
on the aggregate amount available for drawings (whether or not conditions for
drawing thereunder have been satisfied) under all Letters of Credit outstanding
at the close of business on such day. Such letter of credit fee shall be payable
with respect to each Letter of Credit in arrears on the last Business Day of
each calendar month for so long as such Letter of Credit is outstanding and on
the final expiry date thereof. The Borrower shall pay to each LC Issuing Bank a
fronting fee which shall accrue at the rate of 0.25% per annum on the average
daily amount available for drawings (whether or not the conditions for drawing
thereunder have been satisfied) on all Letters of Credit issued by it
outstanding during the period from the Closing Date to the later of the date on
which the Commitments terminate and the date on which there ceases to be any
Aggregate LC Exposure, as well as such LC Issuing Bank's standard and reasonable
fees with respect to issuing, amending, renewing or extending any Letter of
Credit or processing drawings thereunder. Such fronting fee shall be payable to
each LC Issuing Bank in arrears on the last Business Day of each calendar month,
commencing on the first such date to occur after the Closing Date; provided that
all fronting fees accrued to the date on which the Commitments terminate in
their entirety will be payable on such date, and any such fees accruing after
such date will be payable on demand. Any other fees payable to any LC Issuing
Bank pursuant to this subsection will be payable within 10 days after demand.
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(ii) (A) Upon the occurrence of an Event of Default of the
type referred to in Section 8.01(a), 8.01(b) or 8.01(n) or (B) after
the continuance for seven consecutive days of any other Event of
Default, then for so long as such Event of Default shall be continuing
and not waived, the letter of credit fee referred to in clause (i)
shall be increased by an additional 2.5% per annum for each day until
such Event of Default has been cured, and such fee shall be payable on
demand.
(h) Drawings. Upon receiving a demand for payment under any Letter of
Credit from the beneficiary thereof, the relevant LC Issuing Bank shall
determine in accordance with the terms of such Letter of Credit whether such
demand for payment should be honored. If such LC Issuing Bank determines that
any such demand for payment should be honored, such LC Issuing Bank shall (i)
promptly notify the Borrower and the Administrative Agent as to the amount to be
paid by such LC Issuing Bank as a result of such demand and the date on which
such amount is to be paid (an "LC Payment Date") and (ii) on such LC Payment
Date make available to such beneficiary in accordance with the terms of such
Letter of Credit the amount of the drawing under such Letter of Credit.
(i) Reimbursement and Other Payments by the Borrower. If any amount is
drawn under any Letter of Credit:
(i) the Borrower irrevocably and unconditionally agrees to
reimburse the relevant LC Issuing Bank for all amounts paid by such LC
Issuing Bank upon such drawing, together with any and all reasonable
charges and expenses which such LC Issuing Bank may pay or incur
relative to such drawing and interest on the amount drawn at the rate
applicable to Base Rate Loans for each day from and including the date
such amount is drawn to but excluding the date such reimbursement
payment is due and payable. Such reimbursement payment shall be due and
payable at or before 3:00 P.M. (Eastern Time) (x) on the relevant LC
Payment Date if such LC Issuing Bank notifies the Borrower of such
drawing before 11:00 A.M. (Eastern Time) on such date or (y) on the
date such notice is given, if such notice is given after the LC Payment
Date; provided that any notice given to the Borrower after 11:00 A.M.
(Eastern Time) on any day shall be deemed for purposes of the foregoing
clause (y) to have been given on the next succeeding Business Day; and
(ii) in addition, the Borrower agrees to pay to the relevant
LC Issuing Bank interest on any and all amounts not paid by the
Borrower when due hereunder with respect to a Letter of Credit, for
each day from and including the date when such amount becomes due to
but excluding the date such amount is paid in full, payable on demand,
at a rate per
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annum equal to the sum of 2.5% plus the rate applicable to Base Rate
Loans for such day.
Each payment to be made by the Borrower pursuant to this Section 2.07(i) shall
be made to the relevant LC Issuing Bank in Federal or other funds immediately
available to it at its address specified in or pursuant to Section 11.01.
(j) Payments by Lenders with Respect to Letters of Credit. If the
Borrower fails to reimburse the relevant LC Issuing Bank as and when required by
Section 2.07(i) above for all or any portion of any amount drawn under a Letter
of Credit issued by it:
(i) such LC Issuing Bank may notify the Administrative Agent
of such unreimbursed amount and request that the Lenders reimburse such
LC Issuing Bank for their respective Percentages thereof. Upon
receiving any such notice from an LC Issuing Bank, the Administrative
Agent shall promptly notify each Lender of the unreimbursed amount and
such Lender's Percentage thereof. Upon receiving such notice from the
Administrative Agent, each Lender shall make available to such LC
Issuing Bank, at its address specified in or pursuant to Section 11.01,
an amount equal to such Lender's Percentage of such unreimbursed amount
as set forth in such notice, in Federal or other funds immediately
available to such LC Issuing Bank, by 3:00 P.M. (Eastern Time) (A) on
the day such Lender receives such notice if it is received at or before
12:00 Noon (Eastern Time) on such day or (B) on the first Business Day
following such Lender's receipt of such notice if it is received after
12:00 Noon (Eastern Time) on the date of receipt, in each case together
with interest on such amount for each day from and including the
relevant LC Payment Date to but excluding the day such payment is due
from such Lender at the Federal Funds Rate for such day. Upon payment
in full thereof, such Lender shall be subrogated to the rights of such
LC Issuing Bank against the Borrower to the extent of such Lender's
Percentage of the related LC Reimbursement Obligation (including
interest accrued thereon). Nothing in this Section 2.07(j) shall affect
any rights any Lender may have against any LC Issuing Bank for any
action or omission for which such LC Issuing Bank is not indemnified
under Section 2.07(n); and
(ii) if any Lender fails to pay any amount required to be paid
by it pursuant to Section 2.07(j)(i) on the date on which such payment
is due, interest shall accrue on such Lender's obligation to make such
payment, for each day from and including the date such payment became
due to but excluding the date such Lender makes such payment, at a rate
per annum equal to (x) for each day from the day such payment is due to
the third succeeding Business Day, inclusive, the Federal Funds Rate
for such day
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as determined by the relevant LC Issuing Bank and (y) for each day
thereafter the Base Rate for such day. Any payment made by any Lender
after 3:00 P.M. (Eastern Time) on any Business Day shall be deemed for
purposes of the preceding sentence to have been made on the next
succeeding Business Day.
If the Borrower shall reimburse any LC Issuing Bank for any drawing with respect
to which any Lender shall have made funds available to such LC Issuing Bank in
accordance with Section 2.07(j)(i), such LC Issuing Bank shall promptly upon
receipt of such reimbursement distribute to such Lender its pro rata share
thereof, including interest, to the extent received by such LC Issuing Bank.
(k) Increased Cost and Reduced Return. If, on or after the date
hereof, the adoption of any applicable law, rule or regulation, or any change in
any applicable law, rule or regulation, or any change in the interpretation or
administration thereof by any governmental authority, central bank or comparable
agency charged with the interpretation or administration thereof, or compliance
by any Lender or LC Issuing Bank with any request or directive (whether or not
having the force of law) of any such authority, central bank or comparable
agency, shall impose, modify or deem applicable any tax, reserve, special
deposit or similar requirement against or with respect to or measured by
reference to letters of credit or participations therein, and the result of any
of the foregoing is to increase the cost to such Lender or LC Issuing Bank of
issuing or maintaining any Letter of Credit or any participation therein, or to
reduce any amount receivable by any Lender or LC Issuing Bank under this Section
2.07 in respect of any Letter of Credit or any participation therein (which
increase in cost, or reduction in amount receivable, shall be the result of such
Lender's or LC Issuing Bank's reasonable allocation of the aggregate of such
increases or reductions resulting from such event), then, within 15 days after
demand by such Lender or LC Issuing Bank (with a copy to the Administrative
Agent), the Borrower agrees to pay to such Lender or LC Issuing Bank, from time
to time as specified by such Lender or LC Issuing Bank, such additional amounts
as shall be sufficient to compensate such Lender or LC Issuing Bank for such
increased cost or reduction. A certificate of such Lender or LC Issuing Bank
submitted to the Borrower pursuant to this subsection and setting forth the
additional amount or amounts to be paid to it hereunder shall be conclusive in
the absence of manifest error.
(l) Exculpatory Provisions. The Borrower's obligations under this
Section 2.07 shall be absolute and unconditional under any and all circumstances
and irrespective of any setoff, counterclaim or defense to payment which the
Borrower, any Guarantor or any other Account Party may have or have had against
any LC Issuing Bank, any Lender, the beneficiary of any Letter of Credit or any
other Person. The Borrower assumes all risks of the acts or omissions of any
beneficiary of any Letter of Credit with respect to the use of such Letter of
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Credit by such beneficiary. None of the LC Issuing Banks, the Lenders and their
respective officers, directors, employees and agents shall be responsible for,
and the obligations of each Lender to make payments to each LC Issuing Bank and
of the Borrower to reimburse each LC Issuing Bank for drawings pursuant to this
Section (except to the extent such obligations result from the gross negligence
or willful misconduct of the relevant LC Issuing Bank) shall not be excused or
affected by, among other things, (i) the use which may be made of any Letter of
Credit or any acts or omissions of any beneficiary or transferee in connection
therewith; (ii) the validity, sufficiency or genuineness of documents presented
under any Letter of Credit or of any endorsements thereon, even if such
documents should in fact prove to be in any or all respects invalid,
insufficient, fraudulent or forged; (iii) payment by any LC Issuing Bank against
presentation of documents to it which do not comply with the terms of the
relevant Letter of Credit or (iv) any dispute between or among any of the Vencor
Companies or their Affiliates, the beneficiary of any Letter of Credit or any
other Person or any claims or defenses whatsoever of any of the Vencor Companies
or their Affiliates or any other Person against the beneficiary of any Letter of
Credit. No LC Issuing Bank shall be liable for any error, omission, interruption
or delay in transmission, dispatch or delivery of any message or advice, however
transmitted, in connection with any Letter of Credit. Any action taken or
omitted by any LC Issuing Bank or any Lender under or in connection with any
Letter of Credit and the related drafts and documents, if done without willful
misconduct or gross negligence, shall be binding upon the Borrower and shall not
place any LC Issuing Bank or any Lender under any liability to any Vencor
Company.
(m) Reliance, Etc. Subject to Section 2.07(d), each LC Issuing Bank
shall be entitled (but not obligated) to rely, and shall be fully protected in
relying, on the representation and warranty by the Borrower set forth in the
last sentence of Section 3.02 to establish whether the conditions specified in
clauses (iii) and (iv) of Section 3.02 are met in connection with any issuance
or extension of a Letter of Credit. The rights and obligations of each LC
Issuing Bank under each Letter of Credit issued by it shall be governed by the
provisions thereof and the provisions of the UCP and/or UCC referred to therein
or otherwise applicable thereto.
(n) Indemnification by the Borrower. The Borrower agrees to indemnify
and hold harmless each Lender, each LC Issuing Bank and the Administrative Agent
and their respective directors, officers, agents and employees (collectively,
the "LC Indemnitees") from and against any and all claims, damages, losses,
liabilities, costs or expenses (including, without limitation, the reasonable
fees and disbursements of counsel) which such LC Indemnitee may reasonably incur
(or which may be claimed against any such LC Indemnitee by any Person) by reason
of or in connection with the execution and delivery or transfer of or payment or
failure to pay under any Letter of Credit or any actual or proposed use of any
57
Letter of Credit, including any claims, damages, losses, liabilities, costs or
expenses which any LC Issuing Bank may incur by reason of or in connection with
the failure of any Lender to fulfill or comply with its obligations to such LC
Issuing Bank hereunder in connection with any Letter of Credit (but nothing
herein contained shall affect any rights the Borrower may have against any such
defaulting Lender); provided that the Borrower shall not be required to
indemnify any LC Indemnitee for any claims, damages, losses, liabilities, costs
or expenses to the extent, but only to the extent, caused by (i) the willful
misconduct or gross negligence of any LC Issuing Bank in determining whether a
request presented under any Letter of Credit issued by it complied with the
terms of such Letter of Credit or (ii) any LC Issuing Bank's failure to pay
under any Letter of Credit issued by it after the presentation to it of a
request strictly complying with the terms and conditions of such Letter of
Credit. Nothing in this Section 2.07(n) is intended to limit the obligations of
the Borrower under any other provision of this Section.
(o) Indemnification by Lenders. Each Lender shall, ratably in
accordance with its Percentage, indemnify each LC Issuing Bank, its affiliates
and their respective directors, officers, agents and employees (to the extent
not reimbursed by the Borrower) against any cost, expense (including reasonable
fees and disbursements of counsel), claim, demand, action, loss or liability
(except such as result from such indemnitees' gross negligence or willful
misconduct or such LC Issuing Bank's failure to pay under any Letter of Credit
issued by it after the presentation to it of a request strictly complying with
the terms and conditions of such Letter of Credit) that any such indemnitee may
suffer or incur in connection with this Section or any action taken or omitted
by such indemnitee under this Section.
(p) Liability for Damages. Nothing in this Section shall preclude the
Borrower or any Lender from asserting against any LC Issuing Bank any claim for
direct (but not consequential) damages suffered by the Borrower or such Lender
to the extent, but only to the extent, caused by (i) the willful misconduct or
gross negligence of such LC Issuing Bank in determining whether a request
presented under any Letter of Credit issued by it complied with the terms
thereof or (ii) such LC Issuing Bank's failure to pay under any such Letter of
Credit after the presentation to it of a request strictly complying with the
terms and conditions thereof.
(q) Dual Capacities. In its capacity as a Lender, each LC Issuing Bank
shall have the same rights and obligations under this Section as any other
Lender.
(r) Information to be Provided to Administrative Agent. The LC Issuing
Banks shall furnish to the Administrative Agent upon request such information as
the Administrative Agent shall reasonably request in order to calculate (i) the
58
Aggregate LC Exposure existing from time to time and (ii) the amount of any fee
payable for the account of the Lenders under Section 2.07(g).
Section 2.08. Swingline Loans. (a) Swingline Commitment. The Swingline
Bank agrees, subject to the terms and conditions set forth in this Agreement, to
make loans to the Borrower pursuant to this Section from time to time during the
Swingline Availability Period for any purpose for which Loans may be borrowed;
provided that, immediately after each such loan is made (and after giving effect
to any substantially concurrent application of the proceeds thereof to repay
outstanding Loans or LC Reimbursement Obligations):
(i) the aggregate outstanding principal amount of the
Swingline Loans shall not exceed the Swingline Commitment;
(ii) in the case of each Lender, its Outstanding Amount
shall not exceed its Commitment; and
(iii) the aggregate Outstanding Amount of all the Lenders
shall not exceed the Borrowing Base then in effect.
Within the foregoing limits, the Borrower may borrow Swingline Loans, prepay
Swingline Loans and reborrow Swingline Loans at any time during the Swingline
Availability Period.
(b) Notice of Swingline Borrowing. The Borrower shall give the
Swingline Bank notice (a "Notice of Swingline Borrowing"), substantially in the
form of Exhibit O hereto, not later than 2:00 P.M. (Eastern Time) on the date of
each Swingline Borrowing, specifying:
(i) the date of such Borrowing, which shall be a Business
Day; and
(ii) the amount of such Borrowing, which shall be at least
$500,000 or any larger multiple of $100,000.
(c) Funding of Swingline Loans. Not later than 3:00 P.M. (Eastern
Time) on the date of each Swingline Borrowing, the Swingline Bank shall, unless
the Swingline Bank determines that any applicable condition specified in Article
3 has not been satisfied, make available the amount of such Swingline Borrowing,
in Federal or other funds immediately available in New York, New York, to the
Borrower at the Swingline Bank's address specified in or pursuant to Section
11.01.
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(d) Swingline Note. The Borrower's obligation to repay the Swingline
Loans shall be evidenced by a single Note substantially in form of Exhibit A-2
hereto (the "Swingline Note"). Upon receipt of the Swingline Note pursuant to
Section 3.01(c), the Administrative Agent shall forward the Swingline Note to
the Swingline Bank.
(e) Interest. Each Swingline Loan shall bear interest on the
outstanding principal amount thereof, for each day from and including the day
such Swingline Loan is made to but excluding the day it becomes due, at a rate
per annum equal to the rate applicable to Base Rate Loans for such day or any
lower rate determined by mutual agreement between the Swingline Bank and the
Borrower. Such interest shall be payable monthly in arrears on the last Business
Day of each calendar month. Any overdue principal of or interest on any
Swingline Loan shall bear interest, payable on demand, for each day until paid
at a rate per annum equal to the sum of 2.5% plus the rate applicable to Base
Rate Loans for such day.
(f) Optional Prepayment of Swingline Loans. The Borrower may prepay
the Swingline Loans in whole at any time, or from time to time in part in a
principal amount of at least $500,000, by giving notice of such prepayment to
the Swingline Bank not later than 12:00 Noon (Eastern Time) on the date of
prepayment and paying the principal amount to be prepaid, together with interest
accrued thereon to the date of prepayment, to the Swingline Bank at its address
specified in or pursuant to Section 11.01, in Federal or other funds immediately
available in New York, New York, not later than 3:00 P.M. (Eastern Time) on the
date of prepayment.
(g) Mandatory Prepayment of Swingline Loans. The Borrower shall prepay
each Swingline Loan no later than the earlier of (i) the acceleration of the
Obligations pursuant to Article 8 and (ii) the day that is five Business Days
after the day on which such Swingline Loan was made, together with interest
accrued thereon to the date of prepayment. On the date of each Borrowing under
the Facility, the Administrative Agent shall apply the proceeds thereof to
prepay all Swingline Loans then outstanding, together with interest accrued
thereon to the date of prepayment.
(h) Maturity of Swingline Loans. All Swingline Loans outstanding on
the Swingline Maturity Date shall be due and payable on such date, together with
interest accrued thereon to such date.
(i) Refunding Unpaid Swingline Loans. If (x) the Swingline Loans are
not paid in full on the Swingline Maturity Date or (y) the Swingline Loans
become immediately due and payable pursuant to Article 8, the Swingline Bank (or
the Administrative Agent on its behalf) may, by notice to the Lenders (including
the Swingline Bank, in its capacity as a Lender), require each Lender to
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pay to the Swingline Bank an amount equal to such Lender's Percentage of the
aggregate unpaid principal amount of the Swingline Loans then outstanding. Such
notice shall specify the date on which such payments are to be made, which shall
be the first Business Day after such notice is given. Not later than 12:00 Noon
(Eastern Time) on the date so specified, each Lender shall pay the amount so
notified to it to the Swingline Bank at its address specified in or pursuant to
Section 11.01, in Federal or other funds immediately available in New York, New
York. The amount so paid by each Lender shall constitute a Base Rate Loan to the
Borrower; provided that, if the Lenders are prevented from making such Base Rate
Loans to the Borrower by the provisions of the United States Bankruptcy Code or
otherwise, the amount so paid by each Lender shall constitute a purchase by it
of a participation in the unpaid principal amount of the Swingline Loans and
interest accruing thereon after the date of such payment at the rate specified
in the last sentence of Section 2.08(e). Each Lender's obligation to make such
payment to the Swingline Bank under this subsection shall be absolute and
unconditional and shall not be affected by any circumstance, including, without
limitation, (i) any set-off, counterclaim, recoupment, defense or other right
which such Lender or any other Person may have against the Swingline Bank or the
Borrower, (ii) the occurrence or continuance of a Default or an Event of Default
or the termination of the Commitments, (iii) any adverse change in the condition
(financial or otherwise) of the Borrower or any other Person, (iv) any breach of
this Agreement by any party hereto (other than the Swingline Bank) or (v) any
other circumstance, happening or event whatsoever, whether or not similar to any
of the foregoing; provided that no Lender shall be obligated to make any payment
to the Swingline Bank under this subsection with respect to a Swingline Loan
made by the Swingline Bank at a time when it had determined that any applicable
condition precedent set forth in clause (ii) or (iii) of Section 3.02 was not
satisfied.
(j) Termination of Swingline Commitment. The Borrower may, upon at
least three Business Days' notice to the Swingline Bank and the Administrative
Agent, terminate the Swingline Commitment at any time, if no Swingline Loans are
outstanding at such time. Unless previously terminated, the Swingline Commitment
shall terminate at the close of business on the Swingline Maturity Date.
SECTION 2.09. Fees. (a) The Borrower shall pay to the Administrative
Agent for the account of each Lender a commitment fee, calculated for each day
at the Commitment Fee Rate, on the amount by which such Lender's Commitment on
such day exceeds the sum of (i) the aggregate outstanding principal amount of
its Loans and (ii) its LC Exposure on such day. Such commitment fees shall
accrue from and including the Closing Date to but excluding the day on which the
Commitments terminate in their entirety and shall be payable monthly on the last
Business Day of each calendar month and on the day on which the Commitments
terminate in their entirety.
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(b) The Borrower shall pay to the Administrative Agent a monthly fee of
$20,000, payable in advance on the Closing Date (for the remainder of the month
in which such date falls) and on the last Business Day of each month thereafter
(for the next succeeding month).
(c) The Borrower shall pay to the Administrative Agent the
participation and arrangement fees in the amounts and on the dates set forth in
the fee letter dated February 28, 2001 among the Borrower, Vencor, the
Administrative Agent and X.X. Xxxxxx Securities Inc.
SECTION 2.10. Final Maturity of Loans. The Loans outstanding under the
Facility shall mature, and the outstanding principal amount thereof shall be due
and payable (together with interest accrued thereon), on the Revolving Credit
Termination Date.
SECTION 2.11. Mandatory Commitment Reductions; Prepayments of Loans.
(a) Asset Sales; Casualty Proceeds. If on or after the Closing Date the
Borrower or any Restricted Subsidiary receives any Net Cash Proceeds of any
Asset Sale (other than the Kingfish Transaction) or any Casualty Proceeds
(collectively, "Reinvestable Proceeds"), the Borrower shall (i) promptly provide
notice thereof to the Administrative Agent, which notice shall specify the
amount of Reinvestable Proceeds received and the date on, and the asset or event
in respect of, which such Reinvestable Proceeds were received and (ii) within
two Business Days of the receipt thereof deposit or cause to be deposited such
Revinvestable Proceeds in a Collateral Account, but only to the extent of the
amount by which the Commitments exceed $75,000,000, with any balance of such
Reinvestable Proceeds to be deposited in a Senior Secured Collateral Account,
where in either case they shall be held until such Reinvestable Proceeds are
applied as provided herein. Reinvestable Proceeds (and any income from
investment thereof) shall be subject to the following provisions.
(A) During the one-year period beginning with the date on which the
Borrower received such Reinvestable Proceeds, such Reinvestable
Proceeds will be released by the Collateral Agent (or may be released
by the Senior Secured Collateral Agent) from time to time, at the
Borrower's request, (1) to repay principal of the PIP Claim and any
interest accrued with respect thereto through the date of repayment,
(2) if concurrently with such release the Borrower makes a permanent
reduction in the Commitments in an amount equal to such released amount
of Reinvestable Proceeds, (3) to restore, repair, replace or rebuild
the asset in respect of which Casualty Proceeds were received (or to
reimburse the Borrower or any Restricted Subsidiary for any such
amounts paid by it), (4) to fund the
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Borrower's or a Restricted Subsidiary's payment of the purchase price
of an Acquisition of a Healthcare Facility or real property, equipment
or other assets used or to be used in, or in connection with, the
operation of a Healthcare Facility owned or operated, or proposed to be
developed for operation, by the Borrower or a Restricted Subsidiary
(including any Healthcare Facility already owned by the Borrower or a
Restricted Subsidiary) or (5) to prepay loans under the Senior Secured
Credit Agreement (which prepayment may be made only if the Commitments
have previously been permanently reduced to no more than $75,000,000),
provided that the Borrower may not request the release of any
Reinvestable Proceeds if an Event of Default shall have occurred and be
continuing.
(B) If on the first anniversary of the date any Reinvestable
Proceeds were deposited in a Collateral Account or Senior Secured
Collateral Account any portion of such Reinvestable Proceeds have not
been released for application pursuant to subclause (A), such remaining
amount shall (subject to subsection (d) below) be applied within two
Business Days thereafter as follows:
(1) an amount up to the amount by which the
Commitments then exceed $75,000,000 may be released, but
concurrently with such release the Commitments shall
automatically be permanently reduced by the amount so
released and a portion of such amount shall be applied by
the Administrative Agent to prepay Loans and Swingline
Loans to the extent the outstanding principal amount of
Loans and Swingline Loans exceeds the Commitments as so
reduced;
(2) if the aggregate Commitments have previously been
permanently reduced to $75,000,000, an additional amount of
such Reinvestable Proceeds shall be released to the
Borrower at the Borrower's request but only if concurrently
with such release the Borrower makes a permanent further
reduction in Commitments in an amount equal to such
additional released amount of Reinvestable Proceeds and a
portion of such amount shall be applied by the
Administrative Agent to prepay Loans and Swingline Loans to
the extent the outstanding principal amount of Loans and
Swingline Loans exceeds the Commitments as so reduced;
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(3) unless an Event of Default of the type described
in Section 8.01(a) shall have occurred and be continuing or
a Payment Blockage Period shall then be in effect, any
amount of such Reinvestable Proceeds not applied as
provided in clauses (1) or (2) shall be applied to prepay
loans under the Senior Secured Credit Agreement until they
have been repaid in full (which prepayment may be made only
if the Commitments have previously been permanently reduced
to no more than $75,000,000); and
(4) so long as no Default shall have occurred and be
continuing, any amount of such Reinvestable Proceeds not
applied as provided in clauses (1), (2) or (3) shall be
released to the Borrower.
In determining how long any particular Reinvestable Proceeds have been
held in a Collateral Account, deposits and releases shall be accounted
for on a first-in, first-out basis.
(C) Any Reinvestable Proceeds held by the Collateral Agent or
the Senior Secured Collateral Agent may also be released from time to
time, at the Borrower's request (such request to certify that no
Default then exists), for concurrent application to repay Loans or
Swingline Loans (each such release, a "Temporary Withdrawal"); provided
that (1) immediately after giving effect to such repayment, the
Borrower has Net Borrowing Availability at least equal to the aggregate
amount of such Temporary Withdrawal and any other Temporary Withdrawals
then outstanding and (2) at the end of the one-year period applicable
to such Reinvestable Proceeds (or, if earlier, any date upon which an
Event of Default occurs), the Borrower shall be unconditionally
obligated to re-deposit with the Collateral Agent or the Senior Secured
Collateral Agent, as the case may be (for immediate application as
provided in subclause (B)), an amount equal to (i) the amount of such
Temporary Withdrawal less (ii) any amounts deemed applied against such
re-deposit obligation pursuant to the following provisions of this
subclause (C). During such one-year period, the Borrower may by notice
to the Collateral Agent and the Senior Secured Collateral Agent (which
notice shall certify that no Default then exists) identify any purpose
for which it would otherwise have been entitled to request a release of
such Reinvestable Proceeds and designate the amount that it would
otherwise have been able to withdraw to be deemed applied against such
re-deposit obligation. During such one-year period, the Borrower will
not make any borrowing of Loans or Swingline Loans, or request the
issuance of any Letter of Credit, unless, after giving effect thereto,
the Borrower has Net Borrowing Availability at
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least equal to the aggregate amount, determined as of such day, of all re-
deposit obligations that the Borrower has with respect to Reinvestable
Proceeds withdrawn pursuant to this subclause (C).
(b) Equity Issuances. If on any date (an "Equity Receipt Date") on or
after the Closing Date Vencor receives any Net Cash Proceeds from any Equity
Issuance, Vencor shall promptly provide notice thereof to the Administrative
Agent, which notice shall specify the amount of the Net Cash Proceeds received
with respect thereto, the amount equal to 75% of such Net Cash Proceeds (the
"Designated Equity Proceeds") and the date on which such Designated Equity
Proceeds were received. Such Designated Equity Proceeds shall be applied as
follows:
(i) Vencor may during the six-month period following any Equity
Receipt Date deliver to the Administrative Agent one or more definitive
executed agreements for an Acquisition by Vencor or any of its
Subsidiaries of one or more Healthcare Facilities, together in each
instance with a certificate describing in reasonable detail the purchase
price of such Acquisition (a "Proposed Purchase Price") and identifying
the related pool of Designated Equity Proceeds proposed to be used to fund
such Proposed Purchase Price.
(ii) Within three Business Days after the end of such six-month
period, an amount equal to the lesser of (A) 66 2/3% of the original
amount of such Designated Equity Proceeds and (B) the original amount of
such Designated Equity Proceeds less the aggregate Proposed Purchase
Prices certified with respect thereto pursuant to clause (i), shall be
transferred from Vencor to the Borrower as an equity contribution.
Concurrently with such transfer but subject to subsection (d) below, the
Commitments shall automatically be permanently reduced (but not to below
$75,000,000) in an amount equal to the amount so transferred and a portion
of such amount shall be applied to prepay Loans and Swingline Loans to the
extent the outstanding principal amount of the Loans and Swingline Loans
exceeds the Commitments as so reduced.
Notwithstanding the foregoing, the amount by which the Commitments are to
be reduced shall be reduced by any amount of such Designated Equity
Proceeds that have been or concurrently are being used to repay principal
of the PIP Claim and any interest accrued with respect thereto through the
date of repayment. If the aggregate Commitments have previously been or
concurrently are being permanently reduced to $75,000,000:
(1) the Borrower may, if it so elects, make a further permanent
reduction in the Commitments in an amount up to the amount transferred
to the Borrower and not applied as provided in
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the foregoing provisions of this clause (b) and a portion of such
amount transferred shall be applied to prepay Loans and Swingline
Loans to the extent the outstanding principal amount of the Loans
and Swingline Loans exceeds the Commitments as so reduced; and
(2) unless an Event of Default of the type described in
Section 8.01(a) shall have occurred and be continuing or a Payment
Blockage Period shall then be in effect, any amount transferred to
the Borrower not applied as provided in the foregoing provisions
of this clause (b), shall be applied to prepay loans under the
Senior Secured Credit Agreement until they have been paid in full.
(iii) No later than the first anniversary of such Equity Receipt
Date Vencor shall deliver a certificate to the Administrative Agent
specifying the actual amounts paid during such one-year period as the
purchase price of any such Acquisition certified with respect thereto
pursuant to clause (i) (an "Actual Purchase Price"), and within three
Business Days thereafter an amount equal to (A) 66 2/3% of the original
amount of such Designated Equity Proceeds less (B) the aggregate Actual
Purchase Prices, shall be transferred from Vencor to the Borrower as an
equity contribution. Concurrently with such transfer but subject to
subsection (d) below, the Commitments shall automatically be permanently
reduced (but not to below $75,000,000) in an amount equal to the amount so
transferred and a portion of such amount shall be applied to prepay Loans
and Swingline Loans to the extent the outstanding principal amount of the
Loans and Swingline Loans exceeds the Commitments as so reduced.
Notwithstanding the foregoing, the amount by which the Commitments are to
be reduced shall be reduced by, without double counting, any amount of
such Designated Equity Proceeds that have been (x) or concurrently are
being used to repay principal of the PIP Claim and any interest accrued
with respect thereto through the date of repayment or (y) used to prepay
loans under the Senior Secured Credit Agreement (which prepayment may be
made only if the Commitments have previously been permanently reduced to
no more than $75,000,000). If the aggregate Commitments have previously
been or concurrently are being permanently reduced to $75,000,000:
(1) the Borrower may, if it so elects, make a further
permanent reduction in the Commitments in an amount up to the
amount transferred to the Borrower and not applied as provided in
the foregoing provisions of this clause (b) and a portion of such
amount transferred shall be applied to prepay Loans and Swingline
Loans to the extent the outstanding principal amount of the Loans
and Swingline Loans exceeds the Commitments as so reduced; and
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(2) unless an Event of Default of the type described in
Section 8.01(a) shall have occurred and be continuing or a Payment
Blockage Period shall then be in effect, any amount transferred to
the Borrower not applied as provided in the foregoing provisions
of this clause (b), shall be applied to prepay loans under the
Senior Secured Credit Agreement until they have been paid in full.
(iv) In addition, Vencor may during the one-year period following
such Equity Receipt Date deliver to the Administrative Agent one or more
definitive executed agreements, in addition to any agreements delivered
pursuant to clause (i), for an Acquisition by Vencor or any of its
Subsidiaries of one or more Healthcare Facilities, together in each
instance with a certificate describing in reasonable detail the Proposed
Purchase Price and identifying the related pool of Designated Equity
Proceeds proposed to be used to fund such Proposed Purchase Price.
(v) Within three Business Days after the end of such one-year
period, an amount equal to (A) the original amount of such Designated
Equity Proceeds less (B) the sum of (1) the aggregate Proposed Purchase
Prices certified with respect thereto pursuant to clause (i) (to the
extent the Actual Purchase Price has not been determined with respect
thereto) or clause (iv) and (2) the aggregate related Actual Purchase
Prices determined pursuant to clause (iii), shall be transferred from
Vencor to the Borrower as an equity contribution. Concurrently with such
transfer but subject to subsection (d) below, the Commitments shall
automatically be permanently reduced (but not to below $75,000,000) in an
amount equal to the amount so transferred and a portion of such amount
shall be applied to prepay Loans and Swingline Loans to the extent the
outstanding principal amount of the Loans and Swingline Loans exceeds the
Commitments as so reduced. Notwithstanding the foregoing, the amount by
which the Commitments are to be reduced shall be reduced by, without
double counting, any amount of such Designated Equity Proceeds that have
been (x) or concurrently are being used to repay principal of the PIP
Claim and any interest accrued with respect thereto through the date of
repayment or (y) used to prepay loans under the Senior Secured Credit
Agreement (which prepayment may be made only if the Commitments have
previously been permanently reduced to no more than $75,000,000). If the
aggregate Commitments have previously been or concurrently are being
permanently reduced to $75,000,000:
(aa) the Borrower may, if it so elects, make a further
permanent reduction in the Commitments in an amount up to the
amount transferred to the Borrower and not applied as provided in
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the foregoing provisions of this clause (b) and a portion of such
amount transferred shall be applied to prepay Loans and Swingline
Loans to the extent the outstanding principal amount of the Loans
and Swingline Loans exceeds the Commitments as so reduced; and
(bb) unless an Event of Default of the type described
in Section 8.01(a) shall have occurred and be continuing or a
Payment Blockage Period shall then be in effect, any amount
transferred to the Borrower not applied as provided in the
foregoing provisions of this clause (b), shall be applied to
prepay loans under the Senior Secured Credit Agreement until they
have been paid in full.
(vi) No later than the date eighteen months after such Equity
Receipt Date Vencor shall deliver a certificate to the Administrative
Agent specifying the Actual Purchase Price paid during such eighteen-
month period of any Acquisition described pursuant to clause (iv), and
within three Business Days thereafter an amount equal to (A) the
original amount of such Designated Equity Proceeds less (B) the
aggregate related Actual Purchase Prices determined pursuant to this
clause (vi) and clause (iii), shall be transferred from Vencor to the
Borrower as an equity contribution. Concurrently with such transfer but
subject to subsection (d) below, the Commitments shall automatically be
permanently reduced (but not to below $75,000,000) in an amount equal
to the amount so transferred and a portion of such amount shall be
applied to prepay Loans and Swingline Loans to the extent the
outstanding principal amount of the Loans and Swingline Loans exceeds
the Commitments as so reduced.
Notwithstanding the foregoing, the amount by which the Commitments are
to be reduced shall be reduced by, without double counting, any amount
of such Designated Equity Proceeds that have been (x) or concurrently
are being used to repay principal of the PIP Claim and any interest
accrued with respect thereto through the date of repayment or (y) used
to prepay loans under the Senior Secured Credit Agreement (which
prepayment may be made only if the Commitments have previously been
permanently reduced to no more than $75,000,000). If the aggregate
Commitments have previously been or concurrently are being permanently
reduced to $75,000,000:
(1) the Borrower may, if it so elects, make a further
permanent reduction in the Commitments in an amount up to the
amount transferred to the Borrower and not applied as provided in
the foregoing provisions of this clause (b) and a portion of such
amount transferred shall be applied to prepay Loans and Swingline
Loans to the extent the outstanding principal amount of the Loans
and Swingline Loans exceeds the Commitments as so reduced; and
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(2) unless an Event of Default of the type described
in Section 8.01(a) shall have occurred and be continuing or a
Payment Blockage Period shall then be in effect, any amount
transferred to the Borrower not applied as provided in the
foregoing provisions of this clause (b), shall be applied to
prepay loans under the Senior Secured Credit Agreement until they
have been paid in full.
(c) Tax Refunds. If on or after the Closing Date Vencor receives a
cash payment out of the original amount deposited and held in escrow under the
Tax Refund Escrow Agreement, Vencor shall promptly provide notice thereof to the
Administrative Agent, which notice shall specify the amount of the payment
received and the date (the "Tax Receipt Date") on which such payment was
received and the intended application thereof. Such cash payments shall be
applied as follows:
(i) During the two Business Day period after the Tax Receipt
Date, Vencor may apply such payment (or a portion thereof) to pay a
tax liability of the nature intended to be paid from funds held in
escrow under the Tax Refund Escrow Account.
(ii) If on the third Business Day after the Tax Receipt Date,
any portion of such payment shall not have been applied pursuant to
clause (i), such remaining amount shall be transferred from Vencor to
the Borrower as an equity contribution. Concurrently with such
transfer but subject to clause (d) below, the Commitments shall
automatically be permanently reduced (but not to below $75,000,000) in
an amount equal to the amount so transferred and a portion of such
amount shall be applied to prepay Loans and Swingline Loans to the
extent the outstanding principal amount of the Loans and Swingline
Loans exceeds the Commitments as so reduced, Notwithstanding the
foregoing, the amount by which the Commitments are to be reduced shall
be reduced by amounts that will be used promptly to repay principal of
the PIP Claim and any interest accrued with respect thereto through
the day of repayment. If the aggregate Commitments have previously
been or concurrently are being permanently reduced to $75,000,000:
(A) the Borrower may, if it so elects, make a further
permanent reduction in the Commitments in an amount up to the
amount transferred to the Borrower and not applied as provided
in the foregoing provisions of this clause (c) and a portion
of such amount transferred shall be applied to prepay Loans
and Swingline Loans to the extent the outstanding principal
amount of the Loans and Swingline Loans exceeds the
Commitments as so reduced; and
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(B) unless an Event of Default of the type described
in Section 8.01(a) shall have occurred and be continuing or a
Payment Blockage Period shall then be in effect, any amount
transferred to the Borrower not applied as provided in the
foregoing provisions of this clause (c), shall be applied to
prepay loans under the Senior Secured Credit Agreement until
they have been paid in full.
(d) Timing of Commitment Reduction. Notwithstanding the foregoing, if
the aggregate amount of the Commitments required to be reduced on any date
pursuant to this Section is less than $1,000,000, such reduction shall be
deferred until the aggregate amount of Commitments required to be reduced
pursuant to this Section (including such deferred amounts) is not less than
$1,000,000.
(e) Prepayments. (i) Concurrently with any reduction of Commitments
pursuant to this Section 2.11, the Borrower shall prepay Loans and Swingline
Loans (or if no such Loans or Swingline Loans are outstanding, deposit cash in a
collateral account in accordance with the Security Agreement) in an amount
necessary to ensure that (A) no Lender's Outstanding Amount shall exceed its
Commitment as so reduced and (B) the aggregate Outstanding Amount of all the
Lenders shall not exceed the Borrowing Base then in effect. Once reduced, the
Commitments may not be reinstated.
(ii) If at any time the aggregate Outstanding Amount of all
Lenders exceeds the lesser of (A) the aggregate Commitments of all
Lenders and (B) the Borrowing Base then in effect, the Borrower shall
immediately prepay Loans and Swingline Loans (or if no such Loans and
Swingline Loans are outstanding, deposit cash in a collateral account
in accordance with the Security Agreement) in an amount equal to such
excess; provided that if such excess is due to the establishment of a
reserve in the Borrowing Base by the Collateral Monitoring Agent, the
Borrower shall, within one Business Day after the establishment of such
reserve, prepay Loans and Swingline Loans (or if no such Loans and
Swingline Loans are outstanding, deposit cash in a collateral account
in accordance with the Security Agreement) in an amount necessary to
eliminate such excess.
(iii) (A) If consistent with the Borrower's historical cash
management practices, the aggregate cash balances of the Borrower and
its Restricted Subsidiaries (excluding any Reinvestable Proceeds
deposited in a Collateral Account or Senior Secured Collateral Account
pursuant to Section 2.11(a)) on any three consecutive Business Days, as
reflected in the Borrower's consolidated daily cash flow reports for
such Business Days, exceeded $20,000,000, then the Borrower shall
prepay Loans and
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Swingline Loans in an amount equal to the amount by which such
aggregate cash balances exceed $20,000,000 as of the last such Business
Day.
(B) If the aggregate cash balances of the Borrower and its
Restricted Subsidiaries (excluding any Reinvestable Proceeds
deposited in a Collateral Account or Senior Secured Collateral
Account pursuant to Section 2.11(a)) exceed $45,000,000 as of the
last Business Day of any calendar month (as reflected in the
Borrower's consolidated balance sheet as at the end of such month
and consistent with the Borrower's historical cash management
practices), then the Borrower shall, no later than three Business
Days after the end of such calendar month, prepay Loans and
Swingline Loans in an amount equal to the amount by which such
aggregate cash balances exceed $45,000,000 as of the last
Business Day of such calendar month.
(iv) During each Clean-Down Period, the Borrower shall ensure
that there shall be at least 30 consecutive days on which there are no
Loans or Swingline Loans outstanding. The Borrower shall prepay Loans
and Swingline Loans to the extent necessary to comply with the
immediately preceding sentence. For purposes of this clause, "Clean-
Down Period" means each period of four consecutive Fiscal Quarters,
commencing with the Fiscal Quarter in which the Borrower or any
Restricted Subsidiary makes a Restricted Investment pursuant to the
proviso in Section 7.08(b).
(v) Each prepayment of Loans required under this Section 2.11
shall be applied to prepay outstanding Swingline Loans and/or any Group
or Groups of Loans designated by the Borrower in the applicable
Prepayment Notice (or selected by the Administrative Agent if the
Borrower fails to make such designation). The Borrower shall give the
Administrative Agent notice of any such prepayment as if it were an
optional prepayment made pursuant to Section 2.08(f) or 2.12, as
applicable. In the case of Euro-Dollar Loans, unless such Loans are
prepaid on the last day of an Interest Period applicable thereto, the
Borrower shall comply with Section 2.15 in connection with such
prepayment.
(f) Interest. Each prepayment of principal of the Loans and Swingline
Loans under this Section 2.11 shall be made together with interest accrued on
the amount prepaid to the date of payment.
(g) Ratable Application. Each reduction of Commitments and each
prepayment of any Group of Loans pursuant to this Section shall be applied
71
ratably to the Commitments or Loans, as the case may be, of the several Lenders
included in such Group of Loans.
Section 2.12. Optional Prepayments. (a) Base Rate Loans. The Borrower
may, upon giving a Prepayment Notice to the Administrative Agent before 12:00
Noon (Eastern Time) on the date of prepayment, prepay the Base Rate Loans
outstanding on any Business Day in whole, or in part in amounts aggregating
$1,000,000 or any larger multiple of $100,000.
(b) Euro-Dollar Loans. The Borrower may, upon giving a Prepayment
Notice to the Administrative Agent at least three Euro-Dollar Business Days
before the date of prepayment, prepay any Group of Euro-Dollar Loans on any
Euro-Dollar Business Day in whole, or in part in amounts aggregating $5,000,000
or any larger multiple of $1,000,000. Unless such Loans are prepaid on the last
day of an Interest Period applicable thereto, the Borrower shall comply with
Section 2.15 in connection with such prepayment.
(c) Notice to Lenders. Upon receiving a Prepayment Notice pursuant to
this Section, the Administrative Agent shall promptly notify each Lender of the
contents thereof and of such Lender's share of such prepayment and such
Prepayment Notice shall not thereafter be revocable by the Borrower.
(d) Ratable Application. Each prepayment of any Group of Loans
pursuant to this Section shall be applied ratably to the Loans of the several
Lenders included in such Group of Loans.
(e) Payment of Accrued Interest. On the date of each prepayment of
Loans (other than Base Rate Loans) pursuant to this Section, the Borrower shall
pay interest accrued on the principal amount prepaid to the date of prepayment.
Section 2.13. Termination or Reduction of Commitments. The Borrower
may, upon at least three Business Days' notice to the Administrative Agent, (i)
terminate the Commitments at any time, if no Lender has any Revolving Credit
Exposure after such termination or (ii) ratably reduce the Commitments from time
to time by an aggregate amount of $5,000,000 or any larger multiple of
$1,000,000; provided that immediately after such reduction no Lender's
Outstanding Amount shall exceed its Commitment as so reduced. Unless previously
terminated, the Commitments shall terminate in their entirety on the Revolving
Credit Termination Date. Once reduced or terminated the Commitments may not be
reinstated.
Section 2.14. General Provisions as to Payments. (a) The Borrower
shall make each payment of principal of, and interest on, the Loans and the LC
Reimbursement Obligations and each payment of commitment fees and letter of
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credit fees (other than fees payable directly to the LC Issuing Banks) hereunder
not later than 1:00 P.M. (Eastern Time) on the date when due, in Federal or
other funds immediately available in New York, New York, to the Administrative
Agent at its address for payments specified in or pursuant to Section 11.01.
Upon receiving a payment for the account of the Lenders, the Administrative
Agent will promptly distribute to each such Lender its ratable share of such
payment. Whenever any payment of principal of, or interest on, Base Rate Loans,
Swingline Loans or LC Reimbursement Obligations or any payment of commitment
fees or letter of credit fees shall be due on a day which is not a Business Day,
the date for payment thereof shall be extended to the next succeeding Business
Day. Whenever any payment of principal of, or interest on, Euro-Dollar Loans
shall be due on a day which is not a Euro-Dollar Business Day, the date for
payment thereof shall be extended to the next succeeding Euro-Dollar Business
Day unless such Euro-Dollar Business Day falls in another calendar month, in
which case the date for payment thereof shall be the next preceding Euro-Dollar
Business Day. If the date for any payment of principal is extended by operation
of law or otherwise, interest thereon shall be payable for such extended time.
(b) Unless the Administrative Agent shall have received notice from
the Borrower before the date on which any payment is due to any of the Lenders
hereunder that the Borrower will not make such payment in full, the
Administrative Agent may assume that the Borrower has made such payment in full
to the Administrative Agent on such date and, in reliance upon such assumption,
the Administrative Agent may (but shall not be obligated to) cause to be
distributed to each Lender on such due date an amount equal to the amount then
due such Lender. If and to the extent that the Borrower shall not have so made
such payment, each such Lender shall repay to the Administrative Agent forthwith
on demand any such amount distributed to such Lender together with interest
thereon, for each day from the date such amount is distributed to such Lender
until the date such Lender repays such amount to the Administrative Agent, at
the Federal Funds Rate.
Section 2.15. Funding Losses. (a) If the Borrower makes any payment of
principal with respect to any Euro-Dollar Loan or if any Euro-Dollar Loan is
converted to a Base Rate Loan (whether such payment or conversion is pursuant to
Article 2, 8 or 10 or otherwise) on any day other than the last day of an
Interest Period applicable thereto, or if the Borrower fails to borrow, prepay,
convert or continue any Euro-Dollar Loans after notice has been given to any
Lender in accordance with Section 2.03(a), 2.06(c), 2.11(e)(v) or 2.12(c), the
Borrower shall reimburse each Lender for any resulting loss or expense incurred
by such Lender (or by any existing or prospective Participant in the related
Loan), including any loss incurred in obtaining, liquidating or employing
deposits from third parties, subject to and in accordance with the procedure set
forth in subsection (b).
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(b) Each Lender wishing to demand compensation pursuant to this
Section shall, within seven Business Days after the relevant payment or
conversion or failure to borrow, prepay, convert or continue occurs, notify the
Administrative Agent that it demands such compensation and deliver to the
Administrative Agent a certificate as to the amount of compensation which such
Lender is entitled to receive pursuant to subsection (a) of this Section,
showing the calculation thereof in reasonable detail. Such certificate shall be
conclusive in the absence of manifest error. Promptly after the end of such
period of seven Business Days, the Administrative Agent shall notify the
Borrower of all demands for such compensation received by it during such period
and deliver to the Borrower copies of the supporting certificates received by it
from Lenders. Within 15 days thereafter, the Borrower shall pay to the
Administrative Agent the aggregate amount properly demanded by Lenders pursuant
to this Section and, upon receipt thereof, the Administrative Agent shall
distribute such amount to the Lenders entitled thereto.
Section 2.16. Computation of Interest and Fees. (a) Interest based on
the Prime Rate shall be computed on the basis of a year of 365 days (or 366 days
in a leap year) and paid for the actual number of days elapsed (including the
first day but excluding the last day). All other interest and all letter of
credit and commitment fees hereunder shall be computed on the basis of a year of
360 days and paid for the actual number of days elapsed (including the first day
but excluding the last day).
(b) The Administrative Agent shall determine each interest rate
applicable to the Loans hereunder. The Administrative Agent shall give prompt
notice to the Borrower and the Lenders of each rate of interest so determined,
and its determination thereof shall be conclusive in the absence of manifest
error.
Section 2.17. Regulation D Compensation. If and for so long as any
Lender maintains reserves against "Eurocurrency liabilities" (or any other
category of liabilities which includes deposits by reference to which the
interest rate on Euro-Dollar Loans is determined or any category of extensions
of credit or other assets which includes loans by a non-United States office of
such Lender to United States residents), and as a result the cost to such Lender
(or its Euro-Dollar Lending Office) of making or maintaining its Euro-Dollar
Loans is increased, then such Lender may require the Borrower to pay,
contemporaneously with each payment of interest on the Euro-Dollar Loans
outstanding, additional interest on the related Euro-Dollar Loan of such Lender,
at a rate per annum up to but not exceeding the amount by which (x) (A) the
applicable London Interbank Offered Rate divided by (B) one minus the Euro-
Dollar Reserve Percentage exceeds (y) the applicable London Interbank Offered
Rate. Any Lender wishing to require payment of such additional interest (i)
shall so notify the Borrower and the Administrative Agent, in which case such
additional interest on the Euro-Dollar
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Loans of such Lender shall be payable to such Lender at the place indicated in
such notice with respect to each Interest Period commencing at least three Euro-
Dollar Business Days after such notice is given and (ii) shall furnish to the
Borrower, at least five Euro-Dollar Business Days prior to each date on which
interest is payable on the Euro-Dollar Loans, an officer's certificate setting
forth the amount to which such Lender is then entitled under this Section.
Section 2.18. Release of Security Interest in Assets Being Sold. The
Administrative Agent shall from time to time instruct the Collateral Agent to
release specific assets (but not all or substantially all the Collateral) from
the Security Interests pursuant to Section 18 of the Security Agreement if:
(i) the Administrative Agent shall have received a written
request for such release signed by any Executive Officer or a Financial
Officer stating that (x) the assets to be released are being sold or
otherwise transferred and (y) the sale or transfer thereof does not
violate Section 7.03(d) hereof;
(ii) arrangements satisfactory to the Administrative Agent have
been made so that such release will become effective no earlier than
the closing of such sale or transfer;
(iii) in the case of an Asset Sale, arrangements satisfactory to
the Administrative Agent have been made to deposit an amount equal to
the Net Cash Proceeds payable at the closing of such Asset Sale, if
any, in a Collateral Account and apply it to reduce Commitments and
prepay Loans and Swingline Loans as required by Section 2.11(a); and
(iv) no Default or Enforcement Notice is in effect when such
instructions are given.
Section 2.19. Borrowing Base Advance Rate Adjustments. (a) As of the
Closing Date, the Accounts Receivable Advance Rate will be 80% and the
Rehabilitation Accounts Receivable Advance Rate will be 25%.
(b) The Collateral Agent and the Collateral Monitoring Agent may, in
the exercise of their reasonable credit judgment increase the Accounts
Receivable Advance Rate and the Rehabilitation Accounts Receivable Advance Rate
from time to time; provided that any such increase in the Accounts Receivable
Advance Rate above 80% and any increase in the Rehabilitation Accounts
Receivable Advance Rate above 25% will require the consent of the Supermajority
Lenders.
(c) The Collateral Agent and the Collateral Monitoring Agent may, in
the exercise of their reasonable credit judgment, reduce the Accounts Receivable
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Advance Rate and the Rehabilitation Accounts Receivable Advance Rate from time
to time.
(d) The Collateral Agent shall give prompt written notice to the
Borrower and the Lenders of any adjustments effected pursuant to this Section
2.19.
ARTICLE 3
Conditions
Section 3.01. Effectiveness of this Agreement; Closing. This Agreement
will become effective, and the Closing will occur, when (i) the Administrative
Agent shall have received the following documents, each dated the Closing Date
unless otherwise indicated (each of the documents referred to in Sections
3.01(a) through 3.01(i) to be in form and substance reasonably satisfactory to
the Administrative Agent and each Lender), and (ii) the other conditions
specified below shall have been satisfied:
(a) with respect to each party listed on the signature pages hereof,
either a counterpart of this Agreement signed by such party or facsimile or
other written confirmation satisfactory to the Administrative Agent that such
party has signed a counterpart hereof;
(b) a duly executed Note complying with the provisions of Section 2.04
for the account of each Lender;
(c) a duly executed Swingline Note complying with the provisions of
Section 2.08(d) for the account of the Swingline Bank;
(d) a counterpart of the Subsidiary Guaranty Agreement signed by each
Restricted Subsidiary;
(e) a counterpart of the Vencor Guaranty Agreement signed by Vencor;
(f) a counterpart of the Security Agreement, signed by Vencor, the
Borrower and each Restricted Subsidiary, together with (to the extent not
already held by Xxxxxx in its capacity as collateral agent under the
Pre-Petition Senior Credit Agreement and DIP Facility) certificates evidencing
all the certificated Equity Interests listed in Schedule 1 hereto (other than
Equity Interests held in Vencor, Cornerstone or any Excluded Partnership) and
signed stock powers or other appropriate instruments of transfer relating
thereto;
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(g) a counterpart of the Intercreditor Agreement signed by each of the
parties thereto;
(h) a signed counterpart of a Fee Mortgage with respect to each Owned
Property in proper form for recording in the relevant jurisdictions, together
with evidence reasonably satisfactory to the Collateral Agent that such Fee
Mortgages will be recorded on or promptly after the Closing Date, and any
related intangibles, mortgage recording (if any) or similar taxes will be paid
in connection with such recording;
(i) a signed counterpart of a Leasehold Mortgage with respect to the
lease of each of the Initial Master Lease Properties and each of the Other
Leased Properties, together with evidence satisfactory to the Collateral Agent
that such Leasehold Mortgages will be recorded on or promptly after the Closing
Date or as otherwise agreed by the Collateral Agent pursuant to the Escrow
Agreement, and any related intangibles, mortgage recording (if any) or similar
taxes will be paid in connection with such recording;
(j) receipt by the Collateral Agent of lender's title insurance
policies in an aggregate amount equal to $120 million with respect to the
Mortgages, such policies to be in form and substance reasonably satisfactory to
the Collateral Agent;
(k) all signed UCC financing statements reasonably requested by the
Collateral Agent to perfect its security interests in the Collateral and
evidence satisfactory to the Collateral Agent that such UCC financing statements
will be filed on or promptly after the Closing Date or as otherwise agreed by
the Collateral Agent pursuant to the Escrow Agreement, and any related filing
fees or similar charges or taxes will be paid in connection with such filing;
(l) a counterpart of each Master Lease Agreement signed by each of the
parties thereto, together with evidence satisfactory to the Collateral Agent
that appropriate memoranda of lease will be recorded on or promptly after the
Closing Date with respect to each of the Initial Master Lease Properties, as
required to protect the rights of the Borrower as lessee thereof against third
parties; the Master Lease Agreements as so executed shall be consistent in all
material respects with the form thereof marked as an exhibit in connection with
the confirmation hearing before the Court on March 1, 2001 (the "Confirmation
Hearing");
(m) a counterpart of the Senior Secured Credit Agreement and of each
security and guaranty agreement entered into in connection therewith; each such
agreement shall be consistent in all material respects with the drafts thereof
marked as exhibits in connection with the Confirmation Hearing;
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(n) (i) the Confirmation Order, as entered on the Court's docket on
March 19, 2001, shall not have been amended or modified in any way that (A) in
the reasonable judgment of the Required Lenders, materially adversely affects
their interests or rights or the business or financial prospects of the Borrower
and its Restricted Subsidiaries or (B) in the reasonable judgment of the
Collateral Monitoring Agent, exercised in good faith, materially adversely
affects the Collateral to be pledged to the Lenders pursuant to the Collateral
Documents (including, without limitation, the value of such Collateral, the
Liens granted for the benefit of the Agents and the Lenders with respect to such
Collateral or the rights and remedies of the secured parties with respect
thereto), (ii) no appeal of the Confirmation Order shall have been taken or, if
any appeal has been taken, no stay of the Confirmation Order pending appeal
shall be in effect and (iii) the Confirmation Order shall not provide that the
Court's retention of jurisdiction thereunder governs the enforcement of the
Financing Documents or any of the rights or remedies of the Lenders or the
Agents related thereto, other than in any respect consented to by the Required
Lenders and the Collateral Monitoring Agent;
(o) the Effective Date of the Plan of Reorganization shall have
occurred, and all conditions precedent thereto (including termination of the
commitments under the DIP Facility and payment in full of all amounts owing by
Vencor or any of its Subsidiaries thereunder) shall have been satisfied as set
forth in the Plan of Reorganization (or, with the prior consent of the Required
Lenders, waived);
(p) all fees and expenses (including but not limited to reasonable
fees and expenses of counsel) required to be paid to the Administrative Agent on
or before the Closing Date shall have been paid;
(q) the Administrative Agent shall not have received notice from any
Lender that, in its reasonable judgment, it is not satisfied that upon the
occurrence of the Closing there shall not occur or be in existence a default (or
any event which with the giving of notice or lapse of time or both would be a
default) under this Agreement, the Senior Secured Credit Agreement, any Master
Lease Agreement, the PIP Claim or any other material agreements;
(r) opinions of (i)(A) the General Counsel of Vencor and the Borrower,
substantially in the form of Exhibit F-1 hereto and (B) the Vice President of
Corporate Legal Affairs of Vencor and the Borrower, substantially in the form of
Exhibit F-2 hereto, (ii) Cleary, Gottlieb, Xxxxx & Xxxxxxxx, special counsel for
Vencor and the Borrower, substantially in the form of Exhibit G hereto, (iii)
Morris, Nichols, Arsht & Xxxxxxx, special Delaware counsel for Vencor and the
Borrower, substantially in the form of Exhibit H hereto and (iv) each local real
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estate counsel listed on Schedule 7 hereto, subsequently in the form of Exhibit
I hereto;
(s) all necessary governmental and third party consents and approvals
necessary in connection with the effectiveness of the Plan of Reorganization and
the transactions contemplated by the Financing Documents shall have been
obtained (without the imposition of any conditions that, in the reasonable
judgment of the Required Lenders, have had or would reasonably be expected to
have a Material Adverse Effect) and shall remain in effect, and all requisite
governmental filings necessary in connection therewith have been made and all
applicable waiting periods shall have expired without in either case any action
being taken by any competent authority, except in any case or in all cases in
the aggregate such that the failure to have been obtained or made would not
reasonably be expected to have a Material Adverse Effect;
(t) no event or condition which has had or is reasonably likely to have
a Material Adverse Effect shall have occurred;
(u) there shall exist no action, suit, investigation, litigation or
proceeding pending or threatened in any court or before any arbitrator or
governmental instrumentality that, if adversely determined, could reasonably be
expected to result in a Material Adverse Effect;
(v) copies of personal property Lien and tax and judgment Lien
searches received by the Borrower prior to the Closing Date with respect to
personal, real and mixed properties of the Borrower and the Guarantors, which
shall not reveal the existence of any Liens on such properties other than (i)
Permitted Liens or (ii) Liens as to which the Administrative Agent has received
evidence satisfactory that the obligations secured by such Liens have been fully
and finally discharged on or prior to the Closing Date;
(w) the Administrative Agent shall have received, in form and substance
reasonably satisfactory to the Administrative Agent, a certificate from an
appropriate officer of each of the Credit Parties (i) attaching copies of the
Organizational Documents of such Credit Party and copies of resolutions or
consents of the board of directors of such Credit Party or of its applicable
partner or member authorizing the applicable Financing Documents and the other
transactions contemplated hereby, and (ii) certifying (A) that such copies are
true, correct and complete copies thereof and that such resolutions and
Organizational Documents are in full force and effect as of the Closing Date and
have been duly adopted in accordance with the Organizational Documents of such
Credit Party, and (B) as to the signatures and incumbency of the Persons
executing Financing Documents on behalf of such Credit Party;
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(x) a completed Borrowing Base Certificate dated as of February 28,
2001 and signed by a Financial Officer; and
(y) all other documents that the Administrative Agent may reasonably
request relating to the existence of the Credit Parties, the corporate or other
authority for and the validity of the Financing Documents, the creation and
perfection of the Liens contemplated by the Collateral Documents and any other
matters relevant thereto, all in form and substance satisfactory to the
Administrative Agent.
Promptly after the Closing occurs, the Administrative Agent shall notify the
Borrower, the other Agents and the Lenders thereof, and such notice shall be
conclusive and binding on all parties hereto. Notwithstanding the foregoing,
this Agreement shall not become effective unless each of the foregoing
conditions is satisfied (or waived pursuant to Section 11.05(b)) before 5:00
pm., Eastern Time, on May 1, 2001 (and, if any such condition is not so
satisfied or waived, the Commitments shall terminate at such time).
Section 3.02. Credit Events. The obligations (a) of each Lender to make
a Loan on the occasion of each Borrowing (except a Borrowing pursuant to Section
2.08(i) to refund outstanding Swingline Loans), (b) of an LC Issuing Bank to
issue a Letter of Credit and of an LC Issuing Bank to sell and of each Lender to
purchase each participation in a Letter of Credit as and when provided in
Section 2.07, (c) of each LC Issuing Bank to extend (or allow the extension of)
the expiry date of a Letter of Credit issued by it hereunder as and when
provided in Section 2.07 and (d) of the Swingline Bank to make any Swingline
Loan are each subject to the satisfaction of the following conditions:
(i) receipt by the Administrative Agent of notice of the
relevant Credit Event as required by Section 2.02(a), 2.07(c) or
2.08(b), as the case may be;
(ii) the fact that, immediately before and after such Credit
Event, no Default shall have occurred and be continuing; and
(iii) the fact that each of the representations and
warranties made by the Borrower or any Guarantor in or pursuant to any
Financing Document to which it is a party shall be true on and as of
the date of such Credit Event as if made on and as of such date;
provided that those representations and warranties that speak only of a
specific date shall only speak as of such specific date.
Without limiting the foregoing, the obligations (A) of each Lender to make the
initial Loan on the occasion of the initial Borrowing, (B) of an LC Issuing Bank
to
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issue the initial Letter of Credit and (C) of the Swingline Bank to make the
initial Swingline Loan, whichever of the foregoing is the first to occur, is
subject to the satisfaction of the condition that except as otherwise agreed by
the Collateral Agent pursuant to the Escrow Agreement, each of the UCC financing
statements referred to in Section 3.01(k) shall have been properly filed, any
related filing fees or similar charges or taxes shall have been paid in
connection with such filing and the Collateral Agent shall have a first priority
perfected security interest in the Collateral subject only to Permitted Liens,
other than Permitted Liens referred to in Sections 7.02(b) and 7.02(h) and any
Permitted Liens arising out of any refinancings of any Debt secured by any
Permitted Lien referred to in Sections 7.02(b) and 7.02(h); provided that Liens
existing on the Closing Date and referred to in a schedule to the Discharge
Letter shall be discharged, removed or reserved against in accordance with the
provisions of, and within the time periods specified in, such Discharge Letter.
Each Credit Event under this Agreement shall be deemed to be a representation
and warranty by the Borrower on the date of such Credit Event as to the facts
specified in clauses (ii) and (iii) of this Section.
ARTICLE 4
Representations and Warranties
Each of the Borrower and Vencor represents and warrants to the Lender
Parties that:
Section 4.01. Corporate Existence and Power. The Borrower and each
Guarantor (a) is a corporation, limited liability company or partnership duly
incorporated or organized and validly existing under the laws of its
jurisdiction of incorporation or organization, (b) is in good standing under the
laws of its jurisdiction of incorporation or organization and (c) has all
corporate or other powers and all material Governmental Approvals (including
without limitation those required by Medicaid Regulations and Medicare
Regulations) required to carry on its business as now conducted and as proposed
to be conducted, except for such Governmental Approvals the failure of which to
have in the aggregate could not be reasonably expected to have a Material
Adverse Effect; provided that clause (b) shall not apply to either Recovery Inns
of America, Inc. or X.X. Xxxxxx Hospital, Inc. prior to July 31, 2001. The
Borrower and each Guarantor is in compliance with its Organizational Documents.
Section 4.02. Corporate and Governmental Authorization; No Contravention.
The execution and delivery by the Borrower and each Guarantor of the Financing
Documents to which it is a party, its performance of its
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obligations thereunder and, with respect to the Borrower, the issuance of the
Notes are within its corporate or other powers, have been duly authorized by all
necessary corporate or other action, require no action by or in respect of, or
filing with, any governmental body, agency or official (other than the
Confirmation Order and except such as shall have been made at or before the time
required by the Financing Documents and shall be in full force and effect on and
after the date when made to the extent required by the Financing Documents) and
do not contravene, or constitute a default under, any Applicable Laws or any
provision of its Organizational Documents, or of any agreement or other
instrument binding upon it or result in or require the imposition of any Lien
(other than the Liens created by the Collateral Documents and Liens securing
amounts owing under the Senior Secured Credit Agreement) on any of its assets.
Section 4.03. Binding Effect. This Agreement constitutes a valid and
binding agreement of the Borrower and Vencor, and the other Financing Documents,
when executed and delivered as contemplated by this Agreement, will constitute
valid and binding obligations of each Credit Party that is a party thereto, in
each case enforceable in accordance with its terms, except as limited by general
principles of equity and by bankruptcy, insolvency, fraudulent conveyance or
other similar laws affecting creditor's rights generally.
Section 4.04. Security Interests. On the Closing Date, the Collateral
Documents will create valid Security Interests in the Collateral to the extent
set forth therein. At all times after the Closing, the Collateral Documents will
create valid and, when financing statements are filed in the offices specified
in the Perfection Certificates delivered pursuant to the Security Agreement,
perfected Security Interests in the Collateral from time to time covered or
purportedly covered thereby to the extent that a security interest in such
Collateral may be perfected by filing under the UCC. Such Security Interests
will be prior to all other Liens (except Permitted Liens, other than Permitted
Liens referred to in Sections 7.02(b) and 7.02(h) and any Permitted Liens
arising out of any refinancings of any Debt secured by any Permitted Lien
referred to in Sections 7.02(b) and 7.02(h); provided that Liens existing on the
Closing Date and referred to in a schedule to the Discharge Letter shall be
discharged, removed or reserved against in accordance with the provisions of,
and within the time periods specified in, such Discharge Letter) on such
Collateral until the applicable Security Interest is released pursuant to
Section 18 of the Security Agreement.
Section 4.05. Financial Information.
(a) The consolidated balance sheet of Vencor and its Consolidated
Subsidiaries as of December 31, 2000 and the related consolidated statements of
operations, cash flows and shareholders' equity for the Fiscal Year then ended,
reported on by PricewaterhouseCoopers LLP, fairly present in all material
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respects, in conformity with GAAP, the consolidated financial position of Vencor
and its Consolidated Subsidiaries as of such date and their consolidated results
of operations and cash flows for such Fiscal Year.
(b) Since December 31, 2000, no event has occurred and no condition has
come into existence which has had, or is reasonably likely to have, a Material
Adverse Effect.
Section 4.06. Litigation. Except as disclosed in Schedule 8 hereto, there
is no action, suit or proceeding pending against, or to the knowledge of the
Borrower or Vencor threatened against or affecting, the Borrower or any
Guarantor before any court or arbitrator or any governmental body, agency or
official (i) in which there is a reasonable possibility of an adverse decision
that could reasonably be expected to have a Material Adverse Effect or (ii)
which in any manner questions the validity of any Financing Document.
Section 4.07. Compliance with ERISA. Each member of the ERISA Group has
fulfilled its obligations under the minimum funding standards of ERISA and the
Internal Revenue Code with respect to each Plan and is in compliance in all
material respects with the presently applicable provisions of ERISA and the
Internal Revenue Code with respect to each Plan. No member of the ERISA Group
has (i) sought a waiver of the minimum funding standard under Section 412 of the
Internal Revenue Code in respect of any Plan, (ii) failed to make any
contribution or payment to any Plan or Multiemployer Plan or made any amendment
to any Plan, which has resulted or could result in the imposition of a Lien or
the posting of a bond or other security under ERISA or the Internal Revenue Code
or (iii) incurred any liability under Title IV of ERISA other than a liability
to the PBGC for premiums under Section 4007 of ERISA.
Section 4.08. Taxes. The Borrower and the Guarantors have filed all United
States Federal income tax returns that are required to be filed by them (or have
filed appropriate extensions for filing such tax returns) and have paid all
taxes due pursuant to such returns or pursuant to any assessment received by any
of them, except such taxes, if any, as are being contested in good faith and as
to which reserves have been provided. The charges, accruals and reserves on the
books of the Borrower and the Guarantors in respect of taxes or other similar
governmental charges are in the aggregate, in the opinion of Vencor, adequate.
Section 4.09. Compliance with Laws. The Borrower and the Guarantors are in
compliance in all material respects with all Applicable Laws (including without
limitation Medicaid Regulations and Medicare Regulations), other than such laws,
rules or regulations (i) the validity or applicability of which the Borrower or
the relevant Guarantor is contesting in good faith or (ii) the failure to
83
comply with which could not, in the aggregate, reasonably be expected to have a
Material Adverse Effect.
Section 4.10. No Regulatory Restrictions on Borrowing. Neither the Borrower
nor any Guarantor is (i) an "investment company", within the meaning of the
Investment Company Act of 1940, as amended, (ii) a "holding company", or an
"affiliate" of a "holding company" or a "subsidiary company" of a "holding
company", within the meaning of the Public Utility Holding Company Act of 1935,
as amended or (iii) otherwise subject to any regulatory scheme which restricts
its ability to incur Debt hereunder.
Section 4.11. Environmental Matters.
(a) From time to time, Vencor has reviewed the effect of Environmental
Laws on the business, operations and properties of the Borrower and the
Guarantors, in the course of which reviews it identified and evaluated
associated liabilities and costs. On the basis of such reviews, Vencor has
reasonably concluded that the foregoing associated liabilities and costs are
unlikely to have a Material Adverse Effect.
(b) Except to the extent that the Environmental Liabilities of the
Borrower and the Guarantors that relate to or could result from the matters
referred to in this Section 4.11(b) would not exceed $1,000,000 for any one
occurrence, no material notice, notification, demand, request for information,
citation, summons, complaint or order with respect to Hazardous Substances or
any violation of Environmental Laws is in existence or, to the knowledge of
Vencor, proposed, threatened or anticipated with respect to or in connection
with the operation of any properties to be owned, leased or operated after the
Closing Date by the Borrower or any Guarantor.
Section 4.12. Full Disclosure. The information (other than projections)
heretofore furnished in writing by the Borrower or any Guarantor to any Agent or
any Lender, taken as a whole, for purposes of or in connection with this
Agreement or any transaction contemplated hereby did not at the time furnished,
and all such information hereafter furnished in writing by the Borrower or any
Guarantor to any Agent or Lender, taken as a whole, will not at the time
furnished, contain any untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in light of the
circumstances under which they were or will be made, not misleading. Although
any projections (and the underlying assumptions) by necessity involve
uncertainties and approximations, Vencor believes as of the date hereof that the
projections set forth in its presentation dated January 10, 2001 are reasonable
(and the significant assumptions upon which they are based are stated in summary
form therein), and such projections provide reasonable estimations of the future
performance of the
84
Borrower and its Restricted Subsidiaries, subject, as stated above, to the
uncertainties and approximations inherent in any projections. Vencor has
disclosed to the Lenders in writing (including by way of reports filed in
accordance with Section 12 of the Securities Exchange Act) any and all facts
which are known to it and which have had or could reasonably be expected to have
a Material Adverse Effect.
Section 4.13. Information as to Equity Interest and Instruments. Schedule 1
hereto sets forth a correct and complete list, as of the close of business on
the Closing Date, of each Subsidiary of Vencor, its outstanding Equity
Interests, the owner thereof and the percentage thereof owned by such owner. As
of the close of business on the Closing Date, neither Vencor nor any of its
Subsidiaries owns any interest in any Subsidiary which is neither the Borrower
nor a Restricted Subsidiary (other than Cornerstone, the Excluded Partnerships
and the Shell Subsidiary). Except as set forth on Schedule 10 hereto, no Debt
(including Permitted Intercompany Debt) owed to any Lien Grantor is evidenced by
an instrument (as such term is defined in the UCC) that is not held in a
Concentration Account or pledged to the Collateral Agent as part of the
Collateral.
Section 4.14. Representations in Other Financing Documents. The
representations of each Guarantor in Section 2 of its Guaranty Agreement and the
representations of each Lien Grantor in Section 2 of the Security Agreement and
Section 5 of each Security Agreement Supplement (if any) signed by it are true.
Section 4.15. Margin Stock. (a) The Borrower does not, as of the date
hereof, expect that the Borrower or any Guarantor will acquire any Margin Stock
in the future. Even if they do, Margin Stock will not at any time represent more
than 25% of the value (as determined by any reasonable method) of the assets
subject to any provision of the Financing Documents that restricts the right or
ability of the Borrower or any Guarantor to sell, pledge or otherwise dispose of
Margin Stock owned by them or requires a prepayment of Loans upon the exercise
of any such right.
(b) No part of the proceeds of any Loan, Swingline Loan or Letter of
Credit will be used for "buying" or "carrying" any Margin Stock within the
respective meanings of each of the quoted terms under Regulation U or for any
purpose which violates the provisions of any regulation of the Board of
Governors of the Federal Reserve System.
Section 4.16. Properties. (a) The Borrower and each Guarantor has good
title to, or valid leasehold interests in, all real and personal property
material to its business (including all its property subject to the Mortgages),
except for
85
Permitted Liens and minor defects that in the aggregate could not reasonably be
expected to have a Material Adverse Effect.
(b) The Borrower and each Guarantor owns, or is licensed to use, all
trademarks, tradenames, copyrights, patents and other intellectual property
material to its business, and the use thereof by the Borrower and the Guarantors
does not infringe upon the rights of any other Person, except for infringements
that, in the aggregate, could not reasonably be expected to have a Material
Adverse Effect.
(c) As of the Closing Date, neither the Borrower nor any Guarantor has
received notice of, of has knowledge of, any pending or contemplated
condemnation proceeding affecting any property subject to a Mortgage or any sale
or disposition thereof in lieu of condemnation. No property subject to a Fee
Mortgage nor any interest therein is subject to any right of first refusal,
option or other contractual right to purchase such property or interest therein,
other than Permitted Liens.
Section 4.17. Existing Indebtedness. As of the Closing Date, the Borrower
and the Guarantors will have no Debt outstanding other than (i) this Agreement,
(ii) the Senior Secured Credit Agreement, (iii) the PIP Claim in an aggregate
principal amount not exceeding $58,457,242 as of March 31, 2001, (iv) the
Government Settlement, (v) other Debt arising under the Plan of Reorganization,
(vi) Debt set forth on Schedule 9 hereto and (vii) other Debt in an aggregate
principal amount not exceeding $1,000,000.
ARTICLE 5
Affirmative Covenants
Each of the Borrower and Vencor agrees that, So long as any Lender has any
Revolving Credit Exposure hereunder or any interest or fee accrued hereunder
remains unpaid:
Section 5.01. Information. The Borrower will deliver the following
information to the Administrative Agent (with copies thereof for each Lender if
requested by the Administrative Agent) and, promptly upon receipt thereof, the
Administrative Agent will deliver a copy thereof to each Lender (provided that
the Borrowing Base Certificate referred to in Section 5.01(q) shall be delivered
by the Borrower directly to the Administrative Agent and the Collateral
Monitoring Agent, and not solely to the Administrative Agent):
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(a) as soon as available and in any event within 90 days after the end of
each Fiscal Year in the case of Vencor and its Consolidated Subsidiaries and
within 105 days after the end of each Fiscal Year (beginning with Fiscal Year
2001) in the case of the Borrower and the Restricted Subsidiaries, an audited
consolidated and an unaudited consolidating balance sheet of (i) the Borrower
and its Restricted Subsidiaries and (ii) Vencor and its Consolidated
Subsidiaries, in each case, as of the end of such Fiscal Year, and the related
audited consolidated and unaudited consolidating statements of operations, cash
flows and changes in stockholders' equity for such Fiscal Year, setting forth in
each case in comparative form the figures for the previous Fiscal Year (to the
extent available), all such consolidated financial statements reported on in a
manner acceptable to the SEC by independent public accountants of nationally
recognized standing, which report (x) shall state that such financial statements
present fairly, in all material respects, the consolidated financial position of
the Borrower and its Restricted Subsidiaries or Vencor and its Consolidated
Subsidiaries, as the case may be, as of the date of such financial statements
and their consolidated results of operations and cash flows for the period
covered by such financial statements in conformity with GAAP and (y) shall not
contain any Qualification;
(b) as soon as available and in any event within 45 days after the end
of each of the first three Fiscal Quarters of each Fiscal Year in the case of
Vencor and its Consolidated Subsidiaries and within 60 days after the end of
each of the first three Fiscal Quarters of each Fiscal Year in the case of the
Borrower and its Restricted Subsidiaries, (i) an unaudited condensed
consolidated and an unaudited condensed consolidating balance sheet of (A) the
Borrower and its Restricted Subsidiaries and (B) Vencor and its Consolidated
Subsidiaries, in each case together with the related condensed consolidated and
consolidating statements of operations for such Fiscal Quarter and for the
portion of the Fiscal Year ended at the end of such Fiscal Quarter and of cash
flows for the portion of the Fiscal Year ended at the end of such Fiscal
Quarter, setting forth in each case in comparative form the unaudited
consolidated and consolidating statements of operations and cash flows (to the
extent available) for the corresponding Fiscal Quarter and the corresponding
portion of the previous Fiscal Year, all prepared in accordance with Rule 10-01
of Regulation S-X of the General Rules and Regulations under the Securities Act
of 1933, or any successor rule that sets forth the manner in which interim
financial statements shall be prepared, and (ii) a certificate (subject to
normal year-end adjustments) of a Financial Officer and of a principal financial
officer of Vencor, as applicable, as to the fairness of presentation and
consistency of such financial statements; provided that Vencor and the Borrower
may xxxx any financial statements delivered during the 120-day period following
the Closing Date as "Subject to Change" and, if Vencor or the Borrower elects to
do so, Vencor or the Borrower, as the case may be, shall deliver final versions
of such financial statements to the Administrative Agent as soon as they are
available;
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(c) simultaneously with the delivery of each set of financial statements
referred to in Sections 5.01(a) and 5.01(b), a certificate of a Financial
Officer (i) setting forth in reasonable detail such calculations as are required
to establish whether the Borrower was in compliance with the requirements of
Article 6 on the date of such financial statements, (ii) stating whether any
Default exists on the date of such certificate and, if any Default then exists,
setting forth the details thereof and the action that the Borrower is taking or
proposes to take with respect thereto, (iii) stating whether, since the date of
the Most Recent Audited Financial Statements, an event has occurred or condition
arisen which has had a Material Adverse Effect which is not reflected in the
financial statements delivered simultaneously therewith and, if so, the nature
of such Material Adverse Effect, and (iv) stating whether, since the date of the
Most Recent Audited Financial Statements, there has been a change in the GAAP
applied in preparing the financial statements then being delivered from those
applied in preparing the Most Recent Audited Financial Statements which is
material to the financial statements then being delivered;
(d) simultaneously with the delivery of each set of annual financial
statements referred to in Section 5.01(a), a letter from the firm of independent
public accountants that reported on such statements stating (i) whether anything
has come to their attention in the course of their normal audit procedures to
cause them to believe that any Default existed on the date of such financial
statements and (ii) whether in their opinion the calculations of compliance with
the requirements of Article 6 set forth in the Financial Officer's certificate
delivered simultaneously therewith pursuant to Section 5.01(c), to the extent
derived from data contained in the accounting records of the Borrower and its
Restricted Subsidiaries, have been determined in accordance with the relevant
provisions of this Agreement;
(e) within five Business Days after any Executive Officer or Financial
Officer obtains knowledge of any Default, if such Default is then continuing, a
certificate of a Financial Officer setting forth the details thereof and the
action that the Borrower or Vencor is taking or proposes to take with respect
thereto;
(f) within five Business Days after any Executive Officer or Financial
Officer obtains knowledge that a notice of default has been delivered under any
Master Lease Agreement, Third Party Lease or Management Contract and such
default could reasonably be expected to result in an Event of Default or
Material Adverse Effect and if such default is then continuing, a certificate of
an Executive Officer or Financial Officer setting forth the details thereof and
the action that the Borrower or Guarantor is taking or proposes to take with
respect thereto;
(g) within five Business Days after any Executive Officer or Financial
Officer obtains knowledge that (i) a Facility Default (as defined in the
applicable
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Master Lease Agreement) has occurred or (ii) notice of termination has been
delivered, or has grounds to believe that a notice of termination is reasonably
likely to be delivered, to the Borrower or any Restricted Subsidiary by any
counterparty to any lease or management contract to which the Borrower or a
Restricted Subsidiary is a party, a certificate of an Executive Officer or
Financial Officer setting forth the details thereof and the action that the
Borrower or Guarantor is taking or proposes to take with respect thereto;
(h) promptly after the mailing thereof to Vencor's shareholders generally,
copies of all financial statements, reports and proxy statements so mailed;
(i) promptly upon the filing thereof, copies of all registration
statements (other than the exhibits thereto and any registration statements on
Form S-8 or its equivalent) and annual, quarterly or current reports that Vencor
shall have filed with the SEC;
(j) promptly after any member of the ERISA Group (i) gives or is required
to give notice to the PBGC of any "reportable event" (as defined in Section 4043
of ERISA) with respect to any Plan which might constitute grounds for a
termination of such Plan under Title IV of ERISA, or knows that the plan
administrator of any Plan has given or is required to give notice of any such
reportable event, a copy of the notice of such reportable event given or
required to be given to the PBGC; (ii) receives notice of complete or partial
withdrawal liability under Title IV of ERISA or notice that any Multiemployer
Plan is in reorganization, is insolvent or has been terminated, a copy of such
notice; (iii) receives notice from the PBGC under Title IV of ERISA of an intent
to terminate, impose liability (other than for premiums under Section 4007 of
ERISA) in respect of, or appoint a trustee to administer any Plan, a copy of
such notice; (iv) applies for a waiver of the minimum funding standard under
Section 412 of the Internal Revenue Code, a copy of such application; (v) gives
notice of intent to terminate any Plan under Section 4041(c) of ERISA, a copy of
such notice and other information filed with the PBGC; (vi) gives notice of
withdrawal from any Plan pursuant to Section 4063 of ERISA, a copy of such
notice; or (vii) fails to make any payment or contribution to any Plan or
Multiemployer Plan or makes any amendment to any Plan which has resulted or
could result in the imposition of a Lien or the posting of a bond or other
security, a certificate of a Financial Officer setting forth details as to such
occurrence and the action, if any, which the Borrower or the applicable member
of the ERISA Group is required or proposes to take;
(k) (i) as soon as reasonably practicable after any Executive Officer
obtains knowledge of the commencement of an action, suit or proceeding against
the Borrower or any Guarantor before any court or arbitrator or any governmental
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body, agency or official in which there is a reasonable possibility of an
adverse decision which could have a Material Adverse Effect or which in any
manner questions the validity of any Financing Document, a certificate of a
Financial Officer setting forth the nature of such action, suit or proceeding
and such additional information as may be reasonably requested by any Lender
through the Administrative Agent;
(ii) promptly after an Executive Officer obtains knowledge of one or
more judgments or orders of a court or arbitral or regulatory authority for
the payment of money aggregating in excess of $10,000,000 rendered against
the Borrower or one or more Guarantors, a certificate of such Executive
Officer setting forth the nature and amount of such judgment and whether
the Borrower or Guarantor intends to seek a stay or appeal of such judgment
and such additional information as may be reasonably requested by any
Lender through the Administrative Agent;
(l) promptly upon Vencor's receipt from its independent public accountants
of any management letter which indicates a material weakness in the reporting
practices of the Borrower or any Guarantor, a description of such material
weakness and any action being taken with respect thereto;
(m) promptly upon their becoming available, copies of all press releases
and other statements made available generally by the Borrower or any Guarantor
to the public concerning material developments in its business;
(n) within 15 days after the commencement of each Fiscal Year, (i) cash
flow, balance sheet and income statement forecasts in reasonable detail for the
Borrower and its Restricted Subsidiaries prepared on a monthly basis for each
Fiscal Year through the Revolving Credit Termination Date and, promptly when
available, any material revisions of such forecast and (ii) the Borrower's
business and financial plans for such Fiscal Year, setting forth the assumptions
used in preparing such plans and, promptly when available, any material
revisions of such plans;
(o) promptly upon any Person becoming or ceasing to be a Restricted
Subsidiary or Insurance Subsidiary of the Borrower, an update to Schedule 1
hereto setting forth the information described in Section 4.13 with respect to
each Restricted Subsidiary and Insurance Subsidiary of the Borrower (it being
understood that nothing in this Section 5.01(o) shall be deemed to permit or
authorize the creation, dissolution, liquidation or acquisition of a Restricted
Subsidiary or Insurance Subsidiary of the Borrower not otherwise permitted under
this Agreement);
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(p) promptly upon request of the Administrative Agent (which request may
be made on no more than one occasion in any calendar month), a report in
reasonable detail showing the amount of Temporary Cash Investments of the
Borrower and its Restricted Subsidiaries, the banks or financial institutions at
which such Temporary Cash Investments are maintained, the then yield on such
Temporary Cash Investments and such other information relating to Temporary Cash
Investments of the Borrower and its Restricted Subsidiaries as the
Administrative Agent may reasonably request;
(q) within 30 days after the end of each calendar month, a completed
Borrowing Base Certificate calculating and certifying the Borrowing Base as of
the end of such calendar month, signed on behalf of the Borrower by a Financial
Officer; and
(r) from time to time such additional information regarding the financial
position, results of operations or business of the Borrower or any Guarantor as
any Lender may reasonably request in writing through the Administrative Agent.
Information required to be delivered pursuant to Sections 5.01(a), 5.01(b),
5.01(h), 5.01(i) and 5.01(m) shall be deemed to have been delivered on the date
on which the Borrower provides notice to the Lenders that such information has
been posted on Vencor's website on the Internet at the website address listed on
the signature pages hereof, at xxx.xxx/xxxxx/xxxxxxxx.xxx or at another website
identified in such notice and accessible by the Lenders without charge; provided
that (i) such notice may be included in a certificate delivered pursuant to
Section 5.01(c) and (ii) Vencor shall deliver paper copies of the information
referred to in Sections 5.01(a), 5.01(b), 5.01(h), 5.01(i) and 5.01(m) to any
Lender that requests such delivery.
Section 5.02. Maintenance of Property. The Borrower and each Guarantor will
keep all property useful and necessary in its business in good working order and
condition, ordinary wear and tear and casualty excepted.
Section 5.03. Insurance.
(a) The Borrower and each Guarantor will maintain insurance with
responsible companies in such amounts and against such risks as is usually
carried by owners of similar businesses and properties in the same general areas
in which it operates.
(b) If the Borrower or any Guarantor fails to maintain any insurance
policy required to be maintained under this Section 5.03, the Collateral Agent
shall have the right to maintain such policy or obtain a comparable policy, and
in either case pay the premiums therefor. If the Collateral Agent maintains or
obtains
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any such policy and pays the premiums therefor, the Borrower will reimburse the
Collateral Agent upon demand for its expenses in connection therewith, including
interest thereon for each day at a rate per annum equal to the Default Rate.
Section 5.04. Compliance with Law, Etc. The Borrower and each Guarantor
will comply in all material respects with all Applicable Laws (including
Medicare Regulations, Medicaid Regulations, Environmental Laws and ERISA and the
rules and regulations thereunder and with the Corporate Integrity Agreement),
except where (i) the necessity of compliance therewith is contested in good
faith by appropriate measures or proceedings, in which case adequate and
reasonable reserves will be established in accordance with GAAP and notice of
each such contest (other than contests in the ordinary course of business) shall
be given to the Administrative Agent, or (ii) failures to comply therewith could
not, in the aggregate, reasonably be expected to have a Material Adverse Effect.
Section 5.05. Maintenance of Existence, Rights, Etc. The Borrower and each
Guarantor will preserve, renew and keep in full force and effect its existence
and its rights, privileges, licenses and franchises necessary or desirable in
the normal conduct of business; provided that nothing in this Section shall
prohibit (a) any merger or consolidation permitted by Section 7.03, (b) the
termination of the existence of any Subsidiary if (i) the Borrower determines
that such termination is in its best interest and (ii) such termination is not
adverse in any material respect to the Lenders, (c) the loss of any rights,
privileges, licenses and franchises if the loss thereof, in the aggregate, could
not reasonably be expected to have a Material Adverse Effect or (d) the Borrower
or any Guarantor from changing its name to the name set forth below the name of
the Borrower or such Guarantor on the Perfection Certificate delivered pursuant
to the Security Agreement, so long as the Borrower and such Guarantor comply
with the requirements of Section 5 of the Security Agreement in connection with
such name change.
Section 5.06. Designation of Unrestricted Subsidiaries. (a) The Board of
Directors of the Borrower may designate any Subsidiary, including a newly
acquired or created Subsidiary, to be an Unrestricted Subsidiary if the sum of
the total assets of such Subsidiary (or, if any such Subsidiary itself has
Subsidiaries, the consolidated total assets of such Subsidiary and its
Consolidated Subsidiaries) and every other Unrestricted Subsidiary, in each case
determined as of the date of the Most Recent Financial Statements, does not
exceed 5% of the consolidated total assets of the Borrower and its Consolidated
Subsidiaries and the designation would not cause a Default; provided that:
(i) Such Subsidiary does not own any capital stock of the Borrower
or any Restricted Subsidiary or hold any Debt of, or any Lien on any
property of, the Borrower or any Restricted Subsidiary.
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(ii) At the time of designation, the designation would be permitted
under Section 7.08.
(iii) To the extent the Debt of the Subsidiary is not Non-Recourse
Debt, any Guarantee or other credit support thereof by the Borrower or any
Restricted Subsidiary is permitted under Sections 7.01 and 7.08.
(iv) The Subsidiary is not party to any transaction or arrangement
with the Borrower or any Restricted Subsidiary that would not be permitted
under Section 7.04.
(v) Neither the Borrower nor any Restricted Subsidiary has any
obligation to subscribe for additional Equity Interests of the Subsidiary or
to maintain or preserve its financial condition or cause it to achieve
specified levels of operating results except to the extent permitted by
Sections 7.01 and 7.08.
Once so designated the Subsidiary will remain an Unrestricted Subsidiary,
subject to paragraph (b).
(b) (i) If as of the date of the Most Recent Financial Statements, the
conditions specified in paragraph (a) are not satisfied, the Board of Directors
of the Borrower shall immediately designate one or more Unrestricted
Subsidiaries as Restricted Subsidiaries to the extent required to ensure that
the conditions specified in paragraph (a) would have been satisfied as of the
date of the Most Recent Financial Statements, subject to the consequences set
forth in paragraph (d).
(ii) The Board of Directors of the Borrower may designate an
Unrestricted Subsidiary to be a Restricted Subsidiary if the designation
would not cause a Default.
(c) Upon a Restricted Subsidiary becoming an Unrestricted Subsidiary,
(i) all existing Investments of the Borrower and the Restricted
Subsidiaries therein (valued at the Borrower's proportional share of the
fair market value of its assets less liabilities) will be deemed made at
that time;
(ii) all existing capital stock or Debt of the Borrower or a
Restricted Subsidiary held by it will be deemed incurred at that time, and
all Liens on property of the Borrower or a Restricted Subsidiary held by it
will be deemed incurred at that time;
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(iii) all existing transactions between it and the Borrower or
any Restricted Subsidiary will be deemed entered into at that time;
(iv) it is released at that time from the Subsidiary Guaranty
Agreement, if it is a party thereto; and
(v) it will cease to be subject to the provisions of this
Agreement as a Restricted Subsidiary.
(d) Upon an Unrestricted Subsidiary becoming a Restricted Subsidiary,
(i) all of its Debt will be deemed incurred at that time for
purposes of Section 7.01, but will not be considered the sale or
issuance of Equity Interests for purposes of Sections 7.03(d) or 7.06;
(ii) Investments therein previously charged under Section 7.08
will be credited thereunder;
(iii) it must issue a Guarantee of the Notes pursuant to
Section 5.07 and execute a Security Agreement Supplement pursuant to
Section 5.08; and
(iv) it will thenceforward be subject to the provisions of
this Agreement as a Restricted Subsidiary.
(e) Any designation by the Board of Directors of the Borrower of a
Subsidiary of the Borrower as a Restricted Subsidiary or Unrestricted Subsidiary
will be evidenced to the Administrative Agent by promptly filing with the
Administrative Agent a copy of the board resolution giving effect to the
designation and a certificate of an Executive Officer certifying that the
designation complied with the foregoing provisions.
Section 5.07. Guarantees by Future Restricted Subsidiaries. Within five
Business Days after any Person becomes a Restricted Subsidiary, the Borrower
shall (i) cause such Restricted Subsidiary to guarantee the Borrower's
obligations hereunder pursuant to a Subsidiary Guaranty Agreement and (ii)
deliver to the Agents such legal opinions and other documents as the Agents may
reasonably request relating to the existence of such Restricted Subsidiary, the
corporate or other authority for and validity of its Subsidiary Guaranty
Agreement and any other matters relevant thereto, all in form and substance
satisfactory to the Agents.
Section 5.08. Future Assets to Be Added to Collateral.
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(a) Within 5 Business Days after any Person becomes or is deemed to
have become a Restricted Subsidiary, an Insurance Subsidiary or an insurance
subsidiary of Vencor or ceases to be an Excluded Partnership after the date
hereof, the Borrower or Vencor shall cause all Equity Interests in such Person
owned by the Borrower or the Guarantors to be pledged under the Security
Agreement; provided that, if regulatory consent is required to permit any such
pledge of Equity Interests in an insurance subsidiary, (i) such pledge shall not
be required unless such regulatory consent is reasonably obtainable and (ii) if
such regulatory consent is reasonably obtainable, the Borrower or Vencor shall
exercise all reasonable efforts to obtain it and shall not be required to pledge
such Equity Interests until it is obtained.
(b) If at any time after the Closing Date the Borrower or a Guarantor
acquires a Material Real Property that is not included in the Collateral, the
Borrower shall, within two Business Days after it or such Guarantor acquires
such Material Real Property, provide notice thereof to the Administrative Agent
and, within 30 days after it or such Guarantor acquires such Material Real
Property, cause such Material Real Property to be added to the Collateral by
delivering to the Collateral Agent a Fee Mortgage with respect thereto and the
appropriate UCC form for the related fixture filing, all in form and substance
reasonably satisfactory to the Administrative Agent.
(c) Within 30 days after the commencement of each Fiscal Year, the
Borrower shall deliver a leasehold report to the Administrative Agent setting
forth a list of each Material Real Property leased by it or any Guarantor under
a lease with respect to which its or such Guarantor's leasehold interest is not
included in the Collateral. The Administrative Agent may (and if it is requested
to do so by the Required Lenders shall) request the Borrower to cause any such
leasehold interest not subject to a negative pledge to be added to the
Collateral by delivering to the Collateral Agent a Leasehold Mortgage with
respect thereto and the appropriate UCC form for the related fixture filing, all
in form and substance reasonably satisfactory to the Administrative Agent. The
Borrower shall, and shall cause each Guarantor to, attempt in good faith to
cause any such lease of a Material Real Property to (i) not contain a negative
pledge (subject to prevailing market conditions) and (ii) contain provisions for
the benefit of a leasehold mortgagee comparable to those contained in the Master
Lease Agreements and to obtain a non-disturbance agreement with respect to such
lease on customary terms.
(d) Within 5 Business Days after any Person becomes a Restricted
Subsidiary or ceases to be an Excluded Partnership (provided that such Person
remains a Subsidiary), the Borrower will (i) cause such Person to sign and
deliver a Subsidiary Guaranty Agreement and Security Agreement Supplement
granting a Lien or Liens on substantially all the personal property included in
its assets (with
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the exceptions set forth in the first proviso at the end of Section 3 of the
Security Agreement and such other exceptions as the Agents shall have approved
in writing) to the Collateral Agent to secure its Secured Obligations and (ii)
cause such Person to comply with the provisions thereof and of the Security
Agreement and Subsidiary Guaranty Agreement.
(e) Whenever any asset is added to the Collateral pursuant to this
Section 5.08, the Borrower shall deliver to the Administrative Agent and
Collateral Agent such legal opinions and other documents as the Administrative
Agent or Collateral Agent may reasonably request relating to the existence of
the relevant Lien Grantor, the corporate or other authority for and validity of
the Collateral Documents applicable thereto, the creation and perfection (or due
recordation) of the Lien purportedly created thereby and any other matters
relevant thereto (including the insurance), all in form and substance
satisfactory to the Administrative Agent and Collateral Agent.
Section 5.09. Casualty Events.
(a) All Casualty Proceeds received by the Collateral Agent, the
Borrower or any of its Restricted Subsidiaries shall be applied as set forth in
Section 2.11(a).
(b) If any Condemnation Event occurs with respect to property owned
or leased by the Borrower or any of its Restricted Subsidiaries, or if any
negotiation or proceeding is commenced which might result in such a Condemnation
Event, or if any such Condemnation Event is proposed or threatened, the Borrower
or such Restricted Subsidiary (i) will, promptly after receiving notice or
obtaining knowledge thereof, do all things deemed necessary or appropriate by it
to preserve its interest in such property and promptly make claim for awards
payable with respect thereto and diligently pursue to conclusion such claim and
any suit, action or other proceeding necessary or appropriate to obtain payment
thereof and (ii) will not settle any such claim, negotiation or proceeding
without the consent of the Collateral Agent if an Enforcement Notice is in
effect.
Section 5.10. Ranking. The Borrower and Vencor shall, and shall
procure that each other Guarantor shall, procure that its respective payment
obligations under the Notes or the Guaranty Agreements (as applicable) do and
will at all times rank at least xxxx xxxxx in right and priority of payment with
all of its other present and future senior Debt.
Section 5.11. Use of Proceeds and Letters of Credit. (a) The proceeds
of the Loans and Swingline Loans will be used by the Borrower to provide working
capital to, and for other general corporate purposes of, the Borrower and its
Restricted Subsidiaries on and after the Closing Date, including without
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limitation, to make any payments (scheduled or otherwise) in respect of the PIP
Claim and other pre-petition claims payable pursuant to the Plan of
Reorganization that, pursuant thereto, will not be paid in full on the Effective
Date.
(b) The Letters of Credit will be used for general corporate purposes
of the Borrower and its Restricted Subsidiaries.
Section 5.12. Borrowing Base Reviews. (a) The Borrower shall, and
shall cause each of its Restricted Subsidiaries to, permit any representatives
designated by the Collateral Monitoring Agent (including any consultants,
accountants, lawyers and appraisers retained by the Collateral Monitoring Agent)
to, upon reasonable notice to the Borrower, conduct evaluations and appraisals
(any such evaluation or appraisal, a "Borrowing Base Review") of the assets
included in the Borrowing Base and the Borrower's computation of the Borrowing
Base, such Borrowing Base Review to be of a scope and detail reasonably
satisfactory to the Required Lenders. The Borrower agrees to, and shall cause
each of its Restricted Subsidiaries to, modify or adjust the computation of the
Borrowing Base (which may include maintaining additional reserves or modifying
the eligibility criteria for the components of the Borrowing Base) to the extent
reasonably required by the Collateral Monitoring Agent or the Required Lenders
as a result of any such Borrowing Base Review.
(b) The Collateral Monitoring Agent shall be entitled to conduct a
Borrowing Base Review once in each calendar year; provided that (x) at any time
that the aggregate Outstanding Amount of all Lenders equals or exceeds 66 2/3%
of the aggregate amount of the Commitments, the Collateral Monitoring Agent
shall be entitled to conduct a Borrowing Base Review on a semi-annual basis
(determined on the basis of a calendar year) and (y) at any time that an Event
of Default has occurred and is continuing, the Collateral Monitoring Agent shall
be entitled to conduct a Borrowing Base Review upon the demand of either the
Collateral Agent and the Collateral Monitoring Agent or the Required Lenders.
(c) The Borrower shall, in connection with each Borrowing Base Review,
reimburse the Collateral Monitoring Agent for all costs (including fees and
expenses of any representatives retained by the Collateral Monitoring Agent in
connection therewith) of conducting such Borrowing Base Review; provided that if
no Event of Default has occurred and is continuing at the time of such Borrowing
Base Review, the Borrower shall be required to reimburse only up to $50,000 of
such costs.
Section 5.13. Environmental Matters. From time to time after the
Closing, Vencor will review the effect of Environmental Laws on the business,
operations and properties of the Borrower and the Guarantors, in the course of
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which reviews it will identify and evaluate associated liabilities and costs.
If, on the basis of such reviews, Vencor reasonably concludes that the foregoing
associated liabilities and costs are likely to have a Material Adverse Effect,
Vencor shall promptly deliver a certificate to the Administrative Agent setting
forth its conclusion and the action that Vencor proposes to take with respect
thereto.
Section 5.14. Post-Closing. (a) No later than 15 days after the
Closing Date, the Borrower shall deliver a schedule to the Administrative Agent
setting forth the correct address of each real property that was owned by the
Borrower or any Guarantor as of the Closing Date.
(b) (i) The Borrower agrees to deliver to the Collateral Agent as
soon as practicable but in no event later than 45 days after the Closing Date,
replacement stock certificates evidencing Equity Interests in each entity
referred to in paragraph 1 of Schedule 11, together with stock powers executed
in blank or other appropriate instruments of pledge relating thereto.
(ii) The Borrower agrees to deliver to the Collateral Agent as
soon as practicable but in no event later than 60 days after the
Closing Date, stock certificates evidencing Equity Interests in each
entity referred to in paragraph 2 of Schedule 11, together with stock
powers executed in blank or other appropriate instruments of pledge
relating thereto.
(iii) Notwithstanding the foregoing provisions of this clause
(b), if despite the Borrower's best efforts, the Borrower fails to
deliver any of the foregoing items to the Collateral Agent within the
time periods specified above, the Collateral Agent may (but shall not
be obligated to) consent to additional time periods for such delivery.
(c) If at any time the granting of a pledge or other security
interest over the Equity Interests in Cornerstone is not prohibited by Cayman
Islands law, Vencor shall ensure that a pledge or such other security interest
over such Equity Interests is granted to the Collateral Agent for the benefit of
the Lenders and that stock certificates evidencing such Equity Interests are
promptly delivered to the Collateral Agent together with signed stock powers or
other appropriate instruments of transfer relating thereto. Prior to such time,
Vencor shall ensure that no Lien over such Equity Interests is granted to any
Person.
(d) (i) Vencor shall (A) ensure that the Liens and title defects
listed on the schedule to the Encumbrance Letter are paid, discharged or removed
in accordance with the provisions of, and within the time periods (if any)
specified in, the Encumbrance Letter and (B) comply with the other provisions of
the Encumbrance Letter.
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(ii) Vencor shall ensure that the Liens listed on the
schedule to the Discharge Letter are paid, discharged or removed in
accordance with the provisions of, and within the time periods
specified in, the Discharge Letter.
(e) As soon as practicable but in no event later than 60 days after
the Closing Date, the Borrower shall cause the Shell Subsidiary to be liquidated
or dissolved and shall, in connection with the foregoing, cause all personal,
real and mixed property, if any, of such Shell Subsidiary to be transferred to a
Restricted Subsidiary.
ARTICLE 6
Financial Covenants
Each of the Borrower and Vencor agrees that, so long as any Lender has
any Revolving Credit Exposure hereunder or any interest or fee accrued hereunder
remains unpaid:
Section 6.01. Fixed Charge Coverage Ratio (EBITDAR). (a) At each
Quarterly Measurement Date on or after June 30, 2001, the ratio of (i)
Consolidated EBITDAR for the four consecutive Fiscal Quarters then ended to (ii)
the sum of Consolidated Interest Expense plus Consolidated Rental Expense plus
the aggregate principal amount of Debt of the Borrower and its Restricted
Subsidiaries scheduled to be amortized, in each case for the same four Fiscal
Quarters, will not be less than the ratio set forth below opposite such
Quarterly Measurement Date (or any Quarterly Measurement Date which falls during
the periods set forth below):
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------------------------------------------------------------------------------------------
Period Ratio
------------------------------------------------------------------------------------------
June 30, 2001 through September 30, 2002 1.14 to 1
------------------------------------------------------------------------------------------
December 31, 2002 through June 30, 2003 1.16 to 1
------------------------------------------------------------------------------------------
September 30, 2003 through December 31, 2003 1.17 to 1
------------------------------------------------------------------------------------------
March 31, 2004 1.18 to 1
------------------------------------------------------------------------------------------
June 30, 2004 1.21 to 1
------------------------------------------------------------------------------------------
September 30, 2004 1.24 to 1
------------------------------------------------------------------------------------------
December 31, 2004 1.27 to 1
------------------------------------------------------------------------------------------
March 31, 2005 and thereafter 1.30 to 1
------------------------------------------------------------------------------------------
; provided that at any Quarterly Measurement Date prior to the end of the fourth
full Fiscal Quarter after the Closing Date, the foregoing amounts shall be
calculated as of the end of the then most recently ended Fiscal Quarter on an
Annualized Basis; and provided further that any amounts payable by the Borrower
and its Restricted Subsidiaries pursuant to Section 6.12(a)(1)(i) and (ii) of
the Plan of Reorganization in respect of the Government Settlement during any
relevant calculation period shall be excluded from the calculation of the
foregoing amounts for such period.
(b) For purposes of calculating the foregoing ratio, if any
corporation or other entity shall have been acquired by the Borrower or any
Restricted Subsidiary during the period for which Consolidated EBITDAR is to be
calculated and if such corporation or other entity becomes a Restricted
Subsidiary during such period, Consolidated EBITDAR shall be calculated as if
such corporation or other entity had been acquired at the beginning of such
period, to the extent that the relevant financial information with respect to it
for the portion of such period prior to such acquisition can be determined with
reasonable accuracy.
Section 6.02. Total Leverage Ratio. (a) On or after June 30, 2001, the
ratio of (x) Adjusted Consolidated Debt for Borrowed Money to (y) Consolidated
EBITDAR for the four consecutive Fiscal Quarters then most recently ended will
not, at any date during any period set forth below, exceed the ratio set forth
below opposite such period:
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----------------------------------------------------------------------------------------
Period Ratio
----------------------------------------------------------------------------------------
June 30, 2001 through June 30, 2002 6.60 to 1
----------------------------------------------------------------------------------------
July 1, 2002 through March 31, 2003 6.55 to 1
----------------------------------------------------------------------------------------
April 1, 2003 through June 30, 2003 6.50 to 1
----------------------------------------------------------------------------------------
July 1, 2003 through September 30, 2003 6.45 to 1
----------------------------------------------------------------------------------------
October 1, 2003 through December 31, 2003 6.40 to 1
----------------------------------------------------------------------------------------
January 1, 2004 through June 30, 2004 6.35 to 1
----------------------------------------------------------------------------------------
July 1, 2004 through September 30, 2004 6.25 to 1
----------------------------------------------------------------------------------------
October 1, 2004 through June 30, 2005 6.20 to 1
----------------------------------------------------------------------------------------
July 1, 2005 through September 30, 2005 6.15 to 1
----------------------------------------------------------------------------------------
October 1, 2005 and thereafter 6.10 to 1
----------------------------------------------------------------------------------------
; provided that for dates prior to the end of the fourth full Fiscal Quarter
after the Closing Date, Consolidated EBITDAR shall be determined as of the end
of the then most recently ended Fiscal Quarter on an Annualized Basis; and
provided further that any amounts payable by the Borrower and its Restricted
Subsidiaries pursuant to Section 6.12(a)(1)(i) and (ii) of the Plan of
Reorganization in respect of the Government Settlement during any relevant
calculation period shall be excluded from the calculation of the foregoing
amounts for such period.
(b) For purposes of calculating the foregoing ratio, if any
corporation or other entity shall have been acquired by the Borrower or any
Restricted Subsidiary during the period for which Consolidated EBITDAR is to be
calculated and if such corporation or other entity becomes a Restricted
Subsidiary during such period, Consolidated EBITDAR shall be calculated as if
such corporation or other entity had been acquired at the beginning of such
period, to the extent that the relevant financial information with respect to it
for the portion of such period prior to such acquisition can be determined with
reasonable accuracy.
Section 6.03. Minimum EBITDAR. (a) At each Quarterly Measurement Date
on or after June 30, 2001, Consolidated EBITDAR for the four consecutive Fiscal
Quarters then ended will not be less than the amount set forth on Schedule 12
opposite such Quarterly Measurement Date; provided that for dates prior to the
end of the fourth full Fiscal Quarter after the Closing Date, Consolidated
EBITDAR shall be determined as of the end of the then most recently ended Fiscal
Quarter on an Annualized Basis; and provided further that any amounts payable by
the Borrower and its Restricted Subsidiaries pursuant to Section
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6.12(a)(1)(i) and (ii) of the Plan of Reorganization in respect of the
Government Settlement during any relevant calculation period shall be excluded
from the calculation of the foregoing amounts for such period.
(b) For purposes of calculating the foregoing amounts, if any
corporation or other entity shall have been acquired by the Borrower or any
Restricted Subsidiary during the period for which Consolidated EBITDAR is to be
calculated and if such corporation or other entity becomes a Restricted
Subsidiary during such period, Consolidated EBITDAR shall be calculated as if
such corporation or other entity had been acquired at the beginning of such
period, to the extent that the relevant financial information with respect to it
for the portion of such period prior to such acquisition can be determined with
reasonable accuracy.
Section 6.04. Minimum Consolidated Net Worth. Consolidated Net Worth
will not be less than the Minimum Compliance Level. The "Minimum Compliance
Level" means, at each Quarterly Measurement Date (the "date of determination"),
an amount equal to the sum of (i) 100% of the Consolidated Net Worth as of the
Closing Date minus (ii) $50,000,000 plus (iii) for each full Fiscal Quarter
ending after the Closing Date and on or prior to the date of determination for
which Consolidated Net Income is a positive number, an amount equal to 50% of
such positive number.
Section 6.05. Capital Expenditures. Consolidated Capital Expenditures
will not, for any period listed on Schedule 13, exceed the amount indicated for
such period on such Schedule.
ARTICLE 7
Negative Covenants
Each of the Borrower and Vencor agrees that, so long as any Lender has
any Revolving Credit Exposure hereunder or any interest or fee accrued hereunder
remains unpaid:
Section 7.01. Limitation on Debt. (a) The Borrower shall not, and shall
not permit any Restricted Subsidiary to, incur or be liable with respect to (i)
any Debt of a type described in clause (i), (ii), (iii) or (iv) of the
definition of "Debt" in Section 1.01 or (ii) any Guarantee of any such Debt
described in clause (i) above, except:
(i) Debt outstanding under the Financing Documents;
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(ii) Debt under or in respect of the Senior Secured Credit
Agreement in an aggregate principal amount not to exceed $300,000,000
less any amount of such Debt repaid;
(iii) Debt outstanding on the Closing Date, including the
Government Settlement and any other obligations arising under the Plan
of Reorganization;
(iv) Capital Lease Obligations; provided that the aggregate
outstanding principal amount of Debt permitted by this clause (iv) and
by clause (v) shall not at any time exceed $25,000,000;
(v) Debt incurred or assumed after the Closing Date for the
purpose of financing all or any part of the cost of acquiring or
constructing an asset of the Borrower or a Restricted Subsidiary;
provided that (A) such Debt is secured by a Lien on such asset that is
permitted by Section 7.02(g) and (B) the aggregate outstanding
principal amount of all Debt permitted by clause (iv) and this clause
(v) shall not at any time exceed $25,000,000;
(vi) Debt of any Person that becomes a Restricted Subsidiary
after the Closing Date in connection with an Acquisition; provided that
such Debt was outstanding before such Person became a Restricted
Subsidiary and was not incurred in contemplation thereof;
(vii) Debt incurred after the Closing Date and Guarantees of
Debt entered into after the Closing Date; provided that (A) the Debt so
incurred or Guaranteed is incurred in exchange for or to repay, prepay,
repurchase, redeem, defease, retire or refinance ("refinance") any
outstanding Debt of the Borrower or any Restricted Subsidiary otherwise
permitted by this Section and (B) the principal amount of the Debt so
incurred or Guaranteed shall not exceed the unpaid principal amount of
the Debt so exchanged or refinanced; provided further that a
refinancing of the Senior Secured Credit Agreement shall be permitted
only if, in addition to the limitations set forth in the foregoing
proviso, (w) no principal amount of the Debt incurred or to be incurred
pursuant to such refinancing (the "Refinancing Debt") shall be required
to be repaid before the stated maturity of the Debt under the Senior
Secured Credit Agreement immediately prior to such refinancing (other
than in connection with a mandatory prepayment of such Debt on terms
similar to those under the Senior Secured Credit Agreement immediately
prior to such refinancing), (x) the interest payable on, and the fees
payable in connection with, the Refinancing Debt shall not exceed the
interest and fees payable pursuant to the Senior Secured Credit
Agreement immediately prior to such
103
refinancing, (y) no restriction is imposed on the Borrower or any Guarantor
in connection with the Refinancing Debt that is more restrictive in any
material respect than the provisions in the Senior Secured Credit Agreement
and the related security agreements and guarantees immediately prior to
such refinancing and (z) the Refinancing Debt is subordinated to this
Agreement on terms that are no less advantageous the Lenders than the terms
on which the Senior Secured Credit Agreement is subordinated to this
Agreement immediately prior to such refinancing;
(viii) Permitted Intercompany Debt;
(ix) Debt consisting of (A) trade obligations or (B) accrued current
liabilities for services rendered to the Borrower or any Restricted
Subsidiary, in each case, arising in the ordinary course of business after
the Closing Date;
(x) Debt under Interest Rate Agreements (including Designated
Interest Rate Agreements) of the Borrower or any Restricted Subsidiary
relating to Debt permitted to be incurred and outstanding under this
Section and entered into in the ordinary course of business for the purpose
of limiting interest rate risks and not for speculation; and
(xi) Debt owed in respect of any overdrafts and related liabilities
arising from treasury, depository and cash management services or in
connection with any automated clearing house transfers of funds.
(b) Vencor may:
(i) Guarantee the obligations of the Borrower under this Agreement
as set forth in the Vencor Guaranty;
(ii) Guarantee the obligations of the Borrower under the Senior
Secured Credit Agreement;
(iii) Guarantee the obligations of the Borrower or any Restricted
Subsidiary under any real property lease to which the Borrower or such
Restricted Subsidiary is a party;
(iv) Guarantee Debt incurred by any Vencor Unrestricted Subsidiary;
and
(v) incur or be liable with respect to any other Debt;
104
provided that in the case of any Guarantee or Debt described in clauses (ii),
(iv) and (v), Vencor may not give such Guarantee or incur such Debt unless its
obligations thereunder are expressly subordinated to the Vencor Guaranty
pursuant to subordination provisions in substantially the form of Exhibit J. The
ability of any Vencor Unrestricted Subsidiary to incur Debt is not limited by
this Agreement.
Section 7.02. Negative Pledge. The Borrower shall not, and shall not permit
any Restricted Subsidiary to, create, assume or suffer to exist any Lien on any
asset now owned or hereafter acquired by it (or any income therefrom or any
right to receive income therefrom), except:
(a) Liens created pursuant to the Collateral Documents;
(b) Liens securing amounts owing under the Senior Secured Credit Agreement
and the "Financing Documents" defined therein;
(c) Liens existing on the Closing Date securing Debt described in clause
(iii) of Section 7.01(a);
(d) any Lien existing on any asset prior to the acquisition thereof by the
Borrower or a Restricted Subsidiary; provided that such Lien was not created in
contemplation of such event and does not extend to any other property of the
Borrower or any Restricted Subsidiary;
(e) any Lien existing on any asset of any Person at the time such Person
becomes a Restricted Subsidiary or merges into the Borrower or any of its
Restricted Subsidiaries in connection with an Acquisition; provided that such
Lien was not created in contemplation of such event and does not extend to any
other property of the Borrower or any Restricted Subsidiary;
(f) Liens upon the assets of the Borrower and its Restricted Subsidiaries
subject to Capital Lease Obligations to the extent permitted by Section
7.01(a)(iv); provided that (i) such Liens only serve to secure the payment of
Debt arising under such Capital Lease Obligation, (ii) the Lien encumbering the
asset giving rise to the Capital Lease Obligation does not encumber any other
asset of the Borrower or any Restricted Subsidiary and (iii) the aggregate
outstanding principal amount of all Debt secured pursuant to this clause (f) and
clause (g) shall not exceed $25,000,000;
(g) any Lien on any asset securing Debt incurred or assumed for the
purpose of financing all or any part of the cost of acquiring or constructing
such asset, provided that (i) such Lien attaches to such asset concurrently with
or within 180 days after the acquisition or completion of construction thereof
and
105
attaches to no asset other than such asset so financed and (ii) the aggregate
outstanding principal amount of all Debt secured pursuant to clause (f) and this
clause (g) shall not exceed $25,000,000;
(h) Liens securing Debt of the Borrower or a Restricted Subsidiary to the
Borrower or a Wholly Owned Restricted Subsidiary;
(i) any Lien arising out of the refinancing (as defined in Section
7.01(a)(vii)) of any Debt secured by any Lien permitted by this Section,
provided that the principal amount of such Debt is not increased and such
refinanced Debt is not secured by any additional assets;
(j) Permitted Encumbrances;
(k) Liens on deposit account balances and Temporary Cash Investments in an
amount not exceeding $2,000,000 securing Interest Rate Agreements (other than
Designated Interest Rate Agreements); and
(l) Liens created in favor of the Collateral Agent (for the benefit of
Lenders) pursuant to the Collateral Documents or, subject to the terms of the
Intercreditor Agreement, second priority Liens in favor of the Senior Secured
Collateral Agent (for the benefit of lenders under the Senior Secured Credit
Agreement).
Section 7.03. Consolidations, Mergers and Asset Sales.
(a) The Borrower shall not, Vencor shall not, and the Borrower shall not
permit any Restricted Subsidiary to, consolidate or merge with or into, or sell,
lease or otherwise dispose of all or substantially all of its assets to any
other Person, except that:
(i) Vencor may merge with any Person (other than the Borrower or a
Restricted Subsidiary) if Vencor is the surviving corporation and,
immediately after such merger (and giving effect thereto), no Default shall
have occurred and be continuing;
(ii) the Borrower may merge with any Person (other than Vencor) if
the Borrower is the surviving corporation and, immediately after such
merger (and giving effect thereto), no Default shall have occurred and be
continuing; and
(iii) any Restricted Subsidiary may merge or consolidate with or
into, and the Borrower or any Restricted Subsidiary may transfer all or
substantially all of its assets to, any Person if, immediately after such
106
transaction (and giving effect thereto), no Default shall have occurred and
be continuing and (A) the surviving corporation or transferee is the
Borrower or a Restricted Subsidiary, (B) in the case of a Restricted
Subsidiary, such merger, consolidation or transfer of all or substantially
all assets is in conjunction with a disposition by the Borrower and its
Restricted Subsidiaries of their entire investment in such Subsidiary and
such disposition is not prohibited by any provision of the Financing
Documents (other than this subsection (a)); provided that the foregoing
shall not prohibit any transaction permitted by Section 7.03(d), (C) the
Required Lenders shall have consented to such transaction or (D)
immediately after such transaction is consummated, the aggregate book value
of all assets disposed of in transactions permitted by this clause (D)
during the period of 365 days then ended (whether disposed of directly or
by means of a merger, consolidation or transfer of Equity Interests) would
not exceed 5% of Consolidated Net Worth as shown on the Most Recent
Financial Statements.
For purposes of Section 7.03(a)(iii)(D), the book value of the assets disposed
of in each transaction shall be the book value of such assets on the books of
the relevant Subsidiary immediately before such disposition.
(b) If the Borrower and its Restricted Subsidiaries dispose of their
entire investment in any Restricted Subsidiary as permitted by subsection (a)
above, the Administrative Agent shall at the Borrower's request instruct the
Collateral Agent, concurrently with or at any time after such disposition, to
release all security interests in Equity Interests in such Subsidiary granted by
the Borrower and its Restricted Subsidiaries to the Collateral Agent. In
addition, (i) such Restricted Subsidiary's Subsidiary Guaranty shall be
automatically released and it shall cease to be a party to the Security
Agreement, in each case concurrently with such disposition, and (ii) the
Administrative Agent shall at the Borrower's request instruct the Collateral
Agent, concurrently with or at any time after such disposition, to release all
security interests granted by such Subsidiary to secure its Subsidiary Guaranty
and return to such Subsidiary any of its assets held by the Collateral Agent
under the Collateral Documents.
(c) Notwithstanding the foregoing, clause (a) of this Section 7.03 shall
not apply to any sale or other disposition of Atria Shares or BHC Shares, and
any such transaction shall be excluded from calculations under Section
7.03(a)(iii)(D).
(d) The Borrower shall not, and shall not permit any Restricted Subsidiary
to, make any Asset Sale, unless:
(i) the consideration received from such Asset Sale shall be in an
amount at least equal to the fair market value thereof (as determined in
107
good faith by the Borrower (which determination, if the sale price exceeds
$5,000,000, shall be evidenced by a resolution of the Borrower's Board of
Directors) as at the time of such Asset Sale); and
(ii) at least 80% of the consideration received shall be in the form
of cash received at closing (for purposes of this clause only, the
assumption by the purchaser of Debt or other obligations of the Borrower or
a Restricted Subsidiary relating to the assets subject to such Asset Sale
pursuant to a customary novation agreement and the release of the Borrower
or the Restricted Subsidiary (as the case may be) of its obligations
relating to such Debt or other obligations, and instruments or securities
received from the purchaser that are promptly, but in any event within 30
days of the closing, converted by the Borrower to cash, to the extent of
the cash actually so received, shall be considered cash received at
closing); and
(iii) the Net Cash Proceeds received at such closing shall be
deposited in a Collateral Account and applied as set forth in Section
2.11(a);
provided that the Kingfish Transaction shall not be subject to the foregoing
provisions; and provided further that except in the case of a Qualified
Transaction, any sale or other transfer of, or any release of Liens relating to,
any Accounts or any books or records relating thereto in connection with any
Asset Sale will require the prior written consent of the Required Lenders.
Notwithstanding anything in this Section 7.03 to the contrary, so long as no
Event of Default has occurred and is continuing, the Borrower and its Restricted
Subsidiaries may make Permitted Delinquent Account Assignments.
SECTION 7.04. Limitations on Transactions with Affiliates. The Borrower
shall not, and shall not permit any Restricted Subsidiary to, directly or
indirectly, pay any funds to or for the account of, make any Investment in,
lease, sell, transfer or otherwise dispose of any assets, tangible or
intangible, to, or participate in, or effect any transaction in connection with
any joint enterprise or other joint arrangement with, any Affiliate; provided
that the foregoing shall not prohibit:
(i) the Borrower or any Restricted Subsidiary from performing its
obligations under the Existing Affiliate Agreements;
(ii) the Borrower or any Restricted Subsidiary from making any
Investment in Minority-Owned Affiliates permitted by Section 7.08;
108
(iii) the Borrower or any Restricted Subsidiary from making sales or
leases to or purchases or leases from any Affiliate and, in connection
therewith, extending credit or making payments, or from making payments for
services rendered by any Affiliate, if such sales, leases or purchases are
made or such services are rendered in the ordinary course of business and
on terms and conditions at least as favorable to the Borrower or such
Restricted Subsidiary as the terms and conditions which would apply in a
similar transaction with a Person not an Affiliate;
(iv) the Borrower or any Restricted Subsidiary from making payments
to Vencor in amounts as shall be necessary to permit Vencor to pay costs
and expenses incurred by it in the ordinary course in connection with
maintaining its status as a public company (including, without limitation,
transfer agent fees, registration fees, stock exchange fees, costs for
shareholder communications and other similar costs and expenses) or on
account of intercompany allocation matters; provided that (w) Vencor shall
have received an invoice requiring payment of such cost or expense and
shall have forwarded a copy thereof to the Borrower, (x) Vencor shall pay
such cost or expense within 15 days of receipt of amounts from the Borrower
or any Restricted Subsidiary pursuant to this clause, (y) in the case of
any payment on account of intercompany allocation matters, such payment is
allocated between the Borrower and its Restricted Subsidiaries and the
other Vencor Companies on a basis that reflects the actual use to the
extent practicable and, to the extent such allocation is not practicable,
on a basis reasonably related to actual use and (z) the aggregate amount of
payments made pursuant to this clause (iv) during each of the periods
referred to below shall not exceed the amount set forth opposite such
period:
--------------------------------------------------------------------------------
Period Amount
--------------------------------------------------------------------------------
Closing Date to but excluding first $2,000,000
anniversary thereof:
--------------------------------------------------------------------------------
Each 12-month period thereafter: $ 750,000
--------------------------------------------------------------------------------
(v) the Borrower or any Restricted Subsidiary from making payments
of principal, interest and premium on any of its Debt held by an Affiliate
if the terms of such Debt are substantially as favorable to the Borrower or
such Restricted Subsidiary as the terms which could have been obtained at
the time of the creation of such Debt from a lender which was not an
Affiliate;
109
(vi) to the extent permitted by Section 7.08, the Borrower or any
Restricted Subsidiary from participating in, or effecting any transaction
in connection with, any joint enterprise or other joint arrangement with
any Affiliate if the Borrower or such Restricted Subsidiary participates in
the ordinary course of its business and on a basis no less advantageous
than the basis on which such Affiliate participates;
(vii) the Borrower or any Restricted Subsidiary from maintaining,
entering into or adopting any executive or employee incentive or
compensation plan, contract or other arrangement (including any loans or
extensions of credit in connection therewith to the extent permitted by
Section 7.08), or any arrangement to terminate any of the foregoing, if
such plan, contract, or arrangement has been or is approved either (x) at
any time by the shareholders of Vencor in accordance with such voting
requirements as may be applicable or (y) at any time by the board of
directors of Vencor (or a duly constituted committee of such board) at a
meeting at which a quorum of disinterested directors is present;
(viii) to the extent permitted by Section 7.08, the Borrower or any
Restricted Subsidiary from making any loan, guarantee or other
accommodation in accordance with Vencor's policies and practices concerning
employee relocation in the ordinary course of its business; or
(ix) any Restricted Payments permitted by Section 7.07.
Section 7.05. Limitation on Restrictions Affecting Subsidiaries. The
Borrower shall not, and shall not permit any Restricted Subsidiary to, enter
into, or suffer to exist, any agreement (other than the Financing Documents, the
Senior Secured Credit Agreement and the "Financing Documents" as defined therein
and, in the case of clause (c), the Master Lease Agreements) which prohibits or
limits the ability of any Restricted Subsidiary to (a) pay dividends or make any
other distributions or pay any Debt owed to the Borrower or any other Restricted
Subsidiary; (b) make loans or advances to the Borrower or any other Restricted
Subsidiary or (c) create, incur, assume or suffer to exist any Lien upon any of
its property, assets or revenues, whether now owned or hereafter acquired, to
secure the obligations of the Borrower and the Guarantors under the Financing
Documents, the Senior Secured Credit Agreement and the "Financing Documents" as
defined therein; provided that the foregoing shall not prohibit any such
prohibition or limitation contained in:
(i) any document relating to Debt secured by a Lien permitted by
Section 7.02, insofar as the provisions thereof limit grants of junior
liens on the assets securing such Debt;
110
(ii) any operating lease or capital lease, insofar as the provisions
thereof limit grants of a security interest in, or other assignments of,
the related leasehold interest to any other Person; and
(iii) if a Person becomes a Restricted Subsidiary after the date
hereof, any agreement that is binding on such Person and was not entered
into in contemplation of its becoming a Restricted Subsidiary, insofar as
such agreement limits such Person's ability to take any action described in
clause (a), (b) or (c) of this Section, provided that either:
(A) such limitation is terminated within 60 days after such
Person becomes a Restricted Subsidiary; or
(B) not more than 5% of Consolidated EBITDAR for any period of
four consecutive Fiscal Quarters is attributable, in the aggregate, to
Persons that become Restricted Subsidiaries after the date hereof and
remain subject to such limitations more than 60 days after becoming
Restricted Subsidiaries.
SECTION 7.06. Limitation on Sale or Issuance of Equity Interests of
Restricted Subsidiaries. The Borrower shall not, and shall not permit any
Restricted Subsidiary to, directly or indirectly, sell or issue any Equity
Interests of a Restricted Subsidiary unless:
(a) the sale or issuance is to the Borrower or a Wholly Owned Restricted
Subsidiary; or
(b) (i) if, after giving effect to the sale or issuance, the Restricted
Subsidiary would no longer be a Restricted Subsidiary, all remaining Investments
of the Borrower and the Restricted Subsidiaries in such former Restricted
Subsidiary (valued at an amount equal to the Borrower's remaining proportional
share of the fair market value of such former Restricted Subsidiary's assets
less liabilities), if deemed made at that time, would be permitted under Section
7.08 and (ii) the Borrower complies with Section 7.03(d) with respect to the
sale or issuance.
SECTION 7.07. Restricted Payments. (a) The Borrower shall not, and shall
not permit any Restricted Subsidiary to, declare or make any Restricted Payment
on or after the Closing Date, except that:
(i) any Restricted Subsidiary may declare and make Restricted
Payments to the Borrower or any Wholly Owned Restricted Subsidiary;
111
(ii) the Borrower may declare or make Restricted Payments to Vencor
for the purchase, redemption or other acquisition or retirement for value
of Equity Interests of Vencor 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 or (B) Ventas, to the extent
required to satisfy the requirements of Article XII of Vencor's Amended and
Restated Certificate of Incorporation; provided that the aggregate amount
paid to Vencor pursuant to this clause (ii) does not exceed an aggregate
amount of $500,000;
(iii) the Borrower may declare or make Restricted Payments to Vencor
of required amounts notified to Vencor in writing from time to time by the
insurance regulatory authorities in the Cayman Islands; provided that
Vencor shall (x) promptly upon receipt of any such notice, forward a copy
thereof to the Administrative Agent and (y) invest all Restricted Payments
received pursuant to this clause in Cornerstone promptly upon receipt;
(iv) the Borrower may declare or make Restricted Payments to Vencor
of amounts necessary for any payment of Permitted Taxes related to the
business or assets of the Borrower and its Restricted Subsidiaries
including, without limitation, (A) any income Permitted Tax liability
allocated to the Borrower and Restricted Subsidiaries under Internal
Revenue Code Sections 1502 and 1552 and Treasury Regulations promulgated
thereunder, and any equivalent provisions allocating tax liability to them
as members of a consolidated or combined tax group for state or local tax
purposes, (B) any joint and several liability for taxes asserted against
the Borrower and Restricted Subsidiaries by a Permitted Taxing authority
under Treasury Regulations Section 1.1502-6 or any equivalent provisions of
state or local tax law or (C) any liability for Permitted Taxes or other
amounts under the provisions of the Tax Refund Escrow Agreement or the Tax
Allocation Agreement; and
(v) the Borrower may declare or make Restricted Payments in cash to
Vencor if at the time of, and after giving effect to, the Restricted
Payment:
(A) the Borrower can demonstrate that if it were subject to a
Debt-incurrence test that required it to demonstrate on a pro forma
basis that, after giving effect to the incurrence of additional Debt,
it would meet a Fixed Charge Coverage Ratio (EBITDA) of at least
3.5:1, it could, on the date of such declaration and of such
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payment, incur at least $1.00 of additional Debt pursuant to such
test; and
(B) the aggregate amount expended for all Restricted Payments
made pursuant to clause (ii) and this clause (v) on or after the
Closing Date would not exceed 25% of the aggregate Free Cash Flow
calculated on a cumulative basis during the period, taken as one
accounting period, beginning on the first day of the first full Fiscal
Quarter following the Closing Date and ending on the last day of the
Borrower's most recently completed Fiscal Quarter for which financial
statements have been provided pursuant to this Agreement;
provided that Restricted Payments may be declared and made pursuant to clauses
(ii), (iii), (iv) or (v) only if at the time of, and after giving effect to, the
Restricted Payment, no Default shall have occurred and be continuing.
(b) Vencor shall not, directly or indirectly, use the proceeds of any
Restricted Payment to (i) declare or pay any dividend or other distribution on
any Equity Securities of Vencor (except dividends payable solely in Equity
Securities of the same class) or (ii) purchase, redeem, retire or otherwise
acquire any Equity Securities of Vencor except as permitted by Section
7.07(a)(ii).
Section 7.08. Limitations on Acquisitions and Investments. (a) The Borrower
shall not, and shall not permit any Restricted Subsidiary to, make any
Acquisitions or make, acquire or hold any other Investments, except:
(i) Permitted Investments;
(ii) Acquisitions involving Healthcare Facilities the sole
consideration for which consists of Qualified Equity Interests of Vencor;
(iii) up to $7.7 million in connection with the Kingfish Transaction;
and
(iv) Investments or Acquisitions funded with any Net Cash Proceeds
of an Asset Sale or an Equity Issuance or any Casualty Proceeds pursuant to
Section 2.11; provided that in the case of an Equity Issuance, such amounts
have been transferred by Vencor to the Borrower as an equity contribution.
(b) Notwithstanding the foregoing, the Borrower and its Restricted
Subsidiaries may make Restricted Investments involving Healthcare Facilities and
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assets incidental thereto if, at the time of, and after giving effect to, each
such Restricted Investment:
(i) no Default shall have occurred and be continuing; and
(ii) the aggregate amount of such Restricted Investment and all
other Restricted Investments made in reliance on this clause (net of, with
respect to a Restricted Investment in any particular Person made pursuant
to this clause, the after-tax cash return thereon received after the
Closing Date as a result of any sale for cash, repayment, redemption,
liquidating distribution or other cash realization (not included in
Consolidated Net Income), but not to exceed the amount of such Restricted
Investment in such Person made after the Closing Date in reliance on this
clause) plus the aggregate principal amount of related Debt incurred
pursuant to Section 7.01(a)(vi) and still outstanding (including any
refinance thereof pursuant to Section 7.01(a)(vii)) (such Debt, "Investment
Related Debt") does not exceed $30,000,000;
provided that if the aggregate amount of Restricted Investments made by the
Borrower and its Restricted Subsidiaries in reliance on this clause plus the
aggregate principal amount of Investment Related Debt at any time is equal to
$30,000,000 or if such threshold would be exceeded by the making of any proposed
Restricted Investment, then the Borrower and its Restricted Subsidiaries may
make additional Restricted Investments involving Healthcare Facilities and
assets incidental thereto if (x) the Borrower or the Restricted Subsidiary, as
the case may be, notifies the Administrative Agent that it proposes to make a
Restricted Investment pursuant to this proviso, which notice shall specify the
amount of such Restricted Investment and the date on which such Restricted
Investment is proposed to be made and (y) at the time of, and after giving
effect to, each such additional Restricted Investment:
(1) no Default shall have occurred and be continuing; and
(2) the aggregate amount of such additional Restricted
Investment and all other Restricted Investments made in reliance
on this proviso plus the aggregate principal amount of Investment
Related Debt does not exceed the lesser of (x) the amount of
additional Debt that the Borrower could then incur assuming that
(aa) the Borrower were subject to a Debt-incurrence test that
required it to demonstrate on a pro forma basis that, after
giving effect to the incurrence of such additional Debt, it would
then meet a Fixed Charge Coverage Ratio
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(EBITDA) of at least 3.5:1, (bb) pro forma effect is given to the
incurrence of such additional Debt as if such additional Debt had
been incurred on the first day of the reference period referred
to in the definition of "Fixed Charge Coverage Ratio (EBITDA)"
and (cc) such additional Debt bears interest at the rate that
would apply to a Euro-Dollar Loan with Interest Periods of one
month each had such Loan been made at the time of, and after
giving effect to, such additional Restricted Investment and (y)
$20,000,000.
Section 7.09. No Change of Fiscal Periods. Neither the Borrower nor Vencor
shall change the date on which any of its Fiscal Years or Fiscal Quarters ends,
unless the Required Lenders shall have consented to such change (which consent
may be conditioned on the amendment of any covenant herein that would be
affected by such change to eliminate the effect thereof).
Section 7.10. Limitation on Business.
(a) Vencor will at all times own 100% of the outstanding Equity Interests
of the Borrower and will not engage in any activities other than owning such
Equity Interests and Equity Interests in Cornerstone and other Subsidiaries that
own, operate or manage Healthcare Facilities, and financing activities and other
activities reasonably related to such ownership.
(b) Vencor shall not permit any of its Subsidiaries (other than the
Excluded Partnerships and Cornerstone) to engage in any business, other than the
business of owning, operating or managing Healthcare Facilities and any business
reasonably incidental thereto.
(c) The Borrower shall not, and shall not permit any Restricted Subsidiary
to, engage in any business, other than the business of owning, operating or
managing Healthcare Facilities, any of the businesses in which the Borrower and
its Restricted Subsidiaries are engaged on the Closing Date and any business
reasonably incidental thereto.
Section 7.11. Limitation on Sale and Leaseback Transactions. The Borrower
shall not, and shall not permit any Restricted Subsidiary to, enter into any
Sale and Leaseback Transaction with respect to any property or asset unless:
(1) the Borrower or the Restricted Subsidiary would be entitled to
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(A) incur Debt in an amount equal to the Attributable Debt with
respect to such Sale and Leaseback Transaction pursuant to Section
7.01(a), and
(B) create a Lien on such property or asset securing such
Attributable Debt pursuant to Section 7.02,
in which case, the corresponding Debt and Lien will be deemed incurred
pursuant to those provisions, and
(2) the Borrower complies with Section 7.03(d) in respect of such
transaction.
Section 7.12. No Modification of Certain Documents Without Consent. (a) The
Borrower shall not, Vencor shall not, and the Borrower shall not permit any
Restricted Subsidiary to, consent to or solicit any amendment or supplement to,
or any waiver or other modification of, any Existing Affiliate Agreement if the
effect thereof would be to materially increase the amount, or materially
accelerate the date of payment, of any obligation of the Borrower or any
Guarantor thereunder.
(b) The Borrower shall not, Vencor shall not, and the Borrower shall not
permit any Restricted Subsidiary to, consent to or solicit any amendment or
supplement to, or any waiver or other modification of any Third Party Lease or
Management Contract, the Tax Refund Escrow Agreement or the Tax Allocation
Agreement, if the effect thereof could reasonably be expected to be adverse in
any material respect to the Borrower and the Guarantors, taken as a whole, or to
the Lenders.
(c) The Borrower shall not, Vencor shall not, and the Borrower shall not
permit any Restricted Subsidiary to, consent to or solicit any amendment or
supplement to, or any waiver or other modification of any Master Lease Agreement
if the effect thereof could adversely affect the ability of the Borrower and the
Guarantors to repay the Obligations as and when due.
(d) The Borrower shall not, Vencor shall not, and the Borrower shall not
permit any Restricted Subsidiary to, consent to or solicit any amendment or
supplement to, or any waiver or other modification of the Senior Secured Credit
Agreement or of any instrument, agreement or other document entered into in
connection therewith or providing for any Guarantee or other right in respect
thereof if the effect thereof would be to (i) increase the amount, or accelerate
the date of payment, of any obligation of the Borrower or any Guarantor
thereunder or (ii) modify or alter in any respect the terms of the subordination
provisions set forth therein (including without limitation, in Article 11 and
Section 12.05(g) of
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the Senior Secured Credit Agreement) or impair in any way the rights and
benefits of the Agents and the Lenders thereunder.
Section 7.13. Limitation on Cash Not Held in Collateral Accounts or
Concentration Accounts. The Borrower will not permit the aggregate amount of all
collected funds and Temporary Cash Investments held by the Borrower and its
Restricted Subsidiaries in accounts, other than the Collateral Accounts, the
Senior Secured Collateral Account and the Concentration Accounts, to exceed
$2,000,000 at the close of business on any two consecutive Business Days. On the
Closing Date, all cash and Temporary Cash Investments of Vencor and its
Subsidiaries held on the Closing Date will be held in the Borrower or a
Restricted Subsidiary, other than (a) amounts held in Unrestricted Subsidiaries
that, consistent with Vencor's historical cash management practices, have been
held in Unrestricted Subsidiaries, (b) up to $1,000,000 held in Vencor and (iii)
deposits with trade creditors, landlords, bonding companies and similar deposits
in the ordinary course of business consistent with past practice.
Section 7.14. Limitation of Designated Interest Rate Agreements. The
Borrower will not designate any Interest Rate Agreement as a Secured Obligation
for purposes of the Security Agreement or as a Designated Interest Rate
Agreement for purposes of the Guaranty Agreements if, immediately after giving
effect to such designation, the aggregate notional principal amount of all such
agreements then in effect which are Secured Obligations and/or Designated
Interest Rate Agreements would exceed $300,000,000.
Section 7.15. No Voluntary Prepayments of Other Debt. The Borrower shall
not, and shall not permit any Restricted Subsidiary to, (i) defease, prepay,
repurchase or otherwise retire any Debt (except Debt outstanding under this
Agreement) before the date on which it is required to do so under the
contractual provisions applicable to such Debt or (ii) amend any such
contractual provision to require any such Debt to be defeased, prepaid,
repurchased or otherwise retired at an earlier date; provided that this Section
will not apply to (w) any repayment of the principal of the PIP Claim and any
interest accrued with respect thereto through the date of repayment, (x) any
mandatory prepayment of loans under the Senior Secured Credit Agreement (as in
effect on the date hereof) in accordance with the provisions thereof unless such
prepayment is prohibited by any other provision of this Agreement, (y) Debt
incurred or assumed as permitted by Section 7.01(a)(v) for the purpose of
financing all or any part of the cost of acquiring or constructing an asset of
the Borrower or a Restricted Subsidiary and (z) Debt assumed as permitted by
Section 7.01(a)(vi) of any Person that becomes a Restricted Subsidiary in
connection with an Acquisition.
Section 7.16. Payments for Consents. The Borrower and Vencor shall not, and
shall not permit any of their Subsidiaries or Affiliates to, directly or
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indirectly, pay or cause to be paid any consideration, whether by way of
interest, fee or otherwise, to any Lender for or as an inducement to any
consent, waiver or amendment of any of the terms or provisions of this Agreement
or the other Financing Documents unless such consideration is offered to be paid
or agreed to be paid to all Lenders that consent, waive or agree to amend such
term or provision within the time period set forth in the solicitation documents
relating to the consent, waiver or amendment.
ARTICLE 8
Defaults
Section 8.01. Events of Default. If one or more of the following events
(each, an "Event of Default") shall have occurred and be continuing:
(a) (i) any principal of any Loan, Swingline Loan or LC Reimbursement
Obligation shall not be paid when due, or (ii) any interest thereon shall not be
paid within one Business Day after the due date thereof, or (iii) any fee
payable pursuant to Section 2.07(g) shall not be paid within three Business Days
after the due date thereof, or (iv) any other fee or other amount payable
hereunder to or for the account of any Agent or any Lender shall not be paid on
the due date thereof and any such fee or amount shall remain unpaid for 5
Business Days after written notice thereof has been given to the Borrower by the
Administrative Agent; or
(b) the Borrower shall fail to observe or perform any covenant contained
in Article 6; or
(c) the Borrower or Vencor shall fail to observe or perform any covenant
contained in Section 5.01(e), Section 5.01(f) or Article 7; or
(d) the Borrower or any Guarantor shall fail to observe or perform any of
its covenants or agreements contained in the Financing Documents (other than
those covered by clause (a), (b) or (c) above) for 30 days after written notice
thereof has been given to the Borrower by the Administrative Agent at the
request of any Lender; provided that: (i) if such failure relates primarily to
the operation of, or to the use, maintenance, protection, preservation or status
of property used directly in the operation of, a particular Healthcare Facility
that is a Master Lease Property and there is a representation, covenant or
agreement dealing with substantially the same subject matter in the applicable
Master Lease Agreement, such failure shall not constitute an Event of Default
pursuant to this clause (d) and instead shall be governed solely by Sections
8.01(h) and 8.01(l) below; and (ii) if such failure relates primarily to the
operation of, or to the use, maintenance,
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protection, preservation or status of property used directly in the operation
of, one or more Healthcare Facilities that are subject to one or more Third
Party Leases and it would not be an Event of Default under Section 8.01(i) if at
such time all such Third Party Leases were terminated (or the surrender or
repossession of the property leased thereunder were required), such failure
shall not constitute an Event of Default pursuant to this Section 8.01(d); or
(e) any representation, warranty, certification or statement made by the
Borrower or any Guarantor in any Financing Document or in any certificate,
financial statement or other document delivered pursuant thereto shall prove to
have been incorrect in any material respect when made; or
(f) the Borrower or any Guarantor shall fail to make one or more payments
in respect of Material Debt when due or within any period of grace applicable to
such payments; or
(g) any event or condition shall occur that (i) results in the
acceleration of the maturity of any Financial Accommodation or (ii) enables (or,
with the giving of notice or lapse of time or both, would enable) the holder or
holders of such Financial Accommodation or any Person acting on behalf of such
holder or holders to accelerate the maturity thereof, and the aggregate amount
that would be payable by the Borrower and the Guarantors upon the acceleration
of all Financial Accommodations referred to in clauses (i) and (ii) above equals
or exceeds $2,500,000; provided that it shall not be an Event of Default under
this clause (g) if such event or condition is an event of default under the
instrument evidencing such Financial Accommodation and arises with respect to an
Event of Default (as defined in the applicable Master Lease Agreement) and no
other event of default shall have then occurred and be continuing under such
instrument;
(h) (x) the termination of the lease of one or more Healthcare Facilities
under a Master Lease Agreement, or the surrender or repossession of one or more
Healthcare Facilities leased thereunder, prior to the scheduled termination
thereof; provided that (i) this subsection (h)(x) shall not apply to (A) any
voluntary termination of a lease of a Healthcare Facility at a time when no
Event of Default (as defined in the Master Lease Agreement) exists thereunder or
is reasonably likely to occur or (B) any termination of a lease of a Healthcare
Facility pursuant to a purchase option exercised in accordance with the terms
thereof and (ii) no Event of Default shall exist under this subsection (h)(x) at
any time, unless the EBITDAR attributable to all Healthcare Facilities covered
by this subsection (h)(x) then being terminated, surrendered or repossessed (the
Fiscal Quarter in which such termination, surrender or repossession occurs, the
"Current Fiscal Quarter"), and the EBITDAR attributable to all Healthcare
Facilities with respect to which such a termination, surrender or repossession
covered by this subsection (h)(x) occurred during the Current Fiscal Quarter and
the most recently ended
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period of four consecutive Fiscal Quarters exceed, in the aggregate, 5% of
Consolidated EBITDAR during such four consecutive Fiscal Quarter period (the
EBITDAR attributable to each such Healthcare Facility and the Consolidated
EBITDAR to be calculated, in each case, for the most recently ended period of
four consecutive Fiscal Quarters for which the necessary information is
available, in each case annualized if such fiscal information is not available
for a full four Fiscal Quarters following the Closing Date);
(y) any Event of Default (as defined in any Master Lease
Agreement) occurs and is continuing and such Event of Default remains
uncured for a period of 10 days after written notice thereof has been
given to the Borrower by the Administrative Agent at the request of
the Required Lenders; provided that if the only such Events of Default
that have occurred and are continuing are Facility Defaults (as
defined in any Master Lease Agreement) and the number of Healthcare
Facilities to which such Facility Defaults relate does not exceed 15,
such condition shall not constitute an Event of Default pursuant to
this subsection (h)(y); or
(i) one or more events or conditions shall occur that result in, or
enable the counter-party thereunder to require, (i) the termination of one or
more Third Party Leases, or the surrender or repossession of the property leased
thereunder, prior to the scheduled termination thereof or (ii) the termination
of one or more Management Contracts prior to the scheduled termination thereof;
provided that (x) this subsection (i) shall not apply to any voluntary
termination of a Third Party Lease or Management Contract by the Borrower or a
Guarantor at a time when no default by it thereunder exists or is reasonably
likely to occur and (y) no Event of Default shall exist under this subsection
(i) at any time, unless the EBITDA attributable to all Healthcare Facilities
then subject to a termination, surrender or repossession covered by this
subsection (i) and the EBITDA attributable to all Healthcare Facilities with
respect to which such a termination, surrender or repossession occurred during
the preceding 12 months exceed, in the aggregate, 12% of Consolidated EBITDA
(the EBITDA attributable to each such Healthcare Facility to be calculated for
the most recent 12 months of full operation thereof for which the necessary
financial information is available and Consolidated EBITDA to be calculated for
the most recently ended period of four consecutive Fiscal Quarters for which the
necessary financial information is available, in each case annualized if such
financial information is not available for a full 12 months or a full four
Fiscal Quarters, as the case may be); or
(j) any member of the ERISA Group shall fail to pay when due an
amount or amounts aggregating in excess of $1,000,000 which it shall have become
liable to pay under Title IV of ERISA; or notice of intent to terminate a
Material Plan shall be filed under Title IV of ERISA by any member of the ERISA
Group, any plan administrator or any combination of the foregoing; or the
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PBGC shall institute proceedings under Title IV of ERISA to terminate, to impose
liability (other than for premiums under Section 4007 of ERISA) in respect of,
or to cause a trustee to be appointed to administer any Material Plan; or a
condition shall exist by reason of which the PBGC would be entitled to obtain a
decree adjudicating that any Material Plan must be terminated; or there shall
occur a complete or partial withdrawal from, or a default, within the meaning of
Section 4219(c)(5) of ERISA, with respect to, one or more Multiemployer Plans
which could cause one or more members of the ERISA Group to incur a current
payment obligation in excess of $1,000,000; or
(k) one or more Enforceable Judgments for the payment of money
aggregating in excess of $10,000,000 shall be rendered against the Borrower or
one or more of the Guarantors and shall not have been satisfied; or
(l) any Lien created by any of the Collateral Documents shall at any
time fail to constitute a valid and perfected Lien on all of the Collateral
purported to be subject to such Lien, subject to no prior or equal Lien (other
than Permitted Liens), or the Borrower or any Guarantor shall so assert in
writing; provided that it shall not be an Event of Default under this clause (l)
if the Liens in question are not valid or not perfected, or are subject to such
other Liens, only in respect of Collateral used directly in the operation of one
or more particular Healthcare Facilities (i) that are Master Lease Properties
and the number of such Facilities does not exceed 15 or (ii) that are subject to
one or more Third Party Leases and it would not be an Event of Default under
8.01(i) if at such time all such Third Party Leases were terminated (or the
surrender or repossession of the property leased thereunder were required); or
(m) any provision of any Guaranty Agreement shall cease to be in full
force and effect (except as permitted by Section 7.03(b)) or any Guarantor, or
any Person acting on behalf of any Guarantor, shall so assert in writing; or
(n) other than the Chapter 11 Cases:
(i) the Borrower or any Guarantor shall commence a voluntary
case or other proceeding seeking liquidation, reorganization or other
relief with respect to itself or its debts under any bankruptcy,
insolvency or other similar law now or hereafter in effect or seeking
the appointment of a trustee, receiver, liquidator, custodian or other
similar official of it or any substantial part of its property, or
shall consent to any such relief or to the appointment of or taking
possession by any such official in an involuntary case or other
proceeding commenced against it, or shall make a general assignment
for the benefit of creditors, or shall fail generally to pay its debts
as they become due, or shall take any corporate action to authorize
any of the foregoing; or
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(ii) an involuntary case or other proceeding shall be
commenced against the Borrower or any Guarantor seeking liquidation,
reorganization or other relief with respect to it or its debts under
any bankruptcy, insolvency or other similar law now or hereafter in
effect or seeking the appointment of a trustee, receiver, liquidator,
custodian or other similar official of it or any substantial part of
its property, and such involuntary case or other proceeding shall
remain undismissed and unstayed for a period of 60 days; or an order
for relief shall be entered against it under the Federal bankruptcy
laws as now or hereafter in effect; or
(o) any Person or group of Persons (within the meaning of Section 13
or 14 of the Securities Exchange Act) (other than any Person which acquires
shares of common stock of Vencor on the Closing Date pursuant the Plan of
Reorganization (an "Excluded Person") or any group of Persons of which Excluded
Persons have majority interest) shall have acquired beneficial ownership (within
the meaning of Rule 13d-3 promulgated by the SEC under said Act) of more than
50% of the outstanding shares of common stock of Vencor; or, during any period
of 24 consecutive calendar months, individuals who were members of the board of
directors of Vencor on the first day of such period (together with any new
directors whose election or appointment by such members or whose nomination for
election by the shareholders of Vencor was approved by a vote of a majority of
the directors then still in office who were either directors at the beginning of
such period or whose election or nomination for election was previously so
approved) shall cease to constitute a majority of the board of directors of
Vencor,
then, and in every such event the Administrative Agent or the Required Lenders
may:
(i) by notice to the Borrower terminate the Commitments and
the Swingline Commitment and they shall thereupon terminate;
(ii) by notice to each LC Issuing Bank instruct such LC
Issuing Bank (x) not to extend the expiry date of any outstanding
Letter of Credit and/or (y) in the case of any Evergreen Letter of
Credit, to give notice to the beneficiary thereof terminating such
Letter of Credit as soon as is permitted by the provisions thereof,
whereupon such LC Issuing Bank shall deliver notice to that effect
promptly (or as soon thereafter as is permitted by the provisions of
the relevant Letter of Credit) to the beneficiary of each such Letter
of Credit and the Borrower; and
(iii) by notice to the Borrower, declare the Loans and the
Swingline Loans and all other amounts in respect of the Obligations
(in
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each case together with accrued interest thereon) to be, and they
shall thereupon become, immediately due and payable without
presentment, demand, protest or other notice of any kind, all of which
are hereby waived by the Borrower.
provided that if any event specified above in Section 8.01(n) occurs, then
without notice to the Borrower or any other act by any Agent or any Lender, the
Commitments and the Swingline Commitments shall thereupon terminate and all the
Loans and the Swingline Loans and all other amounts in respect of the
Obligations (in each case together with accrued interest thereon) shall become
immediately due and payable without presentment, demand, protest or other notice
of any kind, all of which are hereby waived by the Borrower.
Section 8.02. Notice of Default. The Administrative Agent shall give
notice to the Borrower under Section 8.01 promptly upon being requested to do so
by the Required Lenders and shall thereupon notify all the Lenders thereof.
Section 8.03. Enforcement Notice. If the Administrative Agent is (i)
instructed to do so by the Required Lenders at any time after the Loans and
Swingline Loans become immediately due and payable pursuant to Section 8.01(n),
or (ii) instructed to do so by the Required Lenders at any time after the Loans
and Swingline Loans have been declared due and payable pursuant to Section 8.01,
the Administrative Agent shall deliver to the Collateral Agent an Enforcement
Notice directing the Collateral Agent to exercise one or more specific remedies
under the Collateral Documents or any other right or remedy available at law or
in equity. Concurrently with the delivery of any such Enforcement Notice to the
Collateral Agent, all outstanding Loans and Swingline Loans and all other
amounts in respect of the Obligations not theretofore declared due and payable
shall automatically become immediately due and payable.
Section 8.04. Cash Cover. The Borrower agrees that, if any Event of
Default specified in Section 8.01 shall have occurred and be continuing, the
Borrower shall, if requested by the Administrative Agent upon instruction from
the Required Lenders, pay (and, if any Event of Default specified in Section
8.01(n) occurs, forthwith, without any demand or the taking of any other action
by the Administrative Agent or any Lender, it shall pay) to the Collateral Agent
an amount in immediately available funds equal to the then aggregate amount
available for subsequent drawings under all outstanding Letters of Credit to be
held for the benefit of the Lenders and the LC Issuing Banks in accordance with
the Collateral Documents to secure the payment of all LC Reimbursement
Obligations arising from subsequent drawings under such Letters of Credit.
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ARTICLE 9
The Agents
Section 9.01. Appointment and Authorization. (a) Each Lender
irrevocably appoints the Documentation Agent to act as its agent in connection
herewith and authorizes the Documentation Agent to take such action as agent on
such Lender's behalf and to exercise such powers under the Financing Documents
as are delegated to the Documentation Agent by the terms thereof, together with
all such powers as are reasonably incidental thereto.
(b) Each Lender irrevocably appoints the Administrative Agent to act
as its agent in connection herewith and authorizes the Administrative Agent to
take such action as agent on such Lender's behalf and to exercise such powers
under the Financing Documents as are delegated to the Administrative Agent by
the terms thereof, together with all such powers as are reasonably incidental
thereto.
(c) Each of the Lenders, the LC Issuing Banks, the Documentation
Agent, the Collateral Monitoring Agent and the Administrative Agent authorizes
the Collateral Agent to execute the Collateral Documents and the Intercreditor
Agreement as agents on their behalf and irrevocably appoints and authorizes the
Collateral Agent to take such action as agent on its behalf and to exercise such
powers under the Collateral Documents and the Intercreditor Agreement as are
delegated to the Collateral Agent by the terms thereof, together with all such
powers as are reasonably incidental thereto.
(d) Each of the Lenders, the LC Issuing Banks, the Documentation
Agent, the Collateral Agent and the Administrative Agent irrevocably appoints
and authorizes the Collateral Monitoring Agent to take such action as agent on
its behalf and to exercise such powers hereunder and under the Collateral
Documents as are delegated to the Collateral Monitoring Agent by the terms
hereof or thereof, together with all such powers as are reasonably incidental
thereto.
Section 9.02. Agents and Affiliates. Each of Xxxxxx and General
Electric Capital Corporation shall have the same rights and powers under the
Financing Documents as any other Lender and may exercise or refrain from
exercising the same as though it were not one of the Agents. Each of Xxxxxx and
General Electric Capital Corporation and their respective affiliates may accept
deposits from, lend money to, and generally engage in any kind of business with
the Borrower or any of the Guarantors or their Affiliates as if it were not one
of the Agents.
Section 9.03. Action by Agents. The obligations of each of the Agents
under the Financing Documents are only those expressly set forth therein with
respect to it. Without limiting the generality of the foregoing, none of the
Agents
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shall be required to take any action with respect to any Default, except as
expressly provided in Article 8 hereof and in the Collateral Documents.
Section 9.04. Consultation with Experts. Each of the Agents may consult
with legal counsel (who may be counsel for the Borrower or any Guarantor),
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 9.05. Liability of Agents. None of the Agents or their
respective affiliates or their respective directors, officers, agents or
employees shall be liable for any action taken or not taken by it in connection
with the Financing Documents (i) with the consent or at the request of the
Required Lenders or (ii) in the absence of its own gross negligence or willful
misconduct. None of the Agents or their respective affiliates or their
respective directors, officers, agents or employees shall be responsible for or
have any duty to ascertain, inquire into or verify (i) any statement, warranty
or representation made in connection with any Financing Document or any Credit
Event; (ii) the performance or observance of any of the covenants or agreements
of the Borrower or any Guarantor under any Financing Document; (iii) the
satisfaction of any condition specified in Article 3 except, in the case of the
Administrative Agent, receipt of items required to be delivered to it; (iv) the
validity, effectiveness or genuineness of any Financing Document or any other
instrument or writing furnished in connection therewith; or (v) the existence,
genuineness or value of any of the Collateral or the validity, perfection,
recordation, priority or enforceability of any Lien on any of the Collateral.
None of the Agents shall incur any liability by acting in reliance upon any
notice, consent, certificate, statement, or other writing (which may be a bank
wire, telex, facsimile copy or similar writing) believed by it to be genuine or
to be signed by the proper party or parties.
Section 9.06. Indemnification. The Lenders shall, ratably in accordance
with their respective Revolving Credit Exposures, indemnify each Agent, their
respective affiliates and their respective directors, officers, agents and
employees (to the extent not reimbursed by the Borrower and the Guarantors)
against any cost, expense (including reasonable counsel fees and disbursements),
claim, demand, action, loss or liability (except such as result from such
indemnitee's gross negligence or willful misconduct) that such indemnitee may
suffer or incur in connection with the Financing Documents or any action taken
or omitted by such indemnitees thereunder.
Section 9.07. Credit Decision. Each Lender acknowledges that it has,
independently and without reliance on the Agents or any other Lender, and based
on such documents and information as it has deemed appropriate, made its own
credit analysis and decision to enter into this Agreement. Each Lender also
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acknowledges that it will, independently and without reliance upon the Agents or
any other Lender, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking any action under the Financing Documents.
Section 9.08. Agents' Fees. The Borrower will pay fees to each Agent in
the amounts and at the times agreed to by the Borrower and such Agent.
Section 9.09. Successor Agents. (a) Any Agent may resign at any time (a
"Retiring Agent") by giving notice thereof to the Lenders, the other Agents and
the Borrower. Upon any such resignation, the Required Lenders shall have the
right to appoint a successor for the Retiring Agent (a "Successor Agent"). 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 gives
notice of resignation, then the Retiring Agent may, on behalf of the Lenders,
appoint a Successor Agent, which shall be a Lender or any other commercial bank
organized or licensed under the laws of the United States or any State thereof
and having a combined capital and surplus of at least $500,000,000; provided
that if the Collateral Agent is removed pursuant to Section 9.10(c) and if the
Administrative Agent is also the Collateral Agent, then the Administrative Agent
shall have the absolute right to resign as Administrative Agent immediately upon
3 days notice, and such resignation shall become effective, regardless of
whether a Successor Agent has been appointed and shall have no obligation to
appoint a Successor Agent. Upon the acceptance of its appointment as a Successor
Agent, such Successor Agent shall thereupon succeed to and become vested with
all the rights and duties of the Retiring Agent, and the Retiring Agent shall be
discharged from its duties and obligations hereunder; provided that if the
Administrative Agent resigns as Administrative Agent pursuant to the proviso in
the previous sentence, then the Administrative Agent shall be discharged from
its duties and obligations hereunder immediately upon the expiry of the 3 day
period referred to in such proviso. After any Retiring Agent resigns as an Agent
hereunder, the provisions of this Article 9 shall inure to its benefit as to any
actions taken or omitted to be taken by it while it was one of the Agents.
(b) Without prejudice to its rights under paragraph (a), Xxxxxx may resign
as an Agent at any time and may appoint any other subsidiary of X.X. Xxxxxx
Chase & Co. to such role by giving written notice thereof to each of the Lenders
and the Borrower. Upon such appointment, such subsidiary shall thereupon succeed
to and become vested with all the rights and duties of Xxxxxx in such capacity
and Xxxxxx shall be discharged from its duties and obligations in such capacity
hereunder. After Xxxxxx resigns as Agent under this paragraph (b), the
provisions of this Article 9 shall inure to its benefit as to any actions taken
or omitted to be taken by it while it was one of the Agents.
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Section 9.10. Collateral Agents. (a) As to any matters not expressly
provided for in the Collateral Documents (including the timing and methods of
realization upon the Collateral), the Collateral Agent and the Collateral
Monitoring Agent shall act or refrain from acting in accordance with written
instructions from the Required Lenders or, in the absence of such instructions,
in accordance with its respective discretion; provided that neither the
Collateral Agent nor the Collateral Monitoring Agent shall be obligated to take
any action if the Collateral Agent or the Collateral Monitoring Agent believes
that such action is or may be contrary to any applicable law or might cause the
Collateral Agent or the Collateral Monitoring Agent to incur any loss or
liability for which it has not been indemnified to its satisfaction.
(b) Neither the Collateral Agent nor the Collateral Monitoring Agent shall
be responsible for the existence, genuineness or value of any of the Collateral
or for the validity, perfection, priority or enforceability of any Lien on any
of the Collateral, whether impaired by operation of law or by reasons of any
action or omission to act on its part under the Collateral Documents. The
Collateral Agent and the Collateral Monitoring Agent shall have no duty to
ascertain or inquire as to the performance or observance of any of the terms of
the Collateral Documents by the Borrower or any of the Guarantors.
(c) The Collateral Agent may be removed at the written direction of the
Lenders (other than the Collateral Agent) holding in excess of eighty percent of
the Revolving Credit Exposure (excluding the Collateral Agent's Revolving Credit
Exposure).
ARTICLE 10
Changes in Circumstances
Section 10.01. Basis for Determining Interest Rate Inadequate or Unfair.
If on or prior to the first day of any Interest Period for any Euro-Dollar Loan:
(a) the Administrative Agent is unable to determine the applicable
London Interbank Offered Rate for such Interest Period, or
(b) Lenders holding Notes evidencing 50% or more of the aggregate
outstanding principal amount of the Loans to which such Interest Period
will apply advise the Administrative Agent that the London Interbank
Offered Rate as determined by the Administrative Agent will not adequately
and fairly reflect the cost to such Lenders of funding their Euro-Dollar
Loans for such Interest Period,
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the Administrative Agent shall forthwith give notice thereof to the Borrower and
the Lenders, whereupon until the Administrative Agent notifies the Borrower that
the circumstances giving rise to such suspension no longer exist, (i) the
obligations of the Lenders to make Euro-Dollar Loans, or to convert outstanding
Loans to Euro-Dollar Loans, shall be suspended and (ii) each outstanding Euro-
Dollar Loan shall be converted into a Base Rate Loan on the last day of the then
current Interest Period applicable thereto. Unless the Borrower notifies the
Administrative Agent at least two Business Days before the date of any affected
Borrowing for which a Notice of Borrowing has previously been given that it
elects not to borrow on such date, such Borrowing shall instead be made as a
Base Rate Borrowing.
Section 10.02. Illegality. If, on or after the date hereof, the adoption
of any applicable law, rule or regulation, or any change in any applicable law,
rule or regulation, or any change in the interpretation or administration
thereof by any governmental authority, central bank or comparable agency charged
with the interpretation or administration thereof, or compliance by any Lender
(or its Euro-Dollar Lending Office) with any request or directive (whether or
not having the force of law) of any such authority, central bank or comparable
agency shall make it unlawful or impossible for any Lender (or its Euro-Dollar
Lending Office) to make, maintain or fund its Euro-Dollar Loans and such Lender
shall so notify the Administrative Agent, the Administrative Agent shall
forthwith give notice thereof to the other Lenders and the Borrower, whereupon
until such Lender notifies the Borrower and the Administrative Agent that the
circumstances giving rise to such suspension no longer exist, the obligation of
such Lender to make Euro-Dollar Loans, or to convert outstanding Base Rate Loans
into Euro-Dollar Loans, shall be suspended. Before giving any notice to the
Administrative Agent pursuant to this Section, such Lender shall designate a
different Euro-Dollar Lending Office if such designation will avoid the need for
giving such notice and will not, in the judgment of such Lender, be otherwise
disadvantageous to such Lender. If such notice is given, each Euro-Dollar Loan
of such Lender then outstanding shall be converted to a Base Rate Loan either
(i) on the last day of the then current Interest Period applicable to such Euro-
Dollar Loan if such Lender may lawfully continue to maintain and fund such Loan
to such day or (ii) immediately if such Lender shall determine that it may not
lawfully continue to maintain and fund such Loan to such day.
Section 10.03. Increased Cost and Reduced Return. (a) If, on or after the
date hereof, the adoption of any applicable law, rule or regulation, or any
change in any applicable law, rule or regulation, or any change in the
interpretation or administration thereof by any governmental authority, central
bank or comparable agency charged with the interpretation or administration
thereof, or compliance by any Lender Party (other than the Agents) with any
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request or directive (whether or not having the force of law) of any such
authority, central bank or comparable agency, shall impose, modify or deem
applicable any reserve, special deposit, insurance assessment or similar
requirement (including any such requirement imposed by the Board of Governors of
the Federal Reserve System but excluding any such requirement included in an
applicable Euro-Dollar Reserve Percentage) against assets of, deposits with or
for the account of, or credit extended by, any Lender Party (other than the
Agents) or shall impose on any Lender Party (other than the Agents) or the
London interbank market any other condition affecting its Euro-Dollar Loans, its
Note, its obligation to make Euro-Dollar Loans or Swingline Loans, or its
obligation to participate in any Letter of Credit, and the result of any of the
foregoing is to increase the cost to such Lender Party of making or maintaining
its Euro-Dollar Loans or participating in any Letter of Credit or increase the
cost to the Swingline Bank of maintaining the Swingline Commitment or to reduce
the amount of any sum received or receivable by such Lender Party under this
Agreement or under its Note with respect thereto, by an amount deemed by such
Lender Party to be material, then, within 15 days after demand by such Lender
Party (with a copy to the Administrative Agent), the Borrower shall pay to such
Lender Party such additional amount or amounts as will compensate such Lender
Party for such increased cost or reduction; provided that the Borrower shall not
be liable to any Lender Party in respect of any such increased cost or reduction
with respect to any period of time more than three months before the Borrower
receives the notice required by the first sentence of Section 10.03(c) or more
than six months before the Borrower receives the relevant certificate referred
to in the second sentence of Section 10.03(c).
(b) If any Lender Party (other than the Agents) shall have determined
that, after the date hereof, the adoption of any applicable law, rule or
regulation regarding capital adequacy, or any change in any such law, rule or
regulation, or any change in the interpretation or administration thereof by any
governmental authority, central bank or comparable agency charged with the
interpretation or administration thereof, or any request or directive regarding
capital adequacy (whether or not having the force of law) of any such authority,
central bank or comparable agency, has or would have the effect of reducing the
rate of return on capital of such Lender Party (or its Parent) as a consequence
of such Lender Party's obligations hereunder to a level below that which such
Lender Party (or its Parent) could have achieved but for such adoption, change,
request or directive (taking into consideration its policies with respect to
capital adequacy) by an amount deemed by such Lender Party to be material, then
from time to time, within 15 days after demand by such Lender Party (with a copy
to the Administrative Agent), the Borrower shall pay to such Lender Party such
additional amount or amounts as will compensate it for such reduction; provided
that the Borrower shall not be liable to any Lender Party in respect of any such
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reduction with respect to any period of time more than three months prior to the
date of the notice required by the first sentence of Section 10.03(c).
(c) Each Lender Party (other than the Agents) will promptly notify the
Borrower and the Administrative Agent of any event of which it has knowledge,
occurring after the date hereof, which will entitle it to compensation pursuant
to this Section and will designate a different Applicable Lending Office or LC
Office if such designation will avoid the need for, or reduce the amount of,
such compensation and will not, in the judgment of such Lender Party, be
otherwise disadvantageous to it. A certificate of any such Lender Party claiming
compensation under this Section and setting forth the additional amount or
amounts to be paid to it hereunder, showing the calculation thereof in
reasonable detail, shall be conclusive in the absence of manifest error. In
determining such amount, such Lender Party may use any reasonable averaging and
attribution methods.
Section 10.04. Taxes. (a) Any and all payments by the Borrower and the
Guarantors to or for the account of any Lender Party under any Financing
Document shall be made free and clear of and without deduction for any and all
present or future taxes, levies, imposts, deductions, charges or withholdings,
and all liabilities with respect thereto, excluding, in the case of each Lender
Party, taxes imposed on its net income, and franchise or similar taxes imposed
on it, by (i) the jurisdiction under the laws of which it is organized or any
political subdivision thereof, (ii) in the case of each Lender or the Swingline
Bank, the jurisdiction of its Applicable Lending Office or any political
subdivision thereof and (iii) in the case of each LC Issuing Bank, the
jurisdiction of its LC Office or any political subdivision thereof (all such
non-excluded taxes, duties, levies, imposts, deductions, charges, withholdings
and liabilities being hereinafter referred to as "Taxes"). If the Borrower or
any Guarantor shall be required by law to deduct any Taxes from or in respect of
any sum payable under any Financing Document to any Lender Party, (i) the sum
payable shall be increased as may be necessary so that after making all required
deductions (including deductions applicable to additional sums payable under
this Section 10.04) such Lender Party receives an amount equal to the sum it
would have received had no such deductions been made, (ii) the Borrower or the
relevant Guarantor shall make such deductions, (iii) the Borrower or the
relevant Guarantor shall pay the full amount deducted to the relevant taxation
authority or other authority in accordance with applicable law, and (iv) the
Borrower or the relevant Guarantor shall furnish to the Administrative Agent, at
its address specified in or pursuant to Section 11.01, the original or a
certified copy of a receipt evidencing payment thereof.
(b) In addition, the Borrower agrees to pay any present or future
stamp or documentary taxes or any other excise or property taxes, or charges or
similar
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levies which arise from any payment made hereunder or under any other Financing
Document or from the execution or delivery of, or otherwise with respect to, any
Financing Document (hereinafter referred to as "Other Taxes").
(c) The Borrower agrees to indemnify each Lender Party for the full
amount of Taxes or Other Taxes (including any Taxes or Other Taxes imposed or
asserted by any jurisdiction on amounts payable under this Section 10.04) paid
by such Lender Party and any liability (including penalties, interest and
expenses) arising therefrom or with respect thereto. This indemnification shall
be made within 15 days from the date such Lender Party makes demand therefor.
(d) Each Lender Party organized under the laws of a jurisdiction
outside the United States, on or prior to the date of its execution and delivery
of this Agreement in the case of each Lender Party listed on the signature pages
hereof and on or prior to the date on which it becomes a Lender Party in the
case of each other Lender Party, and from time to time thereafter if requested
in writing by the Borrower (but only so long as such Lender Party remains
lawfully able to do so), shall provide the Borrower and the Administrative Agent
with (i) Internal Revenue Service form W-8BEN, or any successor form prescribed
by the Internal Revenue Service, certifying that such Lender Party is entitled
to benefits under an income tax treaty to which the United States is a party
which reduces the rate of withholding tax on payments of interest under the
Financing Documents or (ii) an Internal Revenue Service form W-8ECI, or any
successor form prescribed by the Internal Revenue Service, certifying that the
income receivable by it pursuant to this Agreement is effectively connected with
the conduct of a trade or business in the United States. If the form provided by
a Lender Party at the time such Lender Party first becomes a party to this
Agreement indicates a United States interest withholding tax rate in excess of
zero, withholding tax at such rate shall be excluded from "Taxes" as defined in
Section 10.04(a).
(e) For any period with respect to which a Lender Party has failed to
provide the Borrower and the Administrative Agent with the appropriate form
pursuant to Section 10.04(d) (unless such failure is due to a change in treaty,
law or regulation occurring subsequent to the date on which a form originally
was required to be provided), such Lender Party shall not be entitled to
indemnification under Section 10.04(a) with respect to Taxes imposed by the
United States; provided that should a Lender Party, which is otherwise exempt
from or subject to a reduced rate of withholding tax, become subject to Taxes
because of its failure to deliver a form required hereunder, the Borrower or the
relevant Guarantor shall take such steps as such Lender Party shall reasonably
request to assist such Lender Party to recover such Taxes.
(f) If the Borrower or any Guarantor is required to pay additional
amounts to or for the account of any Lender Party pursuant to this Section
10.04,
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then such Lender Party will change the jurisdiction of its Applicable Lending
Office or LC Office, as the case may be, so as to eliminate or reduce any such
additional payment which may thereafter accrue if such change, in the sole
judgment of such Lender Party, is not otherwise disadvantageous to such Lender
Party.
(g) Without prejudice to the survival of any other agreement of the
Borrower or Vencor hereunder, the agreements and obligations of the Borrower and
the Guarantors contained in this Section 10.04 (as set forth herein and
incorporated by reference in the Guaranty Agreements) shall survive the payment
in full of the principal of and interest on the Loans, the Swingline Loans and
the LC Reimbursement Obligations.
Section 10.05. Base Rate Loans Substituted for Affected Euro-Dollar
Loans. If (x) the obligation of any Lender to make or maintain Euro-Dollar Loans
has been suspended pursuant to Section 10.02 or (y) any Lender has demanded
compensation under Section 10.03 or 10.04 with respect to its Euro-Dollar Loans
and the Borrower shall, by at least five Euro-Dollar Business Days' prior notice
to such Lender through the Administrative Agent, have elected that the
provisions of this Section 10.05 shall apply to such Lender, then, unless and
until such Lender notifies the Borrower that the circumstances giving rise to
such suspension or demand for compensation no longer exist, all Loans which
would otherwise be made by such Lender as (or continued as or converted into)
Euro-Dollar Loans shall instead be Base Rate Loans (on which interest and
principal shall be payable contemporaneously with the related Euro-Dollar Loans
of the other Lenders). If such Lender notifies the Borrower that the
circumstances giving rise to such notice no longer apply, the principal amount
of each such Base Rate Loan shall be converted into a Euro-Dollar Loan on the
first day of the next succeeding Interest Period applicable to the related
Euro-Dollar Loans of the other Lenders.
Section 10.06. Substitution of Lenders. (a) If any Lender (a "Selling
Lender") (i) gives notice pursuant to Section 10.02 that it is unlawful or
impossible for such Lender to make, maintain or fund its Euro-Dollar Loans or
(ii) demands compensation under Section 10.03 or 10.04, the Borrower shall have
the right, with the assistance of the Administrative Agent, to seek one or more
banks or other institutions (collectively, the "Purchasing Lenders") willing to
purchase the outstanding Loans of the Selling Lender and to purchase its
participation in any outstanding LC Reimbursement Obligations and to assume its
Commitment and its participation in any outstanding Letters of Credit on the
terms specified in this Section 10.06; provided that any such purchase and
assumption by a Purchasing Lender that is not already a Lender shall be subject
to the consent of the Administrative Agent and each LC Issuing Bank (which
consents shall not be unreasonably withheld). The Selling Lender shall be
obligated to sell its outstanding Loans and its participation in any outstanding
LC
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Reimbursement Obligations to such Purchasing Lender or Lenders (which may
include one or more of the Lenders) within 15 days after receiving notice from
the Borrower requiring it to do so, at an aggregate price equal to the
outstanding principal amount thereof plus unpaid interest accrued thereon up to
but excluding the date of sale.
(b) In connection with any such sale, and as a condition thereof, the
Borrower shall pay to the Selling Lender all commitment fees and letter of
credit fees accrued for its account hereunder to but excluding the date of such
sale, plus, if demanded by the Selling Lender at least two Business Days prior
to such sale, (i) the amount of any compensation which would be due to the
Selling Lender under Section 2.15 if the Borrower had prepaid the outstanding
Euro-Dollar Loans of the Selling Lender on the date of such sale and (ii) any
additional compensation accrued for its account under Section 10.03 to but
excluding said date.
(c) Upon any such sale, the Selling Lender, as assignor, each
Purchasing Lender, as assignee, the Administrative Agent and each LC Issuing
Bank shall enter into an appropriate assignment and assumption agreement and,
upon payment of the purchase price to be paid pursuant thereto, (i) the
Purchasing Lender or Lenders shall assume the Selling Lender's Commitment and
its participation in any outstanding Letters of Credit, and the Selling Lender
shall be released from its obligations hereunder to a corresponding extent and
either (ii) if such Purchasing Lender is already one of the Lenders, its
Commitment shall be increased by an amount equal to its ratable share of the
Selling Lender's Commitment and its participations in the outstanding Letters of
Credit shall be increased by its ratable share of the Selling Lender's
participations therein or (iii) if such Purchasing Lender is not already one of
the Lenders, it shall become a Lender party to this Agreement, shall be deemed
to be an Assignee hereunder and shall have all the rights and obligations of a
Lender with a Commitment equal to its ratable share of the Selling Lender's
Commitment and with a participation in the outstanding Letters of Credit equal
to its ratable share of the Selling Lender's participation in such Letters of
Credit.
(d) Upon the consummation of any sale pursuant to this Section 10.06,
the Selling Lender, the Administrative Agent and the Borrower shall make
appropriate arrangements so that, if required, each Purchasing Lender receives a
new Note complying with the provisions of Section 2.04.
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ARTICLE 11
MISCELLANEOUS
Section 11.01. Notices. Unless otherwise specified herein, all notices,
requests and other communications to any party under any Financing Document
shall be in writing (including bank wire, facsimile copy or similar writing) and
shall be given to such party at its address or facsimile number set forth on the
signature pages hereof (or, in the case of any Lender, in its Administrative
Questionnaire) or such other address or facsimile number as such party may
hereafter specify for the purpose by notice to the Agents and the Borrower. Each
such notice, request or other communication shall be effective (i) if given by
facsimile transmission, when transmitted to the facsimile number specified in or
pursuant to this Section 11.01 and confirmation of receipt is received, (ii) if
given by mail, ten days after such communication is deposited in the mails with
first class postage prepaid, addressed as aforesaid, or (iii) if given by any
other means, when delivered at the address specified in or pursuant to this
Section 11.01, provided that notices and requests to the Administrative Agent
under Article 2, 8 or 10 shall not be effective until received.
Section 11.02. No Waiver. No failure or delay by the Lender Parties, or
any of them, in exercising any right, power or privilege under any Financing
Document shall operate as a waiver thereof nor shall any single or partial
exercise thereof preclude any other or further exercise thereof or the exercise
of any other right, power or privilege. The rights and remedies provided in the
Financing Documents shall be cumulative and not exclusive of any rights or
remedies provided by law.
Section 11.03. Expenses; Indemnification. (a) The Borrower shall pay on
demand all the actual and reasonable costs, fees and expenses of (i) the Agents
in connection with the negotiation, preparation, execution and administration of
the Financing Documents and any consents, amendments, waivers or other
modifications thereto, or any Default or alleged Default hereunder; (ii)
furnishing all opinions by counsel for the Borrower and the Guarantors
(including any opinions reasonably requested by the Administrative Agent or
Required Lenders as to any legal matters arising hereunder) and of the
Borrower's and the Guarantors' performance of and compliance with all agreements
and conditions on its part to be performed or complied with under this Agreement
and the other Financing Documents, including with respect to confirming
compliance with environmental, insurance and solvency requirements; (iii)
counsel to the Agents (including the reasonable fees and expenses of O'Melveny &
Xxxxx LLP and Xxxxx Xxxx & Xxxxxxxx, special counsel to the Agents) in
connection with the negotiation, preparation, execution and administration of
the Financing Documents and any consents, amendments, waivers or other
modifications thereto and any other documents or matters
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requested by the Borrower or any Guarantor, provided that it is acknowledged
that the Agents have retained O'Melveny & Xxxxx LLP principally in respect of
Bankruptcy Code matters and that after the Closing Date, in the absence of an
Event of Default, there will be only one principal counsel (as opposed to any
local counsel or similar specialized retention) retained by the Agents, (iv)
creating and perfecting Liens in favor of the Collateral Agent on behalf of
Lenders pursuant to any Collateral Document, including filing and recording
fees, expenses and taxes, stamp or documentary taxes, search fees, title
insurance premiums, and reasonable fees, expenses and disbursements of counsel
providing any opinions that any Agent or Required Lenders may reasonably request
in respect of the Collateral Documents or the Liens created pursuant thereto;
(v) Xxxxxxxx & Xxxxx in connection with the negotiation, preparation and
execution of the Financing Documents and for a period of six months after the
Closing Date in connection with the administration thereof; (vi) the Agents in
connection with the custody or preservation of any of the Collateral; and (vii)
if any Event of Default occurs, any Lender Party, including actual and
reasonable costs, fees and expenses of counsel, in connection with such Event of
Default and collection, bankruptcy, insolvency and other enforcement proceedings
resulting therefrom, including the negotiation of any restructuring or "workout"
of the Borrower's obligations under the Financing Documents.
(b) In addition to the payment of expenses pursuant to Section
11.03(a), whether or not the transactions contemplated hereby shall be
consummated, the Borrower agrees to defend (subject to Indemnitee's selection of
counsel), indemnify, pay and hold harmless Agents and Lenders, and the officers,
directors, employees, agents and affiliates of the Agents and Lenders
(collectively called the "Indemnitees"), from and against any and all
Indemnified Liabilities (as hereinafter defined); provided, that the Borrower
shall not have any obligation to any Indemnitee hereunder with respect to any
Indemnified Liabilities to the extent such Indemnified Liabilities arise from
the gross negligence or willful misconduct of that Indemnitee as determined by a
court of competent jurisdiction.
As used herein, "Indemnified Liabilities" means, collectively, any and
all liabilities, obligations, losses, damages (including natural resource
damages), penalties, actions, judgments, suits, claims (including environmental
claims), costs (including the costs of any investigation, study, sampling,
testing, abatement, clean-up, removal, remediation or other response action
necessary to remove, remediate, clean up or xxxxx any hazardous materials
activity), expenses and disbursements of any kind or nature whatsoever
(including the reasonable fees and disbursements of counsel for Indemnitees in
connection with any investigative, administrative or judicial proceeding
commenced or threatened by any Person, whether or not any such Indemnitee shall
be designated as a party or a potential party thereto, and any fees or expenses
incurred by Indemnitees in enforcing this indemnity), whether direct, indirect
or consequential and whether
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based on any federal, state or foreign laws, statues, rules or regulations
(including securities and commercial laws, statutes, rules or regulations and
environmental laws), on common law or equitable cause or on contract or
otherwise, that may be imposed on, incurred by, or asserted against any such
Indemnitee, in any manner relating to or arising out of (i) this Agreement or
the other Financing Documents or the transactions contemplated hereby or
thereby, including any enforcement of any of the Financing Documents (including
any sale of, collection from, or other realization upon any of the Collateral or
the enforcement of the Guaranty Agreements), or (ii) any environmental claim or
any hazardous materials activity relating to or arising from, directly or
indirectly, any past or present activity, operation, land ownership, or practice
of the Borrower and the Guarantors.
To the extent that the undertakings to defend, indemnify, pay and hold
harmless set forth in this Section 11.03(b) may be unenforceable in whole or in
part because they are violative of any law or public policy, the Borrower shall
contribute the maximum portion that it is permitted to pay and satisfy under
applicable law to the payment and satisfaction of all Indemnified Liabilities
incurred by Indemnitees or any of them. Without prejudice to the survival of any
other agreement of the Borrower or the Guarantors hereunder, the agreements and
obligations of the Borrower and the Guarantors contained in this Section 11.03
(as set forth herein and incorporated by reference in the Guaranty Agreements)
shall survive the payment in full of the principal of and interest on the Notes.
Section 11.04. Sharing of Set-offs. (a) Each Lender agrees that if it
shall, by exercising any right of set-off or counterclaim or otherwise, receive
payment of a proportion of the aggregate amount of principal and interest then
due (or overdue) with respect to the Loans and participations in LC
Reimbursement Obligations (if any) held by it which is greater than the
proportion received by any other Lender in respect of the aggregate amount of
principal and interest then due (or overdue) with respect to the Loans and
participations in LC Reimbursement Obligations (if any) held by such other
Lender, the Lender receiving such proportionately greater payment shall purchase
such participations in the Loans and participations in LC Reimbursement
Obligations (if any) held by the other Lenders, and such other adjustments shall
be made, as may be required so that all such payments of principal and interest
with respect to the Loans and participations in LC Reimbursement Obligations
held by the Lenders shall be shared by the Lenders pro rata.
(b) Nothing in this Section 11.04 shall impair the right of any Lender
to exercise any right of set-off or counterclaim it may have and to apply the
amount subject to such exercise to the payment of indebtedness of the Borrower
or the relevant Guarantor other than its indebtedness in respect of the Loans
and LC Reimbursement Obligations.
136
(c) The Borrower agrees, to the fullest extent it may effectively do
so under applicable law, that any holder of a participation in a Loan or LC
Reimbursement Obligation, whether or not acquired pursuant to the foregoing
arrangements, may exercise rights of set-off or counterclaim and other rights
with respect to such participation as fully as if such holder of a participation
were a direct creditor of the Borrower in the amount of such participation.
Section 11.05. Amendments and Waivers. (a) Neither this Agreement nor
any other Financing Document, nor any terms hereof or thereof, may be amended,
supplemented or modified except in accordance with the provisions of this
Section.
(b) Except as set forth in the succeeding subsections of this Section,
the Required Lenders (or the Administrative Agent with their written consent)
may from time to time (i) enter into written amendments, supplements or
modifications of any Financing Document (which shall not be effective unless
signed by the Borrower if a party thereto and each Guarantor party thereto) for
the purpose of adding any provisions to such Financing Document or changing in
any manner the rights of the parties hereunder or thereunder or (ii) waive, on
such terms and conditions as the Required Lenders (or the Administrative Agent
with their written consent) may specify in such instrument, any of the
requirements of any Financing Document (including any waiver of any of the
conditions precedent set forth in Section 3.01 (except that the acceptance of a
Note by any Lender on the Closing Date shall be deemed to constitute a waiver of
such conditions precedent by such Lender) or Section 3.02) or any Default or
Event of Default and its consequences (any such amendment, supplement,
modification or waiver, a "Specified Change"); provided that
(1) without the written consent of the relevant LC
Issuing Bank, no Specified Change shall amend, supplement
or otherwise modify any Letter of Credit or any provision
of this Agreement governing the rights or obligations of
such LC Issuing Bank;
(2) without the written consent of the Swingline
Bank, no Specified Change shall amend, modify or waive any
provision of Section 2.08 or any other provision of this
Agreement governing the rights or obligations of the
Swingline Bank;
(3) without the written consent of the then Agents,
no Specified Change shall amend, modify or waive any
provision of Article 9 or any other provision of this
137
Agreement or any other Financing Documents governing
the rights or obligations of the Agents; and
(4) without the written consent of all the
Lenders, no Specified Change shall reduce the
percentage specified in the definition of "Required
Lenders" or "Supermajority Lenders".
(c) Without the written consent of all Lenders, no Specified Change
shall take any action which has the effect of releasing all or substantially all
of the Collateral, releasing Vencor from its obligations under the Vencor
Guaranty Agreement or releasing all or substantially all of the Restricted
Subsidiaries from their obligations under the Subsidiary Guaranty Agreement,
except in each case as expressly provided in this Agreement or any Collateral
Document.
(d) Without the written consent of all the Lenders, no Specified
Change shall (i) consent to the assignment or transfer by Vencor or the Borrower
of any of its rights and obligations under the Financing Documents, (ii)
increase the aggregate amount of the Revolving Credit Exposures or include, as
indebtedness under this Agreement, any indebtedness of the Borrower or the
Guarantors other than the Borrower's indebtedness under the Facility or the
Designated Interest Rate Agreements, (iii) change the priority status of the
Obligations or (iv) modify or alter in any way the terms of the subordination
provisions as set forth in the Intercreditor Agreement (as in effect on the date
hereof) or impair in any way the rights and benefits of the Collateral Agent and
the Lenders under and pursuant to the Intercreditor Agreement (as in effect on
the date hereof).
(e) Without the written consent of each Lender directly affected
thereby, no Specified Change shall reduce the amount or extend the scheduled
date of maturity of any Loan, or reduce the stated rate of any interest or fee
payable hereunder or extend the scheduled date of any payment thereof, or
increase the amount or extend the expiration date of any Commitment or amend,
modify or waive any provision of this subsection.
(f) Without the written consent of Supermajority Lenders, no Specified
Change shall amend, supplement or otherwise modify any provision of Section
2.19(a) or 2.19(b).
(g) Any such waiver and any such amendment, supplement or modification
shall apply equally to each of the Lenders and shall be binding upon the
Lenders, the Agents, all future holders of the Loans, the Borrower and the
Guarantors.
138
Section 11.06. Successors and Assigns. (a) The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns, except that neither the Borrower
nor Vencor may assign or otherwise transfer any of its rights under this
Agreement without the prior written consent of all the Lenders, the LC Issuing
Banks and the Swingline Bank. Any attempted assignment or transfer in
contravention of the foregoing shall be null and void.
(b) Any Lender may at any time grant to one or more banks or other
institutions (each a "Participant") participating interests in any or all of its
Loans and/or its Revolving Credit Commitment or its LC Exposure. If any Lender
grants a participating interest to a Participant, whether or not upon notice to
the Borrower and the Agents, such Lender shall remain responsible for the
performance of its obligations hereunder, and the Borrower and the Agents shall
continue to deal solely and directly with such Lender in connection with such
Lender's rights and obligations under the Financing Documents. Any agreement
pursuant to which any Lender may grant such a participating interest shall
provide that such Lender shall retain the sole right and responsibility to
enforce the obligations of the Borrower and the Guarantors or any other party
under the Financing Documents, including the right to approve any amendment,
modification or waiver of any provision of the Financing Documents; provided
that such participation agreement may provide that (i) such Lender will not
agree to any modification, amendment or waiver of this Agreement described in
Section 11.05(e) without the consent of the Participant and (ii) such Lender
will agree to vote the Participant's participating interest with respect to any
matter requiring a vote of all Lenders under the Security Agreement as the
Participant may direct. The Borrower and Vencor each agrees that each
Participant shall, to the extent provided in its participation agreement, be
entitled to the benefits of Section 2.07(k) and Article 10 with respect to its
participating interest. An assignment or other transfer which is not permitted
by Section 11.06(c) or (d) shall be given effect for purposes of this Agreement
only to the extent of a participating interest granted in accordance with this
subsection (b).
(c) Any Lender may at any time on or after the Closing Date assign to
one or more (x) Eligible Assignees or (y) affiliates or Related Funds of such
transferor Lender (each such Eligible Assignee, affiliate or Related Fund being
an "Assignee") all, or a ratable portion of all, of its rights and obligations
under the Facility, and such Assignee shall assume such rights and obligations,
with notice to the Borrower and the Administrative Agent; provided that:
(i) any assignment of only a ratable portion of the
transferor Lender's rights and obligations shall be equivalent, in the
case of each Assignee, to an initial Commitment of not less than
$5,000,000;
139
(ii) such assignment may be made to an Assignee that is
already a Lender, or made by a Lender to one of its Related Funds,
without regard to the foregoing minimum assignment amount;
(iii) except in the case of an assignment made pursuant to
clause (ii), the Administrative Agent, each LC Issuing Bank and the
Swingline Bank shall give its prior written consent to such assignment
(which consents shall not be unreasonably withheld);
(iv) the parties to each such assignment shall execute and
deliver to the Administrative Agent an Assignment Agreement for its
acceptance and recording in the Register at least two Business Days
prior to the proposed effective date of such assignment; and
(v) the Assignee under each such assignment (unless it is
already a Lender) shall deliver to the Administrative Agent a completed
Administrative Questionnaire.
When (A) such an Assignment Agreement (together with an Administrative
Questionnaire, if required) has been delivered to the Administrative Agent, (B)
such assignment has been recorded in the Register, and (C) such Assignee has
paid to such transferor Lender an amount equal to the purchase price agreed
between them, such Assignee shall be a Lender party to this Agreement and shall
have all the rights and obligations of a Lender with outstanding Loans and/or a
Commitment (as the case may be) as set forth in such instrument of assignment,
and the transferor Lender shall be released from its obligations hereunder to a
corresponding extent, and no further consent or action by any party shall be
required. Upon the consummation of any assignment pursuant to this subsection
(c), (x) the Administrative Agent shall notify the Collateral Agent thereof and
(y) the transferor Lender, the Administrative Agent and the Borrower shall make
appropriate arrangements so that, if required, a new Note complying with the
provisions of Section 2.04 is issued to the Assignee. In connection with any
such assignment, the transferor Lender shall pay to the Administrative Agent an
administrative fee for processing such assignment in the amount of $3,500. If
the Assignee is organized under the laws of a jurisdiction outside the United
States, it shall deliver to the Borrower and the Administrative Agent
certification as to exemption from deduction or withholding of United States
federal income taxes in accordance with Section 10.04. Anything contained herein
to the contrary notwithstanding, the Administrative Agent shall not be required
to accept and record assignments hereunder on more than one day during each
week, and each assigning Lender shall coordinate each assignment with the
Administrative Agent so that the proposed effective date of such assignment
shall be the same date as the effective date of each other assignment during the
relevant week by each other assigning Lender.
140
Xxxxxx Guaranty Trust Company of New York, as Lender, notifies the Borrower that
it proposes to assign to Highland Capital Management, L.P. that portion of its
rights and obligations under the Facility as set forth in an Assignment
Agreement to be entered into on or promptly after the Closing Date. The Borrower
acknowledges such assignment.
(d) Any Lender may at any time assign all or any portion of its Loans
or its Note as security to a Federal Reserve Bank. No such assignment or pledge
shall release the transferor Lender from its obligations hereunder.
(e) The Administrative Agent (acting, for this purpose only, as agent
for the Borrower) shall maintain at its address at which notices are to be given
to it pursuant to Section 11.01 a copy of each Assignment Agreement delivered to
it pursuant to subsection (c) of this Section and a register for the recordation
of the names and addresses of the Lenders, their respective Commitments and the
principal amounts of their respective Loans outstanding from time to time (the
"Register"). The entries in the Register shall be conclusive, in the absence of
manifest error, and the Borrower, the Guarantors, the Agents and the Lenders may
treat each Person whose name is recorded in the Register as a Lender for all
purposes of this Agreement. The Register shall be available for inspection by
the Borrower or any Lender Party at any reasonable time and from time to time
upon reasonable prior notice.
(f) No Assignee, Participant or other transferee of any Lender's
rights shall be entitled to receive any greater payment under Section 2.07(k),
10.03 or 10.04 than such Lender would have been entitled to receive with respect
to the rights transferred, unless such transfer is made with the Borrower's
prior written consent or by reason of the provisions of Section 10.02, 10.03 or
10.04 requiring such Lender to designate a different Applicable Lending Office
under certain circumstances or at a time when the circumstances giving rise to
such greater payment did not exist.
SECTION 11.07. Margin Stock. Each of the Lenders represents to the
Agents and each of the other Lenders that it in good faith is not relying upon
any Margin Stock as collateral in the extension or maintenance of the credit
provided for in this Agreement.
SECTION 11.08. GOVERNING LAW; SUBMISSION TO JURISDICTION. THIS
AGREEMENT, EACH NOTE AND THE SWINGLINE NOTE AND THE RIGHTS AND OBLIGATIONS OF
THE PARTIES HEREUNDER AND THEREUNDER SHALL BE GOVERNED BY, AND SHALL BE
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW
YORK (INCLUDING SECTION 5-1401 OF THE GENERAL OBLIGATIONS
000
XXX XX XXX XXXXX XX XXX XXXX), XXXXXXX REGARD TO CONFLICTS OF LAWS PRINCIPLES.
SUBJECT TO THE JURISDICTION OF THE COURT, THE BORROWER AND VENCOR EACH HEREBY
SUBMITS TO THE NONEXCLUSIVE JURISDICTION OF THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF NEW YORK AND OF ANY NEW YORK STATE COURT SITTING IN NEW
YORK CITY FOR PURPOSES OF ALL LEGAL PROCEEDINGS ARISING OUT OF OR RELATING TO
ANY OF THE FINANCING DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED THEREBY. THE
BORROWER AND VENCOR EACH IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
LAW, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE
OF ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT AND ANY CLAIM THAT ANY SUCH
PROCEEDING BROUGHT IN SUCH A COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
SECTION 11.09. Counterparts; Integration. This Agreement and any
amendment to this Agreement may be signed in any number of counterparts, each of
which shall be an original, with the same effect as if the signatures thereto
were upon the same instrument. This Agreement (together with the other Financing
Documents) constitutes the entire agreement and understanding among the parties
hereto and supersedes any and all prior agreements and understandings, oral or
written, relating to the subject matter hereof.
SECTION 11.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY
IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING
ARISING OUT OF OR RELATING TO THE FINANCING DOCUMENTS OR THE TRANSACTIONS
CONTEMPLATED THEREBY. EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE,
AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE,
THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE
FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE
BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER FINANCING DOCUMENTS, AS
APPLICABLE, BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN
THIS SECTION 11.10.
SECTION 11.11. Confidentiality. Each Lender Party agrees to keep any
non-public information delivered or made available by Ventas, the Borrower or
any Guarantor to it confidential and to use such information only for the
purpose of evaluating, approving, structuring and administering the Notes;
provided that
142
nothing herein shall prevent any Lender Party from disclosing such information
(i) to Persons employed or retained by such Lender Party who are engaged or
expected to be engaged in evaluating, approving, structuring or administering
the Notes, (ii) to any other Person if reasonably incidental to the
administration of the Notes, (iii) to any other Lender Party, (iv) pursuant to
any subpoena or express direction of any court or other authorized government
agency or as otherwise required by law, (v) upon the request or demand of any
authorized bank regulatory agency, bank examiner or comparable authority, (vi)
which has theretofore been publicly disclosed or is otherwise available to such
Lender Party on a non-confidential basis from a source that is not, to its
knowledge, subject to a confidentiality agreement with Ventas, the Borrower or
any Guarantor, (vii) in connection with any litigation to which any Lender Party
or its subsidiaries or Parent may be a party, (viii) to the extent necessary in
connection with the exercise of any remedy hereunder, (ix) to such Lender
Party's affiliates, legal counsel and independent auditors; (x) to any actual or
proposed Participant or Assignee that has signed a written agreement containing
provisions substantially similar to this Section 11.11 or (xi) any other Person
approved by the Borrower in writing. Any Lender Party that discloses
confidential information to other Persons as contemplated by clause (i), (ii) or
(ix) of the foregoing proviso shall inform such other Persons of the
confidential nature of such information and shall instruct them to keep such
information confidential (except for disclosures permitted by the foregoing
proviso). Before any Lender Party discloses confidential information pursuant to
clause (iv) or (vii) of the foregoing proviso, such Lender Party shall, to the
extent permitted by law, use its best efforts to advise the Borrower, Vencor or
Ventas of such proposed disclosure so that the Borrower, Vencor or Ventas may,
in its discretion, seek an appropriate protective order. If and to the extent
requested to do so by the Borrower, the Administrative Agent may deliver copies
of information supplied to it pursuant to Section 5.01 to any Person referred to
in clause (x) or (xi) of the foregoing proviso. Anything herein to the contrary
notwithstanding, no Lender Party shall have any liability with respect to
disclosure of confidential information by electronic transmission, including,
without limitation, facsimile, e-mail and internet communication, as long as
such Lender Party exercises reasonable care in effecting such transmission.
143
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
BY: Vencor Operating, Inc.
(to be renamed Kindred Healthcare
Operating, Inc.)
By: /s/ Xxxxxxx X. Xxxxxxxxxx
----------------------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Vice President - Finance, Corporate
Controller & Treasurer
BY: Vencor, Inc.
(to be renamed Kindred Healthcare, Inc.)
By: /s/ Xxxxxxx X. Xxxxxxxxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Vice President - Finance, Corporate
Controller & Treasurer
Notice Address for the Borrower and Vencor:
Vencor, Inc.
(to be renamed Kindred Healthcare, Inc.)
000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attention: General Counsel
Facsimile: 000-000-0000
Internet: xxx.xxxxxx.xxx, and after Vencor, Inc.'s
name change to Kindred Healthcare, Inc.,
xxx.xxxxxxxxxxxxxxxxx.xxx
with a copy to:
Address: Vencor, Inc.
(to be renamed Kindred Healthcare, Inc.)
000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attention: Assistant Treasurer
Facsimile: 000-000-0000
with a copy to:
Address: Cleary, Gottlieb, Xxxxx & Xxxxxxxx
Xxx Xxxxxxx Xxxxx
Xxx Xxxx, XX 00000-0000
Attention: Xxxxxx X. Xxxxxxx
Facsimile: 212-225-3999
AGENTS AND LENDERS:
XXXXXX GUARANTY TRUST COMPANY OF NEW
YORK, as Collateral Agent and
Administrative Agent and as a Lender
By: /s/ Xxxxx Xxxx
--------------------------------
Name: Xxxxx Xxxx
Title: Vice President
For Wire Transfers:
ABA: 000000000
For credit to Loan Unit 8
Account No.: 00000000
Ref.: Vencor, Inc.
Notices Relating to
Operations, etc.:
X.X. Xxxxxx Services
000 Xxxxxxx Xxxxxxxxxx Xxxx
Xxxxxx, Xxxxxxxx 00000
Attention: Xxxx Xxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
All Other Communications:
Xxxxxx Guaranty Trust Company of New York
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Houston Xxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
and
X.X. Xxxxxx Services
000 Xxxxxxx Xxxxxxxxxx Xxxx
Xxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx Xxxxxxx and Xxxxx Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
146
GENERAL ELECTRIC CAPITAL CORPORATION, as
Documentation Agent, Collateral Monitoring Agent and
as a Lender
By: /s/ Xxxxx X. Xxxxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Duly Authorized Signatory
XXXXXXX, SACHS CREDIT PARTNERS L.P., as a
Lender
By: /s/ Xxxxx Xxxxxx
-------------------------------------
Name: Xxxxx Xxxxxx
Title: Authorized Signatory
CREDIT LYONNAIS NEW YORK BRANCH, as a
Lender
By: /s/ Xxxx - Xxxxxxx Van Essche
-------------------------------------
Name: Xxxx - Xxxxxxx Van Essche
Title: Vice President
147
COMMITMENT SCHEDULE
========================================================================
Lender Commitment
========================================================================
Xxxxxx Guaranty Trust Company of New York $ 40,000,000
------------------------------------------------------------------------
General Electric Capital Corporation $ 40,000,000
------------------------------------------------------------------------
Xxxxxxx, Sachs Credit Partners L.P. $ 30,000,000
------------------------------------------------------------------------
Credit Lyonnais New York Branch $ 10,000,000
------------------------------------------------------------------------
Total $120,000,000
------------------------------------------------------------------------
148
SCHEDULE 1
VENCOR, INC. AND ALL CONSOLIDATED SUBSIDIARIES
----------------------------------------------
(alphabetical order)
I. CORPORATIONS AND L.L.C.S
----------------------------
------------------------------------------------------------------------------------------------------------------------------------
No. Name State of Holder of Stock/Ownership Outstanding Percentage Status/(1)/
Organization Interest Equity Interest Interest
------------------------------------------------------------------------------------------------------------------------------------
1. Advanced Infusion Systems, Inc. CA Medisave Pharmacies, Inc. 1,000 shares 100 RS
of common
stock, no par
value per share
2. American X-Rays, Inc. LA Medisave Pharmacies, Inc. 2,000 shares 100 RS
of common
stock, no par
value per share
3. Caribbean Behavioral Health NV Interamericana Health Care Group 1,000 shares 100 RS
Systems, Inc. of common
stock, par
value $1.00
per share
4. C.P.C. of Louisiana, Inc. LA Transitional Hospitals 100 shares of 100 RS
Corporation (NV) common stock,
no par value
per share
------------------------------------------------------------------------------------------------------------------------------------
[New York #878492 v8]
(1): EP = Excluded Partnership
RS = Restricted Subsidiary
SS = Shell Subsidiary
1
------------------------------------------------------------------------------------------------------------------------------------
No. Name State of Holder of Stock/Ownership Outstanding Percentage Status/(1)/
Organization Interest Equity Interest Interest
------------------------------------------------------------------------------------------------------------------------------------
5. Community Behavioral
Health System, Inc. LA CPC Managed Care Health Services, Inc. 1,000 shares 100 RS
of common
stock, par
value $1.00
per share
6. Community Psychiatric
Centers of Arkansas, Inc. AR Transitional Hospitals Corporation (NV) 1,000 shares 100 RS
of common
stock, par
value $1.00
per share
7. Community Psychiatric
Centers of California CA Transitional Hospitals Corporation (NV) 1,518 shares 100 RS
of common
stock, par
value $10.00
per share
8. Community Psychiatric
Centers of Florida, Inc. FL Transitional Hospitals Corporation (NV) 7,500 shares 100 RS
of common
stock, par
value $1.00
per share
9. Community Psychiatric
Centers of Idaho, Inc. ID Transitional Hospitals Corporation (NV) 5,000 shares 100 RS
of common
stock, par
value $10.00
per share
------------------------------------------------------------------------------------------------------------------------------------
[New York #878492 v8]
(1): EP = Excluded Partnership
RS = Restricted Subsidiary
SS = Shell Subsidiary
2
------------------------------------------------------------------------------------------------------------------------------------
No. Name State of Holder of Stock/Ownership Outstanding Percentage Status/1/
Organization Interest Equity Interest Interest
------------------------------------------------------------------------------------------------------------------------------------
10. Community Psychiatric
Centers of Indiana, Inc. IN Transitional Hospitals Corporation (NV) 1,000 shares 100 RS
stock, par
value $1.00
per share
11. Community Psychiatric
Centers of Kansas, Inc. KS Transitional Hospitals Corporation (NV) 1,000 shares 100 RS
of common
stock, par
value $1.00
per share
12. Community Psychiatric
Centers of Mississippi, Inc. MS Transitional Hospitals Corporation (NV) 1,000 shares 100 RS
of common
stock, par
value $1.00
per share
13. Community Psychiatric
Centers of Missouri, Inc. MO Transitional Hospitals Corporation (NV) 5,000 shares 100 RS
of common
stock, par
value $10.00
per share
14. Community Psychiatric
Centers of North Carolina, Inc. NC Transitional Hospitals Corporation (NV) 1,000 shares 100 RS
of common
stock, par
value $1.00
per share
------------------------------------------------------------------------------------------------------------------------------------
[New York #878492 v8]
(1): EP = Excluded Partnership
RS = Restricted Subsidiary
SS = Shell Subsidiary
3
====================================================================================================================================
Outstanding
No. Name State of Holder of Stock/Ownership Interest Equity Percentage Status/(1)/
Organization Interest Interest
------------------------------------------------------------------------------------------------------------------------------------
15. Community Psychiatric Centers of OK Transitional Hospitals Corporation 1,000 shares 100 RS
Oklahoma, Inc. (NV) of common
stock, par
value $1.00
per share
16. Community Psychiatric Centers of UT Transitional Hospitals Corporation 1,000 shares 100 RS
Utah, Inc. (NV) of common
stock, par
value $1.00
per share
17. Community Psychiatric Centers CA Community Psychiatric Centers of 2,500 shares 100 RS
Properties Incorporated California of common
stock, par
value $10.00
per share
18. Community Psychiatric Centers OK Transitional Hospitals Corporation 1,000 shares 100 RS
Properties of Oklahoma, Inc. (NV) of common
stock, par
value $1.00
per share
19. Community Psychiatric Centers TX Transitional Hospitals Corporation 1,000 shares 100 RS
Properties of Texas, Inc. (NV) of common
stock, par
value $1.00
per share
====================================================================================================================================
[New York #878492 v8]
(1): EP=Excluded Partnership
RS=Restricted Subsidiary
SS=Shell Subsidiary
4
====================================================================================================================================
Outstanding
No. Name State of Holder of Stock/Ownership Interest Equity Percentage Status/(1)/
Organization Interest Interest
------------------------------------------------------------------------------------------------------------------------------------
20. Community Psychiatric Centers UT Transitional Hospitals Corporation 1,000 shares 100 RS
Properties of Utah, Inc. (NV) of common
stock, par
value $1.00
per share
21. Cornerstone Insurance Company CI Vencor, Inc. 1,000,000 100 Cornerstone
shares of
common stock,
par value
$1.00 per
share
22. Courtland Gardens Health Center, CT PersonaCare of Connecticut, Inc. 1,000 shares 100 RS
Inc. of common
stock, no
par value
per share
23. CPC Investment Corp. CA Community Psychiatric Centers 5,000 shares 100 RS
Properties Incorporated of common
stock, par
value $1.00
per share
24. CPC Managed Care Health Services, DE Transitional Hospitals Corporation 1,000 shares 100 RS
Inc. (NV) of common
stock, par
value $1.00
per share
====================================================================================================================================
[New York #878492 v8]
(1): EP=Excluded Partnership
RS=Restricted Subsidiary
SS=Shell Subsidiary
5
====================================================================================================================================
Outstanding
No. Name State of Holder of Stock/Ownership Interest Equity Percentage Status/(1)/
Organization Interest Interest
------------------------------------------------------------------------------------------------------------------------------------
25. CPC of Georgia, Inc. GA Transitional Hospitals 500 shares of 100 RS
Corporation (NV) common stock,
par value
$1.00 per share
26. CPC Properties of Arkansas, AR Transitional Hospitals 1,000 shares 100 RS
Inc. Corporation (NV) of common
stock, par
value $1.00
per share
27. CPC Properties of Illinois, IL Community Psychiatric Centers 1,000 shares 100 RS
Inc. Properties Incorporated of common
stock, par
value $1.00
per share
28. CPC Properties of Indiana, IN Transitional Hospitals 1,000 shares 100 RS
Inc. Corporation (NV) of common
stock, par
value $1.00
per share
29. CPC Properties of Kansas, KS Transitional Hospitals 1,000 shares 100 RS
Inc. Corporation (NV) of common
stock, par
value $1.00
per share
====================================================================================================================================
[New York #878492 v8]
(1): EP=Excluded Partnership
RS=Restricted Subsidiary
SS=Shell Subsidiary
6
====================================================================================================================================
Outstanding
No. Name State of Holder of Stock/Ownership Interest Equity Percentage Status/(1)/
Organization Interest Interest
------------------------------------------------------------------------------------------------------------------------------------
30. CPC Properties of Louisiana, Inc. LA Transitional Hospitals Corporation (NV) 1,000 shares 100 RS
of common
stock, par
value $1.00
per share
31. CPC Properties of Mississippi, Inc. MS Transitional Hospitals Corporation (NV) 1,000 shares 100 RS
of common
stock, par
value $1.00
per share
32. CPC Properties of Missouri, Inc. MO Community Psychiatric Centers Properties 1,500 shares 100 RS
Incorporated of common
stock, par
value $10.00
per share
33. CPC Properties of North Carolina, Inc. NC Transitional Hospitals Corporation (NV) 1,000 shares 100 RS
of common
stock, par
value $1.00
per share
34. First Rehab, Inc. DE Medisave Pharmacies, Inc. 1,000 shares 100 RS
of common
stock, par
value $1.00
per share
====================================================================================================================================
[New York #878492 v8]
(1): EP=Excluded Partnership
RS=Restricted Subsidiary
SS=Shell Subsidiary
7
====================================================================================================================================
Outstanding
No. Name State of Holder of Stock/Ownership Interest Equity Percentage Status/(1)/
Organization Interest Interest
------------------------------------------------------------------------------------------------------------------------------------
35. Florida Hospital Properties, Inc. FL Transitional Hospitals Corporation (NV) 7,500 shares 100 RS
of common
stock, par
value $1.00
per share
36. Health Care Holdings, Inc. DE Vencare Rehab Services, Inc. 1,000 shares 100 RS
of common
stock, par
value $.001
per share
37. Health Care Technology, Inc. DE Health Care Holdings, Inc. 1,000 shares 100 RS
of common
stock, par
value $.001
per share
38. Helian ASC of Northridge, Inc. CA Helian Health Group, Inc. 100,000 shares100 RS
of common
stock, no par
value per share
39. Helian Health Group, Inc. DE Vencare Rehab Services, Inc. 1,000 shares 100 RS
of common
stock, par
value $.01 per
share
====================================================================================================================================
[New York #878492 v8]
(1): EP=Excluded Partnership
RS=Restricted Subsidiary
SS=Shell Subsidiary
8
====================================================================================================================================
Outstanding
No. Name State of Holder of Stock/Ownership Interest Equity Percentage Status/(1)/
Organization Interest Interest
------------------------------------------------------------------------------------------------------------------------------------
40. Helian Recovery Corporation CA Helian Health Group, Inc. 100 shares of 100 RS
common stock,
no par value
per share
41. Homestead Health Center, Inc. CT PersonaCare of Connecticut, Inc. 1,000 shares 100 RS
of common
stock, no par
value per share
42. Horizon Healthcare Services, Inc. GA Vencare Rehab Services, Inc. 1,000 shares 100 RS
of common
stock, par
value $10.00
per share
43. Interamericana Health Care Group NV Transitional Hospitals Corporation (NV) 1,000 shares 100 RS
of common
stock, par
value $1.00
per share
44. X. X. Xxxxxx Hospital, Inc. MA Transitional Hospitals Corporation (DE) 1,000 shares 100 RS
of common
stock, par
value $1.00
per share
====================================================================================================================================
[New York #878492 v8]
(1): EP=Excluded Partnership
RS=Restricted Subsidiary
SS=Shell Subsidiary
9
====================================================================================================================================
Outstanding
No. Name State of Equity Percentage
Oragnization Holder of Stock/Ownership Interest Interest Status/(1)/
------------------------------------------------------------------------------------------------------------------------------------
45. Lafayette Health Care Center, Inc. GA PersonaCare, Inc. 1,000 shares 100 RS
of common
stock, no par
value per share
46. MedAssure, L.L.C. KY Vencare, Inc. N/A 50 EP
47. MedEquities, Inc. CA Helian ASC of Northridge, Inc. 10,000 shares 100 RS
of common
stock, no par
value per share
48. Medisave of Tennessee, Inc. DE Medisave Pharmacies, Inc. 1,000 shares 100 RS
of common
stock, no par
value per share
49. Medisave Pharmacies, Inc. DE Vencor Operating, Inc. 10 shares of 100 RS
common stock,
par value
$100.00 per
share
====================================================================================================================================
[New York#878492v8]
(1): EP=Excluded Partnership
RS=Restricted Subsidiary
SS=Shell Subsidiary
10
====================================================================================================================================
Outstanding
No. Name State of Equity Percentage
Oragnization Holder of Stock/Ownership Interest Interest Status/(1)/
------------------------------------------------------------------------------------------------------------------------------------
50. Old Orchard Hospital, Inc. IL Transitional Hospitals 100 shares of 100 RS
Corporation (NV) common stock,
par value
$10.00 per
share
51. Palo Alto Surgecenter Corporation CA Helian Health Group, Inc. 100 shares of 100 RS
common stock,
no par value
per share
52. Peachtree-Parkwood Hospital, Inc. GA CPC of Georgia, Inc. 200 shares of 100 RS
common stock,
par value
$1.00 per share
53. PersonaCare, Inc. DE Vencare Rehab Services, Inc. 995 shares of 100 RS
common stock,
par value $.01
per share
54. PersonaCare Living Center of DE PersonaCare, Inc. 1,000 shares 100 RS
Clearwater, Inc. of common
stock, par
value $.001
per share
====================================================================================================================================
[New York#878492v8]
(1): EP=Excluded Partnership
RS=Restricted Subsidiary
SS=Shell Subsidiary
11
====================================================================================================================================
Outstanding
No. Name State of Equity Percentage
Oragnization Holder of Stock/Ownership Interest Interest Status/(1)/
------------------------------------------------------------------------------------------------------------------------------------
55. PersonaCare of Bradenton, Inc. DE PersonaCare, Inc. 1,000 shares 100 RS
of common
stock, par
value $.001
per share
56. PersonaCare of Clearwater, Inc. DE PersonaCare, Inc. 1,000 shares 100 RS
of common
stock, par
value $.001
per share
57. PersonaCare of Connecticut, Inc. CT PersonaCare, Inc. 1,000 shares 100 RS
of common
stock, no par
value per share
58. PersonaCare of Georgia, Inc. DE PersonaCare, Inc. 1,000 shares 100 RS
of common
stock, par
value $.001
per share
59. PersonaCare of Huntsville, Inc. DE PersonaCare, Inc. 1,000 shares 100 RS
of common
stock, par
value $.001
per share
====================================================================================================================================
[New York#878492v8]
(1): EP=Excluded Partnership
RS=Restricted Subsidiary
SS=Shell Subsidiary
12
------------------------------------------------------------------------------------------------------------------------------------
Outstanding
No. Name State of Holder of Stock/ Equity Percentage Status/(1)/
Organization Ownership Interest Interest Interest
------------------------------------------------------------------------------------------------------------------------------------
60. PersonaCare of Little Rock, Inc. DE PersonaCare, Inc. 100 shares of 100 RS
common stock,
par value
$.001 per share
61. PersonaCare of Ohio, Inc. DE PersonaCare, Inc. 1,000 shares 100 RS
of common
stock, par
value $.001
per share
62. PersonaCare of Owensboro, Inc. DE PersonaCare, Inc. 1,000 shares 100 RS
of common
stock, par
value $.001
per share
63. PersonaCare of Pennsylvania, Inc. DE PersonaCare, Inc. 1,000 shares 100 RS
of common
stock, par
value $.001
per share
64. PersonaCare of Pompano East, Inc. DE PersonaCare, Inc. 1,000 shares 100 RS
of common
stock, par
value $.001
per share
------------------------------------------------------------------------------------------------------------------------------------
(1): EP= Excluded Partnership
RS= Restricted Subsidiary
SS= Shell Subsidiary
13
------------------------------------------------------------------------------------------------------------------------------------
Outstanding
No. Name State of Holder of Stock/ Equity Percentage Status/(1)/
Organization Ownership Interest Interest Interest
------------------------------------------------------------------------------------------------------------------------------------
65. PersonaCare of Pompano West, Inc. DE PersonaCare, Inc. 1,000 shares 100 RS
of common
stock, par
value $.001
per share
66. PersonaCare of Reading, Inc. DE PersonaCare, Inc. 1,000 shares 100 RS
of common
stock, par
value $.001
per share
67. PersonaCare of San Antonio, Inc. DE PersonaCare, Inc. 1,000 shares 100 RS
of common
stock, par
value $.001
per share
68. PersonaCare of San Xxxxx, Inc. DE PersonaCare, Inc. 1,000 shares 100 RS
of common
stock, par
value $.001
per share
69. PersonaCare of Shreveport, Inc. DE PersonaCare, Inc. 1,000 shares 100 RS
of common
stock, par
value $.001
per share
------------------------------------------------------------------------------------------------------------------------------------
(1): EP= Excluded Partnership
RS= Restricted Subsidiary
SS= Shell Subsidiary
14
------------------------------------------------------------------------------------------------------------------------------------
Outstanding
No. Name State of Holder of Stock/ Equity Percentage Status/(1)/
Organization Ownership Interest Interest Interest
------------------------------------------------------------------------------------------------------------------------------------
70. PersonaCare of St. Petersburg, Inc. DE PersonaCare, Inc. 1,000 shares 100 RS
of common
stock, par
value $.001
per share
71. PersonaCare of Warner Robins, Inc. DE PersonaCare, Inc. 1,000 shares 100 RS
of common
stock, par
value $.001
per share
72. PersonaCare of Wisconsin, Inc. DE PersonaCare, Inc. 1,000 shares 100 RS
of common
stock, par
value $.001
per share
73. PersonaCare Properties, Inc. GA PersonaCare, Inc. 1,000 shares 100 RS
of common
stock, par
value $.01 per
share
74. ProData Systems, Inc. AL Vencor Home Care and 333.33 shares 100 RS
Hospice Indiana of common
Partnership stock, par
value $1.00
per share
------------------------------------------------------------------------------------------------------------------------------------
(1): EP= Excluded Partnership
RS= Restricted Subsidiary
SS= Shell Subsidiary
15
====================================================================================================================================
Outstanding
No. Name State of Holder of Stock/Ownership Interest Equity Percentage Status/(1)/
Organization Interest Interest
------------------------------------------------------------------------------------------------------------------------------------
75. Recovery Inns of America, Inc. CA Helian Recovery Corporation 2,500 shares 100 RS
of common
stock, no par
value per share
76. Respiratory Care Services, Inc. DE Vencare Rehab Services, Inc. 1,000 shares 100 RS
of common
stock, par
value $.01 per
share
77. Stamford Health Facilities, Inc. CT PersonaCare of Connecticut, Inc. 1,000 shares 100 RS
of common
stock, no par
value per share
78. THC - Chicago, Inc. IL Transitional Hospitals Corporation (DE) 1,000 shares 100 RS
of common
stock, par
value $1.00
per share
79. THC - Hollywood, Inc. FL Transitional Hospitals Corporation (DE) 1,000 shares 100 RS
of common
stock, par
value $1.00
per share
====================================================================================================================================
(1): EP= Excluded Partnership
RS= Restricted Subsidiary
SS= Shell Subsidiary
16
====================================================================================================================================
Outstanding
No. Name State of Holder of Stock/Ownership Interest Equity Percentage Status/(1)/
Organization Interest Interest
------------------------------------------------------------------------------------------------------------------------------------
80. THC - Houston, Inc. TX Transitional Hospitals Corporation (DE) 1,000 shares 100 RS
of common
stock, par
value $1.00
per share
81. THC - Minneapolis, Inc. MN Transitional Hospitals Corporation (DE) 1,000 shares 100 RS
of common
stock, par
value $1.00
per share
82. THC - North Shore, Inc. IL THC - Chicago, Inc. 1,000 shares 100 RS
of common
stock, par
value $1.00
per share
83. THC - Orange County, Inc. CA Transitional Hospitals Corporation (DE) 1,000 shares 100 RS
of common
stock, par
value $1.00
per share
84. THC - San Diego, Inc. CA Transitional Hospitals Corporation (DE) 1,000 shares 100 RS
of common
stock, par
value $1.00
per share
====================================================================================================================================
(1): EP= Excluded Partnership
RS= Restricted Subsidiary
SS= Shell Subsidiary
17
====================================================================================================================================
Outstanding
No. Name State of Holder of Stock/Ownership Interest Equity Percentage Status/(1)/
Organization Interest Interest
------------------------------------------------------------------------------------------------------------------------------------
85. THC - Seattle, Inc. WA Transitional Hospitals Corporation (DE) 1,000 shares 100 RS
of common
stock, par
value $1.00
per share
86. TheraTx Health Services, Inc. DE Vencare Rehab Services, Inc. 1,000 shares 100 RS
of common
stock, par
value $.001
per share
87. TheraTx Healthcare Management,
Inc. DE Vencare Rehab Services, Inc. 1,000 shares 100 RS
of common
stock, par
value $.001
per share
88. TheraTx Management Services,
Inc. CA Vencare Rehab Services, Inc. 10,000 shares 100 RS
of common
stock, par
value $0.01
per share
89. TheraTx Medical Supplies, Inc. DE Vencare Rehab Services, Inc. 1,000 shares 100 RS
of common
stock, par
value $.001
per share
====================================================================================================================================
(1) EP= Excluded Partnership
RS= Restricted Subsidiary
SS= Shell Subsidiary
18
====================================================================================================================================
No. Name State of Holder of Stock/Ownership Interest
Organization
------------------------------------------------------------------------------------------------------------------------------------
90. TheraTx Rehabilitation Services, Inc. DE TheraTx Health Services, Inc.
91. TheraTx Staffing, Inc. IL Vencare Rehab Services, Inc.
92. Transitional Hospitals Corporation NV Vencor Operating, Inc.
93. Transitional Hospitals Corporation DE Transitional Hospitals Corporation (NV)
94. Transitional Hospitals Corporation of Indiana, Inc. IN Transitional Hospitals Corporation (DE)
====================================================================================================================================
====================================================================================================================================
Outstanding
Equity Percentage Status/(1)/
Interest Interest
------------------------------------------------------------------------------------------------------------------------------------
1,000 shares 100 RS
of common
stock, par
value $.001
per share
1,000 shares 100 RS
of common
stock, no par
value per share
100 shares of 100 RS
common stock,
par value
$1.00 per share
1,000 shares 100 RS
of common
stock, par
value $1.00
per share .
1,000 shares 100 RS
of common
stock, par
value $1.00
per share
====================================================================================================================================
[New York #878492 v8]
(1): EP= Excluded Partnership
RS= Restricted Subsidiary
SS= Shell Subsidiary
19
====================================================================================================================================
No. Name State of Holder of Stock/Ownership Interest
Organization
------------------------------------------------------------------------------------------------------------------------------------
95. Transitional Hospitals Corporation of Louisiana, Inc. LA Transitional Hospitals Corporation (DE)
96. Transitional Hospitals Corporation of Michigan, Inc. MI Transitional Hospitals Corporation (NV)
97. Transitional Hospitals Corporation of New Mexico, Inc. NM Transitional Hospitals Corporation (DE)
98. Transitional Hospitals Corporation of Nevada, Inc. NV Transitional Hospitals Corporation (DE)
99. Transitional Hospitals Corporation of Tampa, Inc. FL Transitional Hospitals Corporation (DE)
====================================================================================================================================
====================================================================================================================================
Outstanding
Equity Percentage Status/(1)/
Interest Interest
------------------------------------------------------------------------------------------------------------------------------------
1,000 shares 100 RS
of common
stock, par
value $1.00
per share
1,000 shares 100 RS
of common
stock, par
value $1.00
per share
1,000 shares 100 RS
of common
stock, par
value $1.00
per share
1,000 shares 100 RS
of common
stock, par
value $1.00
per share
1,000 shares 100 RS
of common
stock, par
value $1.00
per share
====================================================================================================================================
[New York #878492 v8]
(1): EP= Excluded Partnership
RS= Restricted Subsidiary
SS= Shell Subsidiary
20
====================================================================================================================================
No. Name State of Holder of Stock/Ownership Interest
Organization
------------------------------------------------------------------------------------------------------------------------------------
100. Transitional Hospitals Corporation of Texas, Inc. TX Transitional Hospitals Corporation (DE)
101. Transitional Hospitals Corporation of Wisconsin, Inc. WI Transitional Hospitals Corporation (DE)
102. Xxxxxx Nursing Center, Inc. GA PersonaCare, Inc.
103. Xxxxxxxx Enterprises, Inc. GA Horizon Healthcare Services, Inc.
104. VC - OIA, Inc. AZ Helian Health Group, Inc.
====================================================================================================================================
====================================================================================================================================
Outstanding
Equity Percentage Status/(1)/
Interest Interest
------------------------------------------------------------------------------------------------------------------------------------
1,000 shares 100 RS
of common
stock, par
value $1.00
per share
1,000 shares 100 RS
of common
stock, par
value $1.00
per share
500 shares of 100 RS
common stock,
par value
$1.00 per share
100 shares of 100 RS
common stock,
par value
$1.00 per share
1,000 shares 100 RS
of common
stock, no par
value per share
====================================================================================================================================
[New York #878492 v8]
(1): EP= Excluded Partnership
RS= Restricted Subsidiary
SS= Shell Subsidiary
21
------------------------------------------------------------------------------------------------------------------------------------
Outstanding
No. Name State of Holder of Stock/Ownership Interest Equity Percentage Status/(1)/
Organization Interest Interest
------------------------------------------------------------------------------------------------------------------------------------
105. VC - TOHC, Inc. AZ Helian Health Group, Inc. 1,000 shares 100 RS
of common
stock, par
value $.01
per share
106. XX - XX, Inc. FL Vencare Rehab Services, Inc. 700 shares 100 RS
of common
stock, par
value $.01
per share
107. Vencare, Inc. DE Vencor Operating, Inc. 100 shares 100 RS
of common
stock, par
value $.25
per share
108. Vencare Rehab Services, Inc./1/ DE Vencor Operating, Inc. 1,000 shares 100 RS
of common
stock, par
value $.001
per share
109. Vencor, Inc. DE N/A N/A N/A Parent
Guarantor
------------------------------------------------------------------------------------------------------------------------------------
________________________
/1/ Formerly TheraTX, Inc.
[New York #878492 v8]
(1): EP=Excluded Partnership
RS=Restricted Subsidiary
SS=Shell Subsidiary
22
------------------------------------------------------------------------------------------------------------------------------------
Outstanding
No. Name State of Holder of Stock/Ownership Interest Equity Percentage Status/(1)/
Organization Interest Interest
------------------------------------------------------------------------------------------------------------------------------------
110. Vencor Facility Services, Inc. DE Vencor Operating, Inc. 100 shares of 100 RS
common stock
par value $.25
per share
111. Vencor Holdings, L.L.C. DE Vencor Operating, Inc. 100 RS
112. Vencor Home Care Services, Inc. DE Vencor Operating, Inc. 100 shares of 100 RS
common stock,
par value $.25
per share
113. Vencor Hospice, Inc. KY Vencare, Inc. 60 shares of 100 RS
common stock,
par value $.25
per share
114. Vencor Hospitals East, L.L.C. DE Vencor Operating, Inc. N/A 100 RS
115. Vencor Hospitals West, L.L.C. DE Vencor Operating, Inc. N/A 100 RS
116. Vencor Insurance Holdings, Inc. DE Vencor Operating, Inc. 100 shares of 100 RS
common stock,
par value $.25
Per share
------------------------------------------------------------------------------------------------------------------------------------
[New York #878492 v8]
(1): EP = Excluded Partnership
RS = Restricted Subsidiary
SS = Shell Subsidiary
23
------------------------------------------------------------------------------------------------------------------------------------
Outstanding
No. Name State of Holder of Stock/Ownership Equity Percentage Status/(1)/
Organization Interest Interest Interest
------------------------------------------------------------------------------------------------------------------------------------
117. Vencor Investment Company DE Vencor Operating, Inc. 100 shares of 100 RS
common stock,
par value $.25
per share
118. Vencor Nevada, L.L.C. DE Vencor Operating, Inc. N/A 100 RS
119. Vencor Nursing Centers Central, L.L.C. DE Vencor Nursing Centers N/A 100 RS
Limited Partnership
120. Vencor Nursing Centers East, L.L.C. DE Vencor Operating, Inc. N/A 100 RS
121. Vencor Nursing Centers North, L.L.C. DE Vencor Operating, Inc. N/A 100 RS
122. Vencor Nursing Centers South, L.L.C. DE Vencor Operating, Inc. N/A 100 RS
123. Vencor Nursing Centers West, L.L.C. DE Vencor Operating, Inc. N/A 100 RS
124. Vencor Operating, Inc. DE Vencor, Inc. 100 shares of 100 Issuer/
common stock, Borrower
par value $.25
per share
125. Vencor Pediatric Care, Inc. DE Vencor Operating, Inc. 100 shares of 100 RS
common stock,
par value $.25
per share
------------------------------------------------------------------------------------------------------------------------------------
[New York #878492 v8]
(1): EP = Excluded Partnership
RS = Restricted Subsidiary
SS = Shell Subsidiary
24
====================================================================================================================================
Outstanding
State of Equity Percentage
No. Name Organization Holder of Stock/Ownership Interest Interest Interest Status/(1)/
------------------------------------------------------------------------------------------------------------------------------------
126. Vencor Provider Network, Inc. DE Vencor Insurance Holdings, Inc. 100 shares of 100 RS
common stock,
par value $.25
per share
127. Ventech Systems, Inc. DE Vencor Operating, Inc. 100 shares of 100 RS
common stock,
par value $.25
per share
====================================================================================================================================
[New York #878492 v8]
(1): EP= Excluded Partnership
RS= Restricted Subsidiary
SS= Shell Subsidiary
25
II. PARTNERSHIPS
-----------------
====================================================================================================================================
Outstanding
No. Name State of Holder of Stock/Ownership Interest Equity Percentage Status/(1)/
Organization Interest Interest
------------------------------------------------------------------------------------------------------------------------------------
128. California Respiratory Care CA Advanced Infusion Systems, Inc. N/A 51(GP) EP
Partnership
129. Foothill Nursing Company CA Vencor Operating, Inc. N/A 50(GP) EP
Partnership
130. Northridge Surgery Center CA MedEquities, Inc. N/A 43(GP) EP
Development, Ltd.
131. Northridge Surgery Center, Ltd. CA Northridge Surgery Center N/A 38(GP) EP
Development, Ltd.
Helian Health Group, Inc. N/A 13.5(LP)
Helian ASC of Northridge, Inc. N/A 13(GP),
6(LP)
132. Pharmaceutical Infusion Therapy CA Advanced Infusion Systems, Inc. N/A 50.99(GP) EP
133. Recovery Inn of Menlo Park, L.P. CA Recovery Inns of America, Inc. N/A 12(LP) EP
58(GP),
Helian Recovery Corporation N/A 27.6(LP)
134. Stamford Health Associates, L.P. CT Stamford Health Facilities, Inc. N/A 1(GP) SS
PersonaCare, Inc. N/A 99(LP)
135. Vencor Home Care and Hospice IN Vencor Home Care Services, Inc. N/A 50(GP) RS
Indiana Partnership
Vencor Hospice, Inc. N/A 50(GP)
====================================================================================================================================
[New York #878492 v8]
(1): EP= Excluded Partnership
RS= Restricted Subsidiary
SS= Shell Subsidiary
26
===================================================================================================================================
Outstanding
No. Name State of Holder of Stock/Ownership Interest Equity Percentage Status/(1)/
Organization Interest Interest
-----------------------------------------------------------------------------------------------------------------------------------
136. Vencor Hospitals Limited DE Vencor Nursing Centers Limited N/A 1(GP) RS
Partnership Partnership
Vencor Operating, Inc. N/A 1(GP),
N/A 98(LP)
137. Vencor Nursing Centers Central DE Vencor Nursing Centers Limited N/A 1(GP) RS
Limited Partnership Partnership
Vencor Operating, Inc. N/A 1(GP),
98(LP)
138. Vencor Nursing Centers Limited DE Vencor Hospitals Limited N/A 1(GP) RS
Partnership Partnership
Vencor Operating, Inc. N/A 1(GP),
98(LP)
139. Visiting Nurse Advanced Infusion CA Advanced Infusion Systems, Inc. N/A 50.01(GP) EP
Systems - Anaheim
140. Visiting Nurse Advanced Infusion CA Advanced Infusion Systems, Inc. N/A 51.01(GP) EP
Systems - Colton
141. Visiting Nurse Advanced CA Advanced Infusion Systems, Inc. N/A 51.01(GP) EP
Infusion Systems -
Newbury Park
====================================================================================================================================
[New York #878492 v8]
(1): EP= Excluded Partnership
RS= Restricted Subsidiary
SS= Shell Subsidiary
27
SCHEDULE 2
EXISTING AFFILIATE AGREEMENTS
-----------------------------
---------------------------------------------------------------------------------------------------------
FACILITY AGREEMENT RELEVANT AFFILIATE
---------------------------------------------------------------------------------------------------------
926 Management Agreement dated as of February Hillhaven-MSC Partnership
Nineteenth Avenue HCC 29, 1988, by and between Hillhaven, Inc.
2043 - 19/th/ Avenue (whose obligations have been assumed by
San Francisco, CA Vencor Nursing Centers West, LLC), and
Hillhaven-MSC Partnership, a California
general partnership
---------------------------------------------------------------------------------------------------------
949 Management Agreement dated as of 1985, by Ledgewood Healthcare
Ledgewood Rehab. & Nsg. and between The Hillhaven Corporation Corporation
00 Xxxxxxx Xxxxxx (whose obligations have been assumed by
Beverly, MA Vencor Nursing Centers East, LLC), and
Ledgewood Health Care Corporation, a
Massachusetts corporation
---------------------------------------------------------------------------------------------------------
983 Long Term Care Facility Management Fox Hill Village Partnership
Xxxxx House Nrsg. Ctr. Agreement dated as of July 1, 1990, by and
00 Xxxxxxxx Xxxxx between First Healthcare Corporation
Westwood, MA (whose obligations have been assumed by
Vencor Nursing Centers East, LLC), and Fox
Hill Village Partnership, a Massachusetts
general partnership
---------------------------------------------------------------------------------------------------------
995 Agreement to Provide Management Services Starr Farm Partnership
Starr Farm Nursing to a Health Care Facility dated as of
Center December 30, 1986, by and between First
00 Xxxxx Xxxx Xxxx Healthcare Corporation (whose obligations
Burlington, VT have been assumed by Vencor Nursing
Centers East, LLC), and Starr Farm
Partnership, a Vermont general partnership
---------------------------------------------------------------------------------------------------------
Corporate Shareholders and Registration Rights Atria Communities, Inc.
Agreement dated as of September 15, 1998
among Atria Communities, Inc., Kapson
Senior Quarters Corp., Vencor, Inc.,
Vencor Holdings, LLC and the management
shareholders party thereto
---------------------------------------------------------------------------------------------------------
1
---------------------------------------------------------------------------------------------------------
Corporate Sale and Purchase Agreement dated February HealthEssentials Solutions,
25, 1999 between NPPA of America, Inc., Inc.
HealthEssentials Solutions, Inc.; Xxxxxx
X. Xxxxx, Xx., Xxxxxxx X. Xxxxxxx, Xxxx X.
Xxxxxxx, Xxxxxx X. Xxxxxx and Vencor
Operating, Inc. (continuing registration
and preemptive rights)
---------------------------------------------------------------------------------------------------------
Corporate $500,000 Promissory Note made by HealthEssentials Solutions,
HealthEssentials Solutions, Inc. in favor Inc.
of Vencor Operating, Inc.
---------------------------------------------------------------------------------------------------------
2
SCHEDULE 3
OWNED PROPERTIES
----------------
State/
------
Facility #: Facility Name: County, City, State Location: Facility Type: Index #:
----------- -------------- ----------------------------- -------------- --------
CA#212 Woodside Nursing Center San Xxxx Obispo, San Xxxx Nursing center DIP#1
Obispo, CA
CA#4-608/ Vencor Hospital - Sacramento Sacramento, Folsom, CA Hospital DIP#2
4-609
CA#4-695 Vencor Hospital - Los Angeles Los Angeles, Los Angeles, CA Hospital DIP#3
FL#610 Boca Raton Rehabilitation Center Palm Beach, Boca Raton, FL Nursing center DIP#4
TX#4-610 Vencor Hospital - Dallas Dallas, Dallas, TX Hospital DIP#5
TX#4-649 Vencor Hospital - Arlington Tarrant, Arlington, TX Hospital DIP#6
WA#160 First Health Care Center King, Seattle, WA Nursing center DIP#7
WA#4-643 Vencor Hospital - Seattle King, Seattle, WA Hospital DIP#8
WI#4-663 Vencor Hospital - Milwaukee Milwaukee, Greenfield, WI Hospital DIP#9
FL#115 Rehab Center of the Xxxx Xxxxxxx Xxxx Xxxxx, Xxxx Xxxxx, XX Nursing center FP#1
XX#000 Xxxxxxxx Xxxx Xxxxxx Xxxxxx, Xxxxxxxx, Xxxxx Nursing center FP#2
XX#000 Xxxxxxxxxxxx Xxxxxxxx Xxxxxxxxx, Xxxxxxxxxx, XX Headquarters FP#3
KY#699 OK Storage Building Jefferson, Louisville, KY Storage facility FP#4
SCHEDULE 4
INITIAL MASTER LEASE PROPERTIES; OTHER LEASED PROPERTY; THIRD PARTY LEASES
--------------------------------------------------------------------------
INITIAL MASTER LEASE #1:
State/
------
Facility #: Facility Name: County, City, State Location: Facility Type: Index #:
----------- ------------- ----------------------------- -------------- --------
XX#000 Xxxxxx Xxxxxxxxxx & Xxxxx Xxxxxx Xxxx, Xxxxxx, XX Nursing center ML#1-1
AZ#742 Sonoran Rehab & Care Center Maricopa, Phoenix, AZ Nursing center ML#1-2
XX#0-000 Xxxxxx Xxxxxxxx - Xxxxxxx Xxxxxxxx, Xxxxxxx, XX Hospital ML#1-3
XX#000 Xxx Xxxx Xxxxxxxxxx Xxxxxx Xxx Xxxxxxxxx, Xxx Xxxxxxxxx, XX Nursing center ML#1-4
CA#167 Canyonwood Nursing & Rehab Center Shasta, Redding, CA Nursing center ML#1-5
CA#335 Xxxxxx Xxxxxxxxxx Xxxxxx Xxx Xxxxxxxxx, Xxx Xxxxxxxxx, XX Nursing center XX#0-0
XX#000 Xx Xxxx Xxxxxxxxxx Xxxxxx Xxxxxx, Xxxxxx, XX Nursing center ML#1-7
CA#738 Bay View Nursing & Rehab Center Alameda, Alameda, CA Nursing center ML#1-8
CA#4-622 Vencor Hospital - San Xxxxxxx Xxxxxxx, San Leandro, CA Hospital XX#0-0
XX#0-000 Xxxxxx Xxxxxxxx - Xxxxxx Xxxxxx Orange, Westminster, CA Hospital ML#1-10
CA#4-648 Vencor Hospital - San Diego San Diego, San Diego, CA Hospital ML#1-11
CA#4-693 Recovery Inn of Xxxxx Xxxx Xxx Xxxxx, Xxxxx Xxxx, XX Hospital ML#1-12
XX#000 Xxxxxx Xxxx Xxxxxx Xxxxxxxx, Xxxxxx, XX Nursing center XX#0-00
XX#000 Xxxxxx Xxxxx Xxxxxxxxxx Xxxxxxxx, Xxx Xxxxxxx, CT Nursing center XX#0-00
XX#000 Xxxxxx Xxxxxxxx Xxx Xxxxxx, Xxx Xxxxxx, CT Nursing center ML#1-15
FL#117 East Manor Medical Care Center Sarasota, Sarasota, FL Nursing center ML#1-16
FL#4-602 Vencor Hospital - Coral Gables Dade, Coral Gables, FL Hospital ML#1-17
FL#4-652 Vencor Hospital - North Florida Clay, Green Cove Springs, FL Hospital ML#1-18
GA#660 Savannah Specialty Care Center Chatham, Savannah, GA Nursing center XX#0-00
XX#000 Xxxxxxx Xxxx Xxxxxx Xxxxxx, Xxxxxxxx, XX Nursing center ML#1-20
ID#221 Lewiston Rehab & Care Center Ney Perce, Lewiston, ID Nursing center ML#1-21
ID#409 Mountain Valley Care and Rehab Shoshone, Xxxxxxx, ID Nursing center ML#1-22
IL#4-637 Vencor Hospital - Chicago North Xxxx, Chicago, IL Hospital XX#0-00
XX#0-000 Xxxxxx Xxxxxxxx - Xxxxxxxxx Xxxx, Xxxxxxxxx, XX Hospital ML#1-24
IN#112 Royal Oaks Healthcare & Rehab Center Vigo, Terre Haute, IN Nursing center ML#1-25
IN#113 Southwood Health & Rehab Center Vigo, Terre Haute, IN Nursing center ML#1-26
IN#286 Columbia Healthcare Facility Vanderburgh, Evansville, IN Nursing center ML#1-27
IN#406 Muncie Health Care & Rehab Delaware, Muncie, IN Nursing center ML#1-28
IN#779 Westview Nursing & Rehab Center Xxxxxxxx, Bedford, IN Nursing center XX#0-00
XX#0-000 Xxxxxx Xxxxxxxx - XxXxxxxx XxXxxxxx, LaGrange, IN Hospital ML#1-30
IN#4-638 Vencor Hospital - Indianapolis Xxxxxx, Indianapolis, IN Hospital ML#1-31
KY#280 Winchester Center for Health/Rehab Xxxxx, Winchester, KY Nursing center ML#1-32
KY#783 Lexington Centre for Health & Rehab Fayette, Lexington, KY Nursing center ML#1-33
KY#784 North Centre for Health & Rehab Jefferson, Louisville, KY Nursing center ML#1-34
KY#4-633 Vencor Hospital - Louisville Jefferson, Louisville, KY Hospital XX#0-00
XX#000 Xxxxxx Rehabilitation & Living Center Oxford, Norway, ME Nursing center XX#0-00
XX#000 Xxxxx Xxxxxxx Xxxxx & Nursing Center Xxxx, Rockland, ME Nursing center ML#1-37
ME#555 Brentwood Rehab & Nursing Center Penobscot, Yarmouth, ME Nursing center XX#0-00
XX#000 Xxxxxxxxxx Xxxxx Nursing Home Lincoln, Waldoboro, ME Nursing center XX#0-00
XX#000 Xxxxxx Xxxxx Rehab & Nursing Center W. Roxbury, Jamaica Plain, MA Nursing center XX#0-00
XX#000 Xxxx Xxxxx Xxxxxxxxxx Care Center Stoughton, Stoughton, MA Nursing center XX#0-00
XX#000 Xxxxxxx Xxxxx Xxxxx & Nursing Center Essex, Newburyport, MA Nursing center XX#0-00
XX#000 Xxxxxxxxxxx Xxxxx Nursing & Care Center Essex, Saugus, MA Nursing center ML#1-43
MA#518 Timberlyn Heights Nursing & Alzheimers Bershire, Great Barrington, MA Nursing center XX#0-00
Xxxxxx
XX#000 Xxxxxxxxx Health Care Nursing Center Norfolk, Needham, MA Nursing center ML#1-45
2
XX#000 Xxxxxxxxx Xxxxxxxxxx Xxxxxx Xxxxxxxxx, Xxxxxxxxxxx, XX Nursing center XX#0-00
XX#000 Xxxxxx Xxxxx Nursing Home Middlesex, Marlborough, MA Nursing center ML#1-47
MA#537 Quincy Rehab & Nursing Center Norfolk, Quincy, MA Nursing center XX#0-00
XX#000 Xxxx Xxxxxxx Xxxxx Xxxxxxx, Xxxx Xxxxxxx, XX Nursing center XX#0-00
XX#000 Xxxxx Xxxx Xxxxx & Living Center Barnstable, X. Xxxxxx, MA Nursing center XX#0-00
XX#000 Xxxxxxxxx Xxxx Healthcare Essex, Beverly, MA Nursing center XX#0-00
XX#000 Xxxxxx Xxxxx Nursing & Rehab Center Plymouth, Abington, MA Nursing center XX#0-00
XX#000 Xxxxxx Xxxxx & Nursing Center Middlesex, Concord, MA Nursing center ML#1-53
MA#985/ Xxxxxxxxxx House Nursing & Rehab Center Norfolk, Walpole, MA Nursing center ML#1-54
198
MN#4-659 Vencor Hospital - Minneapolis Hennepin, Golden Valley, MN Hospital ML#1-55
MO#4-680 Vencor Hospital - Xx. Xxxxx Xx. Xxxxx, Xx. Xxxxx, XX Hospital ML#1-56
MT#416 Park Place Health Care Center Cascade, Great Falls, MT Nursing center ML#1-57
MT#433 Parkview Acres Care & Rehab Center Beaverhead, Dillon, MT Nursing center ML#1-58
NV#640 Las Vegas Healthcare & Rehab Center Xxxxx, Las Vegas, NV Nursing center ML#1-59
NH#591 Dover Rehab & Living Center Strafford, Dover, NH Nursing center ML#1-60
NH#593 Hanover Terrace Healthcare Hanover, Hanover, NH Nursing center ML#1-61
NC#137 Sunnybrook Alzheimers & Healthcare Spec. Wake, Raleigh, NC Nursing center ML#1-62
NC#138 Blue Ridge Rehab & Healthcare Center Buncombe, Asheville, NC Nursing center ML#1-63
NC#188 Cypress Pointe Rehab & Healthcare Center New Hanover, Wilmington, NC Nursing center ML#1-64
NC#190 Winston-Salem Rehab & Healthcare Center Xxxxxxx, Xxxxxxx-Salem, NC Nursing center XX#0-00
XX#000 Xxxxx Xxxxx Xxxxx Xxxxxxx, Xxxxxxx-Xxxxx, XX Nursing center ML#1-66
NC#704 Guardian Care of Roanoke Rapids Halifax, Roanoke Rapids, NC Nursing center ML#1-67
NC#707 Rehab & Nursing Center of Monroe Union, Monroe, NC Nursing center ML#1-68
NC#724 Rehab & Health Center of Gastonia Xxxxxx, Gastonia, NC Nursing center XX#0-00
XX#000 Xxxxxx Xxxx Xxxxx & Healthcare Center Orange, Chapel Hill, NC Nursing center ML#1-70
OH#560 Xxxxxxxx Xxxxx Health Care Center Franklin, Columbus, OH Nursing center ML#1-71
3
OH#572 Winchester Place Nursing & Rehab Center Franklin, Canal Winchester, OH Nursing center ML#1-72
OH#577 Xxxxxxx Park Nursing & Rehab Center Franklin, Columbus, OH Nursing center ML#1-73
OH#635 Coshocton Health & Rehab Center Coshocton, Coshocton, OH Nursing center ML#1-74
OH#868 Lebanon Country Xxxxx Xxxxxx, Lebanon, OH Nursing center ML#1-75
OK#4-618 Vencor Hospital - Oklahoma City Oklahoma, Oklahoma City, OK Hospital XX#0-00
XX#000 Xxxxxxxxx Xxxx Xxxxxx Xxxxxx, Xxxxx, XX Nursing center XX#0-00
XX#0-000 Xxxxxx Xxxxxxxx - Xxxxxxxxxx Xxxxxxxxx, Oakdale, PA Hospital ML#1-78
TN#132 Madison Healthcare & Rehab Center Davidson, Madison, TN Nursing center ML#1-79
TN#884 Masters Health Care Center Putnam, Algood, TN Nursing center ML#1-80
TN#4-628 Vencor Hospital - Chattanooga Xxxxxxxx, Chattanooga, TN Hospital XX#0-00
XX#000 Xxxxxxx Xxxx Xxxxxx Xxxxx, Xxxxx, XX Nursing center XX#0-00
XX#000 Xx. Xxxxxx Care and Rehab Center Washington, St. Xxxxxx, UT Nursing center ML#1-83
UT#655 Federal Heights Rehab & Xxxxxxx Xxxxxx Xxxx Xxxx, Xxxx Xxxx Xxxx, XX Nursing center XX#0-00
XX#000 Xxxxxxxxx Xxxxxx Xxxxx & Healthcare Center Suffolk, Suffolk, VA Nursing center XX#0-00
XX#000 Xxxxx Xxxxxx Xxxxx & Healthcare Center Princess Xxxx, Virginia Beach, VA Nursing center ML#1-86
WA#114 Arden Rehabilitation & Healthcare Center King, Seattle, WA Nursing center XX#0-00
XX#000 Xxxxxxxxx Xxxxxxxxx Xxxx Xxxxxx Xxxxxxx, Xxxxxxxx, XX Nursing center XX#0-00
XX#000 Xxxxxxx Xxxxx Xxxx Xxxxxx Xxxxxx, Xxxxxxxx, XX Nursing center ML#1-89
WA#180 Vencor of Vancouver Healthcare & Rehab Xxxxx, Vancouver, WA Nursing center XX#0-00
XX#000 Xxxxxxxx Xxxxxx & Xxxxx Xxxxxx Xxxxx, Xxxxxxxxx, XX Nursing center XX#0-00
XX#000 Xxxxx Xxxx Xxxxxxxxxx Xxxx, Xxxxxxx, XX Nursing center XX#0-00
XX#000 Xxxxxx Xxxx Xxxx Xxxxxx Xxxxxxxxx, Xxxxxxxx, XX Nursing center ML#1-93
WI#769 North Ridge Medical & Rehab Center Manitowoc, Manitowoc, WI Nursing center ML#1-94
WI#772 Family Heritage Medical & Rehab Center Wood, Wisconsin Rapids, WI Nursing center XX#0-00
XX#000 Xxxxxxxx Xxxxxxx Xxxxxxx Xxxxxxx, Xxxxxxx, XX Nursing center ML#1-96
4
WI#776 Woodstock Health & Rehab Center Kenosha, Kenosha, WI Nursing center ML#1-97
WY#441 Mountain Towers Healthcare & Rehab Laramie, Cheyenne, WY Nursing center XX#0-00
XX#000 Xxxx Xxxxx Healthcare & Rehab Center Fremont, Riverton, WY Nursing center ML#1-99
WY#483 Sage View Care Center Sweetwater, Rock Springs, WY Nursing center ML#1-100
INITIAL MASTER LEASE #2:
State/
----------
Facility #: Facility Name: County, City, State Location: Facility Type: Index #:
---------- -------------- ----------------------------- -------------- --------
AL#804 Rehab & Healthcare Center of Birmingham Jefferson, Birmingham, AL Nursing center ML#2-1
AZ#743 Desert Life Rehab & Care Center Pima, Tuscon, AZ Nursing center ML#2-2
CA#320 Magnolia Gardens Care Center San Mateo, Burlingame, CA Nursing center ML#2-3
CA#420 Maywood Acres Healthcare Center Ventura, Oxnard, CA Nursing center XX#0-0
XX#0-000 Xxxxxx Xxxxxxxx - Xxxxxxx Xxx Xxxxxxxxx, Xxxxxxx, XX Hospital XX#0-0
XX#000 Xxxxxx Xxxxx Health Care Center Arapahoe, Englewood, CO Nursing center XX#0-0
XX#000 Xxxxxxxx Xxxxx Center New London, Norwich, CT Nursing center ML#2-7
XX#0000 Xxxxxxxxx Xxxxxx Xxxxxx Xxxxxxxxx, Xxxxxxxx, XX Nursing center ML#2-8
FL#125 Titusville Rehab & Nursing Center Brevard, Titusville, FL Nursing center ML#2-9
XX#000 Xxx Xxxxxx Xxxxxxx Xxxxxxxx Xxxxxxxx, Xx. Xxxxxxxxxx, XX Nursing center ML#2-10
FL#836 Rehab & Health Center of Tampa Hillsborough, Tampa, FL Nursing center ML#2-11
FL#837 Rehab & Health Center of Cape Xxxxx Xxx, Cape Coral, FL Nursing center ML#2-12
FL#1217 Casa Xxxx Rehab & Ext. Care Manatee, Bradenton, FL Nursing center XX#0-00
XX#0-000 Xxxxxx Xxxxxxxx - Xx. Xxxxxxxxxx Pinellas, St. Petersburg, FL Hospital ML#2-14
FL#4-674 Vencor Hospital - Central Tampa Hillsborough, Tampa, FL Hospital ML#2-15
GA#1228 Lafayette Nursing & Rehab Center Fayette, Fayetteville, Ga Nursing center XX#0-00
XX#000 Xxxxxxxxx Xxxxx/Xxxx Xxxxxx Xxx, Xxxxx, XX Nursing center XX#0-00
XX#000 Xxxxx Xxxx Xxxxxx Xxxxx, Xxxxx, XX Nursing center ML#2-18
5
ID#223 Weiser Rehabilitation & Care Washington, Weiser, ID Nursing center ML#2-19
IL#4-615 Vencor Hospital - Sycamore De Xxxx, Sycamore, IL Hospital ML#2-20
IN#111 Rolling Hills Health Care Center Xxxxx, New Albany, IN Nursing center XX#0-00
XX#000 Xxxxxxx Xxxxxxx Health & Rehab Center Xxxxxx, Kokomo, IN Nursing center XX#0-00
XX#000 Xxxxxxxx Health Care Center Xxxxx, Lebanon, IN Nursing center ML#2-23
IN#780 Columbus Health & Rehab Center Xxxxxxxxxxx, Columbus, IN Nursing center ML#2-24
KY#278 Oakview Nursing & Rehab Center Xxxxxxxx, Xxxxxxx City, KY Nursing center XX#0-00
XX#000 Xxxxx Xxxxx Xxxxxxxxxx Xxxxxx Xxxxxxxxx, Xxxxxxxxxx, XX Nursing center ML#2-26
ME#545 Eastside Rehab and Living Center Penobscot, Bangor, ME Nursing center ML#2-27
ME#549 Kennebunk Nursing Center York, Kennebunk, ME Nursing center ML#2-28
MA#508 Xxxxxxxx Skilled Nursing & Rehab Center Bristol, Fall River, MA Nursing center ML#2-29
MA#513 Hallmark Nursing & Rehab Center Bristol, New Bedford, MA Nursing center XX#0-00
XX#000 Xxxxxxxxx Nursing Home Worcester, Fitchburg, MA Nursing center XX#0-00
XX#000 Xxxxxxx Xxxxxxx Xx. Nursing & Rehab Essex, Swansea, MA Nursing center XX#0-00
XX#000 Xxxxxxxx Xx. Nursing & Rehab Center Franklin, Franlin, MA Nursing center XX#0-00
XX#0-000 Xxxxxx Xxxxxxxx - Xxxxx Xxxxxxx Xxxxx, Detroit, MI Hospital XX#0-00
XX#0-000 Xxxxxx Xxxxxxxx - Xxxxxx Xxxx Xxxxxxx, Kansas City, MO Hospital XX#0-00
XX#000 Xxxxxx Xxxxx Care Center Xxxxx, Las Vegas, NV Nursing center ML#2-36
NH#592 Greenbrier Terrace Healthcare Hillsborough, Nashua, NH Nursing center XX#0-00
XX#000 XxXxxxx Xxxxxxxxxx Xxxxxx Xxxxxx, Xxxxxx, XX Nursing center ML#2-38
NC#706 Guardian Care of Xxxxxxxxx Xxxxx, Henderson, NC Nursing center ML#2-39
NC#711 Guardian Care of Kinston Lenoir, Kinston, NC Nursing center ML#2-40
NC#726 Guardian Care of Xxxxxxxxx Xxxx Xxxxxxxxxx, Xxxxxxxxx Xxxx, XX Nursing center XX#0-00
XX#000 Xxxx Xxxxxxxxx Xxxxx & Nursing Center Coshocton, West Lafayette, OH Nursing center ML#2-42
OH#634 Xxxxxxxxx Xxxxxx & Xxxxx Xxxxxx Xxxxxxxx, Xxxxxxxxx, XX Nursing center ML#2-43
RI#1-224 Health Xxxxxx Nursing & Rehab Center Providence, East Providence, RI Nursing center ML#2-44
6
TN#822 Primacy Healthcare & Rehab Center Shelby, Memphis, TN Nursing center ML#2-45
TX#4-653 Vencor Hospital - Ft. Worth Southwest Tarrant, Ft. Worth, TX Hospital ML#2-46
TX#4-654 Vencor Hospital - Houston Northwest Xxxxxx, Houston, TX Hospital ML#2-47
TX#4-668 Vencor Hospital - Ft. Worth West Tarrant, Ft. Worth, TX Hospital ML#2-48
UT#690 Wasatch Valley Rehabilitation Salt Lake, Salt Lake City, UT Nursing center ML#2-49
VA#826 Harbour Pointe Medical & Rehab Center Suffolk, Suffolk, VA Nursing center XX#0-00
XX#000 Xxx Xxxxxx Xxxxxxx & Xxxxx Xxxxxx Princess Xxxx, Virginia Beach, VA Nursing center XX#0-00
XX#000 Xxxxxxxx Xxxxxxxxxx Xxxxxx Xxxxxx, Xxxxxxxx, XX Nursing center ML#2-52
WI#289 San Xxxx Medical & Rehab Center Xxxxx, Green Bay, WI Nursing center ML#2-53
WI#766 Colonial Manor Medical & Rehab Center Marathon, Wausau, WI Nursing center ML#2-54
INITIAL MASTER LEASE #3:
State/
------
Facility #: Facility Name: County, City, State Location: Facility Type: Index #:
----------- -------------- ----------------------------- -------------- --------
AL#824 Rehab & Healthcare Center of Mobile Mobile, Mobile, AL Nursing center ML#3-1
XX#000 Xxxxx Xxxxxxx Xxxxxx Xxxxxx Xxxx, Xxxxxx, XX Nursing center XX#0-0
XX#000 Xxxxxxxxxxx Xxxx Xxxxxx Xxxx, Xxxxxxxxxxx, XX Nursing center XX#0-0
XX#000 Xxxx Xxxxx Xxxxxxxxxx Xxxxxx Xxxxxxxxx, Xxxxxxxxx, XX Nursing center XX#0-0
XX#0-000 XXX - Xxxxxx Xxxxxx Xxxxxx, Xxxx, XX Hospital ML#3-5
XX#000 Xxxxxxxx Xxxx Xxxxxx Xxxxx, Xxxxxxxx, XX Nursing center ML#3-6
CT#563 Camelot Nursing & Rehab Center New London, New London, CT Nursing center XX#0-0
XX#000 Xxxxxxx Xxxxxxxx Xxxxxxxxxx Xxxxxxxx, Xxxxxxx, CT Nursing center ML#3-8
FL#124 Healthcare & Rehab Center of Sanford Seminole, Sanford, FL Nursing center XX#0-0
XX#000 Xxxxxxxxxxx Xxxx Xxxxxx Xxxxxxxxxxxx, Xxxxx, XX Nursing center XX#0-00
XX#000/ Xxxxxxx Xxxxx Xxxxxxxxxxxx Xxxxxx Xxxxx, Xxxxxx, XX Nursing center ML#3-11
181
7
FL#4-676 Vencor Hospital - Hollywood Broward, Hollywood, FL Hospital ML#3-12
FL#1220 Highland Pines Rehab Center Pinellas, Clearwater, FL Nursing center ML#3-13
GA#155 Savannah Rehab & Nursing Center Chatham, Savannah, GA Nursing center ML#3-14
GA#645 Specialty Care of Xxxxxxxx Xxxx, Marietta, GA Nursing center ML#3-15
ID#219 Xxxxxx Rehabilitation & Healthcare Gem, Xxxxxx, ID Nursing center ML#3-16
IN#269 Meadowvale Health & Rehab Center Xxxxx, Bluffton, IN Nursing center ML#3-17
IN#694 Wedgewood Healthcare Center Xxxxx, Clarksville, IN Nursing center ML#3-18
KY#279 Cedars of Lebanon Nursing Center Marion, Lebanon, KY Nursing center XX#0-00
XX#000 Xxxxxxxxx Xxxxx Xxxxxxxxxx XxXxxx, Xxxxxxx, XX Nursing center ML#3-20
KY#782 Danville Centre for Health & Rehab Xxxxx, Danville, KY Nursing center ML#3-21
ME#544 Augusta Rehabilitation Center Kennebec, Augusta, ME Nursing center ML#3-22
ME#547 Xxxxxx Rehabilitation & Living Center Penobscot, Brewer, ME Nursing center XX#0-00
XX#000 Xxxxxxxx Xxxxx Xxxxxxxxx, Bangor, ME Nursing center ML#3-24
MA#506 Presentation Nursing & Rehab Center Suffolk, Brighton, MA Nursing center ML#3-25
MA#514 Sachem Nursing & Rehab Center Plymouth, East Bridgewater, MA Nursing center XX#0-00
XX#000 Xxxxxx & Xxxxxxxxx Alzheimer Center Norfolk, Wellesley, MA Nursing center XX#0-00
XX#000 Xxxxx Xxxxxxx Xxxxxxxxx, Xxxxxxxxx, XX Nursing center XX#0-00
XX#0-000 Xxxxxx Xxxxxxxx - Xxxxxx Xxxxxxxxxx Essex, Peabody, MA Hospital XX#0-00
XX#0-000 Xxxxxx Xxxxxxxx - Xxxxxx Xxxxxxx, Boston, MA Hospital ML#3-30
MI#4-675 Vencor Hospital - Detroit Xxxxx, Lincoln, MI Hospital XX#0-00
XX#0-000 XXX - Xxx Xxxxx Hospital Xxxxx, Las Vegas, NV Nursing center ML#3-32
NC#116 Xxxxxxxxx Rehab & Healthcare Center Durham, Durham, NC Nursing center ML#3-33
NC#143 Raleigh Rehab & Healthcare Center Wake, Raleigh, NC Nursing center ML#3-34
NC#307 Lincoln Nursing Center Lincoln, Lincoln, NC Nursing center ML#3-35
NC#713 Guardian Care of Zebulon Wake, Zebulon, NC Nursing center ML#3-36
NC#4-662 Vencor Hospital - Greensboro Guilford, Greensboro, NC Hospital ML#3-37
8
OR#453 Medford Rehab & Healthcare Center Xxxxxxx, Medford, OR Nursing center XX#0-00
XX#0-000 Xxxxxxxxxx Nursing & Rehab Center Berks, Reading, PA Nursing center ML#3-39
TN#182 Xxxxxxx Rehab & Nursing Center Shelby, Cordova, TN Nursing center ML#3-40
TX#4-635 Vencor Hospital - San Antonio Bexar, San Antonio, TX Hospital ML#3-41
TX#4-660 Vencor Hospital - Mansfield Tarrant, Mansfield, TX Hospital ML#3-42
UT#230 Crosslands Rehab & Health Xxxx Xxxxxx Xxxx Xxxx, Xxxx Xxxx Xxxx, XX Nursing center ML#3-43
WA#461 Edmonds Rehab & Healthcare Center Snohomish, Edmonds, WA Nursing center XX#0-00
XX#000 Xxxxxxxxx Xxxx Xxxxxx Xxxxxxxxx, Xxxxxx, XX Nursing center ML#3-45
WI#773 Mt. Carmel Medical & Rehab Center Racine, Burlington, WI Nursing center ML#3-46
WI#774 Mt. Carmel Medical & Rehab Center Milwaukee, Milwaukee, WI Nursing center ML#3-47
INITIAL MASTER LEASE #4:
State/
----------
Facility#: Facility Name: County, City, State Location: Facility Type: Index #:
---------- -------------- ----------------------------- -------------- --------
AL#791 Rehab & Healthcare Center of Huntsville Madison, Huntsville, AL Nursing center ML#4-1
AZ#853 Kachina Point Health Care & Rehab Yavapai, Sedona, AZ Nursing center XX#0-0
XX#0-000 Xxxxxx Xxxxxxxx - Xxxxxx Pima, Tuscon, AZ Hospital XX#0-0
XX#000 Xxxxxx Xxxxxxx Health Care & Rehab San Xxxxxxx, Stockton, CA Nursing center XX#0-0
XX#000/ Xxxxxxx Xxxxxx Nursing & Rehab Center San Diego, San Marcos, CA Nursing center ML#4-5
148
CO#859 Castle Garden Care Center Xxxxx, Northglenn, CO Nursing center ML#4-6
CO#4-665 Vencor Hospital - Denver Denver, Denver, CO Hospital ML#4-7
CT#566 Windsor Rehab & Healthcare Center Hartford, Windsor, CT Nursing center XX#0-0
XX#0000 Xxxxxxxxx Xxxxxxx Health Center, Inc. Fairfield, Stamford, CT Nursing center XX#0-0
XX#000 Xxxxxxxx Xxxx Xxxxx Xxxxxx - Xx. Xxxxxx Xxx, Ft. Xxxxxx, FL Nursing center ML#4-10
FL#637 Evergreen Xxxxx Health & Rehab Hernando, Springhill, FL Nursing center XX#0-00
XX#0000 Xxxxx Xxxxxxx Xxxxx and Nursing Center Broward, Pompano Beach, FL Nursing center ML#4-12
9
FL#1232 Pompano Rehab/Nursing Center Broward, Pompano Beach, FL Nursing center ML#4-13
FL#1233 Abbey Rehab & Nursing Center Pinellas, St. Petersburg, FL Nursing center ML#4-14
FL#4-645/ Vencor Hospital - Ft. Lauderdale Broward, Ft. Lauderdale, FL Hospital ML#4-15
46
GA#1238 Xxxxxx Nursing Center De Xxxx, Tucker, GA Nursing center XX#0-00
XX#000 Xxxxxx Xxxx Xxxxxx Xxxxx, Xxxxxx, XX Nursing center XX#0-00
XX#0-000 Xxxxxx Xxxxxxxx - Xxxx Xxxxx Xxxx, Chicago, IL Hospital ML#4-18
IN#131 Vencor Corydon Nursing Care Center Xxxxxxxx, Xxxxxxx, IN Nursing center ML#4-19
IN#209 Valley View Health Care Center Elkhart, Elkhart, IN Nursing center ML#4-20
IN#213 Wildwood Healthcare Center Marion, Indianapolis, IN Nursing center ML#4-21
IN#290 Bremen Healthcare Center Xxxxxxxx, Bremen, IN Nursing center ML#4-22
KY#277 Rosewood Health Care Center Xxxxxx, Bowling Green, KY Nursing center ML#4-23
KY#785 Hillcrest Health Care Center Davies, Owensboro, KY Nursing center XX#0-00
XX#000 Xxxxxxxx Xxxxxxx Health Care Facility Xxxxxx, Elizabethtown, KY Nursing center XX#0-00
XX#000 Xxxxxxxxxxx Health Care Center Xxxxxx, Harrodsburg, KY Nursing center ML#4-26
LA#4-666 Vencor Hospital - New Orleans Orleans Parish, New Orleans, LA Hospital ML#4-27
ME#546 Winship Green Nursing Center Sagadahoc, Bath, ME Nursing center ML#4-28
MA#503 Xxxxxxx Xxxxx Nursing & Rehab Center Suffolk, Newburyport, MA Nursing center ML#4-29
MA#517 Oakwood Rehab & Nursing Center Worcester, Webster, MA Nursing center ML#4-30
MA#523 Star of Xxxxx Nursing & Xxxxx/Xxx. Xxxxxx Xxxxxxx, Xxxx Xxxxxxx, XX Nursing center XX#0-00
XX#000 Xxxxxxxx Xxxxxxxxxx Xxxxxx Xxxxxxxxx, Xxxxxx, XX Nursing center ML#4-32
MA#542 Den-Mar Rehab & Nursing Center Essex, Rockport, MA Nursing center XX#0-00
XX#000 Xxxxxxx Xxxxx Xx. Nursing & Rehab Plymouth, Brockton, MA Nursing center XX#0-00
XX#000 Xxxxx Xxxxxxxxxx Xxxxx & Nursing Center Berkshire, Gt. Barrington, MA Nursing center ML#4-35
NE#746 Homestead Health Care & Rehab Center Lancaster, Lincoln, NE Nursing center ML#4-36
NM#4-664 Vencor Hospital - Albuquerque Bernalillo, Albuquerque, NM Nursing center ML#4-37
10
NC#146 Xxxx Xxxxx Health Care Center Durham, Durham, NC Nursing center ML#4-38
NC#723 Guardian Care of Rocky Mount Xxxx, Rocky Mount, NC Nursing center ML#4-39
OH#569 Chillicothe Nursing & Rehab Center Xxxx, Chillicothe, OH Nursing center XX#0-00
XX#000 Xxxxxxxxxxxx Nursing & Rehab Center Fairfield, Pickerington, OH Nursing center ML#4-41
OH#571 Xxxxx Health Care Center Hocking, Logan, OH Nursing center ML#4-42
OH#802 Bridgepark Center for Rehab & Nursing Summit, Akron, OH Nursing center ML#4-43
Services
PA#4-614 Vencor Hospital - Philadelphia Philadelphia, Philadelphia, PA Hospital XX#0-00
XX#0-000 Xxx Xxxx Nursing & Rehab Center Providence, Pawtucket, RI Nursing center XX#0-00
XX#0-000 Xxx Xxxxx Xxxxx Xxxxx, Xxx Xxxxxxx, XX Nursing center ML#4-46
TX#4-685 Vencor Hospital - Houston Xxxxxx, Houston, TX Hospital XX#0-00
XX#000 Xxxxxxxxx Xxxxxxx Xxxxxxxxxx, Xxxxxxxxxx, XX Nursing center XX#0-00
XX#0-000 Xxxxxx Xxxxxxxx - Xxxxxxxxx Xxxxxxxxx, Arlington, VA Hospital XX#0-00
XX#000 Xxxxxxxxxx Health Care & Rehab Svc. Whatcom, Bellingham, WA Nursing center ML#4-50
WI#765 Eastview Medical & Rehab Center Langlade, Antigo, WI Nursing center ML#4-51
WI#771 Xxxxxxx Park Medical & Rehab Center Marathon, Schofield, WI Nursing center XX#0-00
XX#000 Xxxxx Xxxxxxx Wyoming Healthcare & Rehab Carbon, Rawlins, WY Nursing center ML#4-53
OTHER LEASED PROPERTY (6):
(against which a leasehold mortgage will be filed on the Closing Date)
State/
----------
Facility#: Facility Name: County, City, State Location: Facility Type: Index #:
---------- -------------- ----------------------------- -------------- --------
XX#0-000 Xxxxxx Xxxxxxxx Xxxxx Xxxxxxxxxxxx, Xxxxx, XX Hospital FP#1
GA#1-236 Warner Robins Rehabilitation and Nursing Houston, Warner Robins, GA Nursing center FP#2
Center
IN#199 Vencor at Sellersburg Clark, Clark, IN Nursing center FP#3
XX#000 Xxxxxxx Xxxx Xxxxxx Xxxxx, Xxxxxxx, XX Nursing center FP#4
11
KY#781 Xxxxxxxx Xxxx Xxxxxx Xxxx Xxxxxxxxx, Xxxxxxxxxx, XX Nursing center FP#5
NC#722 Guardian Care of Kenansville Duplin, Kennansville, NC Nursing center FP#6
Third Party Leases (including all Other Leased Property):
State/
----------
Facility#: Facility Name: County, City, State Location: Facility Type: Status:
---------- -------------- ----------------------------- -------------- -------
AL#1-227 Big Spring Specialty Care Center Madison, Huntsville, AL Nursing center
AZ#796 Hacienda Rehabilitation and Care Center Cochise, Sierra Vista, AZ Nursing center
CA#205 Xxxxxxxx Xxxx Xxxxxx Xxxxxxx, Xxxxxxxxx, XX Nursing center
XX#000 Xxxx Xxxxxx Xxxxxxxxxx Xxxxxx Xxxxx, Xxxx Xxxxxx, XX Nursing center Non-operational
XX#000 Xxxxx Xxxx Xxxxxxxxxx Xxxxxx Xxxxx Xxxx, Xxxxx Xxxx, XX Nursing center
CA#909 Golden Gate Health Care Center San Francisco, San Francisco, CA Nursing center
CA#907 Xxxxx Xxxxxx Xxxxxx Xxxx Xxxxxx Xxxxx, Xxx Xxxxxx, XX Nursing center Subleased
CA#911 Victorian Healthcare Center San Francisco, San Francisco, CA Nursing center
CA#3-298 XxxXxxxxx Xxxx Xxxxxx Xxxxxx, Xxxx Xxxx, XX Nursing center Subleased
CA#3-299 XxxXxxxxx Xxxxxx Xxxx Xxxxxx Xxxx, Xxxxxxxxxx, XX Nursing center Subleased
XX#000 Xxxxx Xxxx Xxxxxx Xxxxxx, Xxxxxx, XX Nursing center
XX#000 Xxx Xxxx xx Xxxx Xxxxxxxxx, Xxxx Xxxx, XX Nursing center
FL#4-640 Vencor Hospital - Tampa Hillsborough, Tampa, FL Hospital
GA#4-670 Vencor Hospital - Atlanta Xxxxxxx, Atlanta, GA Hospital
GA#1-213 Eastview Nursing Home Xxxx, Macon, GA Nursing center
XX#0-000 Xxxxxxx Health Care Houston, Warner Robins, GA Nursing center
XX#0-000 XxxxxxxXxxx xx Xxxxxxx Xxxxxxx, Xxxx Xxxx, XX Nursing center
GA#1-236 Warner Robins Rehabilitation and Nursing Houston, Warner Robins, GA Nursing center
Center
12
IL#4-667 Vencor Hospital - Chicago Central Xxxx, Chicago, IL Hospital
IN#194 Vencor at Eagle Creek Marion, Indianapolis, IN Nursing center
IN#199 Vencor at Sellersburg Xxxxx, Sellersburg, IN Nursing center
IN#204 Angel River Health and Rehabilitation Xxxxxxx, Newburgh, IN Nursing center
IN#224 Regency Place of Xxxxxxxxx Xxxxxx, Indianapolis, IN Nursing center
IN#232 Regency Place of Xxxx Lake, Dyer, IN Nursing center
IN#240 Regency Place of Greenwood Xxxxxxx, Greenwood, IN Nursing center
IN#287 Crestview Xxxx, Vincennes, IN Nursing center
IN#288 Indian Creek Health and Rehabilitation Xxxxxxxx, Xxxxxxx, IN Nursing center
Center
IN#296 Chalet Village Health and Rehabilitation Adams, Berne, IN Nursing center
Center
IN#402 Regency Place of Fort Xxxxx Xxxxx, Ft. Xxxxx, IN Nursing center
IN#403 Regency Place of Greenfield Xxxxxxx, Greenfield, IN Nursing center
IN#404 Regency Place of Lafayette Tippecanoe, Lafayette, IN Nursing center
IN#405 Regency Place of South Bend St. Xxxxxx, South Bend, IN Nursing center
IN#408 Colonial Oaks Health Care Center Grant, Marion, IN Nursing center
IN#4-672 Vencor Hospital - Indianapolis South Xxxxxxx, Greenwood, IN Hospital
IN#3-305 University Nursing Center Grant, Upland, IN Nursing center Subleased
XX#000 Xxxxxxx Xxxx Xxxxxx Xxxxx, Xxxxxxx, XX Nursing center
KY#271 Heritage Manor Health Care Center Xxxxxx, Mayfield, KY Nursing center
KY#781 Xxxxxxxx Xxxx Xxxxxx Xxxx Xxxxxxxxx, Xxxxxxxxxx, XX Nursing center
XX#000 Xxxxxxxxxx Xxxxxxx Health Care Center XxXxxxxxx, Paducah, KY Nursing center
KY#1-225 Hermitage Nursing and Rehabilitation Center Daviess, Owensboro, KY Nursing center
LA#1-235 Irving Place Rehabilitation and Nursing Caddo, Shreveport, LA Nursing center
Center
MA#531 Xxxxxxx House Nursing Home Bristol, Fairhaven, MA Nursing center
MA#540 Brook Farm Rehabilitation and Nursing Center Suffolk, West Roxbury, MA Nursing center
13
MA#541 Westborough Health Care Center Worcester, Westborough, MA Nursing center
MI#3-300 Autumnwood of XxXxxx Missaukee, McBain, MI Nursing center Subleased
MI#3-301 Autumnwood of Deckerville Sanilac, Deckerville, MI Nursing center Subleased
MS#227 Xxxxxx County Care Inn Xxxxxx, Corinth, MS Nursing center
XX#0-000 Xxxx Xxxxx Xxxxxxx Xxxx Xxxx, Xxxx Xxxxx, XX Nursing center Subleased
MO#861 Blue Hills Living Center Xxxxxxx, Kansas City, MO Nursing center
MO#3-263 Ozark Mountain Regional Health Stone, Crane, MO Nursing center Managed by
third party
MO#3-265 Table Rock Health Care Center Stone, Xxxxxxxxxx City, MO Nursing center Managed by
third party
XX#0-000 Xxxxx Xxxx Xxxxxxxxxxx Xxxxxx Xxxxx, Xxxxxxxxxx Xxxx, XX Nursing center Managed by
third party
MT#434 Xxxxxxxxxx Health and Rehabilitation Center Park, Livingston, MT Nursing center
XX#0-000 Xxxxxxxxx Senior Care Center San Xxxxxx, Las Vegas, NM Nursing center Subleased
NC#193 Rehabilitation and Healthcare Center of Alamance, Graham, NC Nursing center
Alamance
NC#717 Guardian Care of Scotland Neck Halifax, Scotland Neck, NC Nursing center
NC#718 Guardian Care of Ahoskie Hertford, Ahoskie, NC Nursing center
NC#722 Guardian Care of Kenansville Duplin, Kenansville, NC Nursing center
OH#237 Newark Healthcare Center Licking, Newark, OH Nursing center
XX#000 Xxxxxxxxxx Xxxxxxx Xxxxx Xxxxx, Xxxxxxxxxx, XX Nursing center
XX#000 Xxxxxxxxx Xxxxxx Xxxx Xxxxxx Xxxxxx, Xxxxxx, XX Nursing center
OH#1-229 The LakeMed Nursing and Rehabilitation Lake, Painesville, OH Nursing center
Center
PA#1-223 PersonaCare at Xxxxxxxx Xxxxxxxxxxx, Xxxxxx, XX Nursing center
TN#171 Pine Xxxxxxx Healthcare and Hardeman, Bolivar, TN Nursing center
Rehabilitation Center
14
TN#174 Camden Healthcare and Rehabilitation Center Benton, Camden, TN Nursing center
TN#175 Jefferson City Health and Rehabilitation Xxxxxxxxx, Xxxxxxxxx City, TN Nursing center
Center
TN#177 Xxxxxx Healthcare Center Loudon, Loudon, TN Nursing center
TN#178 Xxxxxx Xxxxx Rehabilitation and Healthcare Shelby, Memphis TN Nursing center
Center
TN#179 Huntingdon Health and Rehabilitation Center Xxxxxxx, Huntingdon, TN Nursing center
TN#183 Xxxxxx Healthcare and Rehabilitation Center Landerdale, Ripley, TN Nursing center
TN#184 Greystone Health Care Center Xxxxxxxx, Blountville, TN Nursing center
TN#187 Maryville Healthcare and Rehabilitation Xxxxxx, Maryville, TN Nursing center
Center
XX#000 Xxxxxxxx Xxxxxxxxxx Xxxxxx Xxxxxx, Xxxxxxxxx, XX Nursing center
XX#000 Xxxxxxxxxx Xxxxxx Xxxx Xxxxxx Xxxx, Xxxxxxxxx, XX Nursing center
XX#000 Xxxxx Xxxxxx Xxxxxx Xxxx Xxxxxx Xxxxx, Xxxxxxxx, XX Nursing center Subleased
TX#4-657 Vencor Hospital - Bay Area-Houston Xxxxxx, Pasadena, TX Hospital
TX#4-686 Vencor Hospital - Dallas East Dallas, Dallas TX Hospital
TX#880 Four States Care Center Bowie, Texarkana, TX Nursing center
XX#0-000 Xxxxxxxx Xxxxxxx Xxxxxxxxx Xxxxx, Xxx Xxxxxxx, XX Nursing center
XX#0-000 Xxx Xxxxxxx Xxxx, Xxxxxx Xxxxxxx, XX Nursing center Subleased
XX#0-000 Xxxxxxx Xxxxx Xxxxxx, Xxxxxxxxxxxx, XX Nursing center Subleased
XX#0-000 Xxxxxxxxx Xxxxxxxxx Xxxxxxx, Xxxxxxx, XX Nursing center Subleased
TX#3-841 Lakerridge Rehab & Nsg. Center Lubbock, Lubbock, TX Nursing center Subleased
UT#419 Salt Lake Nursing and Xxxxxxxxxxxxxx Xxxxxx Xxxx Xxxx, Xxxx Xxxx Xxxx, XX Nursing center
WI#197 Oshkosh Medical & Rehabilitation Center Winnebago, Oshkosh, WI Nursing center
XX#0-000 Xxxxxxxxx Xxxxxxx Nursing and Dane, Middleton, WI Nursing center
Rehabilitation Center
15
SCHEDULE 5
MANAGEMENT CONTRACTS
--------------------
---------------------------------------------------------------------------------------------------------------
FACILITY AGREEMENT MANAGER
---------------------------------------------------------------------------------------------------------------
169 Management Agreement dated as of Vencor Nursing Centers East, L.L.C.
Menorah House January 31, 1990
0000 Xxxxxxx Xxxx Xxxx. X
Xxxx Xxxxx, XX
---------------------------------------------------------------------------------------------------------------
815 Management Agreement dated as of Vencor Nursing Centers East, L.L.C.
Lago Vista Care Center January 31, 1990
0000 Xxxxxx Xxxxxxxxx
Xxxxxx Xxxxx, XX
---------------------------------------------------------------------------------------------------------------
912 Management Agreement dated as of Vencor Operating, Inc.
The Arbors Healthcare Center March 6, 2000
00 X. Xxxxxxx 000
Xxxx Xxxxx, XX 00000
---------------------------------------------------------------------------------------------------------------
913 Management Agreement dated as of Vencor Operating, Inc.
Los Xxxxx Health Care Center March 6, 2000
000 X. Xxxxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
---------------------------------------------------------------------------------------------------------------
914 Management Agreement dated as of Vencor Operating, Inc.
Pueblo Norte Nursing Center March 6, 2000
0000 X. Xxxx Xxxxxx
Xxxx Xxx, XX 00000
---------------------------------------------------------------------------------------------------------------
915 Management Agreement dated as of Vencor Operating, Inc.
Rio Verde Health Care Center March 6, 2000
000 X. Xxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
---------------------------------------------------------------------------------------------------------------
920 Management Agreement dated as of Vencor Nursing Centers East, L.L.C.
Marietta Ctr for Hlth & Rehab July 12, 1983
000 Xxxxxxxx Xxxxxx
Xxxxxxxx, XX
---------------------------------------------------------------------------------------------------------------
926 Management Agreement dated as of Vencor Nursing Centers West, L.L.C.
Nineteenth Avenue HCC February 29, 1988
2043 - 00/xx/ Xxxxxx
Xxx Xxxxxxxxx, XX
---------------------------------------------------------------------------------------------------------------
930 Management Agreement dated as of Vencor Operating, Inc.
Peppertree Square March 16, 2000
0000 Xxxxxx Xxxx Xxxxx
Xxxxxxx, XX
---------------------------------------------------------------------------------------------------------------
931 Management Agreement dated as of Vencor Operating, Inc.
Safford Care Center March 16, 2000
0000 Xxxxxx Xxxx Xxxxx
Xxxxxxx, XX
---------------------------------------------------------------------------------------------------------------
1
---------------------------------------------------------------------------------------------------------
FACILITY AGREEMENT MANAGER
---------------------------------------------------------------------------------------------------------
932 Management Agreement dated as of Vencor Operating, Inc.
Village Catered Care March 16, 2000
0000 Xxx Xxxxxxx Xxxxxx
Xxxxxxx, XX
---------------------------------------------------------------------------------------------------------
934 Management Agreement dated as of Vencor Operating, Inc.
Xxxxxxx Xxxxx March 16, 2000
0000 Xxx Xxxxxxx Xxxxxx
Xxxxxxx, XX
---------------------------------------------------------------------------------------------------------
935 Management Agreement dated as of Vencor Operating, Inc.
Kendallville Manor LLC Ctr March 6, 2000
0000 X. Xxxxxxx Xxxxxx
Kendallville, IN
---------------------------------------------------------------------------------------------------------
936 Management Agreement dated as of Vencor Operating, Inc.
Wellington Manor March 6, 2000
0000 Xxxxxxxxx Xxxxxxxxx
Xxxxxxxxxxxx, XX
---------------------------------------------------------------------------------------------------------
937 Management Agreement dated as of Vencor Operating, Inc.
Cloverleaf of Knightsville March 6, 2000
0000 X. Xxxxxxxx Xxxxxx
Xxxxxxxxxxxx, XX
---------------------------------------------------------------------------------------------------------
949 Management Agreement dated as of Vencor Nursing Centers East, L.L.C.
Ledgewood Rehab. & Nsg. 1985
00 Xxxxxxx Xxxxxx
Xxxxxxx, XX
---------------------------------------------------------------------------------------------------------
950 Management Agreement dated as of Vencor Nursing Centers West, L.L.C.
Salemhaven Nursing Home April 21, 1983
00 Xxxxxxxxx Xxxxx
Xxxxx, XX
---------------------------------------------------------------------------------------------------------
951 Management Agreement dated as of Vencor Operating, Inc.
Xxxxxxxx Xxxxx March 16, 2000
0000 Xxxxx Xxxxxx
Xxxxxxxxxxxx, Xx
---------------------------------------------------------------------------------------------------------
952 Management Agreement dated as of Vencor Operating, Inc.
Terrace Lake Village March 16, 2000
000 Xxxxxxx Xxxx Xxxxx
Xxxxxxxxxxxx, XX
---------------------------------------------------------------------------------------------------------
953 Management Agreement dated as of Vencor Operating, Inc.
Ridgewood Health Care Ctr. March 16, 2000
000 Xxxxxxx Xxxx
Xxxxxx, XX
---------------------------------------------------------------------------------------------------------
954 Management Agreement dated as of Vencor Operating, Inc.
Holiday Manor March 16, 2000
000 X. 0/xx/ Xxxxxx
Xxxxxxxxx, XX
---------------------------------------------------------------------------------------------------------
2
---------------------------------------------------------------------------------------------------------
FACILITY AGREEMENT MANAGER
---------------------------------------------------------------------------------------------------------
956 Management Agreement dated as of Vencor Operating, Inc.
Owensville Convalescent Ctr. March 16, 2000
Hwy, 165 West, Box 369
Owensville, IN
---------------------------------------------------------------------------------------------------------
957 Management Agreement dated as of Vencor Operating, Inc.
Willow Manor Conv. Ctr. March 16, 2000
0000 Xxxxxx Xxxxxx
Vincennes, IN.
---------------------------------------------------------------------------------------------------------
961 Management Agreement dated as of Vencor Operating, Inc.
Hertigate Plaza Nsg. Center March 6, 2000
000 X. 00/xx/ Xxxxxx
Xxxxxxxxx, XX
---------------------------------------------------------------------------------------------------------
962 Management Agreement dated as of Vencor Operating, Inc.
Pine Grove Nursing Center March 6, 2000
XX 0 Xxx 0000
Center, TX
---------------------------------------------------------------------------------------------------------
963 Management Agreement dated as of Vencor Operating, Inc.
Pine Haven Care Center March 6, 2000
0000 X. Xxxxxxxxx Xxxxxx
Xxxxxxxxx, XX
---------------------------------------------------------------------------------------------------------
964 Management Agreement dated as of Vencor Operating, Inc.
Pleasant Manor Living Center March 6, 2000
0000 X. Xxxxxxx 00-X
Xxxxxxxxxx, XX
---------------------------------------------------------------------------------------------------------
965 Management Agreement dated as of Vencor Operating, Inc.
Reunion Plaza Sr. Care & Ret. March 6, 2000
0000 Xxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
---------------------------------------------------------------------------------------------------------
966 Management Agreement dated as of Vencor Operating, Inc.
South Place Nursing Center March 6, 2000
000 Xxxxxx Xxxx
Xxxxxx, Xxxxx
---------------------------------------------------------------------------------------------------------
967 Management Agreement dated as of Vencor Operating, Inc.
West Place Nursing Center March 6, 0000
Xxx, 00 Xxxx Xxx 000
Xxxxxx, XX
---------------------------------------------------------------------------------------------------------
968 Management Agreement dated as of Vencor Operating, Inc.
Colonial Pines Healthcare, March 6, 2000
Ctr.
0000 XX 0000
Xxx Xxxxxxxxx, XX
---------------------------------------------------------------------------------------------------------
3
---------------------------------------------------------------------------------------------------------
FACILITY AGREEMENT MANAGER
---------------------------------------------------------------------------------------------------------
978 Management Agreement dated as of Vencor Nursing Centers East, L.L.C.
North Shore Living Center January 31, 1990
000 Xxxxxxx Xxxxxx Xxxxx
Xxxxxxx, XX
---------------------------------------------------------------------------------------------------------
981 Foothill Skilled Nursing Vencor Nursing Centers West, L.L.C.
Foothill Nsg. & Rehab Ctr. Facility Management Agreement
000 Xxxx Xxx Xxxxxx dated as of 0000
Xxxxxxxx, XX
---------------------------------------------------------------------------------------------------------
983 Long Term Care Facility Vencor Nursing Centers East, L.L.C.
Xxxxx House Nrsg. Ctr. Management Agreement dated as of
00 Xxxxxxxx Xxxxx July 1, 0000
Xxxxxxxx, XX
---------------------------------------------------------------------------------------------------------
990 Management Agreement dated as of Vencor Nursing Centers East, L.L.C.
Jo Xxxxx Xxxxx Conv. Center January 31, 1990
0000 Xxxxxxx Xxxxx Xxxxxx
Xxx Xxxxxxx, XX
---------------------------------------------------------------------------------------------------------
992 Agreement to Provide Management Vencor Nursing Centers West, L.L.C.
Holladay Healthcare Center Services to a Health Care
0000 Xxxxx Xxxxxxxx Xxxx. Facility dated as of September
Salt Lake City, UT 1, 1985
---------------------------------------------------------------------------------------------------------
995 Agreement to Provide Management Vencor Nursing Centers East, L.L.C.
Starr Farm Nursing Center Services to a Health Care
00 Xxxxx Xxxx Xxxx Facility dated as of December
Burlington, VT 30, 1986
---------------------------------------------------------------------------------------------------------
See attached list Letter Agreement with Omega Vencor Operating, Inc.
Healthcare Investors, Inc. and
affiliates dated as of March 26,
2000
---------------------------------------------------------------------------------------------------------
4
List of Facilities Governed by Letter Agreements with
-----------------------------------------------------
Omega Healthcare Investors, Inc. and Affiliates
-----------------------------------------------
(The) Arbors Health Care Center
Los Xxxxx Health Care Center
Pueblo Norte Nursing Center
Rio Verde Healthcare Center
Cloverleaf of Knightsville
Kendallville Manor
Wellington Manor
Colonial Pines
Heritage Plaza
Pine Grove Nursing Center
Pine Haven Care Center
Pleasant Manor Living Center
Reunion Plaza
South Place Nursing Center
West Place
Willow Manor Convalescent Center
Owensville
Holiday Manor
Village Catered Care (Xxxxxxx)
Xxxxxxx Xxxxx
Peppertree Square (Safford)
Safford Care Center
Terrace Lake Village (Xxxxxxxx)
Xxxxxxxx Xxxxx
Ridgewood Health Care Center
5
SCHEDULE 6
PERMITTED INVESTMENTS
---------------------
-----------------------------------------------------------------------------------------------------------------
HOLDER INVESTMENT
-----------------------------------------------------------------------------------------------------------------
Vencor Operating, Inc. Promissory Notes evidencing loans made by Vencor Operating, Inc. and/or
Vencor, Inc. to certain current and former officers of Vencor not
exceeding $16,000,000 aggregate amount
-----------------------------------------------------------------------------------------------------------------
Vencor Operating, Inc. $500,000 Promissory Note made by HealthEssentials Solutions, Inc. due
February 25, 2001*
-----------------------------------------------------------------------------------------------------------------
First Healthcare Corporation $3,965,000 Promissory Note made by Foothill Nursing Company Partnership
(assigned to Vencor Operating, due March 31, 2001 (as the same may be extended from time to time provided
Inc.) that the aggregate outstanding principal amount does exceed $3,965,000)
-----------------------------------------------------------------------------------------------------------------
Vencor Operating, Inc. 7,500 shares in Ledgewood Health Care Corporation, a Massachusetts
corporation
-----------------------------------------------------------------------------------------------------------------
Vencor Operating, Inc. 1,933,901 shares in Lectus Inc., a California corporation
-----------------------------------------------------------------------------------------------------------------
Vencor Holdings, L.L.C. 1,234,568 shares in Atria Communities, Inc., a Delaware corporation
-----------------------------------------------------------------------------------------------------------------
Vencor Operating, Inc. 50,000 shares in HealthEssentials Solutions, Inc., a Delaware corporation
-----------------------------------------------------------------------------------------------------------------
Community Psychiatric Centers 1,385,076 shares of common stock and 4,350,712 shares of Series A
Properties, Incorporated Preferred in Behavioral Healthcare Corporation, a Delaware corporation
-----------------------------------------------------------------------------------------------------------------
Community Psychiatric Centers of 1,112,919 shares of common stock and 1,299,817 shares of Series A
California Preferred in Behavioral Healthcare Corporation, a Delaware corporation
-----------------------------------------------------------------------------------------------------------------
Interamericana Health Care Group 246,900 shares of common stock in Behavioral Healthcare Corporation, a
Delaware corporation
-----------------------------------------------------------------------------------------------------------------
Transitional Hospitals Corporation 3,248,405 shares of common stock in Behavioral Healthcare Corporation, a
Delaware corporation
-----------------------------------------------------------------------------------------------------------------
C.P.C. of Louisiana, Inc. 6,700 shares of common stock and 838 shares of Series A Preferred in
Behavioral Healthcare Corporation, a Delaware corporation
-----------------------------------------------------------------------------------------------------------------
Vencor Operating, Inc. 50% general partnership interest in Fox Hill Village Partnership, a
Massachusetts general partnership
-----------------------------------------------------------------------------------------------------------------
Vencor Operating, Inc. 50% general partnership interest in Hillhaven-MSC
-----------------------------------------------------------------------------------------------------------------
* Vencor is pursuing collection.
1
-----------------------------------------------------------------------------------------------------------------
Partnership, a California general partnership
-----------------------------------------------------------------------------------------------------------------
Vencor Operating, Inc. 50% general partnership interest in Starr Farm Partnership, a Vermont
partnership
-----------------------------------------------------------------------------------------------------------------
Advanced Infusion Systems, Inc. Approximately 46% general partnership interest in VNA/CPS Pharmaceutical
Services, a California general partnership
-----------------------------------------------------------------------------------------------------------------
Vencare, Inc. 50% membership interest in MedAssure, L.L.C., a Kentucky limited liability
company
-----------------------------------------------------------------------------------------------------------------
Advanced Infusion Systems, Inc. 51% general partnership interest in California Respiratory Care
Partnership, a California general partnership
-----------------------------------------------------------------------------------------------------------------
Vencor Operating, Inc. 50% general partnership interest in Foothill Nursing Company Partnership,
a California general partnership
-----------------------------------------------------------------------------------------------------------------
Advanced Infusion Systems, Inc. Approximately 50.99% general partnership interest in Pharmaceutical
Infusion Therapy, a California general partnership
-----------------------------------------------------------------------------------------------------------------
Advanced Infusion Systems, Inc. 50.01% general partnership interest in Visiting Nurse Advanced Infusion
Systems - Anaheim, a California general partnership
-----------------------------------------------------------------------------------------------------------------
Advanced Infusion Systems, Inc. 51.01% general partnership interest in Visiting Nurse Advanced Infusion
Systems - Colton, a California general partnership
-----------------------------------------------------------------------------------------------------------------
Advanced Infusion Systems, Inc. 51.01% general partnership interest in Visiting Nurse Advanced Infusion
Systems - Newbury Park, a California general partnership
-----------------------------------------------------------------------------------------------------------------
Northridge Surgery Center 38% general partnership interest in Northridge Surgery Center, Ltd., a
Development, Ltd. California limited partnership
-----------------------------------------------------------------------------------------------------------------
Helian ASC of Northridge, Inc. 13% general partnership interest in Northridge Surgery Center, Ltd., a
California limited partnership
-----------------------------------------------------------------------------------------------------------------
Helian Health Group, Inc. 13.5% limited partnership interest in Northridge Surgery Center, Ltd., a
California limited partnership
-----------------------------------------------------------------------------------------------------------------
Helian ASC of Northridge, Inc. 6% limited partnership interest in Northridge Surgery Center, Ltd., a
California limited partnership
-----------------------------------------------------------------------------------------------------------------
MedEquities, Inc. 43% general partnership interest in Northridge Surgery Center Development,
Ltd., a California limited partnership
-----------------------------------------------------------------------------------------------------------------
Helian Recovery Corporation 58% general partnership interest in Recovery Inn of Menlo Park, L.P., a
California limited partnership
-----------------------------------------------------------------------------------------------------------------
Recovery Inns of America, Inc. 12% limited partnership interest in Recovery Inn of Menlo Park, L.P., a
California limited partnership
-----------------------------------------------------------------------------------------------------------------
* Vencor is pursuing collection.
2
-----------------------------------------------------------------------------------------------------------------
Helian Recovery Corporation Approximately 27.6% limited partnership interest in Recovery Inn of Menlo
Park, L.P., a California limited partnership
-----------------------------------------------------------------------------------------------------------------
Vencor Operating, Inc. $87,136.65 Promissory Note made by XxxXxx.xxx, Inc.
-----------------------------------------------------------------------------------------------------------------
* Vencor is pursuing collection.
3
SCHEDULE 7
LOCAL REAL ESTATE COUNSEL
-------------------------
-----------------------------------------------------------------------------------------------
STATE LAW FIRM
-----------------------------------------------------------------------------------------------
Alabama Sirote & Permutt
0000 Xxxxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
-----------------------------------------------------------------------------------------------
Arizona Xxxxxxxxxxx Xxxxxx Xxxxxxxx Xxxxx & Xxxxxx, PLC
0000 X. Xxxxxx Xxxxxx Xxxx, Xxxxx 000
Xxxxxxx, XX 00000-0000
-----------------------------------------------------------------------------------------------
California Manatt, Xxxxxx and Xxxxxxxx, LLP
00000 Xxxx Xxxxxxx Xxxxxxxxx
Xxx Xxxxxxx, XX 00000-0000
-----------------------------------------------------------------------------------------------
Colorado Xxxxx & Xxxxxxxxx LLP
000 Xxxx 00/xx/ Xxxxxx, Xxxxx 0000
Xxxxxx, XX 00000
-----------------------------------------------------------------------------------------------
Connecticut Murtha, Cullina, Xxxxxxx and Xxxxxx
000 Xxxxxx Xxxxxx
Xxxxxxxx, XX 00000
-----------------------------------------------------------------------------------------------
Florida Boyd, Lindsey, Xxxxxxxx & Branch
0000 Xxxxxxxx Xxxxx Xxxx
Xxxxxxxxxxx, XX 00000
-----------------------------------------------------------------------------------------------
Xxxxxxx Xxxxxx, Golden & Xxxxxxx LLP
One Atlantic Center, 0000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000-0000
-----------------------------------------------------------------------------------------------
Idaho Xxxxxxxx Xxxx & Xxxxxx, X.X.X.
X.X. Xxxx Xxxxx, 0/xx/ Xxxxx
000 X. Xxxxxxx Xxxx.
Xxxx Xxxxxx Xxx 0000
Xxxxx, Xxxxx 00000
-----------------------------------------------------------------------------------------------
Illinois Winston & Xxxxxx
00 X. Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
-----------------------------------------------------------------------------------------------
Indiana Xxxxx XxXxxxx Xxxxxxxxx & Xxxxxxxx, LLP
Xxx Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxxxx, XX 00000-0000
-----------------------------------------------------------------------------------------------
Kentucky Frost, Xxxxx & Xxxx
000 Xxxx Xxxxxx Xxxxxx, 00/xx/ Xxxxx
Xxxxxxxxxx, XX 00000-0000
-----------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------
Louisiana Kean, Miller, Hawthorne, X'Xxxxxx, XxXxxxx &
Xxxxxx, L.L.P.
00/xx/ Xxxxx, Xxx Xxxxxxxx Xxxxx
Xxxxx Xxxxx, Xxxxxxxxx 00000
-----------------------------------------------------------------------------------------------
Maine Verrill & Xxxx, LLP
Xxx Xxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000-00000
-----------------------------------------------------------------------------------------------
Massachusetts Mintz, Levin, Cohn, Ferris, Glovsky & Popeo,
P.C.
Xxx Xxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
-----------------------------------------------------------------------------------------------
Michigan Xxxxxxxx Xxxxxx Xxxxxxxx & Xxxx
0000 Xxxxx Xxxxxxxx Xxxxxxxx
Xxxxxxx, XX 00000-0000
-----------------------------------------------------------------------------------------------
Minnesota Orbovich & Gartner
Xxxxxxxx Xxxx Xxxxxxxx, Xxxxx 000
000 Xx. Xxxxx Xxxxxx
Xx. Xxxx, Xxxxxxxxx 00000
-----------------------------------------------------------------------------------------------
Missouri Xxxxxxxxx Xxxxxxxx LLP
Xxx Xxxxxxxxxxxx Xxxxxx, Xxxxx 0000
Xx. Xxxxx, Xxxxxxxx 00000-0000
-----------------------------------------------------------------------------------------------
Montana Xxxxxxx, Haughey, Hanson, Toole & Xxxxxxxx
000 Xxxxx 00/xx/ Xxxxxx, Xxxxx 000 XX0
Xxxxxxxx, Xxxxxxx 00000-0000
-----------------------------------------------------------------------------------------------
Nebraska Xxxxxx & Xxxxx
000 Xxxxx 00/xx/ Xxxxxx Xxxxx 000, Xxxxxxx
Center, X.X. Xxx 00000
Xxxxxxx, Xxxxxxxx 00000-0000
-----------------------------------------------------------------------------------------------
Xxx Xxxxxxxxx Xxxxxxxxx, Xxxxxxxx & Xxxxxxxx, XX
000 Xxxxx Xxxx Xxxxxx, P.O. Box 1415
Concord, New Hampshire 03302-1415
-----------------------------------------------------------------------------------------------
Nevada Xxxxxx Xxxxxx & Xxxxxxx
1700 Bank of America Plaza
000 Xxxxx Xxxxxx Xxxxxx
Xxx Xxxxx, Xxxxxx 00000
-----------------------------------------------------------------------------------------------
New Mexico Xxxxx, Dickason, Sloan, Akin & Xxxx
000 Xxxxx Xx. XX, Xxxxx 0000
Xxxxxxxxxxx, XX 00000
-----------------------------------------------------------------------------------------------
North Carolina Womble Xxxxxxx Xxxxxxxxx & Xxxx
000 Xxxx Xxxxxx Xx., Xxxxx 0000
Xxxxxxx-Xxxxx, XX 00000
-----------------------------------------------------------------------------------------------
Ohio Vorys, Xxxxx, Xxxxxxx and Xxxxx
00 Xxxx Xxxx Xxxxxx
X.X. Xxx 0000
Xxxxxxxx, Xxxx 00000-0000
-----------------------------------------------------------------------------------------------
2
-----------------------------------------------------------------------------------------------
Oklahoma McAfee & Xxxx
000 X. Xxxxxxxx
Two Leadership Square, 00/xx/ Xxxxx
Xxxxxxxx Xxxx, XX 00000
-----------------------------------------------------------------------------------------------
Oregon Xxxxx Xxxxxx Xxxxxxxx LLP
2300 First Interstate Tower
0000 XX Xxxxx Xxxxxx
Xxxxxxxx, XX 00000
-----------------------------------------------------------------------------------------------
Pennsylvania Xxxxxxxx Ingersoll, P.C.
0000 Xxxxxx Xxxxxx, 00/xx/ Xx.
Xxxxxxxxxxxx, XX 00000
-----------------------------------------------------------------------------------------------
Rhode Island Xxxxxxxx Xxxxx & Xxxxxx
0000 Xxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
-----------------------------------------------------------------------------------------------
Tennessee Thomason, Hendrix, Xxxxxx, Xxxxxxx & Xxxxxxxx
Twenty-Ninth Floor One Commerce Square, 00
Xxxxx Xxxx
Xxxxxxx, Xxxxxxxxx 00000
-----------------------------------------------------------------------------------------------
Texas Xxxxx & Xxxxx, L.L.P.
98 San Jacinto Blvd.
0000 Xxx Xxxxxxx Xxxxxx
Xxxxxx, XX 00000-0000
-----------------------------------------------------------------------------------------------
Utah Fabian & Xxxxxxxxx
000 Xxxxx Xxxxx Xxxxxx, 00/xx/ Xxxxx
Xxxx Xxxx Xxxx, XX 00000-0000
-----------------------------------------------------------------------------------------------
Vermont Xxxxx, Xxxxx & XxXxxxxx, P.C.
000 Xxxxxxx Xxxxxx
XX Xxx 000
Xxxxxxxxxx, XX 00000-0000
-----------------------------------------------------------------------------------------------
Virginia Xxxx X. Xxxxxxxx
000 Xxxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
-----------------------------------------------------------------------------------------------
Washington Xxxxx Xxxxxx Xxxxxxxx LLP
0000 Xxxxxxx Xxxxxx
0000 Xxxxxx Xxxxxx
Xxxxxxx, XX 00000-0000
-----------------------------------------------------------------------------------------------
Wisconsin Xxxxxxxx Law Office, LLC
Stonewood Corporate Center
W175 X00000 Xxxxxxxxx Xx. #000
Xxxxxxxxxx, Xxxxxxxxx 00000
-----------------------------------------------------------------------------------------------
Wyoming Xxxxxx and Associates
000 Xxxx Xxxxxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
-----------------------------------------------------------------------------------------------
3
SCHEDULE 8
LITIGATION
----------
(Capitalized terms used but not otherwise defined
shall have the meaning ascribed thereto in
Vencor's annual filing on Form 10-K for fiscal year 2000)
On September 13, 1999, the Company and substantially all of its
subsidiaries filed voluntary petitions for protection under Chapter 11 of the
Bankruptcy Code. The Chapter 11 Cases have been styled In re: Vencor, Inc., et
al., Debtors and Debtors in Possession, Case Nos. 99-3199 (MFW) through 99-3327
(MFW), Chapter 11, Jointly Administered. On December 14, 2000, the Company filed
its Amended Plan with the Bankruptcy Court. On March 1, 2001, the Bankruptcy
Court approved the Company's Amended Plan and an order was entered confirming
the Amended Plan on March 16, 2001.
On March 18, 1999, the Company served Ventas with a demand for mediation
pursuant to the Spin-off Agreement. The Company was seeking a reduction in rent
and other concessions under its Master Lease Agreements with Ventas. On March
31, 1999, the Company and Ventas entered into a standstill agreement which
provided that both companies would postpone through April 12, 1999 any claims
either may have against the other. On April 12, 1999, the Company and Ventas
entered into a second standstill which provided that neither party would pursue
any claims against the other or any other third party related to the Spin-off as
long as the Company complied with certain rent payment terms. The second
standstill was scheduled to terminate on May 5, 1999. Pursuant to a tolling
agreement, the Company and Ventas also agreed that any statutes of limitations
or other time-related constraints in a bankruptcy or other proceeding that might
be asserted by one party against the other would be extended and tolled from
April 12, 1999 until May 5, 1999 or until the termination of the second
standstill. As a result of the Company's failure to pay rent, Ventas served the
Company with notices of nonpayment under the Master Lease Agreements.
Subsequently, the Company and Ventas entered into further amendments to the
second standstill and the tolling agreement to extend the time during which no
remedies may be pursued by either party and to extend the date by which the
Company may cure its failure to pay rent.
In connection with the Chapter 11 Cases, the Company and Ventas entered
into the Stipulation that provides for the payment by the Company of a reduced
aggregate monthly rent of approximately $15.1 million. The Stipulation has been
approved by the Bankruptcy Court. The Stipulation also continues to toll any
statutes of limitations or other time constraints in a bankruptcy proceeding for
claims that might be asserted by the Company against Ventas. The Stipulation
automatically renews for one-month periods unless either party provides a 14-day
notice of termination. The Stipulation also may be terminated prior to its
expiration upon a payment default by the Company, the consummation of a plan of
reorganization or the occurrence of certain defaults under the DIP Financing.
The Stipulation also provides that the Company will continue to fulfill its
indemnification obligations arising from the Spin-off. The Stipulation will
terminate upon the effective date of the Amended Plan.
The Company believes that the Amended Plan, if consummated, will resolve
all material disputes between the Company and Ventas. The Amended Plan also
provides for comprehensive mutual releases between the Company and Ventas, other
than for obligations that the Company is assuming under the Amended Plan.
If the Amended Plan does not become effective and the Company and Ventas
are unable to otherwise resolve their disputes or maintain an interim
resolution, the Company may seek to pursue claims against Ventas arising out of
the Spin-off and seek judicial relief barring Ventas from exercising any
remedies based on the Company's failure to pay some or all of the rent to
Ventas. The Company's failure to pay rent or otherwise comply with the
Stipulation, in the absence of judicial relief, would result in an "Event of
Default" under the Master Lease Agreements. Upon an Event of Default under the
Master Lease Agreements, assuming Ventas were to be granted relief from the
automatic stay by the Bankruptcy Court, the remedies available to Ventas
include, without limitation, terminating the Master Lease Agreements,
repossessing and reletting the leased properties and requiring the Company to
(a) remain liable for all obligations under the Master Lease Agreements,
including the difference between the rent under the Master Lease Agreements and
the rent payable as a result of reletting the leased properties or (b) pay the
net present value of the rent due for the balance of the terms of the Master
Lease Agreements. Such remedies, however, would be subject to the supervision of
the Bankruptcy Court.
The Company's subsidiary, formerly named TheraTx, Incorporated, is
plaintiff in a declaratory judgment action entitled TheraTx, Incorporated v.
Xxxxx X. Xxxxxx, Xx., et al., No. 1:95-CV-3193, filed in the United States
District Court for the Northern District of Georgia and currently pending in the
United States Court of Appeals for the Eleventh Circuit, No. 99-11451-FF. The
defendants have asserted counterclaims against TheraTx under breach of contract,
securities fraud, negligent misrepresentation and other fraud theories for
allegedly not performing as promised under a merger agreement related to
TheraTx's purchase of a company called PersonaCare, Inc. and for allegedly
failing to inform the defendants/counterclaimants prior to the merger that
TheraTx's possible acquisition of Southern Management Services, Inc. might cause
the suspension of TheraTx's shelf registration under relevant rules of the
Securities and Exchange Commission (the "Commission"). The court granted summary
judgment for the defendants/counterclaimants and ruled that TheraTx breached the
shelf registration provision in the merger agreement, but dismissed the
defendants' remaining counterclaims. Additionally, the court ruled after trial
that defendants/counterclaimants were entitled to damages and prejudgment
interest in the amount of approximately $1.3 million and attorneys' fees and
other litigation expenses of approximately $700,000. The Company and the
defendants/counterclaimants both appealed the court's rulings. The Court of
Appeals for the Eleventh Circuit affirmed the trial court's rulings with the
exception of the damages award and certified the question of the proper
calculation of damages under Delaware law to the Delaware Supreme Court. The
Company is defending the action vigorously.
The Company is pursuing various claims against private insurance companies
who issued Medicare supplement insurance policies to individuals who became
patients of the Company's hospitals. After the patients' Medicare benefits are
exhausted, the insurance companies become liable to pay the insureds' bills
pursuant to the terms of these policies. The Company has filed
2
numerous collection actions against various of these insurers to collect the
difference between what Medicare would have paid and the hospitals' usual and
customary charges. These disputes arise from differences in interpretation of
the policy provisions and federal and state laws governing such policies.
Various courts have issued various rulings on the different issues, some of
which have been adverse to the Company and most of which have been appealed. The
Company intends to continue to pursue these claims vigorously. If the Company
does not prevail on these issues, future results of operations and liquidity
would be materially adversely affected.
A class action lawsuit entitled A. Xxxx Xxxxxx v. Vencor, Inc., et al., was
filed on December 24, 1997 in the United States District Court for the Western
District of Kentucky (Civil Action No. 3-97CV-8354). The class action claims
were brought by an alleged stockholder of the Company's predecessor against the
Company and Ventas and certain current and former executive officers and
directors of the Company and Ventas. The complaint alleges that the Company,
Ventas and certain current and former executive officers of the Company and
Ventas during a specified time frame violated Sections 10(b) and 20(a) of the
Exchange Act, by, among other things, issuing to the investing public a series
of false and misleading statements concerning Ventas' then current operations
and the inherent value of its common stock. The complaint further alleges that
as a result of these purported false and misleading statements concerning
Ventas' revenues and successful acquisitions, the price of the common stock was
artificially inflated. In particular, the complaint alleges that the defendants
issued false and misleading financial statements during the first, second and
third calendar quarters of 1997 which misrepresented and understated the impact
that changes in Medicare reimbursement policies would have on Ventas' core
services and profitability. The complaint further alleges that the defendants
issued a series of materially false statements concerning the purportedly
successful integration of Ventas' acquisitions and prospective earnings per
share for 1997 and 1998 which the defendants knew lacked any reasonable basis
and were not being achieved. The suit seeks damages in an amount to be proven at
trial, pre-judgment and post-judgment interest, reasonable attorneys' fees,
expert witness fees and other costs, and any extraordinary equitable and/or
injunctive relief permitted by law or equity to assure that the plaintiff has an
effective remedy. In December 1998, the defendants filed a motion to dismiss the
case. The court converted the defendants' motion to dismiss into a motion for
summary judgment and granted summary judgment as to all defendants. The
plaintiff appealed the ruling to the United States Court of Appeals for the
Sixth Circuit. On April 24, 2000, the Sixth Circuit affirmed the district
court's dismissal of the action on the grounds that the plaintiff failed to
state a claim upon which relief could be granted. On July 14, 2000, the Sixth
Circuit granted the plaintiff's petition for a rehearing en banc. The Company is
defending this action vigorously.
A shareholder derivative suit entitled Xxxxxx X. Xxxxx on behalf of Vencor,
Inc. and Ventas, Inc. v. W. Xxxxx Xxxxxxxx, et al., Case No. 98CI03669, was
filed in June 1998 in the Jefferson County, Kentucky, Circuit Court. The suit
was brought on behalf of the Company and Ventas against certain current and
former executive officers and directors of the Company and Ventas. The complaint
alleges that the defendants damaged the Company and Ventas by engaging in
violations of the securities laws, engaging in xxxxxxx xxxxxxx, fraud and
securities fraud and damaging the reputation of the Company and Ventas. The
plaintiff asserts that such actions were taken deliberately, in bad faith and
constitute breaches of the defendants' duties of loyalty and due care. The
complaint is based on substantially similar assertions to those made in
3
the class action lawsuit entitled A. Xxxx Xxxxxx v. Vencor, Inc., et al.,
discussed above. The suit seeks unspecified damages, interest, punitive damages,
reasonable attorneys' fees, expert witness fees and other costs, and any
extraordinary equitable and/or injunctive relief permitted by law or equity to
assure that the Company and Ventas have an effective remedy. The Company
believes that the allegations in the complaint are without merit and intends to
defend this action vigorously.
A class action lawsuit entitled Xxxxx Xxxxx v. Transitional Hospitals
Corporation, et al., Case No. CV-S-97-00747-PMP, was filed on June 19, 1997 in
the United States District Court for the District of Nevada on behalf of a class
consisting of all persons who sold shares of Transitional common stock during
the period from February 26, 1997 through May 4, 1997, inclusive. The complaint
alleges that Transitional purchased shares of its common stock from members of
the investing public after it had received a written offer to acquire all of the
Transitional common stock and without making the required disclosure that such
an offer had been made. The complaint further alleges that defendants disclosed
that there were "expressions of interest" in acquiring Transitional when, in
fact, at that time, the negotiations had reached an advanced stage with actual
firm offers at substantial premiums to the trading price of Transitional's stock
having been made which were actively being considered by Transitional's Board of
Directors. The complaint asserts claims pursuant to Sections 10(b), 14(e) and
20(a) of the Exchange Act, and common law principles of negligent
misrepresentation and names as defendants Transitional as well as certain former
senior executives and directors of Transitional. The plaintiff seeks class
certification, unspecified damages, attorneys' fees and costs. In June 1998, the
court granted the Company's motion to dismiss with leave to amend the Section
10(b) claim and the state law claims for misrepresentation. The court denied the
Company's motion to dismiss the Section 14(e) and Section 20(a) claims, after
which the Company filed a motion for reconsideration. On March 23, 1999, the
court granted the Company's motion to dismiss all remaining claims and the case
was dismissed. The plaintiff has appealed this ruling to the United States Court
of Appeals for the Ninth Circuit. The Company is defending this action
vigorously.
On April 14, 1999, a lawsuit entitled Lenox Healthcare, Inc., et al. v.
Vencor, Inc., et al., Case No. BC 208750, was filed in the Superior Court of Los
Angeles, California by Lenox Healthcare, Inc. ("Lenox") asserting various causes
of action arising out of the Company's sale and lease of several nursing centers
to Lenox in 1997. Lenox subsequently removed certain of its causes of action and
refiled these claims before the United States District Court for the Western
District of Kentucky in a case entitled Lenox Healthcare, Inc. v. Vencor, Inc.,
et al., Case No. 3:99 CV-348-H. The Company asserted counterclaims, including
RICO claims, against Lenox in the Kentucky action. The Company believes that the
allegations made by Lenox in both complaints are without merit. Lenox and its
subsidiaries filed for protection under Chapter 11 of the Bankruptcy Code on
November 3, 1999. By virtue of both the Company's and Lenox's separate filings
for Chapter 11 protection, the two Lenox actions and the Company's counterclaims
were stayed. Subsequently, the parties entered into a settlement, which was
approved by their respective bankruptcy courts, that requires the dismissal of
the two above actions. Joint motions to dismiss have been filed by the parties
in each court.
The Company was informed by the DOJ that the Company and Ventas are the
subjects of investigations into various Medicare reimbursement issues, including
hospital cost reporting
4
issues, Vencare billing practices and various quality of care issues in the
hospitals and nursing centers formerly operated by Ventas and currently operated
by the Company. These investigations include some matters for which the Company
indemnified Ventas in the Spin-off. In cases where neither the Company nor any
of its subsidiaries are defendants but Ventas is the defendant, the Company had
agreed to defend and indemnify Ventas for such claims as part of the Spin-off.
The Stipulation entered into with Ventas provides that the Company will continue
to fulfill its indemnification obligations arising from the Spin-off. The
Company has cooperated fully in the investigations.
The DOJ has informed the Company that it has intervened in several pending
qui tam actions asserted against the Company and/or Ventas in connection with
these investigations. In addition, the DOJ has filed proofs of claims with
respect to certain alleged claims in the Chapter 11 Cases. The Company, Ventas
and the DOJ have finalized the terms of the Government Settlement which will
resolve all of the DOJ investigations including the pending qui tam actions.
The Government Settlement provides that within 30 days after the Amended Plan
becomes effective, the Government will move to dismiss with prejudice to the
United States and the relators (except for certain claims which will be
dismissed without prejudice to the United States in certain of the cases) the
pending qui tam actions as against any or all of the Company and its
subsidiaries, Ventas and any current or former officers, directors and employees
of either entity. There can be no assurance that each court before which a qui
tam action is pending will dismiss the case on the DOJ's motion.
The following is a summary of the qui tam actions pending against the
Company and/or Ventas in which the DOJ has intervened. In connection with the
DOJ's intervention, the courts ordered these previously non-public actions to be
unsealed. Certain of the actions described below name other defendants in
addition to the Company and Ventas.
(a) The Company, Ventas and the Company's subsidiary, American X-Rays, Inc.
("AXR"), are defendants in a civil qui tam action styled United States ex rel.
Doe v. American X-Rays Inc., et al., No. LR-C-95-332, pending in the United
States District Court for the Eastern District of Arkansas and served on AXR on
July 7, 1997. The DOJ intervened in the suit which was brought under the Federal
Civil False Claims Act and added the Company and Ventas as defendants. The
Company acquired an interest in AXR when Hillhaven was merged into the Company
in September 1995 and purchased the remaining interest in AXR in February 1996.
AXR provided portable X-ray services to nursing centers (including some of those
operated by Ventas or the Company) and other healthcare providers. The civil
suit alleges that AXR submitted false claims to the Medicare and Medicaid
programs. The suit seeks damages in an amount of not less than $1,000,000,
treble damages and civil penalties. The Company has defended this action
vigorously. The court has dismissed the action based upon the possible pending
settlement between the DOJ, the Company and Ventas. In a related criminal
investigation, the United States Attorney's Office for the Eastern District of
Arkansas ("USAO") indicted four former employees of AXR; those individuals were
convicted of various fraud related counts in January 1999. AXR had been informed
previously that it was not a target of the criminal investigation, and AXR was
not indicted. However, the Company received several grand jury subpoenas for
documents and witnesses which it moved to quash. The USAO has withdrawn the
subpoenas which rendered the motion moot.
5
(b) The Company's subsidiary, Medisave Pharmacies, Inc. ("Medisave"),
Ventas and Hillhaven (former parent company to Medisave), are the defendants in
a civil qui tam action styled United States ex rel. Danley v. Medisave
Pharmacies, Inc., et al., No. CV-N-96-00170-HDM, filed in the United States
District Court for the District of Nevada on March 15, 1996. The plaintiff
alleges that Medisave, an institutional pharmacy provider, formerly owned by
Ventas and owned by the Company since the Spin-off: (a) charged the Medicare
program for unit dose drugs when bulk drugs were administered and charged
skilled nursing facilities more for the same drugs for Medicare patients than
for non-Medicare patients; (b) improperly claimed special dispensing fees that
it was not entitled to under Medicaid; and (c) recouped unused drugs from
skilled nursing facilities and returned these drugs to its stock without
crediting Medicare or Medicaid, all in violation of the Federal Civil False
Claims Act. The complaint also alleges that Medisave had a policy of offering
kickbacks, such as free equipment, to skilled nursing centers to secure and
maintain their business. The complaint seeks treble damages, other unspecified
damages, civil penalties, attorneys' fees and other costs. The Company disputes
the allegations in the complaint. The defendants intend to defend this action
vigorously.
(c) Ventas and the Company's subsidiary, Vencare, Inc. ("Vencare"), among
others, are defendants in the action styled United States ex rel. Xxxxxxx v.
Vencor, Inc., et al., No. 3:97CV-349-J, filed in the United States District
Court for the Western District of Kansas on June 25, 1996 and consolidated with
the action styled United States of America ex rel. Xxxxxx, et al. v. Vencor,
Inc., et al., No. 3:98SC-737-H, filed in the United States District Court for
the Middle District of Florida on June 4, 1998. The complaint alleges that the
defendants knowingly submitted and conspired to submit false claims and
statements to the Medicare program in connection with their purported provision
of respiratory therapy services to skilled nursing center residents. The
defendants allegedly billed Medicare for respiratory therapy services and
supplies when those services were not medically necessary, billed for services
not provided, exaggerated the time required to provide services or exaggerated
the productivity of their therapists. It is further alleged that the defendants
presented false claims and statements to the Medicare program in violation of
the Federal Civil False Claims Act, by, among other things, allegedly causing
skilled nursing centers with which they had respiratory therapy contracts, to
present false claims to Medicare for respiratory therapy services and supplies.
The complaint seeks treble damages, other unspecified damages, civil penalties,
attorneys' fees and other costs. The Company disputes the allegations in the
complaint. The defendants intend to defend this action vigorously.
(d) In United States ex rel. Kneepkens v. Gambro Healthcare, Inc., et al.,
No. 97-10400-GAO, filed in the United States District Court for the District of
Massachusetts on October 15, 1998, the Company's subsidiary, Transitional, and
two unrelated entities, Gambro Healthcare, Inc. and Dialysis Holdings, Inc., are
defendants in this suit alleging that they violated the Federal Civil False
Claims Act and the Medicare and Medicaid antikickback, antifraud and abuse
regulations and committed common law fraud, unjust enrichment and payment by
mistake of fact. Specifically, the complaint alleges that a predecessor to
Transitional formed a joint venture with Damon Clinical Laboratories to create
and operate a clinical testing laboratory in Georgia that was then used to
provide lab testing for dialysis patients, and that the joint venture billed at
below cost in return for referral of substantially all non-routine testing in
violation of Medicare
6
and Medicaid antikickback and antifraud regulations. It is further alleged that
a predecessor to Transitional and Damon Clinical Laboratories used multiple
panel testing of end stage renal disease rather than single panel testing that
allegedly resulted in the generation of additional revenues from Medicare and
that the entities allegedly added non-routine tests to tests otherwise ordered
by physicians that were not requested or medically necessary but resulted in
additional revenue from Medicare in violation of the antikickback and antifraud
regulations. Transitional has moved to dismiss the case. Transitional disputes
the allegations in the complaint and is defending the action vigorously.
(e) The Company and/or Ventas are defendants in the action styled United
States ex rel. Xxxx and Xxxxx x. Vencor, Inc., et al., No. 97-4358 AHM (Mcx),
filed in the United States District Court for the Central District of California
on June 13, 1997. The plaintiff alleges that the defendant violated the Federal
Civil False Claims Act by submitting false claims to the Medicare, Medicaid and
CHAMPUS programs by allegedly: (a) falsifying patient bills and submitting the
bills to the Medicare, Medicaid and CHAMPUS programs, (b) submitting bills for
intensive and critical care not actually administered to patients, (c)
falsifying patient charts in relation to the billing, (d) charging for physical
therapy services allegedly not provided and pharmacy services allegedly provided
by non-pharmacists, and (e) billing for sales calls made by nurses to
prospective patients. The complaint seeks treble damages, other unspecified
damages, civil penalties, attorneys' fees and other costs. Defendants dispute
the allegations in the complaint. The Company, on behalf of itself and Ventas,
intends to defend this action vigorously.
(f) Ventas is the defendant in the action styled United States ex rel.
Xxxxxxx v. Vencor, Inc., Civ. No. 97-451-JD, filed in the United States District
Court for the District of New Hampshire on September 8, 1997. Ventas is alleged
to have knowingly violated the Federal Civil False Claims Act by submitting and
conspiring to submit false claims to the Medicare program. The complaint alleges
that Ventas: (a) fabricated diagnosis codes by ordering medically unnecessary
services, such as respiratory therapy; (b) changed referring physicians'
diagnoses in order to qualify for Medicare reimbursement; and (c) billed
Medicare for oxygen use by patients regardless of whether the oxygen was
actually administered to particular patients. The complaint further alleges that
Ventas paid illegal kickbacks to referring healthcare professionals in the form
of medical consulting service agreements as an alleged inducement to refer
patients, in violation of the Federal Civil False Claims Act, the antikickback
and antifraud regulations and the Xxxxx provisions. It is additionally alleged
that Ventas consistently submitted Medicare claims for clinical services that
were not performed or were performed at lower actual costs. The complaint seeks
unspecified damages, civil penalties, attorneys' fees and costs. Ventas disputes
the allegations in the complaint. The Company, on behalf of Ventas, intends to
defend the action vigorously.
(g) United States ex rel. Xxxxxxx and Xxxxxxxxx v. Vencor, Inc., et al.,
Civ. No. 97-CV-2845, was filed against Ventas in the United States District
Court for the Middle District of Florida, on November 24, 1997. The United
States of America intervened in this civil qui tam lawsuit on May 17, 1999. On
July 23, 1999, the United States filed its amended complaint in the lawsuit and
added the Company as a defendant. The lawsuit alleges that the Company and
Ventas knowingly submitted false claims and false statements to the Medicare and
Medicaid
7
programs including, but not limited to, claims for reimbursement of costs for
certain ancillary services performed in defendants' nursing centers and for
third-party nursing center operators that the United States alleges are not
properly reimbursable costs through the hospitals' cost reports. The lawsuit
involves the Company's hospitals which were owned by Ventas prior to the Spin-
off. The complaint does not specify the amount of damages sought. The Company
and Ventas dispute the allegations in the amended complaint and intend to defend
this action vigorously.
(h) In United States ex rel. Xxxxxx and Xxxxx v. Vencor, Inc., et al.,
filed in the Eastern District of Missouri on May 25, 1999, the defendants
include the Company, Vencare, and Ventas. The defendants allegedly submitted and
conspired to submit false claims for payment to the Medicare and CHAMPUS
programs, in violation of the Federal Civil False Claims Act. According to the
complaint, the Company, through its subsidiary, Vencare, allegedly (a) over
billed for respiratory therapy services, (b) rendered medically unnecessary
treatment, and (c) falsified supply, clinical and equipment records. The
defendants also allegedly encouraged or instructed therapists to falsify
clinical records and over prescribe therapy services. The complaint seeks
treble damages, other unspecified damages, civil penalties, attorneys' fees and
other costs. The Company disputes the allegations in the complaint and intends
to defend this action vigorously. The action has been dismissed with prejudice
as to the relator and without prejudice as to the United States.
(i) In United States ex rel. Xxxxxx Xxxxxxxx, et al. v. Vencor, Inc., et
al., filed in the United States District Court for the Southern District of Ohio
on August 13, 1999, the defendants, consisting of the Company and its two
subsidiaries, Vencare and Vencor Hospice, Inc., are alleged to have violated the
Federal Civil False Claims Act by obtaining improper reimbursement from Medicare
concerning the treatment of hospice patients. Defendants are alleged to have
obtained inflated Medicare reimbursement for admitting, treating and/or failing
to discharge in a timely manner hospice patients who were not "hospice
appropriate." The complaint further alleges that the defendants obtained
inflated reimbursement for providing medications for these hospice patients. The
complaint alleges damages in excess of $1,000,000. The Company disputes the
allegations in the complaint and intends to defend vigorously the action.
(j) In Xxxx Xxxxxx, on Behalf of the United States of America v. Vencor
Operating, Inc. et. al., filed in the United States District Court for the
Southern District of Florida on or about June 8, 1999, the defendants, including
the Company, its subsidiary, Vencor Operating, Inc., Ventas, Hillhaven and
Medisave, are alleged to have presented or caused to be presented false or
fraudulent claims for payment to the Medicare program in violation of, among
other things, the Federal Civil False Claims Act. The complaint alleges that
Medisave, a subsidiary of the Company which was transferred from Ventas to the
Company in the Spin-off, systematically up-charged for drugs and supplies
dispensed to Medicare patients. The complaint seeks unspecified damages, civil
penalties, interest, attorneys' fees and other costs. The Company disputes the
allegations in the complaint and intends to defend this action vigorously.
(k) In United States, et al., ex rel. Xxxxxxxx-Xxxxx, et al. v.
Transitional Corp., et al., filed in the United States District Court for
Southern District of California on July 23, 1998, the
8
defendants, including Transitional and Ventas, are alleged to have submitted and
conspired to submit false claims and statements to Medicare, Medicaid, and other
federal and state funded programs during a period commencing in 1993. The
conduct complained of allegedly violates the Federal Civil False Claims Act, the
California False Claims Act, the Florida False Claims Act, the Tennessee Health
Care False Claims Act, and the Illinois Whistleblower Reward and Protection Act.
The defendants allegedly submitted improper and erroneous claims to Medicare,
Medicaid and other programs, for improper or unnecessary services and services
not performed, inadequate collections efforts associated with billing and
collecting bad debts, inflated and nonexistent laboratory charges, false and
inadequate documentation of claims, splitting charges, shifting revenues and
expenses, transferring patients to hospitals that are reimbursed by Medicare at
a higher level, failing to return duplicate reimbursement payments, and
improperly allocating hospital insurance expenses. In addition, the complaint
alleges that the defendants were inconsistent in their reporting of cost report
data, paid kickbacks to increase patient referrals to hospitals, and incorrectly
reported employee compensation resulting in inflated employee 401(k)
contributions. The complaint seeks unspecified damages. The Company disputes the
allegations in the complaint and intends to defend this action vigorously.
In connection with the Spin-off, liabilities arising from various legal
proceedings and other actions were assumed by the Company and the Company agreed
to indemnify Ventas against any losses, including any costs or expenses, it may
incur arising out of or in connection with such legal proceedings and other
actions. The indemnification provided by the Company also covers losses,
including costs and expenses, which may arise from any future claims asserted
against Ventas based on the former healthcare operations of Ventas. In
connection with its indemnification obligation, the Company has assumed the
defense of various legal proceedings and other actions. The Stipulation entered
into with Ventas provides that the Company will continue to fulfill its
indemnification obligations arising from the Spin-off.
The Company is a party to certain legal actions and regulatory
investigations arising in the normal course of its business. The Company is
unable to predict the ultimate outcome of pending litigation and regulatory
investigations. In addition, there can be no assurance that the DOJ, HCFA or
other regulatory agencies will not initiate additional investigations related to
the Company's businesses in the future, nor can there be any assurance that the
resolution of any litigation or investigations, either individually or in the
aggregate, would not have a material adverse effect on the Company's results of
operations, liquidity or financial position. In addition, the above litigation
and investigations (as well as future litigation and investigations) are
expected to consume the time and attention of the Company's management and may
have a disruptive effect upon the Company's operations.
* * * * * * * * * * * * * * * * * * * * * * *
In the opinion of Vencor Operating, Inc., there is no reasonable
possibility of an adverse decision with respect to the actions disclosed on this
Schedule 8 that could reasonably be expected to have a Material Adverse Effect
or which in any manner would question the validity of any Financing Document.
9
SCHEDULE 9
EXISTING INDEBTEDNESS
---------------------
--------------------------------------------------------------------------------
CREDITOR PRINCIPAL DESCRIPTION
BALANCE/1/
--------------------------------------------------------------------------------
Middleton Village $ 1,675,938 mortgage on real/personal
property - Nursing Center
--------------------------------------------------------------------------------
Various Landlords under $ 949,799 See attached chart
Capitalized Leases
--------------------------------------------------------------------------------
City of Louisville $ 4,200,000 Lien on property under a city
development grant for corporate
headquarters.
--------------------------------------------------------------------------------
Recovery Inn of Menlo $4,228,008.88 Intercompany balance
Park, L.P. (open accounts)
--------------------------------------------------------------------------------
______________________________
/1/ All balances as of March 31, 2001.
EXISTING INDEBTEDNESS (continued)
---------------------------------
CAPITALIZED LEASES
------------------
------------------------------------------------------------------------------------------------------------
LIEN HOLDER LIEN GRANTOR PRINCIPAL DESCRIPTION
AMOUNT OF
DEBT SECURED
BY LIEN/2/
------------------------------------------------------------------------------------------------------------
IBM Credit Corp. Vencor, Inc. $208,356 IBM Rise 6000
000 Xxxxxx Xxxxx Computer Servers
X.X. Xxx 00000
Xxxxxxxx, XX 00000-0000
------------------------------------------------------------------------------------------------------------
Wesleyan Retirement Center Vencor Nursing Centers $ 18,732 Personal Property
d/b/a/ Colonial Oaks Ret. Apts. Limited Partnership
000 X. Xxxxxxxx Xxxx Xxxxx Xxxxxxxx Xxxx Health
Marion, IN 46953 Care Center
0000 Xxxxx Xxxxxxxx
Xxxx Xxxxx
Xxxxxx, XX 00000
------------------------------------------------------------------------------------------------------------
Health Quest Vencor Nursing Centers $115,732 Personal Property
000 Xxxx Xxxxxxxxx Xxxxxxxxx Limited Partnership
South Bend, IN 46601-1586 Regency Place of
Castleton
0000 Xxxx 00/xx/ Xxxxxx
Xxxxxxxxxxxx, XX
00000
------------------------------------------------------------------------------------------------------------
Health Quest Vencor Nursing Centers $107,346 Personal Property
000 Xxxx Xxxxxxxxx Xxxxxxxxx Limited Partnership
South Bend, IN 46601-1586 Regency Place of
Xxxx
0000 Xxxxx Xxxxx
Xxxxx
Xxxx, XX 00000
------------------------------------------------------------------------------------------------------------
Health Quest Vencor Nursing Centers $169,106 Personal Property
000 Xxxx Xxxxxxxxx Xxxxxxxxx Limited Partnership
South Bend, IN 46601-1586 Regency Place of
Greenwood
000 Xxxxxxxxx
Xxxxxxxxx
Xxxxxxxxx, XX
------------------------------------------------------------------------------------------------------------
______________________________
/2/ All balances as of March 31, 2001.
2
----------------------------------------------------------------------------------------------------------
46142
----------------------------------------------------------------------------------------------------------
Health Quest Vencor Nursing Centers $115,731 Personal Property
000 Xxxx Xxxxxxxxx Xxxxxxxxx Limited Partnership
South Bend, IN 46601-1586 Regency Place of
Fort Xxxxx
0000 Xxxxxx Xxxxx
Xxxx
Xx. Xxxxx, XX 00000
----------------------------------------------------------------------------------------------------------
Health Quest Vencor Nursing Centers $169,074 Personal Property
000 Xxxx Xxxxxxxxx Xxxxxxxxx Limited Partnership
South Bend, IN 46601-1586 Regency Place of
Greenfield
000 Xxxxx Xxxxxxx
Xxxxx
Xxxxxxxxxx, XX 00000
-----------------------------------------------------------------------------------------------------------
Health Quest Vencor Nursing Centers $115,731 Personal Property
000 Xxxx Xxxxxxxxx Xxxxxxxxx Limited Partnership
South Bend, IN 46601-1586 Regency Place of
Lafayette
000 Xxxxx Xxxx Xxxxx
Xxxxxxxxx, XX 00000
----------------------------------------------------------------------------------------------------------
Health Quest Vencor Nursing Centers $107,346 Personal Property
000 Xxxx Xxxxxxxxx Xxxxxxxxx Limited Partnership
South Bend, IN 46601-1586 Regency Place of
South Bend
00000 Xxxxx
Xxxxxxxx Xxxx
Xxxxx Xxxx, XX
00000
----------------------------------------------------------------------------------------------------------
3
Schedule 10
Debt Not Held in Concentration Accounts or Pledged
--------------------------------------------------
1. All of the following obligations owed to Vencor Operating, Inc. (all
balances as of April 19, 2001)
Consolidating
Entity Entity Name Total Principal
------ ----------- ---------------
No Hillhaven - MSC Partnership 392,500.00
No Xxxxxx Xxxxx Associates 3,589,000.00
Yes Foothill Nursing Company Partnership 12,351,982.39
Yes Pharmaceutical Infusion Therapy Partnership 650,000.00
Yes California Respiratory Care Partnership 527,000.00
Yes Visiting Nurse Advanced Infusion Systems - Anaheim 350,000.00
Yes Carribean Behavioral Health Systems, Inc. 292,858.96
Grand Total 18,153,341.35
=============
2. All obligations (in the aggregate not exceeding $16 million) owed to Vencor
Operating, Inc. and/or Vencor, Inc. from certain current and former officers
of Vencor as referenced on Schedule 6.
SCHEDULE 11
POST-CLOSING DELIVERIES
-----------------------
1. Restricted Subsidiaries for which replacement stock certificates are to be
delivered after the Closing Date in accordance with the terms of the Credit
Agreement:
Health Care Holdings, Inc. (to account for name change of its parent
from TheraTx, Inc. to Vencare Rehab Services, Inc. to Kindred Rehab Services,
Inc.)
Helian Health Group, Inc. (to account for name change of its parent
from TheraTx, Inc. to Vencare Rehab Services, Inc. to Kindred Rehab Services,
Inc.)
Horizon Healthcare Services, Inc. (to account for name change of its
parent from TheraTx, Inc. to Vencare Rehab Services, Inc. to Kindred Rehab
Services, Inc.)
PersonaCare, Inc. (to account for name change of its parent from
TheraTx, Inc. to Vencare Rehab Services, Inc. to Kindred Rehab Services, Inc.)
PersonaCare of Bradenton, Inc. (to reflect a par value of $.001 per
share)
PersonaCare of Warner Robins, Inc. (to reflect a par value of $.001
per share)
Respiratory Care Services, Inc. (to account for name change of its
parent from TheraTx, Inc. to Vencare Rehab Services, Inc. to Kindred Rehab
Services, Inc.)
TheraTx Health Services, Inc. (to account for name change of its
parent from TheraTx, Inc. to Vencare Rehab Services, Inc. to Kindred Rehab
Services, Inc.)
TheraTx Healthcare Management, Inc. (to account for name change of its
parent from TheraTx, Inc. to Vencare Rehab Services, Inc. to Kindred Rehab
Services, Inc.)
TheraTx Management Services, Inc. (to account for name change of its
parent from TheraTx, Inc. to Vencare Rehab Services, Inc. to Kindred Rehab
Services, Inc.)
TheraTx Medical Supplies, Inc. (to account for name change of its
parent from TheraTx, Inc. to Vencare Rehab Services, Inc. to Kindred Rehab
Services, Inc.)
TheraTx Rehabilitation Services, Inc. (to reflect correct name of its
parent, TheraTx Health Services, Inc.)
TheraTx Staffing, Inc. (to account for name change of its parent from
TheraTx, Inc. to Vencare Rehab Services, Inc. to Kindred Rehab Services, Inc.)
XX-XX, Inc. (to account for name change of its parent from TheraTx,
Inc. to Vencare Rehab Services, Inc. to Kindred Rehab Services, Inc.)
2. Investment for which stock certificate is to be delivered after the Closing
Date in accordance with the terms of the Credit Agreement:
Lectus Inc. (representing 1,933,901 shares held by Vencor Operating,
Inc. but currently certificated in the name of Ventas Investments)
2
SCHEDULE 12
MINIMUM CONSOLIDATED EBITDAR
------------------------------------------------------------------
Quarterly Measurement Date Amount
------------------------------------------------------------------
June 30, 2001 $383,000,000
------------------------------------------------------------------
September 30, 2001 $382,000,000
------------------------------------------------------------------
December 31, 2001 $384,000,000
------------------------------------------------------------------
March 31, 2002 $386,000,000
------------------------------------------------------------------
June 30, 2002 $389,000,000
------------------------------------------------------------------
September 30, 2002 $391,000,000
------------------------------------------------------------------
December 31, 2002 $393,000,000
------------------------------------------------------------------
March 31, 2003 $396,000,000
------------------------------------------------------------------
June 30, 2003 $401,000,000
------------------------------------------------------------------
September 30, 2003 $404,000,000
------------------------------------------------------------------
December 31, 2003 $408,000,000
------------------------------------------------------------------
March 31, 2004 $414,000,000
------------------------------------------------------------------
June 30, 2004 $420,000,000
------------------------------------------------------------------
September 30, 2004 $426,000,000
------------------------------------------------------------------
December 31, 2004 $431,000,000
------------------------------------------------------------------
March 31, 2005 $436,000,000
------------------------------------------------------------------
June 30, 2005 $442,000,000
------------------------------------------------------------------
September 30, 2005 $447,000,000
------------------------------------------------------------------
December 31, 2005 $453,000,000
------------------------------------------------------------------
March 31, 2006 $459,000,000
------------------------------------------------------------------
SCHEDULE 13
MAXIMUM CUMULATIVE CAPITAL EXPENDITURE
--------------------------------------------------------------------------
Period Amount
--------------------------------------------------------------------------
January 1, 2001 through June 30, 2001 $47,000,000
--------------------------------------------------------------------------
January 1, 2001 through September 30, 2001 $68,000,000
--------------------------------------------------------------------------
January 1, 2001 through December 31, 2001 $75,000,000
--------------------------------------------------------------------------
January 1, 2002 through March 31, 2002 $30,000,000
--------------------------------------------------------------------------
January 1, 2002 through June 30, 2002 $47,000,000
--------------------------------------------------------------------------
January 1, 2002 through September 30, 2002 $68,000,000
--------------------------------------------------------------------------
January 1, 2002 through December 31, 2002 $75,000,000
--------------------------------------------------------------------------
January 1, 2003 through March 31, 2003 $30,000,000
--------------------------------------------------------------------------
January 1, 2003 through June 30, 2003 $50,000,000
--------------------------------------------------------------------------
January 1, 2003 through September 30, 2003 $72,000,000
--------------------------------------------------------------------------
January 1, 2003 through December 31, 2003 $80,000,000
--------------------------------------------------------------------------
January 1, 2004 through March 31, 2004 $30,000,000
--------------------------------------------------------------------------
January 1, 2004 through June 30, 2004 $50,000,000
--------------------------------------------------------------------------
January 1, 2004 through September 30, 2004 $72,000,000
--------------------------------------------------------------------------
January 1, 2004 through December 31, 2004 $80,000,000
--------------------------------------------------------------------------
January 1, 2005 through March 31, 2005 $35,000,000
--------------------------------------------------------------------------
January 1, 2005 through June 30, 2005 $53,000,000
--------------------------------------------------------------------------
January 1, 2005 through September 30, 2005 $77,000,000
--------------------------------------------------------------------------
January 1, 2005 through December 31, 2005 $85,000,000
--------------------------------------------------------------------------
January 1, 2006 through the Revolving Credit $35,000,000
Termination Date
--------------------------------------------------------------------------
EXHIBIT X-0
XXXX
Xxx Xxxx, Xxx Xxxx
April _, 2001
For value received, VENCOR OPERATING, INC. (to be renamed Kindred
Healthcare Operating, Inc.), a Delaware corporation (the "Borrower"), promises
to pay to the order of [NAME OF LENDER] or its registered assigns (the
"Lender"), for the account of its Applicable Lending Office, the unpaid
principal amount of each Loan made by the Lender to the Borrower pursuant to the
Credit Agreement referred to below on the maturity date provided for in the
Credit Agreement. The Borrower promises to pay interest on the unpaid principal
amount of each such Loan on the dates and at the rate or rates provided for in
the Credit Agreement. All such payments of principal and interest shall be made
in lawful money of the United States in Federal or other immediately available
funds at the office of the Administrative Agent as set forth in the Credit
Agreement.
All Loans made by the Lender, the respective date, amount and Interest
Type thereof and all payments of principal with respect thereto shall be
recorded by the Lender and, if the Lender so elects in connection with any
transfer or enforcement hereof, appropriate notations to evidence the foregoing
information with respect to each such Loan then outstanding may be endorsed by
the Lender on the schedule attached hereto, or on a continuation of such
schedule attached to and made a part hereof; provided that neither the failure
of the Lender to make any such recordation or endorsement nor any error therein
shall affect the obligations of the Borrower hereunder or under any other
Financing Document.
This note is one of the Notes referred to in the Credit Agreement dated
as of April 20, 2001 among the Borrower, Vencor, Inc. (to be renamed Kindred
Healthcare, Inc.), the Lenders, the Swingline Bank and LC Issuing Banks party
thereto, Xxxxxx Guaranty Trust Company of New York, as Administrative Agent and
Collateral Agent, and General Electric Capital Corporation, as Documentation
Agent and Collateral Monitoring Agent (as amended from time to time, the "Credit
Agreement"). Terms defined in the Credit Agreement are used herein with the same
meanings. Reference is made to the Credit Agreement for provisions for the
prepayment hereof, the acceleration of the maturity hereof, and all other terms
and conditions governing this note.
VENCOR OPERATING, INC.
(to be renamed Kindred Healthcare
Operating, Inc.)
By:________________________________
Name:
Title:
Note (cont'd)
LOANS AND PAYMENTS OF PRINCIPAL
_______________________________________________________________________________
Amount of
Interest Type Amount of Principal Notation
Date of Loan Loan Repaid Made By
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
2
EXHIBIT X-0
XXXXXXXXX XXXX
Xxx Xxxx, Xxx Xxxx
April _, 2001
For value received, VENCOR OPERATING, INC. (to be renamed Kindred
Healthcare Operating, Inc.), a Delaware corporation (the "Borrower"), promises
to pay to the order of XXXXXX GUARANTY TRUST COMPANY OF NEW YORK (the "Swingline
Bank") the unpaid principal amount of each Swingline Loan made by the Swingline
Bank to the Borrower pursuant to the Credit Agreement referred to below on the
maturity date provided for in the Credit Agreement. The Borrower promises to pay
interest on the unpaid principal amount of each such Swingline Loan on the dates
and at the rate or rates provided for in the Credit Agreement. All such payments
of principal and interest shall be made in lawful money of the United States in
Federal or other immediately available funds at the office of the Administrative
Agent as set forth in the Credit Agreement.
All Swingline Loans made by the Swingline Bank, the respective date and
amount thereof and all payments of principal with respect thereto shall be
recorded by the Swingline Bank and, if the Swingline Bank so elects in
connection with any transfer or enforcement hereof, appropriate notations to
evidence the foregoing information with respect to each such Swingline Loan then
outstanding may be endorsed by the Swingline Bank on the schedule attached
hereto, or on a continuation of such schedule attached to and made a part
hereof; provided that neither the failure of the Swingline Bank to make any such
recordation or endorsement nor any error therein shall affect the obligations of
the Borrower hereunder or under any other Financing Document.
This note is the Swingline Note referred to in the Credit Agreement dated
as of April 20, 2001 among the Borrower, Vencor, Inc. (to be renamed Kindred
Healthcare, Inc.), the Lenders, the Swingline Bank and LC Issuing Banks party
thereto, Xxxxxx Guaranty Trust Company of New York, as Administrative Agent and
Collateral Agent, and General Electric Capital Corporation, as Documentation
Agent and Collateral Monitoring Agent (as amended from time to time, the "Credit
Agreement"). Terms defined in the Credit Agreement are used herein with the same
meanings. Reference is made to the Credit Agreement for provisions for the
prepayment hereof, the acceleration of the maturity hereof, and all other terms
and conditions governing this note.
VENCOR OPERATING, INC.
(to be renamed Kindred Healthcare
Operating, Inc.)
By: _______________________________
Name:
Title:
Swingline Note (cont'd)
LOANS AND PAYMENTS OF PRINCIPAL
--------------------------------------------------------------------------------
Amount of Amount of Notation
Date Loan Principal Repaid Made By
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
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2
EXHIBIT B
[EXECUTION COPY]
SENIOR SECURITY AGREEMENT
dated as of
April 20, 2001
among
VENCOR OPERATING, INC.
(to be renamed Kindred Healthcare Operating, Inc.)
THE GUARANTORS PARTY HERETO
and
XXXXXX GUARANTY TRUST COMPANY OF NEW YORK,
as Collateral Agent
TABLE OF CONTENTS
_____________
Page
----
Section 1. Definitions................................................. 2
Section 2. Representations and Warranties.............................. 13
Section 3. The Security Interests...................................... 15
Section 4. Delivery of Certain Collateral.............................. 17
Section 5. Further Assurances; Covenants............................... 18
Section 6. Concentration Accounts...................................... 22
Section 7. Collateral Accounts......................................... 23
Section 8. Record Ownership of Pledged Equity Securities............... 26
Section 9. Right to Vote Pledged Equity Securities..................... 26
Section 10. Right to Receive Distributions on Collateral................ 27
Section 11. General Authority........................................... 27
Section 12. Remedies upon Enforcement Notice............................ 28
Section 13. Fees and Expenses; Indemnification.......................... 31
Section 14. Limitation on Duty of Collateral Agent in Respect of
Collateral.................................................. 32
Section 15. Application of Proceeds..................................... 32
Section 16. Concerning the Collateral Agent............................. 35
Section 17. Appointment of Co-collateral Agents......................... 38
Section 18. Termination of Security Interests; Release of Collateral
Reinstatement............................................... 38
Section 19. Additional Subsidiary Guarantors............................ 40
Section 20. Notices..................................................... 40
Section 21. Withdrawal of Enforcement Notice............................ 43
Section 22. Additional Secured Obligations.............................. 43
Section 23. Waivers, Remedies Not Exclusive............................. 43
Section 24. Successors and Assigns...................................... 43
Section 25. Changes in Writing.......................................... 43
Section 26. NEW YORK LAW................................................ 43
Section 27. Severability................................................ 44
Section 28. Intercreditor Agreement..................................... 44
Section 29. Counterparts................................................ 44
Exhibit A -- Form of Senior Security Agreement Supplement
Exhibit B -- Form of Senior Copyright Security Agreement
Exhibit C -- Form of Senior Senior Patent Security Agreement
Exhibit D -- Form of Senior Trademark Security Agreement
i
Exhibit E -- Form of Senior Perfection Certificate
Exhibit F -- Form of Senior Leasehold Mortgage
Exhibit G -- Form of Senior Fee Mortgage
Exhibit H -- Form of Account Control Agreement
ii
SENIOR SECURITY AGREEMENT
AGREEMENT dated as of April 20, 2001 among VENCOR OPERATING, INC. (to
be renamed Kindred Healthcare Operating, Inc.), the GUARANTORS party hereto and
XXXXXX GUARANTY TRUST COMPANY OF NEW YORK, as Collateral Agent.
WHEREAS, the Borrower (i) is entering into the Credit Agreement (such
term and other capitalized terms used in these recitals without definition
having the meanings set forth in Section 1 below), pursuant to which the
Borrower intends to borrow funds and obtain letters of credit, all on the terms
and conditions set forth therein and (ii) will enter into interest rate hedging
arrangements to protect itself against fluctuations in interest rates;
WHEREAS, the Borrower is willing to secure its obligations under (i)
the Credit Agreement and the other Financing Documents and (ii) specified
interest rate hedging arrangements, by granting Liens on its assets to the
Collateral Agent as provided in this Agreement and the other Collateral
Documents;
WHEREAS, Vencor is guaranteeing the foregoing obligations of the
Borrower as provided in the Vencor Guaranty Agreement and is willing to secure
its guarantee thereof by granting Liens on its assets to the Collateral Agent as
provided in this Agreement and the other Collateral Documents;
WHEREAS, the Borrower is willing to cause each of its Restricted
Subsidiaries to guarantee the foregoing obligations of the Borrower as provided
in a Subsidiary Guaranty Agreement, with each Restricted Subsidiary to secure
its guarantee thereof by granting Liens on its assets to the Collateral Agent as
provided in this Agreement and the other Collateral Documents;
WHEREAS, the Lenders, the Swingline Bank and the LC Issuing Banks are
not willing to make loans or issue or participate in letters of credit under the
Credit Agreement and the counterparties to such specified interest rate hedging
arrangements are not willing to enter into them, unless (i) the foregoing
obligations of the Borrower are secured by Liens on its assets as provided in
the Collateral Documents, (ii) the foregoing obligations of the Borrower are
guaranteed by Vencor and each of the Borrower's Restricted Subsidiaries and
(iii) each such guarantee is secured by Liens on the assets of the relevant
Guarantor as provided in this Agreement and the other Collateral Documents; and
WHEREAS, upon any foreclosure or other enforcement of the Collateral
Documents, the net proceeds of the relevant Collateral are to be received by or
paid over to the Collateral Agent and applied as provided in Section 15 of this
Agreement;
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
Section 1. Definitions. Terms defined in the Credit Agreement and not
otherwise defined herein have, as used herein, the respective meanings provided
for therein. The following additional terms, as used herein, have the following
meanings:
"Account Control Agreement" means an agreement among the Borrower, a
Concentration Account Bank, the Collateral Agent and the Senior Secured
Collateral Agent pursuant to which the Concentration Accounts are maintained,
such agreement to be substantially in the form of Exhibit H hereto or in any
other form agreed to by the parties thereto.
"Accounts" means, with respect to any Lien Grantor, all "accounts" (as
defined in the UCC) now owned or hereafter acquired by such Lien Grantor, and
also means and includes all accounts receivable, contract rights, book debts,
notes, drafts and other obligations or indebtedness owing to such Lien Grantor
arising from the performance of services by it and/or the sale, lease or
exchange of goods or other property by it (including, without limitation, any
such obligation or indebtedness which might be characterized as an account,
contract right or general intangible under the Uniform Commercial Code in effect
in any applicable jurisdiction) and all of such Lien Grantor's rights in, to and
under all contracts or purchase orders for goods, services or other property,
and all of such Lien Grantor's rights to any goods, services or other property
represented by any of the foregoing and all monies due to or to become due to
such Lien Grantor under all contracts for the performance of services by it
and/or the sale, lease or exchange of goods or other property by it (whether or
not yet earned by performance on the part of such Lien Grantor), in each case
whether now existing or hereafter arising or acquired, including, without
limitation, the right to receive the proceeds of said contracts and purchase
orders and all collateral security and guarantees of any kind given by any
Person with respect to any of the foregoing; provided that the term "Accounts"
shall not include such Lien Grantor's right, title and interest in and to any
Retained Collection Rights.
"Cash Distributions" means dividends, interest and other payments and
distributions made in cash upon or with respect to the Collateral.
"Chattel Paper" means "chattel paper" (as defined in the UCC).
2
"Collateral" means all property, whether now owned or hereafter
acquired, in which a security interest or other Lien is granted or purported to
be granted to the Collateral Agent pursuant to the Collateral Documents. When
used with respect to a specific Lien Grantor, the term "Collateral" means all
such property in which such a security interest or other Lien is granted or
purported to be granted to the Collateral Agent by such Lien Grantor.
"Collateral Accounts" means the Reduction Event Account, the Collateral
Proceeds Accounts and the LC Collateral Account.
"Collateral Agent" means Xxxxxx Guaranty Trust Company of New York, in
its capacity as Collateral Agent for the holders of the Secured Obligations
under the Collateral Documents, and its successors in such capacity.
"Collateral Documents" means this Agreement, the Security Agreement
Supplements, the Mortgages, the Account Control Agreements, the Intellectual
Property Security Agreements and all other supplemental or additional security
agreements, mortgages or similar instruments delivered pursuant hereto or
thereto.
"Collateral Proceeds Account" has the meaning set forth in Section
7(d).
"Concentration Account Bank" has the meaning set forth in Section 6(a).
"Concentration Accounts" has the meaning set forth in Section 6(a).
"Contingent Secured Obligation" means, at any time, any Secured
Obligation (or portion thereof) that is contingent in nature at such time,
including (without limiting the generality of the foregoing):
(i) any obligation to reimburse a bank for drawings not yet
made under a letter of credit issued by such bank, or any Guarantee of
any such obligation;
(ii) any obligation to provide collateral to or for the
benefit of a bank to secure reimbursement obligations arising from
drawings not yet made under a letter of credit issued by such bank, or
any Guarantee of any such obligation;
(iii) any obligation to provide collateral to or for the
benefit of the relevant counterparty with respect to a Designated
Interest Rate Agreement to secure payments not yet due and payable
thereunder or any Guarantee of any such obligation; and
3
(iv) any other Secured Obligation which is contingent in
nature at the time of determination.
"Copyright License" means any agreement now or hereafter in existence
granting to any Lien Grantor, or pursuant to which any Lien Grantor has granted
to any other Person, any right to use, copy, reproduce, distribute, prepare
derivative works, display or publish any records or other materials on which a
Copyright is in existence or may come into existence, including, without
limitation, any agreement identified in Schedule 1 to a Copyright Security
Agreement.
"Copyrights" means all the following: (i) all copyrights under the laws
of the United States or any other country (whether or not the underlying works
of authorship have been published), all registrations and recordings thereof,
all copyrightable works of authorship (whether or not published), and all
applications for copyrights under the laws of the United States or any other
country, including, without limitation, registrations, recordings and
applications in the United States Copyright Office or in any similar office or
agency of the United States, any State thereof or any other country or any
political subdivision thereof, including, without limitation, those described in
Schedule 1 to any Copyright Security Agreement, (ii) all renewals thereof, (iii)
all claims for, and rights to xxx for, past or future infringements of any of
the foregoing, and (iv) all income, royalties, damages and payments now or
hereafter due or payable with respect to any of the foregoing, including,
without limitation, damages and payments for past or future infringements
thereof.
"Copyright Security Agreement" means a Senior Copyright Security
Agreement, substantially in the form of Exhibit B hereto, executed and delivered
by a Lien Grantor in favor of the Collateral Agent, for the benefit of the
Secured Parties, as amended from time to time.
"Credit Agreement" means the $120,000,000 Credit Agreement dated as of
April 20, 2001 among Vencor Operating, Inc. (to be renamed Kindred Healthcare
Operating, Inc.), Vencor, Inc. (to be renamed Kindred Healthcare, Inc.), the
Lenders, Swingline Bank and LC Issuing Banks party thereto, Xxxxxx Guaranty
Trust Company of New York, as Administrative Agent and Collateral Agent, and
General Electric Capital Corporation, as Documentation Agent and Collateral
Monitoring Agent, as amended from time to time.
"Documents" means, with respect to any Lien Grantor, all "documents"
(as defined in the UCC) or other receipts covering, evidencing or representing
goods, now owned or hereafter acquired by such Lien Grantor.
4
"Enforcement Notice" means a notice delivered to the Collateral Agent
by the Administrative Agent pursuant to Section 8.03 of the Credit Agreement
directing the Collateral Agent to exercise one or more specific rights or
remedies under the Collateral Documents.
"Equipment" means, with respect to any Lien Grantor, all "equipment"
(as defined in the UCC) now owned or hereafter acquired by it, wherever located.
"Equity Interest" means (i) in the case of a corporation, any shares of
its capital stock, (ii) in the case of a limited liability company, any
membership interest therein, (iii) in the case of a partnership, any partnership
interest (whether general or limited) therein, (iv) in the case of any other
business entity, any participation or other interest in the equity or profits
thereof or (v) any warrant, option or other right to acquire any Equity Interest
described in the foregoing clauses (i), (ii), (iii) and (iv).
"Existing Intellectual Property" means, with respect to any Original
Lien Grantor, all Intellectual Property owned by or licensed to such Lien
Grantor as of the Closing Date.
"Future Intellectual Property" means, with respect to any Lien Grantor
at any time after the Closing Date, any Intellectual Property owned by or
licensed to such Lien Grantor at such time, other than its Existing Intellectual
Property.
"General Intangibles" means, with respect to any Lien Grantor, all
"general intangibles" (as defined in the UCC) now owned or hereafter acquired by
such Lien Grantor, including, without limitation, (i) all obligations or
indebtedness owing to such Lien Grantor (other than Accounts) from whatever
source arising, (ii) all Intellectual Property, goodwill, trade names, service
marks, trade secrets, permits and licenses, (iii) all rights or claims in
respect of refunds for taxes paid and (iv) all rights in respect of any pension
plan or similar arrangement maintained for employees of any member of the ERISA
Group.
"Goods" means, with respect to any Lien Grantor, all "goods" (as
defined in the UCC) now owned or hereafter acquired by it, wherever located.
"Instruments" means, with respect to any Lien Grantor, all
"instruments", or "letters of credit" (each as defined in the UCC) or Chattel
Paper evidencing, representing, arising from or existing in respect of, relating
to, securing or otherwise supporting the payment of, any Account or other
obligation or indebtedness owing to such Lien Grantor, including (but not
limited to) promissory notes, drafts, bills of exchange and trade acceptances,
now owned or hereafter acquired by such Lien Grantor.
5
"Intellectual Property" means (i) Patents, (ii) Patent Licenses, (iii)
Trademarks, (iv) Trademark Licenses, (v) Copyrights and (vi) Copyright Licenses,
and all rights in or under any of the foregoing.
"Intellectual Property Filing" means (i) with respect to any Patent,
Patent License, Trademark or Trademark License, the filing of the applicable
Patent Security Agreement or Trademark Security Agreement with the United States
Patent and Trademark Office, together with an appropriately completed
recordation form, and (ii) with respect to any Copyright or Copyright License,
the filing of the applicable Copyright Security Agreement with the United States
Copyright Office, together with an appropriately completed recordation form, in
each case sufficient to record the Security Interest granted to the Collateral
Agent in such Intellectual Property.
"Intellectual Property Security Agreement" means a Copyright Security
Agreement, a Patent Security Agreement or a Trademark Security Agreement.
"Inventory" means, with respect to any Lien Grantor, all "inventory"
(as defined in the UCC), now owned or hereafter acquired by it, wherever
located.
"LC Collateral Account" has the meaning set forth in Section 7(e).
"Lien Grantor" means the Borrower, Vencor or any Subsidiary Guarantor
and "Lien Grantors" means all of the foregoing.
"Liquid Investments" has the meaning set forth in Section 7(g).
"Medicaid Receivable" means any Account with respect to which the
obligor is a state governmental authority (or agent thereof) obligated to pay,
pursuant to federal or state Medicaid program statutes or regulations, for
services rendered to eligible beneficiaries thereunder.
"Medicare Receivable" means any Account with respect to which the
obligor is a federal governmental authority (or agent thereof) obligated to pay,
pursuant to federal Medicare program statutes or regulations, for services
rendered to eligible beneficiaries thereunder.
"Non-Contingent Secured Obligation" means at any time any Secured
Obligation (or portion thereof) that is not a Contingent Secured Obligation at
such time.
"Opinion of Counsel" means a written opinion of legal counsel (who may
be counsel to a Lien Grantor or other counsel, in either case approved by the
6
Administrative Agent or the Required Lenders in a writing delivered to the
Collateral Agent) addressed and delivered to the Collateral Agent.
"Original Lien Grantor" means the Borrower, Vencor or any Subsidiary
Guarantor that grants a Lien on any of its assets hereunder on the Closing Date,
and "Original Lien Grantors" means all of the foregoing.
"Patent License" means any agreement now or hereafter in existence
granting any Lien Grantor, or pursuant to which any Lien Grantor has granted to
any other Person, any right with respect to any Patent or any invention now or
hereafter in existence, whether patentable or not, whether a patent or
application for patent is in existence on such invention or not, and whether a
patent or application for patent on such invention may come into existence or
not, including, without limitation, any agreement identified in Schedule 1 to a
Patent Security Agreement.
"Patents" means (i) all letters patent and design letters patent of the
United States or any other country and all applications (other than the
Provisional Application but only for so long as such Provisional Application
remains a provisional application) for letters patent and design letters patent
of the United States or any other country, including, without limitation,
applications in the United States Patent and Trademark Office or in any similar
office or agency of the United States, any State thereof or any other country or
any political subdivision thereof, (ii) all reissues, divisions, continuations,
continuations-in-part, revisions and extensions thereof, (iii) all claims for,
and rights to xxx for, past or future infringements of any of the foregoing and
(iv) all income, royalties, damages and payments now or hereafter due or payable
with respect to any of the foregoing, including, without limitation, damages and
payments for past or future infringements thereof.
"Patent Security Agreement" means a Senior Patent Security Agreement,
substantially in the form of Exhibit C hereto, executed and delivered by a Lien
Grantor in favor of the Collateral Agent, for the benefit of the Secured
Parties, as amended from time to time.
"Perfection Certificate" means, with respect to any Lien Grantor, a
certificate substantially in the form of Exhibit E hereto, completed and
supplemented with the schedules and attachments contemplated thereby to the
satisfaction of the Collateral Agent, and duly executed by a duly authorized
officer of such Lien Grantor, provided that in the case of Perfection
Certificates required to be delivered in connection with the Closing, such
requirements may be satisfied as to all Lien Grantors through the delivery on
their behalf by the Borrower of Perfection Certificates, duly executed by a
Financial Officer, that sets forth in a
7
form satisfactory to the Collateral Agent all of the information required to be
provided.
"Permitted Liens" means (i) the Security Interests and (ii) the other
Liens on the Collateral permitted to be created or assumed or to exist pursuant
to Section 7.02 of the Credit Agreement.
"Personal Property Collateral" means at any time, with respect to any
Lien Grantor, all its property included in the Collateral at such time, other
than its Real Property Collateral.
"Personal Property Security Interests" means the security interests in
Personal Property Collateral granted by the Lien Grantors under the Collateral
Documents.
"Pledged Equity Interests" means at any time all Equity Interests
included in the Collateral at such time.
"Pledged Equity Securities" means at any time all "certificated
securities" (as such term is defined in Article 8 of the UCC) that evidence or
represent Pledged Equity Interests at such time.
"Pledged Instruments" means at any time all Instruments included in the
Collateral at such time.
"Pledged LLC Interest" means at any time any membership interest or
similar interest in a limited liability company that is included in the Pledged
Equity Interests at such time.
"Pledged Partnership Interest" means at any time any partnership
interest (whether general or limited) that is included in the Pledged Equity
Interests at such time.
"Post-Petition Interest" means any interest which accrues after the
commencement of any case, proceeding or other action relating to the bankruptcy,
insolvency or reorganization of the Borrower, whether or not such interest is
allowed or allowable as a claim in any such proceeding.
"Proceeds" means, with respect to any Lien Grantor, all proceeds of,
and all other profits, products, rents or receipts, in whatever form, arising
from the collection, sale, lease, exchange, assignment, licensing or other
disposition of, or other realization upon, its Collateral, including without
limitation all claims of such Lien Grantor against third parties for loss of,
damage to or destruction of, or
8
for proceeds payable under, or unearned premiums with respect to, policies of
insurance in respect of, any of its Collateral, and any condemnation or
requisition payments with respect to any of its Collateral, in each case whether
now existing or hereafter arising.
"Provisional Application" means the provisional application for a
patent entitled "A method and system for tracking medical claims which are under
review or have been denied" filed with the United States Patent and Trademark
Office on September 9, 2000 (Registration Number 42,923; Docket Number
VE075/OVE12).
"Real Property Collateral" means at any time, with respect to any Lien
Grantor, all its real property (including leasehold interests in real property)
included in the Collateral at such time.
"Real Property Security Interests" means the security interests in Real
Property Collateral granted by the Lien Grantors under the Mortgages and the
other Collateral Documents.
"Reduction Event Account" has the meaning set forth in Section 7(a).
"Retained Collection Rights" means, with respect to any Medicaid
Receivable, Medicare Receivable, VA Receivable, TRICARE Receivable or CHAMPUS
Receivable of any Lien Grantor, the right of such Lien Grantor to collect and
receive from the obligor thereon payments in respect of such Account in the
absence of a court order requiring such obligor to submit payments thereon
directly to a Person other than such Lien Grantor.
"Second Priority Collateral Agent" means Xxxxxx Guaranty Trust Company
of New York, in its capacity as collateral agent under the Second Priority
Financing Documents, and its successors.
"Second Priority Collateral Documents" means the Second Priority
Security Agreement, the Second Priority Security Agreement Supplements, the
Second Priority Mortgages and all other supplemental or additional security
agreements (including all intellectual property security agreements), mortgages
or similar instruments delivered pursuant thereto or pursuant to the Second
Priority Credit Agreement.
"Second Priority Credit Agreement" means the Credit Agreement dated as
of the date hereof among the Borrower, Vencor, the lenders party thereto and
Xxxxxx Guaranty Trust Company of New York as collateral agent and administrative
agent, providing for the issuance by the Borrower of the Second
9
Priority Notes, and any renewal or extension thereof that is permitted by the
Credit Agreement.
"Second Priority Fee Mortgages" means fee mortgages relating to any
real properties owned in fee by the Borrower or any Guarantor in favor of the
Second Priority Collateral Agent.
"Second Priority Financing Documents" means the Second Priority Credit
Agreement (including the Schedules and Exhibits thereto), the Second Priority
Notes, the Second Priority Guaranty Agreements and the Second Priority
Collateral Documents.
"Second Priority Guaranty Agreements" means the Second Priority Vencor
Guaranty Agreement and the Second Priority Subsidiary Guaranty Agreements.
"Second Priority Leasehold Mortgages" means leasehold mortgages
relating to any real properties leased by the Borrower or any Guarantor in favor
of the Second Priority Collateral Agent.
"Second Priority Mortgages" means the Second Priority Leasehold
Mortgages and the Second Priority Fee Mortgages, collectively.
"Second Priority Notes" means the $300,000,000 Senior Secured Notes due
2008 of the Borrower issued pursuant to the Second Priority Credit Agreement.
"Second Priority Security Agreement" means the Second Priority Security
Agreement dated as of the date hereof among the Borrower, the Guarantors party
thereto and the Second Priority Collateral Agent, as amended from time to time.
"Second Priority Security Agreement Supplement" means a Second Priority
Security Agreement Supplement whereby the Borrower or a Guarantor grants (or
confirms its grant of) a security interest in additional collateral to the
Second Priority Collateral Agent and, if the grantor of such security interest
is a Subsidiary Guarantor that is not already a party to the Second Priority
Security Agreement, such Subsidiary Guarantor becomes a party thereto.
"Second Priority Subsidiary Guaranty Agreements" means the Second
Priority Subsidiary Guaranty Agreements setting forth the guarantees by the
Subsidiary Guarantors party thereto that the Borrower will perform its
obligations under the Second Priority Financing Documents.
10
"Second Priority Vencor Guaranty Agreement" means the Second Priority
Vencor Guaranty Agreement dated as of the date hereof setting forth the guaranty
by Vencor that the Borrower will perform its obligations under the Second
Priority Financing Documents.
"Secured Obligations" means:
(a) with respect to the Borrower, all Obligations, including (i)
principal of all Loans, Swingline Loans and LC Reimbursement Obligations
outstanding from time to time under the Credit Agreement, all interest
(including Post-Petition Interest) on such Loans, Swingline Loans and LC
Reimbursement Obligations and all other amounts now or hereafter payable by the
Borrower pursuant to any Financing Document and (ii) all obligations of the
Borrower under Designated Interest Rate Agreements;
(b) with respect to Vencor, all obligations of Vencor under the Vencor
Guaranty Agreement and all amounts now or hereafter payable by Vencor under any
other Financing Document; and
(c) with respect to any Subsidiary Guarantor, (i) all obligations of
such Subsidiary Guarantor under its Subsidiary Guaranty Agreement and (ii) all
other obligations of such Subsidiary Guarantor under or in respect of the
Financing Documents.
"Secured Parties" means the holders from time to time of the Secured
Obligations.
"Secured Parties Requesting Notice" means, at any time, (a) General
Electric Capital Corporation (for so long as it is a Lender) and (b) each
Secured Party which has, at least five Business Days prior thereto, delivered to
the Collateral Agent a written notice (i) stating that it holds one or more
Secured Obligations and wishes to receive copies of the notices referred to in
Section 16(i) and (ii) setting forth its address or facsimile number to which
copies of such notices should be sent.
"Security Agreement Supplement" means a Senior Security Agreement
Supplement, substantially in the form of Exhibit A hereto, executed and
delivered to the Collateral Agent pursuant to Section 19 for the purpose of
adding a new Subsidiary Guarantor as a party hereto and/or adding additional
property to the Collateral.
"Security Interests" means the Personal Property Security Interests and
the Real Property Security Interests.
11
"Subsidiary Guarantors" means each Person listed on the signature pages
hereof under the caption "Subsidiary Guarantors" and each Person that shall, at
any time after the date hereof, become a party hereto and a "Subsidiary
Guarantor" as provided in Section 19.
"Trademark License" means any agreement now or hereafter in existence
granting to any Lien Grantor, or pursuant to which any Lien Grantor has granted
to any other Person, any right to use any Trademark, including, without
limitation, any agreement identified in Schedule 1 to any Trademark Security
Agreement.
"Trademarks" means: (i) all trademarks, trade names, corporate names,
company names, business names, fictitious business names, trade styles, service
marks, logos, brand names, trade dress, prints and labels on which any of the
foregoing have appeared or appear, package and other designs, and any other
source or business identifiers, and general intangibles of like nature, and the
rights in any of the foregoing which arise under applicable law, (ii) the
goodwill of the business symbolized thereby or associated with each of them,
(iii) all registrations and applications in connection therewith, including,
without limitation, registrations and applications in the United States Patent
and Trademark Office or in any similar office or agency of the United States,
any State thereof or any other country or any political subdivision thereof,
including, without limitation, those described in Schedule 1 to any Lien
Grantor's Trademark Security Agreement, (iv) all renewals thereof, (v) all
claims for, and rights to xxx for, past or future infringements of any of the
foregoing and (vi) all income, royalties, damages and payments now or hereafter
due or payable with respect to any of the foregoing, including, without
limitation, damages and payments for past or future infringements thereof.
"Trademark Security Agreement" means a Senior Trademark Security
Agreement, substantially in the form of Exhibit D hereto, executed and delivered
by a Lien Grantor in favor of the Collateral Agent, for the benefit of the
Secured Parties, as amended from time to time.
"UCC" means the Uniform Commercial Code as in effect from time to time
in the State of New York; provided that if, by reason of mandatory provisions of
law, the perfection or the effect of perfection or non-perfection of any
Security Interest in any Collateral is governed by the Uniform Commercial Code
as in effect in a jurisdiction other than New York, "UCC" means the Uniform
Commercial Code as in effect in such other jurisdiction for purposes of the
provisions hereof relating to such perfection or effect of perfection or
non-perfection.
"VA Receivable" means any Account payable pursuant to CHAMPVA.
12
Section 2. Representations and Warranties. Each Original Lien Grantor
represents and warrants that:
(a) As of the Closing Date, such Original Lien Grantor owns the
Equity Interests listed as being owned by it in Schedule 1 to the Credit
Agreement, free and clear of any Lien other than Permitted Liens. All shares of
capital stock identified in such Schedule as being beneficially owned by such
Original Lien Grantor have been duly authorized and validly issued, are fully
paid and non-assessable, and are subject to no option to purchase or similar
right of any Person. Such Original Lien Grantor is not and will not become a
party to or become otherwise bound by any agreement, other than the Financing
Documents and the Second Priority Financing Documents, which restricts in any
manner the rights of any present or future holder of any Pledged Equity Interest
with respect thereto.
(b) Such Original Lien Grantor has good and marketable title to all
of its Collateral (except Intellectual Property), free and clear of any Liens
other than Permitted Liens. To the best of its knowledge, such Original Lien
Grantor has good title or other rights in and to its Existing Intellectual
Property, free and clear of any Liens other than Permitted Liens. Such Original
Lien Grantor has taken all actions necessary under the UCC to perfect its
interest in any Accounts purchased or otherwise acquired by it, as against its
assignors and creditors of its assignors.
(c) Other than granting Permitted Liens, such Original Lien Grantor
has not performed any acts that might prevent the Collateral Agent from
enforcing any of the provisions of the Collateral Documents or that would limit
the Collateral Agent in any such enforcement. No financing statement, security
agreement, mortgage or similar or equivalent document or instrument covering all
or any part of the Collateral owned by it is on file or of record in any
jurisdiction in which such filing or recording would be effective to perfect or
record a Lien on such Collateral, except financing statements, mortgages or
other similar or equivalent documents with respect to (i) Liens under the DIP
Facility and the Pre-Petition Senior Credit Agreement (so long as arrangements
reasonably satisfactory to the Collateral Agent have been made for the
termination of such financing statements, mortgages or other similar or
equivalent documents on or promptly after the Closing Date) and (ii) Permitted
Liens. After the Closing, no Collateral owned by it will be in the possession of
any Person (other than such Original Lien Grantor) asserting any claim thereto
or security interest therein (except Permitted Liens), except that (A) the
Collateral Agent or its designee may have possession of Collateral as
contemplated hereby and (B) cash and Temporary Cash Investments may be held in
the Concentration Accounts.
13
(d) Such Original Lien Grantor has delivered a Perfection Certificate
to the Collateral Agent. The information set forth therein is correct and
complete as of the Closing Date.
(e) The Personal Property Security Interests constitute valid
security interests in all Personal Property Collateral owned by such Original
Lien Grantor thereby securing its Secured Obligations, and constitute security
interests therein prior to all other Liens other than Liens permitted under the
Credit Agreement to be senior in priority to the Liens of the Lenders.
(f) Upon the delivery of the Pledged Instruments (if any) and the
Pledged Equity Securities owned by such Original Lien Grantor to the Collateral
Agent in accordance with Section 4, the Collateral Agent will have valid and
perfected security interests in such Collateral subject to no prior Lien other
than Permitted Liens.
(g) When UCC financing statements shall have been filed in the
offices specified in such Original Lien Grantor's Perfection Certificate, the
Personal Property Security Interests will constitute perfected security
interests in the Personal Property Collateral owned by such Original Lien
Grantor to the extent that a security interest therein may be perfected by
filing pursuant to the UCC, prior (except in the case of Intellectual Property)
to all Liens and rights of others therein except Permitted Liens. When, in
addition to the filing of such UCC financing statements, the applicable
Intellectual Property Filings have been made with respect to such Lien Grantor's
Intellectual Properties (including any future filings required pursuant to
Sections 5(c) and 5(d)), the Personal Property Security Interests will
constitute perfected security interests in all right, title and interest of such
Original Lien Grantor in its Intellectual Property to the extent that security
interests therein may be perfected by such filings and, to the best of such
Original Lien Grantor's knowledge, such security interests will be prior to all
other Liens and rights of others therein except Permitted Liens. Except for (i)
the filing of such UCC financing statements, (ii) such Intellectual Property
Filings, (iii) the due recordation of memoranda of lease with respect to the
Master Lease Agreements and any assignment thereof to the Borrower and (iv) the
due recordation of the Fee Mortgages and the Leasehold Mortgages, no
registration, recordation or filing with any governmental body, agency or
official is required in connection with the execution or delivery of the
Collateral Documents or is necessary for the validity or enforceability thereof
or for the perfection or due recordation of the Security Interests or (except
with respect to the capital stock of any Insurance Subsidiary) for the
enforcement of the Security Interests.
(h) Such Original Lien Grantor's Collateral is insured in accordance
with the requirements of the Credit Agreement.
14
Section 3. The Security Interests.
(a) In order to secure the full and punctual payment of its Secured
Obligations in accordance with the terms thereof, each Lien Grantor hereby
grants to the Collateral Agent for the benefit of the Secured Parties a
continuing security interest in and to all of the following property of such
Lien Grantor, whether now owned or existing or hereafter acquired or arising and
regardless of where located:
(i) all Accounts;
(ii) all Documents;
(iii) all Equipment;
(iv) all General Intangibles;
(v) all Goods;
(vi) all Instruments;
(vii) all Inventory;
(viii) all Chattel Paper;
(ix) all Equity Interests in other Persons now or hereafter
beneficially owned by such Lien Grantor, all rights and privileges of
such Lien Grantor with respect to such Equity Interests, and all
dividends, distributions and other payments with respect thereto;
(x) all books and records (including, without limitation,
customer lists, credit files, computer programs, printouts and other
computer materials and records) of such Lien Grantor pertaining to any
of its Collateral;
(xi) such Lien Grantor's ownership interest in the Collateral
Accounts, all cash deposited therein from time to time, all Liquid
Investments made with amounts on deposit therein and all of such Lien
Grantor's other monies and property of any kind in the possession or
under the control of the Collateral Agent; and
(xii) all Proceeds of the collateral described in the
foregoing clauses (i) through (xi);
15
provided that the following property is excluded from the foregoing security
interests: (i) motor vehicles, (ii) deposit accounts (other than the Collateral
Accounts and the Concentration Accounts), (iii) subject to Section 5.14(c) of
the Credit Agreement, Equity Interests in Cornerstone, (iv) Instruments retained
for collection pursuant to Section 4(d), (v) promissory notes outstanding on the
Closing Date and evidencing loans made by either Vencor or the Borrower to
current and former officers of Vencor not exceeding $16,000,000 in aggregate
principal amount and (vi) any Equity Interests, general intangibles or other
rights arising under or subject to any contracts, instruments, licenses or other
documents if (but only to the extent that) the grant of a security interest
therein would constitute a material violation of a valid and enforceable
restriction in favor of a third party, unless and until any required consents
shall have been obtained. Each Lien Grantor shall use all reasonable efforts to
obtain any such required consent that is reasonably obtainable; provided that no
Lien Grantor shall be obligated to obtain any such consent with respect to any
Retained Collection Rights or Third Party Lease.
(b) The Security Interests are granted as security only and shall not
subject the Collateral Agent or any other Secured Party to, or transfer or in
any way affect or modify, any obligation or liability of any Lien Grantor with
respect to any of the Collateral or any transaction in connection therewith.
(c) If the superintendent of insurance or other similar official
having jurisdiction over any Insurance Subsidiary determines that any pledge of
the shares of capital stock of such Insurance Subsidiary hereunder constitutes
the acquisition of or a change of control with respect to such Insurance
Subsidiary as to which the prior approval of such superintendent or similar
official was required, then, immediately upon the relevant Lien Grantor's (1)
written memorialization of oral notice or (2) receipt of written notice from
such official of such determination and without any action on the part of the
Collateral Agent or any other Person, such pledge shall be rendered void ab
initio and of no effect. Upon any such occurrence, (i) the Collateral Agent
shall, at such Lien Grantor's written request and expense, return the
certificates representing such capital stock to such Lien Grantor and execute
and deliver such documents as such Lien Grantor shall reasonably request to
evidence such Lien Grantor's retention of all rights in such capital stock and
(ii) such Lien Grantor shall promptly submit a request to the superintendent of
insurance or other appropriate official for approval of the pledge of such
shares to the Collateral Agent hereunder and, upon receipt of such approval,
shall forthwith pledge and deposit with the Collateral Agent certificates
representing all of the outstanding shares of capital stock of such Insurance
Subsidiary to be held as Pledged Equity Securities subject to all relevant
provisions of this Agreement.
16
(d) The Borrower shall not, and shall not permit any other Lien
Grantor to, create, assume or suffer to exist any Lien on the Provisional
Application or any interest relating thereto, other than any Lien in favor of
the Collateral Agent and the Second Priority Collateral Agent.
Section 4. Delivery of Certain Collateral. (a) On the Closing Date,
each Original Lien Grantor is delivering to the Collateral Agent as Collateral
hereunder all stock certificates or other certificates representing Equity
Interests in other Persons then owned by it, provided that such delivery will be
deemed to be made to the extent any such certificate is already held by Xxxxxx
in its capacity as collateral agent under the Pre-Petition Senior Credit
Agreement and DIP Facility.
(b) On the date it signs and delivers its Security Agreement
Supplement, each Lien Grantor (other than an Original Lien Grantor) will deliver
to the Collateral Agent as Collateral hereunder all stock certificates or other
certificates representing Equity Interests in other Persons then owned by it.
(c) After the Closing Date (in the case of an Original Lien Grantor)
or the date of its Security Agreement Supplement (in the case of any other Lien
Grantor), if any Lien Grantor receives (i) any stock certificate or other
certificate representing Equity Interests in another Person then owned by it or
(ii) any Instrument, in each case in which a security interest is granted
pursuant to Section 3 hereof or pursuant to the Security Agreement Supplement
signed by it, such Lien Grantor will immediately deliver such certificate or
Instrument to the Collateral Agent to be held by it as Collateral hereunder.
(d) Notwithstanding the foregoing, so long as no Event of Default
shall have occurred and be continuing, each Lien Grantor may retain for
collection in the ordinary course any Instruments received by it in the ordinary
course of business, and the Collateral Agent shall, promptly upon request by
such Lien Grantor, make appropriate arrangements for making any other Instrument
pledged by such Lien Grantor hereunder available to it for purposes of
presentation, collection or renewal (any such arrangement to be effected, to the
extent deemed appropriate by the Collateral Agent, against trust receipt or like
document).
(e) All Pledged Equity Securities delivered to the Collateral Agent
hereunder will be delivered in suitable form for transfer by delivery, or
accompanied by duly executed instruments of transfer or assignment in blank, all
in form and substance satisfactory to the Collateral Agent. All Pledged
Instruments delivered to the Collateral Agent hereunder will be endorsed to the
order of the Collateral Agent, or accompanied by duly executed instruments of
assignment, all in form and substance satisfactory to the Collateral Agent.
17
Section 5. Further Assurances; Covenants. Each Lien Grantor covenants
as follows:
(a) It will not change its name, identity or corporate structure in
any manner unless permitted by Section 7.03 of the Credit Agreement and unless
such Lien Grantor shall have given the Collateral Agent prior notice thereof and
either (i) delivered an updated Perfection Certificate to the Collateral Agent
or (ii) certified to the Collateral Agent that the Perfection Certificate most
recently delivered pursuant to this Agreement is correct and complete as of the
date of such notice; provided that the Borrower may change its name to "Kindred
Healthcare Operating, Inc." and Vencor may change its name to "Kindred
Healthcare, Inc." on the Closing Date.
(b) It will not change the location of (i) its chief executive office
or chief place of business or (ii) the locations where it keeps or holds any
Collateral or any records relating thereto from the applicable locations
described in its Perfection Certificate (after the delivery of such Perfection
Certificate), unless such Lien Grantor shall have given the Collateral Agent
prior notice thereof. It will not in any event change the location of any
Collateral owned by it if such change would cause the Security Interests in such
Collateral to lapse or, if perfected prior to such change of location, cease to
be perfected.
(c) (i) It will, from time to time, at its expense, execute, deliver,
file and record any statement, assignment, instrument, document, agreement or
other paper and take any other action (including, without limitation, any
Intellectual Property Filings and any filings of financing or continuation
statements under the UCC) that from time to time may be necessary or desirable,
or that the Collateral Agent may reasonably request, in order to create,
preserve, perfect, confirm or validate the Security Interests in such Lien
Grantor's Collateral or to enable the Collateral Agent and the other Secured
Parties to obtain the full benefits of the Collateral Documents, or to enable
the Collateral Agent to exercise and enforce any of its rights, powers and
remedies thereunder with respect to any of such Lien Grantor's Collateral. To
the extent permitted by applicable law, such Lien Grantor authorizes the
Collateral Agent to execute and file such financing statements or continuation
statements without such Lien Grantor's signature appearing thereon. Such Lien
Grantor agrees that a carbon, photographic, photostatic or other reproduction of
this Agreement or of a financing statement is sufficient as a financing
statement. Such Lien Grantor shall pay the costs of, or incidental to, any
recording or filing of any such financing or continuation statements in which it
is named as the debtor. Such Lien Grantor hereby constitutes the Collateral
Agent its attorney-in-fact to execute and file all Intellectual Property Filings
required or so requested for the foregoing purposes, all acts of such attorney
being hereby ratified and confirmed; and such power, being coupled with an
interest,
18
shall be irrevocable until such Lien Grantor's Collateral is released pursuant
to Section 18.
(ii) Without limiting clause (i), it will enter into any
amendments to this Agreement and to any other Financing Document and
take any other action, at its expense, that the Collateral Agent may
reasonably request or as may be necessary or desirable in connection
with the proposed revisions to Article 9 of the UCC, in order to
create, preserve, perfect, confirm or validate the Security Interests
in such Lien Grantor's Collateral or to enable the Collateral Agent and
the other Secured Parties to obtain the full benefits of the Collateral
Documents, or to enable the Collateral Agent to exercise and enforce
any of its rights, powers and remedies thereunder with respect to any
of such Lien Grantor's Collateral.
(d) Within 30 days after each March 31 and September 30 (commencing
with the first such date to occur after the Closing Date), it will (i) sign and
deliver to the Collateral Agent any Intellectual Property Security Agreement
necessary to grant Security Interests in any Intellectual Properties owned by it
on such March 31 or September 30 that are not covered by the Security Interests
granted in any previous Intellectual Property Security Agreements so signed and
delivered by it and (ii) make all Intellectual Property Filings reasonably
necessary to record the Security Interests in such Intellectual Properties.
(e) At least 30 days before it takes any action contemplated by
Section 5(a) or 5(b), such Lien Grantor will, at its expense, cause to be
delivered to the Collateral Agent an officer's certificate, in form and
substance satisfactory to the Collateral Agent, to the effect that all financing
statements and amendments or supplements thereto, continuation statements and
other documents required to be recorded or filed in order to perfect and protect
the Security Interests against all creditors of and purchasers from such Lien
Grantor (except any continuation statements specified in such officer's
certificate that are to be filed more than six months after the date thereof)
have been filed in each filing office necessary for such purpose and that all
filing fees and taxes, if any, payable in connection with such filings have been
paid in full; provided that if the only action contemplated is a change in the
name of a Lien Grantor to the name set forth below the name of such Lien Grantor
on the Perfection Certificate delivered in connection with the Closing, then
such Lien Grantor will at its expense (i) cause to be delivered to the
Collateral Agent an officer's certificate, in form and substance satisfactory to
the Collateral Agent, specifying the date on which such name change is to take
effect (the "Effective Date") (such certificate to be delivered to the
Collateral Agent at least three days prior to the Effective Date) and (ii)
deliver to the Collateral Agent no later than June 20, 2001, all financing
statements and amendments or supplements thereto, continuation statements and
other documents required to be recorded or filed in order to perfect and protect
the Security Interests against all
19
creditors of and purchasers from such Lien Grantor and evidence satisfactory to
the Collateral Agent that such financing statements and amendments or
supplements thereto, continuation statements and other documents will be filed
in each filing office necessary for such purpose by June 30, 2001 and that all
filing fees and taxes, if any, payable in connection with such filings will be
paid in full by such date.
(f) If any of its Collateral is at any time in the possession or
control of any warehouseman, bailee or agent, such Lien Grantor will notify such
warehouseman, bailee or agent of the Security Interests and instruct it to hold
all such Collateral for the Collateral Agent's account subject to the Collateral
Agent's instructions.
(g) It shall keep full and accurate books and records relating to its
Collateral, and stamp or otherwise xxxx such books and records in such manner as
the Collateral Agent may reasonably request in order to reflect the Security
Interests.
(h) It shall use its best efforts to cause to be collected from its
account debtors, as and when due, any and all amounts owing under or on account
of each of its Accounts (including, without limitation, Accounts which are
delinquent, such Accounts to be collected in accordance with lawful collection
procedures) and shall apply forthwith upon receipt thereof all such amounts as
are so collected to the outstanding balance of such Accounts. Subject to the
rights of the Collateral Agent and the other Secured Parties hereunder if an
Event of Default shall have occurred and be continuing, such Lien Grantor may
allow in the ordinary course of business as adjustments to amounts owing under
its Accounts (i) an extension or renewal of the time or times of payment, or
settlement for less than the total unpaid balance, which such Lien Grantor finds
appropriate in accordance with sound business judgment and (ii) refunds or
credits, all in accordance with such Lien Grantor's ordinary course of business
consistent with its historical collection practices. The costs and expenses
(including, without limitation, attorney's fees) of collection, whether incurred
by such Lien Grantor or the Collateral Agent, shall be borne by such Lien
Grantor.
(i) If an Enforcement Notice is in effect, such Lien Grantor will,
consistent with the terms of the Credit Agreement, if requested to do so by the
Collateral Agent, promptly notify (and such Lien Grantor hereby authorizes the
Collateral Agent so to notify) each account debtor in respect of any of its
Accounts or Instruments that such Collateral has been assigned to the Collateral
Agent hereunder, and that any payments due or to become due in respect of such
Collateral are to be made directly to the Collateral Agent or its designee.
20
(j) Such Lien Grantor will not sell, lease, exchange, assign or
otherwise dispose of, or grant any option with respect to, any of its
Collateral; provided that, unless an Enforcement Notice is in effect, (i) such
Lien Grantor may sell, lease or exchange its Inventory and obsolete, unused or
unnecessary Equipment, in each case in the ordinary course of business and (ii)
such Lien Grantor may sell any of its Collateral if (x) the sale thereof does
not violate any covenant in the Credit Agreement and (y) in the case of an Asset
Sale (other than the Kingfish Transaction), the Net Cash Proceeds thereof are
applied as provided in Section 2.11(a) of the Credit Agreement. Concurrently
with any sale or exchange (other than a sale or exchange to another Lien
Grantor) permitted by the foregoing proviso, the Security Interests in the
assets sold or exchanged (but not in any Proceeds arising from such sale or
exchange) shall cease immediately without any further action on the part of the
Collateral Agent or any other Secured Party.
(k) Such Lien Grantor will, promptly upon request, provide to the
Collateral Agent all information and evidence it may reasonably request
concerning its Collateral to enable the Collateral Agent to enforce the
provisions of the Collateral Documents.
(l) From time to time upon request by the Collateral Agent, such Lien
Grantor shall, at its expense, cause to be delivered to the Secured Parties an
Opinion of Counsel satisfactory to the Collateral Agent as to such matters
relating to the transactions contemplated hereby as the Required Lenders may
reasonably request.
(m) Such Lien Grantor shall notify the Collateral Agent promptly if
it knows that any application or registration relating to any material
Intellectual Property owned or licensed by it may become abandoned or dedicated,
or of any adverse determination or development (including, without limitation,
the institution of, or any such determination or development in, any proceeding
in the United States Copyright Office, the United States Patent and Trademark
Office or any court) regarding such Lien Grantor's ownership of such material
Intellectual Property, its right to register or patent the same, or its right to
keep and maintain the same. If any of such Lien Grantor's rights to any material
Intellectual Property are infringed, misappropriated or diluted by a third
party, such Lien Grantor shall notify the Collateral Agent within 30 days after
it learns thereof and shall, unless such Lien Grantor shall reasonably determine
that any such action would be of negligible value, economic or otherwise,
promptly xxx for infringement, misappropriation or dilution and to recover any
and all damages for such infringement, misappropriation or dilution, and take
such other actions as such Lien Grantor shall reasonably deem appropriate under
the circumstances to protect such Intellectual Property.
21
Section 6. Concentration Accounts. (a) The Borrower shall establish (or
transfer into the name of the Collateral Agent) one or more accounts
(collectively, the "Concentration Accounts") which shall be maintained in the
name of and under the exclusive control of the Collateral Agent and into which
collected cash owned by the Borrower and the other Lien Grantors shall be
deposited from time to time. Each Concentration Account shall be maintained with
a bank (a "Concentration Account Bank") that (i) is reasonably acceptable to the
Collateral Agent and (ii) if not a Lender, enters into an Account Control
Agreement. The Collateral Agent shall instruct each Concentration Account Bank
to transfer, from time to time, amounts on deposit in each Concentration Account
maintained with it to such other account or accounts as the Borrower may
request, unless and until the Collateral Agent rescinds such instructions. The
Collateral Agent shall not rescind such instructions unless requested to do so
by the Required Lenders at a time when an Event of Default shall have occurred
and be continuing.
(b) Amounts on deposit in the Concentration Accounts may be invested
and re-invested from time to time in such Temporary Cash Investments as Vencor
or the Borrower shall determine from time to time; provided that, in order to
provide the Collateral Agent, for the benefit of the Secured Parties, with a
perfected security interest therein, (x) the books and records of the relevant
Concentration Account Bank shall reflect the fact that such Temporary Cash
Investments are held for the account of the Collateral Agent and (y) each such
Temporary Cash Investment either:
(i) is issued in the name of the relevant Concentration
Account Bank or evidenced by a negotiable certificate or instrument
which (together with any appropriate instrument of transfer) is
delivered to, and held by, such Concentration Account Bank or an agent
thereof (which shall not be any Lien Grantor or any of its Affiliates)
in a State where possession thereof perfects the Security Interest
therein; or
(ii) if not so issued or evidenced, is subject to pledge
under applicable law and regulations and as to which (in the opinion
of counsel to the Collateral Agent) appropriate measures shall have
been taken to perfect the relevant Security Interest.
All right, title and interest in and to the cash amounts on deposit from time to
time in the Concentration Accounts together with any Temporary Cash Investments
from time to time made pursuant to this subsection (b) shall vest in the
Collateral Agent, shall constitute part of the relevant Lien Grantor's
Collateral hereunder and shall not constitute payment of the Secured Obligations
unless and until applied thereto as provided in Section 15. If an Enforcement
Notice is in effect, the Collateral Agent may (or if instructed to do so
pursuant to the Enforcement
22
Notice shall) (i) instruct any Concentration Account Bank to retain, in any
Concentration Account maintained by it, all cash and Temporary Cash Investments
then held by it in such Concentration Account, (ii) instruct such Concentration
Account Bank to liquidate any or all Temporary Cash Investments held by it in
such Concentration Account and/or (iii) withdraw any amounts held in any
Concentration Account and apply such amounts in the manner specified in Section
15.
Section 7. Collateral Accounts. (a) Promptly after the Collateral Agent
determines that any Net Cash Proceeds of any Asset Sale (other than in
connection with the Kingfish Transaction) of the Borrower or a Restricted
Subsidiary or that any Casualty Proceeds with respect to property of the
Borrower or a Restricted Subsidiary are to be deposited pursuant to Section
2.11(a) of the Credit Agreement, the Collateral Agent shall establish an account
(such Lien Grantor's "Reduction Event Account") with the Administrative Agent,
in the name and under the exclusive control of the Collateral Agent, into which
all Net Cash Proceeds with respect to Asset Sales (other than in connection with
the Kingfish Transaction) of such Lien Grantor and all Casualty Proceeds with
respect to property of such Lien Grantor shall be deposited from time to time.
(b) So long as no Enforcement Notice is in effect, Net Cash Proceeds
or Casualty Proceeds, as the case may be, to be released from a Reduction Event
Account pursuant to either clause (A) or (C) of Section 2.11(a) of the Credit
Agreement shall be released by the Collateral Agent to the relevant Lien Grantor
at such times and in such amounts as such Lien Grantor shall request in
accordance with the provisions of clause (A) or (C), as the case may be, of
Section 2.11(a) of the Credit Agreement. Any such request shall be accompanied
by a certificate of a Financial Officer describing in reasonable detail the
purpose for which such funds have been or will be expended and the date (which
shall not be later than 30 days after the date of such certificate) by which
such Lien Grantor is obligated or otherwise committed to make such payment,
provided that no such certificate shall be required if the aggregate Casualty
Proceeds requested for the restoration, repair, replacement or rebuilding of the
relevant assets is less than $100,000 with respect to any Casualty Event. If
immediately available cash on deposit in any Lien Grantor's Reduction Event
Account is not sufficient to make any such distribution to it, the Collateral
Agent shall cause to be liquidated, as promptly as practicable, such Liquid
Investments in such Reduction Event Account as shall be required to obtain
sufficient cash to make such distribution and, notwithstanding any other
provision of this Section 7, such distribution shall not be made until such
liquidation has taken place.
(c) So long as no Enforcement Notice is in effect, the Collateral
Agent shall distribute to (i) the Administrative Agent, at its request from time
to time, the amounts on deposit in the Reduction Event Account which are
required to be
23
applied to prepay Loans, (ii) the Borrower, at its request, an amount on deposit
in the Reduction Event Account equal to the amount by which the Borrower,
concurrently with such distribution, permanently reduces Commitments, (iii) the
Senior Secured Collateral Agent, the amounts on deposit in the Reduction Event
Account which are required to be applied to prepay loans under the Senior
Secured Credit Agreement and (iv) the Borrower, at its request, the amounts
remaining in deposit in the Reduction Event Account, in each case, in accordance
with clause (B) of Section 2.11(a) of the Credit Agreement.
(d) Promptly after the Collateral Agent determines that any cash
proceeds of any Lien Grantor's Collateral are to be realized upon any exercise
of remedies pursuant to the Collateral Documents, the Collateral Agent shall
establish an account with respect to such Lien Grantor (such Lien Grantor's
"Collateral Proceeds Account") with the Administrative Agent, in the name and
under the exclusive control of the Collateral Agent, into which all such cash
proceeds of such Lien Grantor's Collateral shall be deposited from time to time
(unless required to be deposited in another Collateral Account). This subsection
(d) shall not apply to any cash proceeds that are deposited in a Concentration
Account and are not required to be deposited in any Collateral Account.
(e) Promptly after the Collateral Agent determines that any cash
collateral is to be deposited pursuant to Section 2.11(e) of the Credit
Agreement or to secure LC Reimbursement Obligations pursuant to Section 8.04 of
the Credit Agreement, the Collateral Agent shall establish a cash collateral
account (the "LC Collateral Account") with the Administrative Agent, in the name
and under the exclusive control of the Collateral Agent, into which all cash
collateral deposited pursuant to said Section 2.11(e) or Section 8.04 shall be
deposited. If and when any LC Issuing Bank pays a draft drawn under any
outstanding Letter of Credit on which any deposit in the LC Collateral Account
was based, the amount so paid by it (but not more than the amount in the LC
Collateral Account at the time) shall, promptly after such LC Issuing Bank
notifies the Collateral Agent of such payment, be withdrawn by the Collateral
Agent from the LC Collateral Account and paid to the relevant Issuing Bank or
the Lenders, as appropriate. If at any time the amount in the LC Collateral
Account exceeds the aggregate amount then required to pay all unreimbursed
drawings under, and to cover all possible subsequent drawings under, all
outstanding Letters of Credit on which any deposits in the LC Collateral Account
were based, the excess amount shall, so long as no Enforcement Notice is in
effect, be withdrawn by the Collateral Agent and paid to the Borrower. If
immediately available cash on deposit in the LC Collateral Account is not
sufficient to make any distribution referred to in this subsection (e), the
Collateral Agent shall cause to be liquidated, as promptly as practicable, such
Liquid Investments in the LC Collateral Account as shall be required to obtain
sufficient cash to make such distribution and, notwithstanding
24
any other provision of this Section 7, such distribution shall not be made until
such liquidation has taken place.
(f) Amounts on deposit in any Collateral Account shall be invested and
re-invested from time to time in such Liquid Investments as the relevant Lien
Grantor shall determine. Any income received with respect to the balance from
time to time standing to the credit of any Collateral Account, including any
interest or capital gains on Liquid Investments, shall remain, or be deposited,
in such Collateral Account. All right, title and interest in and to the cash
amounts on deposit from time to time in any Collateral Account together with any
Liquid Investments from time to time made pursuant to this subsection (f) shall
vest in the Collateral Agent, shall constitute part of the relevant Lien
Grantor's Collateral hereunder and shall not constitute payment of its Secured
Obligations until applied thereto as provided in Section 15. If an Enforcement
Notice is in effect, any amounts held in any Collateral Account shall be
retained in such Collateral Account and, if and when requested by the
Administrative Agent, shall be withdrawn by the Collateral Agent and applied in
the manner specified in Section 15.
(g) For purposes hereof, "Liquid Investments" means any Temporary Cash
Investment that (i) matures within 30 days after it is acquired by or for the
account of the Collateral Agent and (ii) in order to provide the Collateral
Agent, for the benefit of the Secured Parties, with a perfected security
interest therein, either:
(i) is issued in the name of the Collateral Agent or a
financial intermediary acting for its account or is evidenced by a
negotiable certificate or instrument which (together with any
appropriate instrument of transfer) is delivered to, and held by, the
Collateral Agent or an agent thereof (which shall not be any Lien
Grantor or any of its Affiliates) in a State where possession thereof
perfects the Security Interest therein; or
(ii) if not so issued or evidenced, is a Temporary Cash
Investment which is subject to pledge under applicable law and
regulations and as to which (in the opinion of counsel to the
Collateral Agent) appropriate measures shall have been taken to
perfect the relevant Security Interest.
(h) The Collateral Agent shall, on a monthly basis, provide the
Borrower with or arrange for the Borrower to be provided with a statement of the
balance standing to the credit of the Reduction Event Account, which statement
shall indicate each payment into and from the Reduction Event Account during the
preceding calendar month.
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Section 8. Record Ownership of Pledged Equity Securities. If directed
to do so by the Required Lenders at any time when an Event of Default has
occurred and is continuing, the Collateral Agent shall cause the Pledged Equity
Securities (or any portion thereof specified in such directions) to be
transferred of record into the name of the Collateral Agent or its nominee;
provided that no such transfer shall be made with respect to any capital stock
of any Insurance Subsidiary unless any required regulatory approvals under
applicable state law shall have been obtained. Promptly upon receiving any such
directions, the Collateral Agent will notify each relevant Lien Grantor thereof.
Each Lien Grantor will promptly give to the Collateral Agent copies of any
notices and other communications received by it with respect to Pledged Equity
Securities registered in its name, and the Collateral Agent will promptly give
to such Lien Grantor copies of any notices and other communications received by
the Collateral Agent with respect to such Lien Grantor's Pledged Equity
Securities registered in the name of the Collateral Agent or its nominee. So
long as no Enforcement Notice is in effect, the Collateral Agent shall pay over
to each relevant Lien Grantor all Cash Distributions received by the Collateral
Agent upon or with respect to any Pledged Equity Securities held of record in
the name of the Collateral Agent or its nominee.
Section 9. Right to Vote Pledged Equity Securities. (a) Unless an
Enforcement Notice directing the Collateral Agent to vote the Pledged Equity
Securities is in effect, each Lien Grantor shall have the right, from time to
time, to vote and to give consents, ratifications and waivers with respect to
the Pledged Equity Securities owned by it, and the Collateral Agent shall, upon
receiving a written request from such Lien Grantor, deliver to such Lien Grantor
or as specified in such request such proxies, powers of attorney, consents,
ratifications and waivers in respect of any of such Pledged Equity Securities
which are registered in the name of the Collateral Agent or its nominee as shall
be specified in such request and be in form and substance satisfactory to the
Collateral Agent. Unless an Enforcement Notice directing the Collateral Agent to
do so is in effect, the Collateral Agent shall have no right to take any action
which the owner of a Pledged Partnership Interest or Pledged LLC Interest is
entitled to take with respect thereto, except the right to receive and retain
payments and other distributions to the extent provided in Section 10.
(b) If an Enforcement Notice directing the Collateral Agent to do so
is in effect, the Collateral Agent shall have the right to the extent permitted
by law (and, in the case of a Pledged Partnership Interest or Pledged LLC
Interest, by the relevant partnership agreement, operating agreement or other
governing document) and each Lien Grantor shall take all such action as may be
necessary or appropriate to give effect to such right, to vote and to give
consents, ratifications and waivers, and take any other action with respect to
any or all of the Pledged Equity Interests with the same force and effect as if
the Collateral Agent were the
26
absolute and sole owner thereof; provided that the Collateral Agent shall not
have the right to vote or to give consents, ratifications or waivers with
respect to the capital stock of any Insurance Subsidiary to the extent that such
action would require prior regulatory approval under applicable state law unless
such approval shall have been granted.
Section 10. Right to Receive Distributions on Collateral. Subject to
Section 18, the Collateral Agent shall have the right to receive and to retain
as Collateral hereunder all dividends, interest and other payments and
distributions made upon or with respect to the Pledged Equity Interests and each
Lien Grantor shall take all such action as the Collateral Agent may deem
necessary or appropriate to give effect to such right; provided that, unless an
Enforcement Notice is in effect, this sentence shall not apply to Cash
Distributions. All such dividends, interest and other payments and distributions
which are received by any Lien Grantor (except Cash Distributions received when
no Enforcement Notice is in effect) shall be received in trust for the benefit
of the Secured Parties and shall be segregated from other assets of such Lien
Grantor and shall, promptly upon such Lien Grantor's receipt thereof, be
delivered or paid over to the Collateral Agent in the same form as received
(with any necessary endorsements or executed assignments in blank), together
with a statement identifying the source of such Collateral and stating that it
is being delivered to the Collateral Agent to be held as Collateral under this
Agreement. If an Enforcement Notice is withdrawn pursuant to Section 21 (and no
other Enforcement Notice is then in effect), the Collateral Agent's right to
retain Cash Distributions under this Section 10 shall cease and the Collateral
Agent shall pay over to the relevant Lien Grantor(s) any Cash Distributions
retained by it during the continuance of such Enforcement Notice.
Section 11. General Authority. Each Lien Grantor hereby irrevocably
appoints the Collateral Agent its true and lawful attorney, with full power of
substitution, in the name of such Lien Grantor, any Secured Party or otherwise,
for the sole use and benefit of the Secured Parties, but at the expense of such
Lien Grantor, to the extent permitted by law to exercise, at any time and from
time to time while an Enforcement Notice directing it to do so is in effect, all
or any of the following powers with respect to all or any of such Lien Grantor's
Collateral:
(i) to demand, xxx for, collect, receive and give acquittance
for any and all monies due or to become due upon or by virtue thereof,
(ii) to settle, compromise, compound, prosecute or defend any
action or proceeding with respect thereto,
27
(iii) to sell, transfer, assign or otherwise deal in or with
the same or the proceeds or avails thereof, as fully and effectually as
if the Collateral Agent were the absolute owner thereof, and
(iv) to extend the time of payment of any or all thereof and
to make any allowance and other adjustments with reference thereto;
provided that the Collateral Agent shall give such Lien Grantor not less than
ten days' prior written notice of the time and place of any sale or other
intended disposition of any Personal Property Collateral owned by such Lien
Grantor and such other notices as may be required by the Credit Agreement,
except in respect of any such Personal Property Collateral which threatens to
decline speedily in value or is of a type customarily sold on a recognized
market. The Collateral Agent and each Lien Grantor agree that such notice
constitutes "reasonable notification" within the meaning of Section 9-504(3) of
the UCC.
Section 12. Remedies upon Enforcement Notice. (a) Upon being instructed
to do so in an Enforcement Notice or in written instructions given by the
Required Lenders at any time while an Enforcement Notice is in effect, the
Collateral Agent shall exercise (or cause its co-agents and co-trustees, if any,
to exercise) any or all of the remedies available to it (or to such co-agents or
co-trustees) under the Collateral Documents.
(b) Upon being instructed to do so in an Enforcement Notice or in
written instructions given by the Required Lenders at any time while an
Enforcement Notice is in effect, the Collateral Agent shall exercise on behalf
of the Secured Parties all the rights of a secured party under the UCC (whether
or not in effect in the jurisdiction where such rights are exercised) with
respect to any Personal Property Collateral and, in addition, the Collateral
Agent may, without being required to give any notice, except as provided in the
Credit Agreement or herein or as may be required by mandatory provisions of law,
withdraw all cash and Temporary Cash Investments held in any of the Collateral
Accounts or Concentration Accounts and apply such cash and Temporary Cash
Investments and other cash, if any, then held by it as Collateral as specified
in Section 15 and, if there shall be no such cash or if such cash shall be
insufficient to pay all the Secured Obligations in full, sell the Collateral or
any part thereof at public or private sale or at any broker's board or on any
securities exchange, for cash, upon credit or for future delivery, and at such
price or prices as the Required Lenders shall have advised the Collateral Agent
are satisfactory; provided that the right of the Collateral Agent to sell or
otherwise realize upon the capital stock of any Insurance Subsidiary shall be
subject to the Collateral Agent's or the relevant Lien Grantor's obtaining, to
the extent necessary under applicable law, the prior approval of such sale or
other realization by the superintendent of insurance or other similar official
having jurisdiction with respect to such Insurance
28
Subsidiary. Any Secured Party may be the purchaser of any or all of the
Collateral so sold at any public sale (or, if the Collateral is of a type
customarily sold in a recognized market or is of a type which is the subject of
widely distributed standard price quotations, at any private sale). The
Collateral Agent is authorized, in connection with any such sale, if it deems it
advisable so to do, to restrict the prospective bidders on or purchasers of any
of the securities included in the Collateral to a limited number of
sophisticated investors who will represent and agree that they are purchasing
for their own account for investment and not with a view to the distribution or
sale of any of such securities, to cause to be placed on any security included
in the Collateral a legend to the effect that such security has not been
registered under the Securities Act of 1933 and may not be disposed of in
violation of the provisions of said Act, and to impose such other limitations or
conditions in connection with any such sale as the Collateral Agent deems
necessary or advisable in order to comply with said Act or any other law. Each
Lien Grantor agrees that it will execute and deliver such documents and take
such other action as the Collateral Agent deems necessary or advisable in order
that any such sale may be made in compliance with law. Upon any such sale the
Collateral Agent shall have the right to deliver, assign and transfer to the
purchaser thereof the Collateral so sold. Each purchaser at any such sale shall
hold the Collateral so sold absolutely and free from any claim or right of
whatsoever kind, including any equity or right of redemption of any Lien Grantor
which may be waived, and each Lien Grantor, to the extent permitted by law,
hereby specifically waives all rights of redemption, stay or appraisal which it
has or may have under any law now existing or hereafter adopted. Notice of any
such sale shall be given to the relevant Lien Grantor(s) as required by Section
11 (including as required by the Credit Agreement) and shall in case of a public
sale, state the time and place fixed for such sale, in case of sale at a
broker's board or on a securities exchange, state the board or exchange at which
such sale is to be made and the day on which the Collateral, or the portion
thereof so being sold, will first be offered for sale at such board or exchange,
and in case of a private sale, state the day after which such sale may be
consummated. Any such public sale shall be held at such time or times within
ordinary business hours and at such place or places as the Collateral Agent may
fix in the notice of such sale. At any such sale the Collateral may be sold in
one lot as an entirety or in separate parcels, as the Collateral Agent may
determine. The Collateral Agent shall not be obligated to make any such sale
pursuant to any such notice. The Collateral Agent may, without notice or
publication, adjourn any public or private sale or cause the same to be
adjourned from time to time by announcement at the time and place fixed for the
sale, and such sale may be made at any time or place to which the same may be so
adjourned. In case of any sale of all or any part of the Collateral on credit or
for future delivery, the Collateral so sold may be retained by the Collateral
Agent until the selling price is paid by the purchaser thereof, but the
Collateral Agent shall not incur any liability in case of the failure of such
purchaser to take up and pay for the Collateral so sold and, in case of any such
29
failure, such Collateral may again be sold upon like notice. Upon being
instructed to do so by the Required Lenders in an Enforcement Notice or in
written instructions given at any time while an Enforcement Notice is in effect,
the Collateral Agent, instead of exercising the power of sale herein conferred
upon it, may proceed by a suit or suits at law or in equity to foreclose the
Security Interests and sell the Collateral, or any portion thereof, under a
judgment or decree of a court or courts of competent jurisdiction. The foregoing
provisions of this subsection shall apply to Real Property Collateral only to
the extent permitted by applicable law and the provisions of any applicable
Mortgage or other document.
(c) For the purpose of enforcing any and all rights and remedies under this
Agreement, the Collateral Agent may (i) require each Lien Grantor to, and each
Lien Grantor agrees that it will, at its expense and upon the request of the
Collateral Agent, forthwith assemble all or any part of its Personal Property
Collateral as directed by the Collateral Agent and make it available at a place
designated by the Collateral Agent which is, in its opinion, reasonably
convenient to the Collateral Agent and such Lien Grantor, whether at the
premises of such Lien Grantor or otherwise, (ii) to the extent permitted by
applicable law, enter, with or without process of law and without breach of the
peace, any premises where any of the Personal Property Collateral is or may be
located, and without charge or liability to it seize and remove such Personal
Property Collateral from such premises, (iii) have access to and use such Lien
Grantor's books and records relating to its Collateral and (iv) prior to the
disposition of its Personal Property Collateral, store or transfer it without
charge in or by means of any storage or transportation facility owned or leased
by such Lien Grantor, process, repair or recondition it or otherwise prepare it
for disposition in any manner and to the extent the Collateral Agent deems
appropriate and, in connection with such preparation and disposition, use
without charge any trademark, trade name, copyright, patent or technical process
used by such Lien Grantor. The Collateral Agent may also render any or all of
such Personal Property Collateral unusable at such Lien Grantor's premises and
may dispose of such Personal Property Collateral on such premises without
liability for rent or costs. The foregoing provisions of this subsection shall
apply to Real Property Collateral only to the extent permitted by applicable law
and the provisions of any applicable Mortgage or other document.
(d) Without limiting the generality of the foregoing, if an Enforcement
Notice is in effect,
(i) the Collateral Agent may, upon proper notice as provided in
Section 11 hereof, license, or sublicense, whether general, special or
otherwise, and whether on an exclusive or non-exclusive basis, any
Intellectual Property included in the Collateral throughout the world
for such term or terms, on such conditions and in such manner as the
30
Collateral Agent shall in its sole discretion determine; provided that
such licenses do not conflict with any existing licenses;
(ii) the Collateral Agent may, upon proper notice as provided
in Section 11 hereof (without assuming any obligations or liability
thereunder), at any time and from time to time, in its sole and
reasonable discretion, enforce (and shall have the exclusive right to
enforce) against any licensee or sublicensee all rights and remedies of
any Lien Grantor in, to and under any of its Intellectual Property and
take or refrain from taking any action under any thereof, and each Lien
Grantor hereby releases the Collateral Agent and each of the other
Secured Parties from, and agrees to hold the Collateral Agent and each
of the other Secured Parties free and harmless from and against any
claims and expenses arising out of, any lawful action so taken or
omitted to be taken with respect thereto, except for claims and
expenses arising from the Collateral Agent's or such Secured Party's
gross negligence or willful misconduct; and
(iii) upon request by the Collateral Agent (which shall not be
construed as implying any limitation on the rights or powers of the
Collateral Agent), each Lien Grantor will execute and deliver to the
Collateral Agent a power of attorney, in form and substance
satisfactory to the Collateral Agent, for the implementation of any
lease, assignment, license, sublicense, grant of option, sale or other
disposition of any Intellectual Property owned by such Lien Grantor or
any action related thereto. In the event of any such disposition
pursuant to this Section, subject to confidentiality restrictions
imposed on such Lien Grantor in any license or similar agreement, such
Lien Grantor shall supply its know-how and expertise relating to or the
products or services made or rendered in connection with Patents, and
its customer lists and other records relating to such Intellectual
Property and to the distribution of said products or services, to the
Collateral Agent.
Section 13. Fees and Expenses; Indemnification. The Borrower agrees
that it will forthwith upon demand pay to the Collateral Agent:
(i) the amount of any taxes which the Collateral Agent may
have been required to pay by reason of the Security Interests or to
free any of the Collateral from any Lien thereon;
(ii) the amount of any and all reasonable out-of-pocket
expenses, including transfer taxes and reasonable fees and
disbursements of counsel and of any other experts, which the Collateral
Agent may incur in connection with (w) the administration or
enforcement of this Agreement, including such expenses as are incurred
to preserve the value of the
31
Collateral and the validity, perfection, rank and value of any Security
Interest, and all insurance expenses and all expenses of protecting,
storing, warehousing, appraising, insuring, handling, maintaining and
shipping any Collateral, (x) the collection, sale or other disposition
of any Collateral, (y) the exercise by the Collateral Agent of any of
the rights or powers conferred upon it hereunder or (z) any Enforcement
Notice;
(iii) the amount of any fees that the Borrower shall have
agreed in writing to pay to the Collateral Agent and that shall have
become due and payable in accordance with such written agreement; and
(iv) the amount required to indemnify the Collateral Agent
for, or hold it harmless and defend it against, any loss, liability or
expense (including the reasonable fees and expenses of its counsel and
any experts or co-agents appointed hereunder) incurred or suffered by
the Collateral Agent in connection with this Agreement, except to the
extent that such loss, liability or expense arises from the Collateral
Agent's gross negligence or willful misconduct or a breach of any duty
that the Collateral Agent has under this Agreement (after giving effect
to Sections 14 and 16).
Any such amount not paid to the Collateral Agent on demand shall bear interest
for each day until paid at a rate per annum equal to the sum of 2.5% plus the
rate applicable to Base Rate Loans for such day.
Section 14. Limitation on Duty of Collateral Agent in Respect of
Collateral. Beyond the exercise of reasonable care in the custody and
preservation thereof, the Collateral Agent shall have no duty as to any Personal
Property Collateral in its possession or control or in the possession or control
of any agent or bailee or any income thereon or as to the preservation of rights
against prior parties or any other rights pertaining thereto. The Collateral
Agent shall be deemed to have exercised reasonable care in the custody and
preservation of the Personal Property Collateral in its possession if such
Personal Property Collateral is accorded treatment substantially equal to that
which it accords its own property, and shall not be liable or responsible for
any loss or damage to any of the Personal Property Collateral, or for any
diminution in the value thereof, by reason of any act or omission of any agent
or bailee selected by the Collateral Agent in good faith or by reason of any act
or omission by the Collateral Agent pursuant to instructions from the Required
Lenders (including, without limitation, any voting instruction pursuant to
Section 9), except to the extent that such liability arises from the Collateral
Agent's gross negligence or willful misconduct.
Section 15. Application of Proceeds. (a) So long as the Intercreditor
Agreement is in effect, following a Triggering Event (as defined therein), the
32
Collateral Agent shall apply (i) the proceeds of any sale of, or other
realization upon, all or any part of the Collateral, (ii) any cash held in the
Reduction Event Accounts and the Collateral Proceeds Accounts and (iii) any cash
withdrawn by it from the Concentration Accounts as set forth in the
Intercreditor Agreement.
(b) At all times when the Intercreditor Agreement is not in effect,
upon being instructed to do so in an Enforcement Notice or in written
instructions given by the Required Lenders at any time while an Enforcement
Notice is in effect, the Collateral Agent shall apply (i) the proceeds of any
sale of, or other realization upon, all or any part of the Collateral, (ii) any
cash held in the Reduction Event Accounts and the Collateral Proceeds Accounts
and (iii) any cash withdrawn by it from the Concentration Accounts in the
following order of priorities:
first, to pay the expenses of such sale or other realization,
including reasonable compensation to agents of and counsel for the
Collateral Agent, and all expenses, liabilities and advances incurred
or made by the Collateral Agent in connection with the Collateral
Documents, and any other amounts then due and payable to the
Collateral Agent pursuant to Section 13 hereof and to the other Agents
pursuant to Section 11.03 of the Credit Agreement;
second, to pay the unpaid principal of the Secured Obligations
ratably (or provide for the payment thereof pursuant to subsection (c)
of this Section), until payment in full of the principal of all
Secured Obligations shall have been made (or so provided for);
third, to pay all interest (including Post-Petition Interest)
on the Secured Obligations and all letter of credit fees and
commitment fees payable under the Credit Agreement ratably, until
payment in full of all such interest and fees shall have been made;
fourth, to pay all other Secured Obligations ratably (or
provide for the payment thereof pursuant to subsection (c) of this
Section), until payment in full of all such other Secured Obligations
shall have been made (or so provided for); and
finally, to pay to the relevant Lien Grantor or its successors
or assigns, or as a court of competent jurisdiction may direct, any
surplus then remaining from the proceeds of the Collateral owned by
it;
provided that Collateral owned by a Guarantor and any proceeds thereof shall be
applied pursuant to the foregoing clauses first, second, third and fourth only
to the extent that the Secured Obligations referred to therein are guaranteed by
such Guarantor (and, in the case of a Subsidiary Guarantor, subject to the
limitation in
33
Section 9 of its Subsidiary Guaranty Agreement). The Collateral Agent may make
such distributions hereunder in cash or in kind or, on a ratable basis, in any
combination thereof.
(c) If at any time any portion of any monies collected or received by
the Collateral Agent would, but for the provisions of this subsection (c), be
payable pursuant to subsection (b) of this Section (whether or not by
application of the payment provisions in the Intercreditor Agreement) in respect
of a Contingent Secured Obligation, the Collateral Agent shall not apply any
monies to pay such Contingent Secured Obligation but instead shall request the
holder thereof, at least 10 days before each proposed distribution hereunder, to
notify the Collateral Agent as to the maximum amount of such Contingent Secured
Obligation if then ascertainable (e.g., in the case of a letter of credit, the
maximum amount available for subsequent drawings thereunder). If the holder of
such Contingent Secured Obligation does not notify the Collateral Agent of the
maximum ascertainable amount thereof at least two Business Days before such
distribution, such holder shall not be entitled to share in such distribution
with respect to such Contingent Secured Obligations. If such holder does so
notify the Collateral Agent as to the maximum ascertainable amount thereof, the
Collateral Agent will allocate to such holder a portion of the monies to be
distributed in such distribution, calculated as if such Contingent Secured
Obligation were outstanding in such maximum ascertainable amount. However, the
Collateral Agent shall not apply such portion of such monies to pay such
Contingent Secured Obligation, but instead shall hold such monies or invest such
monies in Liquid Investments at the direction of the relevant Lien Grantor. The
Collateral Agent shall hold all such monies and all such Liquid Investments and
the net proceeds thereof in trust until such time as all or part of such
Contingent Secured Obligation becomes a Non-Contingent Secured Obligation,
whereupon the Collateral Agent at the request of the relevant Secured Party
shall apply the amount so held in trust to pay such Non-Contingent Secured
Obligation; provided that, if the other Secured Obligations theretofore paid
pursuant to the same clause of subsection (b) (i.e., clause second or fourth)
were not paid in full, the Collateral Agent shall apply the amount so held in
trust to pay the same percentage of such Non-Contingent Secured Obligation as
the percentage of such other Secured Obligations theretofore paid pursuant to
the same clause of subsection (b). If (i) the holder of such Contingent Secured
Obligation shall advise the Collateral Agent that no portion thereof remains in
the category of a Contingent Secured Obligation and (ii) the Collateral Agent
still holds any amount held in trust pursuant to this subsection (c) in respect
of such Contingent Secured Obligation (after paying all amounts payable pursuant
to the preceding sentence with respect to any portions thereof that became Non-
Contingent Secured Obligations), such remaining amount shall be applied by the
Collateral Agent in the order of priorities set forth in subsection (b) of this
Section.
34
(d) In making the payments and allocations required by this Section,
the Collateral Agent may rely upon information supplied to it pursuant to
Section 16(f). All distributions made by the Collateral Agent pursuant to this
Section shall be final (except in the event of manifest error) and the
Collateral Agent shall have no duty to inquire as to the application by the
Secured Parties of any amount distributed to them.
Section 16. Concerning the Collateral Agent. (a) The Collateral Agent
is authorized to take all such action as is provided or permitted to be taken by
it as Collateral Agent under the Collateral Documents and all other action
reasonably incidental thereto. As to any matters not expressly provided for
herein or in an Enforcement Notice or in written requests, directions or
instructions given as expressly provided in Section 6, 7, 9, 12 or 15,
including, without limitation, the timing and methods of realization upon the
Collateral, the Collateral Agent shall act or refrain from acting in accordance
with written instructions from the Required Lenders or, in the absence of such
instructions, in accordance with its discretion (subject to Section 16(c));
provided that the Collateral Agent shall not be obligated to comply with any
such instructions that are inconsistent with the provisions of the Collateral
Documents.
(b) The Collateral Agent shall not be responsible for the existence,
genuineness or value of any Collateral or for the validity, perfection, priority
or enforceability of the Security Interests in any Collateral, whether impaired
by operation of law or by reason of any action or omission to act on its part
under the Collateral Documents. The Collateral Agent shall have no duty to
ascertain or inquire as to the performance or observance of any of the terms of
this Agreement, the Credit Agreement or any other agreement relating to the
Secured Obligations.
(c) The obligations of the Collateral Agent under the Collateral
Documents are only those expressly set forth therein. In any case in which the
Collateral Agent is authorized to exercise any power or discretion, the
Collateral Agent may refrain from such exercise unless directed in writing by
the Required Lenders to act in the manner specified in such direction.
(d) The Collateral Agent may:
(i) consult with legal counsel (who may be counsel for the
Borrower or any Guarantor) and
(ii) to the extent that the Collateral Agent in good xxxxx
xxxxx it appropriate in connection with its duties hereunder to do so,
consult with independent public accountants and other experts selected
by it in connection with any matter arising under the Collateral
Documents and shall not be liable for any action taken or omitted to
be taken by it in good
35
faith in accordance with the advice of such counsel, accountants or
experts.
(e) Neither the Collateral Agent nor any of its directors, officers,
agents, or employees shall be liable for any action taken or not taken by it in
connection with any Collateral Document (i) in accordance with directions set
forth in an Enforcement Notice or (ii) with the consent or at the request of the
Required Lenders or (iii) in the absence of its own gross negligence or willful
misconduct. However, nothing in this subsection (e) shall affect any rights any
Lien Grantor may have (x) against the Lenders for requesting the Administrative
Agent to give the directions set forth in an Enforcement Notice or (y) against
the Required Lenders for giving any other consent, request, notice or
instruction. Neither the Collateral Agent nor any of its directors, officers,
agents or employees shall be responsible for or have any duty to ascertain,
inquire into or verify (i) any statement, warranty or representation made in
connection with any Collateral Document, (ii) the performance or observance of
any of the covenants or agreements of any Lien Grantor or (iii) the validity,
effectiveness or genuineness of any Collateral Document or any other instrument
or writing furnished in connection therewith. The Collateral Agent shall not
incur any liability by acting in reliance upon any notice, consent, certificate,
statement or other writing (which may be a bank wire, telex, facsimile or
similar writing) believed by it in good faith to be genuine or to be signed by
the proper party or parties.
(f) For all purposes of the Collateral Documents, including without
limitation determining from time to time the amounts of the Secured Obligations,
whether a Secured Obligation is a Contingent Secured Obligation or not, or
whether any notice, direction or instruction has been given by the Required
Lenders or any other Secured Party or Secured Parties entitled to give the same
under any provision of the Collateral Documents, the Collateral Agent shall be
entitled to rely upon information from the following sources (and may refrain
from acting on the basis of such information until one Business Day after it
receives all such information required to enable it to take such action):
(i) the Administrative Agent for information as to the Lender
Parties and their respective Secured Obligations outstanding under the
Credit Agreement (including whether any action has been taken or
instruction given by the Required Lenders);
(ii) any Secured Party for information as to itself and its
Secured Obligations, to the extent that the Collateral Agent has not
received such information from the Administrative Agent; and
(iii) any Lien Grantor for information as to any Secured Party
and its Secured Obligations, to the extent that the Collateral Agent
has not
36
received such information from the sources referred to in clauses (i)
and (ii) above.
(g) The Collateral Agent shall have no liability to any Lien Grantor
or any Secured Party for actions taken in reliance on such information, except
to the extent that such liability arises from the Collateral Agent's gross
negligence or willful misconduct.
(h) (i) The Collateral Agent may resign at any time (effective upon
acceptance by a successor Collateral Agent of its appointment hereunder) by
giving written notice thereof to the Administrative Agent, each of the Secured
Parties Requesting Notice and the Borrower. Upon any such resignation, the
Required Lenders shall have the right to appoint a successor Collateral Agent.
If no successor Collateral Agent shall have been so appointed by the Required
Lenders, and shall have accepted such appointment, within 30 days after the
retiring Collateral Agent gives notice of resignation, the retiring Collateral
Agent may, on behalf of the Secured Parties, appoint a successor Collateral
Agent, which shall be a commercial bank organized or licensed under the laws of
the United States or of any State thereof and having a combined capital and
surplus of at least $100,000,000. Upon the acceptance of its appointment as
Collateral Agent hereunder by a successor Collateral Agent, such successor
Collateral Agent shall thereupon succeed to and become vested with all the
rights and duties of the retiring Collateral Agent, and the retiring Collateral
Agent shall be discharged from its duties and obligations hereunder. After any
retiring Collateral Agent's resignation hereunder as Collateral Agent, the
provisions of this Section and Sections 13 and 14 shall inure to its benefit as
to any actions taken or omitted to be taken by it while it was the Collateral
Agent.
(ii) Without prejudice to its rights under paragraph (i),
Xxxxxx may resign as Collateral Agent at any time and may appoint any
other subsidiary of X.X. Xxxxxx Chase & Co. to such role by giving
written notice thereof to each of the Secured Parties Requesting
Notice and the Borrower. Upon such appointment, such subsidiary shall
thereupon succeed to and become vested with all the rights and duties
of the Collateral Agent and Xxxxxx shall be discharged from its duties
and obligations in such capacity hereunder. After Xxxxxx resigns as
Collateral Agent under this paragraph (ii), the provisions of this
Section and Sections 13 and 14 shall inure to its benefit as to any
actions taken or omitted to be taken by it while it was Collateral
Agent.
(i) Within two Business Days after it receives or sends any notice
referred to in this subsection (i), the Collateral Agent shall send to the
Administrative Agent and each of the Secured Parties Requesting Notice, copies
of any Enforcement Notice received by the Collateral Agent, any notice
37
withdrawing an Enforcement Notice received by the Collateral Agent pursuant to
Section 21, any certificate designating additional obligations as Secured
Obligations received by the Collateral Agent pursuant to Section 22 and any
other notice given by the Collateral Agent to any Lien Grantor, or received by
it from any Lien Grantor, pursuant to Section 11, 12, 15 or 18. The Collateral
Agent shall also send to the Lien Grantors copies of any Enforcement Notice or
any notice withdrawing an Enforcement Notice received by the Collateral Agent.
(j) The Collateral Agent may refuse to act on any notice, direction or
instruction from the Administrative Agent, the Required Lenders, or any Secured
Party, or any agent, trustee or similar representative thereof which, in the
Collateral Agent's good faith opinion, is contrary to law or the provisions of
any Collateral Document, is unduly prejudicial to Secured Parties not joining in
such notice, direction or instruction or may expose the Collateral Agent to
liability (unless the Collateral Agent shall have been adequately indemnified
for such liability by the Secured Parties that gave, or instructed the
Administrative Agent to give, such notice, direction or instruction).
Section 17. Appointment of Co-collateral Agents. At any time or times,
in order to comply with any legal requirement in any jurisdiction, the
Collateral Agent may appoint another bank or trust company or one or more other
persons, either to act as co-agent or co-agents, jointly with the Collateral
Agent, or to act as separate agent or agents on behalf of the Secured Parties
with such power and authority as may be necessary for the effectual operation of
the provisions of any Collateral Document and may be specified in the instrument
of appointment (which may, in the discretion of the Collateral Agent, include
provisions for the protection of such co-agent or separate agent similar to the
provisions of Section 16).
Section 18. Termination of Security Interests; Release of Collateral;
Reinstatement. (a) When (i) all the Commitments and the Swingline Commitment
shall have expired or been terminated, (ii) all Letters of Credit shall have
expired or been canceled or been secured with cash collateral in an amount and
on terms satisfactory to the relevant LC Issuing Bank and (iii) all outstanding
Secured Obligations shall have been indefeasibly paid in full, the Security
Interests shall terminate and all rights to each item of Collateral shall revert
to the Lien Grantor that owns such item of Collateral.
(b) At any time before the Security Interests terminate pursuant to
subsection (a) of this Section, so long as an Enforcement Notice is not in
effect, the Collateral Agent shall, upon the written request of the Borrower,
release any of the Collateral (but not all or substantially all of the
Collateral) with the prior written consent of the Required Lenders.
38
(c) At any time before the Security Interests terminate pursuant to
subsection (a) of this Section, unless an Enforcement Notice is in effect, (i)
the Collateral Agent shall release Collateral (but not all or substantially all
the Collateral) upon receiving from the Administrative Agent written
instructions (A) directing the Collateral Agent to release such Collateral, (B)
stating that the Borrower has requested such release pursuant to Section 2.18 of
the Credit Agreement and (C) stating that the Administrative Agent believes that
the Borrower is entitled to such release pursuant to said Section 2.18 and (ii)
the Security Interests in any assets sold or exchanged (but not in any Proceeds
arising from such sale or exchange) by any Lien Grantor (other than a sale or
exchange to another Lien Grantor) in any transaction permitted by the proviso in
Section 5(j) shall cease concurrently with such sale or exchange. No such
release shall require the consent of any Secured Party and, in the case of any
release pursuant to clause (i), the Collateral Agent shall be fully protected in
relying on such instructions from the Administrative Agent.
(d) The Security Interests in any property abandoned by any Lien
Grantor to Ventas pursuant to Section 6.2 of any Master Lease Agreement to which
the Borrower and Vencor is a party shall be automatically terminated without any
necessity to deliver any termination statements or releases. Notwithstanding the
foregoing, at the request of Ventas, certifying that such an abandonment has
occurred, the Collateral Agent, shall execute and deliver to Ventas, at the
expense of Ventas, such documents as are necessary in order to evidence such
termination of Security Interests.
(e) Upon any such termination of the Security Interests or release of
Collateral pursuant to the foregoing clauses (other than clause (d)), the
Collateral Agent will, at the expense of the relevant Lien Grantor, execute and
deliver to such Lien Grantor such documents as such Lien Grantor shall
reasonably request to evidence the termination of the Security Interests or the
release of such Collateral, as the case may be.
(f) Notwithstanding Section 18(a), this Agreement shall remain in full
force and effect and continue to be effective should any petition be filed by or
against any Lien Grantor for liquidation or reorganization, should any Lien
Grantor become insolvent or make an assignment for the benefit of any creditor
or creditors or should a receiver or trustee be appointed for all or any
significant part of any Lien Grantor's assets, and shall continue to be
effective or be reinstated, as the case may be, if at any time payment and
performance of the Secured Obligations, or any part thereof, is, pursuant to
applicable law, rescinded or reduced in amount, or must otherwise be restored or
returned by any obligee of the Secured Obligations, whether as a "voidable
preference", "fraudulent conveyance", or otherwise, all as though such payment
or performance had not been made. In the event that any payment, or any part
thereof, is rescinded,
39
reduced, restored, or returned, the Secured Obligations shall be reinstated and
deemed reduced only by such amount paid and not so rescinded, reduced, restored
or returned.
SECTION 19. Additional Subsidiary Guarantors. Any Subsidiary of the
Borrower which is not a party hereto may become a party hereto by executing and
delivering to the Collateral Agent a Security Agreement Supplement, whereupon
such Subsidiary shall become a "Subsidiary Guarantor", a "Lien Grantor" and a
party hereto.
SECTION 20. Notices. All notices, requests and other communications to
any party hereunder shall be in writing (including facsimile transmission or
similar writing) and shall be given to such party:
(i) in the case of any Lien Grantor listed on the signature
pages hereof, to it at:
Vencor Operating, Inc. (to be renamed Kindred
Healthcare Operating, Inc.)
000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attn: General Counsel
Facsimile: (000) 000-0000
with copies to:
Vencor Operating, Inc. (to be renamed Kindred
Healthcare Operating, Inc.)
000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attn: Assistant Treasurer
Facsimile: (000) 000-0000
Cleary, Gottlieb, Xxxxx & Xxxxxxxx
Xxx Xxxxxxx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxx Xxxxxxx, Esq.
Xxxxxxx Xxxxxxxxx, Esq.
(ii) in the case of any other Lien Grantor, to it at its
address or facsimile number set forth in its Security Agreement
Supplement;
(iii) in the case of the Collateral Agent, to it at:
00
Xxxxxx Xxxxxxxx Xxxxx Xxxxxxx xx Xxx Xxxx
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Houston Xxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to:
X.X. Xxxxxx Services
000 Xxxxxxx Xxxxxxxxxx Xxxx
Xxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx Xxxxxxx and Xxxxx Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
(iv) in the case of any Lender Party, to the Administrative
Agent to be forwarded to such Lender Party at its address or facsimile
number specified in or pursuant to Section 12.01 of the Credit
Agreement;
(v) in the case of General Electric Capital Corporation, as a
Secured Party Requesting Notice, to it at:
General Electric Capital Corporation
0000 Xxxxxxxx Xxxxxxx
Xxxxx 000
Xxxxxxxxxx, Xxxxxxx 00000-0000
Attention: Kindred Healthcare Operating, Inc. -
Account Manager
Facsimile: 000-000-0000
with copies to:
Xxxxxxxxxx Xxxxxxxx LLP
0000 Xxxxxxxxx Xxxxxx XX
Xxxxx 0000
Attention: Xxxxxx X. Xxxxxxx, Esq.
Facsimile: 404-815-6555
and
General Electric Capital Corporation
000 Xxxx Xxxxx Xxxx
Xxxxxxxx, Xxxxxxxxxxx 00000-0000
41
Attention: Region Counsel - Southern Region
Facsimile: (000) 000-0000
(vi) in the case of any other Secured Party Requesting Notice,
to it at such address or facsimile number as such party may hereafter
specify for the purpose by notice to the Collateral Agent; or
(vii) in the case of any party, to it at such other address
or facsimile number as such party may hereafter specify for the purpose
by notice to the Collateral Agent and the Lien Grantors.
Each such notice, request or other communication shall be effective (x) if given
by facsimile transmission, when transmitted to the facsimile number referred to
in this Section and confirmation of receipt is received, (y) if given by mail,
ten days after such communication is deposited in the mails with first class
postage prepaid, addressed as aforesaid or (z) if given by any other means, when
delivered at the address referred to in this Section. NOTICE TO THE BORROWER
UNDER THIS AGREEMENT OR UNDER ANY OTHER FINANCING DOCUMENT SHALL CONSTITUTE
NOTICE TO ALL LIEN GRANTORS FOR ALL PURPOSES HEREUNDER AND THEREUNDER, AND
NOTICE FROM THE BORROWER UNDER THIS AGREEMENT OR UNDER ANY OTHER FINANCING
DOCUMENT PURPORTING TO BE NOTICE FROM ALL LIEN GRANTORS SHALL CONSTITUTE NOTICE
FROM ALL LIEN GRANTORS FOR ALL PURPOSES HEREUNDER AND THEREUNDER. Each Lien
Grantor other than the Borrower hereby irrevocably appoints the Borrower as such
Lien Grantor's agent and attorney-in-fact, with full authority in the place and
stead of such Lien Grantor and in the name of such Lien Grantor, the Borrower or
otherwise, from time to time in the Borrower's discretion, to execute and
deliver (and receive, where applicable) any and all written notices and
communications hereunder on behalf of the Lien Grantors to the Agents and the
Lenders, and to deliver unwritten notices and communications to the foregoing
effect, and each Lender Party shall be entitled to rely upon any such notice or
communication as a notice, communication or consent, as the case may be, of the
Lien Grantors, and shall incur no liability to the Borrower or any other Lien
Grantor in acting upon any such notice or communication that such Lender Party
believes in good faith to have been given by a duly authorized officer or other
person authorized by the Borrower.
Section 21. Withdrawal of Enforcement Notice. An Enforcement Notice,
once given, shall remain in effect unless and until (i) the Required Lenders
notify the Collateral Agent that they wish to withdraw such Enforcement Notice,
(ii) no monies have been applied to pay any Secured Obligations pursuant to
Section 15 (except pursuant to clause first of subsection (b) thereof) as a
result of such
42
Enforcement Notice and (iii) the Collateral Agent determines that the withdrawal
of such Enforcement Notice will not result in any liability or unreimbursed loss
to the Collateral Agent by reason of actions taken by it in reliance thereon.
Section 22. Additional Secured Obligations. The Borrower may from time
to time designate the obligations of the Borrower or any Restricted Subsidiary
under any Interest Rate Agreement (collectively, "hedging transactions") as an
additional Secured Obligation for purposes hereof by delivering to the
Collateral Agent a certificate signed by a Financial Officer identifying such
hedging transaction, stating that such hedging transaction is designated as a
Designated Interest Rate Agreement for purposes hereof and specifying the name
and address of the counterparty to such hedging transaction; provided that at no
time shall the aggregate notional principal amount of all hedging transactions
then in effect and included in the Secured Obligations pursuant to this Section
exceed $300,000,000.
Section 23. Waivers, Remedies Not Exclusive. No failure on the part of
the Collateral Agent to exercise, and no delay in exercising and no course of
dealing with respect to, any right or remedy under any Collateral Document shall
operate as a waiver thereof; nor shall any single or partial exercise by the
Collateral Agent of any right or remedy under the Credit Agreement or any
Collateral Agreement preclude any other or further exercise thereof or the
exercise of any other right or remedy. The rights and remedies specified in the
Collateral Documents and the Credit Agreement are cumulative and are not
exclusive of any other rights or remedies provided by law.
Section 24. Successors and Assigns. This Agreement is for the benefit
of the Collateral Agent and the Secured Parties and their respective successors
and assigns, and in the event of an assignment of all or any of the Secured
Obligations, the rights of the holder thereof hereunder, to the extent
applicable to the indebtedness so assigned, shall be transferred with such
indebtedness. This Agreement shall be binding on the Lien Grantors and their
respective successors and assigns.
Section 25. Changes in Writing. Neither this Agreement nor any
provision hereof may be amended, waived, discharged or terminated except in
accordance with Section 11.05 of the Credit Agreement.
Section 26. NEW YORK LAW. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK
(INCLUDING SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW
YORK), WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES, EXCEPT AS OTHERWISE
REQUIRED BY
43
MANDATORY PROVISIONS OF LAW AND EXCEPT TO THE EXTENT THAT REMEDIES PROVIDED BY
THE LAWS OF ANY JURISDICTION OTHER THAN THE STATE OF NEW YORK ARE GOVERNED BY
THE LAWS OF SUCH JURISDICTION.
Section 27. Severability. If any provision of any Collateral Document
is invalid or unenforceable in any jurisdiction, then, to the fullest extent
permitted by law, the other provisions of the Collateral Documents shall remain
in full force and effect in such jurisdiction and shall be liberally construed
in favor of the Collateral Agent and the Secured Parties in order to carry out
the intentions of the parties thereto as nearly as may be possible; and the
invalidity or unenforceability of any provision thereof in any jurisdiction
shall not affect the validity or enforceability of such provision in any other
jurisdiction.
Section 28. Intercreditor Agreement. Notwithstanding anything herein
to the contrary, the terms of this Agreement, and the rights of the Collateral
Agent and the Secured Parties hereunder, are subject to the Intercreditor
Agreement.
Section 29. Counterparts. This Agreement may be executed in separate
counterparts, each of which shall be an original and all of which taken together
shall constitute one and the same instrument.
44
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective authorized officers as of the day and year
first above written.
VENCOR OPERATING, INC. (to be
renamed Kindred Healthcare Operating,
Inc.)
By: __________________________
Name:
Title:
VENCOR, INC. (to be renamed Kindred
Healthcare, Inc.)
By: __________________________
Name:
Title:
XXXXXX GUARANTY TRUST
COMPANY OF NEW YORK,
as Collateral Agent
By: __________________________
Name:
Title:
SUBSIDIARY GUARANTORS
---------------------
[ ]
EXHIBIT A
to Senior Security Agreement
SENIOR SECURITY AGREEMENT SUPPLEMENT
SENIOR SECURITY AGREEMENT SUPPLEMENT (the "Security Agreement
Supplement") dated as of _______, ____, between [name of Subsidiary Guarantor]
(the "Subsidiary Guarantor") and [Xxxxxx Guaranty Trust Company of New York], as
Collateral Agent.
WHEREAS, Vencor Operating, Inc. (to be renamed Kindred Healthcare
Operating, Inc.), the Guarantors party thereto and Xxxxxx Guaranty Trust Company
of New York, as Collateral Agent, are parties to a Senior Security Agreement
dated as of April 20, 2001 (as heretofore amended and/or supplemented, the
"Security Agreement");
WHEREAS, terms defined in the Security Agreement (or whose definitions
are incorporated by reference in Section 1 of the Security Agreement) and not
otherwise defined herein have, as used herein, the respective meanings provided
for therein; and
WHEREAS, [name of Subsidiary Guarantor] desires to become a party to
the Security Agreement as an additional Lien Grantor thereunder;
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Grant of Security Interest. In order to secure the full and punctual
payment of the Secured Obligations in accordance with the terms thereof, the
Subsidiary Guarantor grants to the Collateral Agent for the benefit of the
Secured Parties a continuing security interest in all of the following assets of
the Subsidiary Guarantor (the "New Collateral"):
[describe assets being added to the Collateral]
2. Delivery of Collateral. Concurrently with delivering this Security
Agreement Supplement to the Collateral Agent, the Subsidiary Guarantor is
complying with the provisions of Section 4 of the Security Agreement with
respect to all stock certificates and other certificates representing Equity
Interests (if any) included in the New Collateral and all Instruments (if any)
included in the New Collateral.
3. Party to Security Agreement. Upon delivery of this Security Agreement
Supplement to the Collateral Agent, the Subsidiary Guarantor will become a party
to the Security Agreement and will thereafter have all of the rights and
obligations of a Subsidiary Guarantor thereunder and be bound by all of the
provisions thereof as fully as if the Subsidiary Guarantor were one of the
original parties thereto.
4. Address of Subsidiary Guarantor. The address and facsimile number of
the Subsidiary Guarantor to which all notices, requests and other communications
shall be sent pursuant to Section 20 of the Security Agreement is:
[address and facsimile number of Subsidiary Guarantor]
5. Representations and Warranties./1/ (a) The Subsidiary Guarantor is a
corporation duly incorporated, validly existing and in good standing under the
laws of [jurisdiction of incorporation].
(b) The Subsidiary Guarantor has delivered a Perfection Certificate to the
Collateral Agent. The information set forth therein is correct and complete as
of the date hereof. Within 60 days of the date hereof, the Subsidiary Guarantor
shall furnish to the Collateral Agent file search reports from each UCC filing
office confirming the filing information set forth in such Perfection
Certificate.
(c) The execution and delivery of this Security Agreement Supplement by
the Subsidiary Guarantor and the performance by it of its obligations under the
Security Agreement as supplemented hereby are within its corporate or other
powers, have been duly authorized by all necessary corporate or other action,
require no action by or in respect of, or filing with, any governmental body,
agency or official and do not contravene, or constitute a default under, any
provision of applicable law or regulation or of its Organizational Documents, or
of any agreement, judgment, injunction, order, decree or other instrument
binding upon it or result in the creation or imposition of any Lien (other than
the Liens created by the Collateral Documents and the Second Priority Collateral
Documents) on any of its assets.
(d) The Security Agreement as supplemented hereby constitutes a valid and
binding agreement of the Subsidiary Guarantor, enforceable in accordance with
its terms, except as may be limited by (i) bankruptcy, insolvency, fraudulent
conveyance or other similar laws affecting creditors' rights generally and (ii)
general principles of equity.
__________________
/1/ Modify as needed for any Subsidiary Guarantor that is not a corporation.
(e) As of the date hereof, the Subsidiary Guarantor owns the Equity
Interests listed as being owned by it in Schedule 1 to this Security Agreement
Supplement, free and clear of any Lien other than Permitted Liens. All shares of
capital stock identified in such Schedule as being beneficially owned by the
Subsidiary Guarantor have been duly authorized and validly issued, are fully
paid and non-assessable, and are subject to no option to purchase or similar
right of any Person. The Subsidiary Guarantor is not and will not become a party
to or become otherwise bound by any agreement, other than the Financing
Documents and the Second Priority Financing Documents, which restricts in any
manner the rights of any present or future holder of any Pledged Equity Interest
with respect thereto.
(f) The Subsidiary Guarantor has good and marketable title to all of
its Collateral (except Intellectual Property), free and clear of any Lien other
than Permitted Liens. To the best of its knowledge, the Subsidiary Guarantor has
good title or other rights in and to all Intellectual Property owned by or
licensed to it on the date hereof, free and clear of any Lien other than
Permitted Liens. The Subsidiary Guarantor has taken all actions necessary under
the UCC to perfect its interest in any Accounts purchased or otherwise acquired
by it, as against its assignors and creditors of its assignors.
(g) Other than granting Permitted Liens, the Subsidiary Guarantor has
not performed any acts that might prevent the Collateral Agent from enforcing
any of the provisions of the Collateral Documents or that would limit the
Collateral Agent in any such enforcement. No financing statement, security
agreement, mortgage or similar or equivalent document or instrument covering all
or any part of the Collateral owned by it is on file or of record in any
jurisdiction in which such filing or recording would be effective to perfect or
record a Lien on such Collateral, except financing statements, mortgages or
other similar or equivalent documents with respect to Permitted Liens. After the
date hereof, no Collateral owned by it will be in the possession of any Person
(other than the Subsidiary Guarantor) asserting any claim thereto or security
interest therein (except Permitted Liens), except that (i) the Collateral Agent
or its designee may have possession of Collateral as contemplated hereby and
(ii) cash and Temporary Cash Investments may be held in the Concentration
Accounts.
(h) The Personal Property Security Interests constitute valid security
interests in all Personal Property Collateral owned by the Subsidiary Guarantor
thereby securing its Secured Obligations, and constitute security interests
therein prior to all other Liens other than Liens permitted under the Credit
Agreement to be senior in priority to the Liens of the Lenders.
(i) Upon the delivery of the Pledged Instruments (if any) and the
Pledged Equity Securities owned by the Subsidiary Guarantor to the Collateral
Agent in accordance with Section 4 of the Security Agreement, the Collateral
Agent will
A-3
have valid and perfected security interests in such Collateral subject to no
prior Lien, other than Permitted Liens.
(j) When UCC financing statements shall have been filed in the
appropriate offices, the Personal Property Security Interests will constitute
perfected security interests in the Personal Property Collateral owned by the
Subsidiary Guarantor to the extent that a security interest therein may be
perfected by filing pursuant to the UCC, prior (except in the case of
Intellectual Property) to all Liens and rights of others therein except
Permitted Liens. When, in addition to the filing of such UCC financing
statements, the applicable Intellectual Property Filings have been made with
respect to the Subsidiary Guarantor's Intellectual Properties (including any
future filings required pursuant to Sections 5(c) and 5(d) of the Security
Agreement), the Personal Property Security Interests will constitute perfected
security interests in all right, title and interest of the Subsidiary Guarantor
in its Intellectual Property to the extent that security interests therein may
be perfected by such filings and, to the best of the Subsidiary Guarantor's
knowledge, such security interests will be prior to all other Liens and rights
of others therein except Permitted Liens. Except for (i) the filing of such UCC
financing statements, (ii) such Intellectual Property Filings, (iii) the due
recordation of memoranda of lease with respect to any Real Property Collateral
leased or subleased to the Subsidiary Guarantor and any assignments of any such
lease or sublease and (iv) the due recordation of the Fee Mortgages and the
Leasehold Mortgages, no registration, recordation or filing with any
governmental body, agency or official is required in connection with the
execution or delivery of the Collateral Documents or is necessary for the
validity or enforceability thereof or for the perfection or due recordation of
the Security Interests or (except with respect to the capital stock of any
Insurance Subsidiary)) for the enforcement of the Security Interests.
(k) The Subsidiary Guarantor's Collateral is insured in accordance
with the requirements of the Credit Agreement.
6. Governing Law. This Security Agreement Supplement shall be
construed in accordance with and governed by the laws of the State of New York.
7. Intercreditor Agreement. Section 28 of the Security Agreement is
herein incorporated by reference.
IN WITNESS WHEREOF, the parties hereto have cause this Security
Agreement Supplement to be duly executed by their respective authorized officers
as of the day and year first above written.
[Name of Subsidiary Guarantor]
By:_________________________
Name:
Title:
XXXXXX GUARANTY TRUST COMPANY OF NEW YORK,
as Collateral Agent
By:___________________________
Name:
Title:
SCHEDULE 1
to Senior Security Agreement
Supplement
EQUITY INTERESTS OWNED BY
SUBSIDIARY GUARANTOR
Number of
State of Percentage Shares or Units
Name Organization Owned (if certificated)
------------ ---------------- ---------------------- ------------------
EXHIBIT B
to Senior Security Agreement
SENIOR COPYRIGHT SECURITY AGREEMENT
(Copyrights, Copyright Registrations, Copyright
Applications and Copyright Licenses)
WHEREAS, [Name of Lien Grantor], a _____________ corporation/2/ (herein
referred to as the "Lien Grantor") owns, or in the case of licenses, is a party
to, the Copyright Collateral (as defined below);
WHEREAS, Vencor Operating, Inc. (to be renamed Kindred Healthcare
Operating, Inc.), Vencor, Inc. (to be renamed Kindred Healthcare, Inc.), the
Lenders, Swingline Bank and LC Issuing Banks referred to therein, Xxxxxx
Guaranty Trust Company of New York, as Administrative Agent and Collateral
Agent, and General Electric Capital Corporation, as Documentation Agent and
Collateral Monitoring Agent, are parties to a Credit Agreement dated as of April
20, 2001 (as amended from time to time, the "Credit Agreement");
[WHEREAS, pursuant to the terms of a Senior Subsidiary Guaranty
Agreement dated as of __________, ____, the Lien Grantor has guaranteed, subject
to certain limitations, certain obligations of Vencor Operating, Inc. (such
guarantee being herein referred to as the Lien Grantor's "Guaranty"); and]
[WHEREAS, pursuant to the terms of the Senior Vencor Guaranty Agreement
dated as of April 20, 2001, the Lien Grantor has guaranteed certain obligations
of Vencor Operating, Inc. (such guarantee being herein referred to as the Lien
Grantor's "Guaranty"); and]
WHEREAS, pursuant to the terms of the Senior Security Agreement dated
as of April 20, 2001 (as such agreement may be amended from time to time, the
"Security Agreement") among Vencor Operating, Inc., the Guarantors party thereto
and Xxxxxx Guaranty Trust Company of New York, as Collateral Agent for the
Secured Parties referred to therein (in such capacity, together with its
successors in such capacity, the "Grantee"), the Lien Grantor has granted to the
Grantee for the benefit of such Secured Parties a continuing security interest
in or other Lien (as defined in the Credit Agreement) on substantially all the
assets of the Lien Grantor (except certain excluded assets), including all
right, title and interest of the Lien
____________________
/2/ Modify as needed for any Lien Grantor that is not a corporation.
Grantor in, to and under the Copyright Collateral (as defined below), whether
now owned or existing or hereafter acquired or arising, to secure the Secured
Obligations (as defined in the Security Agreement);
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Lien Grantor does hereby grant
to the Grantee, to secure the Secured Obligations, a continuing security
interest in all of the Lien Grantor's right, title and interest in, to and under
the following (all of the following items or types of property being herein
collectively referred to as the "Copyright Collateral"), whether now owned or
existing or hereafter acquired or arising:
(i) each Copyright (as defined in the Security Agreement)
owned by the Lien Grantor, including, without limitation, each
Copyright registration or application therefor referred to in Schedule
1 hereto;
(ii) each Copyright License (as defined in the Security
Agreement) to which the Lien Grantor is a party, including, without
limitation, each Copyright License identified in Schedule 1 hereto; and
(iii) all proceeds of and revenues from, accounts and general
intangibles arising out of, the foregoing, including, without
limitation, all proceeds of and revenues from any claim by the Lien
Grantor against third parties for past, present or future infringement
of any Copyright, including, without limitation, any Copyright owned by
the Lien Grantor referred to in Schedule 1, and all rights and benefits
of the Lien Grantor under any Copyright License, including, without
limitation, any Copyright License identified in Schedule 1 hereto.
The Lien Grantor hereby irrevocably constitutes and appoints the
Grantee and any officer or agent thereof, with full power of substitution, as
its true and lawful attorney-in-fact with full power and authority in the name
of the Lien Grantor or in its name, from time to time, in the Grantee's
discretion, so long as any Enforcement Notice (as defined in the Credit
Agreement) is in effect, to take with respect to the Copyright Collateral any
and all appropriate action which the Lien Grantor might take with respect to the
Copyright Collateral and to execute any and all documents and instruments which
may be necessary or desirable to carry out the terms of this Senior Copyright
Security Agreement and to accomplish the purposes hereof.
Except to the extent permitted in the Security Agreement or the Credit
Agreement, the Lien Grantor agrees not to sell, license, exchange, assign or
otherwise transfer or dispose of, or grant any rights with respect to, or
mortgage or otherwise encumber, any of the foregoing Copyright Collateral.
The foregoing security interest is granted in conjunction with the
security interests granted by the Lien Grantor to the Grantee pursuant to the
Security Agreement. The Lien Grantor does hereby further acknowledge and affirm
that the rights and remedies of the Grantee with respect to the security
interest in the Copyright Collateral granted hereby are more fully set forth in
the Security Agreement, the terms and provisions of which are incorporated by
reference herein as if fully set forth herein.
IN WITNESS WHEREOF, the Lien Grantor has caused this Senior Copyright
Security Agreement to be duly executed by its officer thereunto duly authorized
as of the ____ day of _______, ____.
[NAME OF LIEN GRANTOR]
By: __________________________
Title:
Acknowledged:
XXXXXX GUARANTY TRUST COMPANY
OF NEW YORK, as Collateral Agent
By: __________________________
Title:
STATE OF _________ )
) ss.:
COUNTY OF _________ )
I, ______________________, a Notary Public in and for said
County, in the State aforesaid, DO HEREBY CERTIFY, that
_________________________, _______________ of [NAME OF LIEN GRANTOR] (the
"Company"), personally known to me to be the same person whose name is
subscribed to the foregoing instrument as such _________________, appeared
before me this day in person and acknowledged that (s)he signed, executed and
delivered the said instrument as her/his own free and voluntary act and as the
free and voluntary act of said Company, for the uses and purposes therein set
forth being duly authorized so to do.
GIVEN under my hand and Notarial Seal this ___ day of
---------------, ----.
[Seal]
________________________________
Signature of notary public
My Commission expires __________
Schedule 1
to Senior Copyright
Security Agreement
--------------------
[NAME OF LIEN GRANTOR]
COPYRIGHT REGISTRATIONS
Registration Registration Expiration
------------ ------------ ----------
No. Date Title Date
--- ---- ----- ----
EXHIBIT C
to Senior Security Agreement
SENIOR PATENT SECURITY AGREEMENT
(Patents, Patent Applications and Patent Licenses)
WHEREAS, [Name of Lien Grantor], a _____________ corporation/3/ (herein
referred to as the "Lien Grantor") owns, or in the case of licenses, is a party
to, the Patent Collateral (as defined below);
WHEREAS, Vencor Operating, Inc. (to be renamed Kindred Healthcare
Operating, Inc.), Vencor, Inc. (to be renamed Kindred Healthcare, Inc.), the
Lenders, Swingline Bank and LC Issuing Banks referred to therein, Xxxxxx
Guaranty Trust Company of New York, as Administrative Agent and Collateral
Agent, and General Electric Capital Corporation, as Documentation Agent and
Collateral Monitoring Agent, are parties to a Credit Agreement dated as of April
20, 2001 (as amended from time to time, the "Credit Agreement");
[WHEREAS, pursuant to the terms of a Senior Subsidiary Guaranty
Agreement dated as of __________, ____, the Lien Grantor has guaranteed, subject
to certain limitations, certain obligations of Vencor Operating, Inc. (such
guarantee being herein referred to as the Lien Grantor's "Guaranty"); and]
[WHEREAS, pursuant to the terms of the Senior Vencor Guaranty Agreement
dated as of April 20, 2001, the Lien Grantor has guaranteed certain obligations
of Vencor Operating, Inc. (such guarantee being herein referred to as the Lien
Grantor's "Guaranty"); and]
WHEREAS, pursuant to the terms of the Senior Security Agreement dated
as of April 20, 2001 (as such agreement may be amended from time to time, the
"Security Agreement") among Vencor Operating, Inc., the Guarantors party thereto
and Xxxxxx Guaranty Trust Company of New York, as Collateral Agent for the
Secured Parties referred to therein (in such capacity, together with its
successors in such capacity, the "Grantee"), the Lien Grantor has granted to the
Grantee for the benefit of such Secured Parties a continuing security interest
in or other Lien (as defined in the Credit Agreement) on substantially all the
assets of the Lien Grantor (except certain excluded assets), including all
right, title and interest of the Lien Grantor in, to and under the Patent
Collateral (as defined below), whether now owned or existing or hereafter
acquired or arising, to secure the Secured Obligations (as defined in the
Security Agreement);
______________
/3/ Modify as needed for any Lien Grantor that is not a corporation.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Lien Grantor does hereby grant
to the Grantee, to secure the Secured Obligations, a continuing security
interest in all of the Lien Grantor's right, title and interest in, to and under
the following (all of the following items or types of property being herein
collectively referred to as the "Patent Collateral"), whether now owned or
existing or hereafter acquired or arising:
(i) each Patent (as defined in the Security Agreement) owned
by the Lien Grantor, including, without limitation, each Patent
referred to in Schedule 1 hereto;
(ii) each Patent License (as defined in the Security
Agreement) to which the Lien Grantor is a party, including, without
limitation, each Patent License identified in Schedule 1 hereto; and
(iii) all proceeds of and revenues from the foregoing,
including, without limitation, all proceeds of and revenues from any
claim by the Lien Grantor against third parties for past, present or
future infringement of any Patent owned by the Lien Grantor, including,
without limitation, any Patent referred to in Schedule 1 hereto, and
all rights and benefits of the Lien Grantor under any Patent License,
including, without limitation, any Patent License identified in
Schedule 1 hereto.
The Lien Grantor hereby irrevocably constitutes and appoints the
Grantee and any officer or agent thereof, with full power of substitution, as
its true and lawful attorney-in-fact with full power and authority in the name
of the Lien Grantor or in its name, from time to time, in the Grantee's
discretion, so long as any Enforcement Notice (as defined in the Credit
Agreement) is in effect, to take with respect to the Patent Collateral any and
all appropriate action which the Lien Grantor might take with respect to the
Patent Collateral and to execute any and all documents and instruments which may
be necessary or desirable to carry out the terms of this Senior Patent Security
Agreement and to accomplish the purposes hereof.
Except to the extent permitted in the Security Agreement or the Credit
Agreement, the Lien Grantor agrees not to sell, license, exchange, assign or
otherwise transfer or dispose of, or grant any rights with respect to, or
mortgage or otherwise encumber, any of the Patent Collateral.
The foregoing security interest is granted in conjunction with the
security interests granted by the Lien Grantor to the Grantee pursuant to the
Security Agreement. The Lien Grantor does hereby further acknowledge and affirm
that the rights and remedies of the Grantee with respect to the security
interest in the Patent
Collateral granted hereby are more fully set forth in the Security Agreement,
the terms and provisions of which are incorporated by reference herein as if
fully set forth herein.
IN WITNESS WHEREOF, the Lien Grantor has caused this Senior Patent
Security Agreement to be duly executed by its officer thereunto duly authorized
as of the ____ day of ____________, ____.
[NAME OF LIEN GRANTOR]
By: ______________________________________
Title:
Acknowledged:
XXXXXX GUARANTY TRUST COMPANY
OF NEW YORK, as Collateral Agent
By: _________________________
Title:
STATE OF __________ )
) ss.:
COUNTY OF _________ )
I, ______________________, a Notary Public in and for said County, in
the State aforesaid, DO HEREBY CERTIFY, that _________________________,
_______________ of [NAME OF LIEN GRANTOR] (the "Company"), personally known to
me to be the same person whose name is subscribed to the foregoing instrument as
such _________________, appeared before me this day in person and acknowledged
that (s)he signed, executed and delivered the said instrument as her/his own
free and voluntary act and as the free and voluntary act of said Company, for
the uses and purposes therein set forth being duly authorized so to do.
GIVEN under my hand and Notarial Seal this ___ day of _______________,
____.
[Seal]
_______________________________
Signature of notary public
My Commission expires _________
EXHIBIT D
to Senior Security Agreement
SENIOR TRADEMARK SECURITY AGREEMENT
(Trademarks, Trademark Registrations, Trademark
Applications and Trademark Licenses)
WHEREAS, [Name of Lien Grantor], a _____________ corporation/4/ (herein
referred to as the "Lien Grantor") owns, or in the case of licenses, is a party
to, the Trademark Collateral (as defined below);
WHEREAS, Vencor Operating, Inc. (to be renamed Kindred Healthcare
Operating, Inc.), Vencor, Inc. (to be renamed Kindred Healthcare, Inc.), the
Lenders, Swingline Bank and LC Issuing Banks referred to therein, Xxxxxx
Guaranty Trust Company of New York, as Administrative Agent and Collateral
Agent, and General Electric Capital Corporation, as Documentation Agent and
Collateral Monitoring Agent, are parties to a Credit Agreement dated as of April
20, 2001 (as amended from time to time, the "Credit Agreement");
[WHEREAS, pursuant to the terms of a Senior Subsidiary Guaranty
Agreement dated as of __________, ____, the Lien Grantor has guaranteed, subject
to certain limitations, certain obligations of Vencor Operating, Inc. (such
guarantee being herein referred to as the Lien Grantor's "Guaranty"); and]
[WHEREAS, pursuant to the terms of the Senior Vencor Guaranty Agreement
dated as of April 20, 2001, the Lien Grantor has guaranteed certain obligations
of Vencor Operating, Inc. (such guarantee being herein referred to as the Lien
Grantor's "Guaranty"); and]
WHEREAS, pursuant to the terms of the Senior Security Agreement dated
as of April 20, 2001 (as such agreement may be amended from time to time, the
"Security Agreement") among Vencor Operating, Inc., the Guarantors party thereto
and Xxxxxx Guaranty Trust Company of New York, as Collateral Agent for the
Secured Parties referred to therein (in such capacity, together with its
successors in such capacity, the "Grantee"), the Lien Grantor has granted to the
Grantee for the benefit of such Secured Parties a continuing security interest
in or other Lien (as defined in the Credit Agreement) on substantially all the
assets of the Lien Grantor (except certain excluded assets), including all
right, title and interest of the Lien Grantor in, to and under the Trademark
Collateral (as defined below), whether now
_________________
/4/ Modify as needed for any Lien Grantor that is not a corporation.
owned or existing or hereafter acquired or arising, to secure the Secured
Obligations (as defined in the Security Agreement);
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Lien Grantor does hereby grant
to the Grantee, to secure the Secured Obligations, a continuing security
interest in all of the Lien Grantor's right, title and interest in, to and under
the following (all of the following items or types of property being herein
collectively referred to as the "Trademark Collateral"), whether now owned or
existing or hereafter acquired or arising:
(i) each Trademark (as defined in the Security Agreement)
owned by Lien Grantor, including, without limitation, each Trademark
registration and application referred to in Schedule 1 hereto, and all
of the goodwill of the business connected with the use of, or
symbolized by, each Trademark;
(ii) each Trademark License (as defined in the Security
Agreement) to which the Lien Grantor is a party, including, without
limitation, each Trademark License identified in Schedule 1 hereto, and
all of the goodwill of the business connected with the use of, or
symbolized by, each Trademark licensed pursuant thereto; and
(iii) all proceeds of and revenues from the foregoing,
including, without limitation, all proceeds of and revenues from any
claim by the Lien Grantor against third parties for past, present or
future unfair competition with, or violation of intellectual property
rights in connection with or injury to, or infringement or dilution of,
any Trademark owned by the Lien Grantor, including, without limitation,
any Trademark referred to in Schedule 1 hereto, and all rights and
benefits of the Lien Grantor under any Trademark License, including,
without limitation, any Trademark License identified in Schedule 1
hereto, or for injury to the goodwill associated with any of the
foregoing.
The Lien Grantor hereby irrevocably constitutes and appoints
the Grantee and any officer or agent thereof, with full power of substitution,
as its true and lawful attorney-in-fact with full power and authority in the
name of the Lien Grantor or in its name, from time to time, in the Grantee's
discretion, so long as any Enforcement Notice (as defined in the Credit
Agreement) is in effect, to take with respect to the Trademark Collateral any
and all appropriate action which the Lien Grantor might take with respect to the
Trademark Collateral and to execute any and all documents and instruments which
may be necessary or desirable to carry out the terms of this Senior Trademark
Security Agreement and to accomplish the purposes hereof.
D-2
Except to the extent permitted in the Security Agreement or
the Credit Agreement, the Lien Grantor agrees not to sell, license, exchange,
assign or otherwise transfer or dispose of, or grant any rights with respect to,
or mortgage or otherwise encumber, any of the foregoing Trademark Collateral.
The foregoing security interest is granted in conjunction with
the security interests granted by the Lien Grantor to the Grantee pursuant to
the Security Agreement. The Lien Grantor does hereby further acknowledge and
affirm that the rights and remedies of the Grantee with respect to the security
interest in the Trademark Collateral granted hereby are more fully set forth in
the Security Agreement, the terms and provisions of which are incorporated by
reference herein as if fully set forth herein.
D-3
IN WITNESS WHEREOF, the Lien Grantor has caused this Senior
Trademark Security Agreement to be duly executed by its officer thereunto duly
authorized as of the ____ day of __________, ____.
[NAME OF LIEN GRANTOR]
By: _________________________
Title:
Acknowledged:
XXXXXX GUARANTY TRUST COMPANY
OF NEW YORK, as Collateral Agent
By: ________________________
Title:
D-4
STATE OF _________ )
) ss.:
COUNTY OF _________ )
I, ______________________, a Notary Public in and for said
County, in the State aforesaid, DO HEREBY CERTIFY, that
_________________________, _______________ of [NAME OF LIEN GRANTOR] (the
"Company"), personally known to me to be the same person whose name is
subscribed to the foregoing instrument as such _________________, appeared
before me this day in person and acknowledged that (s)he signed, executed and
delivered the said instrument as her/his own free and voluntary act and as the
free and voluntary act of said Company, for the uses and purposes therein set
forth being duly authorized so to do.
GIVEN under my hand and Notarial Seal this ___ day of
_______________, ____.
[Seal]
________________________________
Signature of notary public
My Commission expires __________
D-5
Schedule 1
to Senior Trademark
Security Agreement
[NAME OF LIEN GRANTOR]
U.S. TRADEMARK REGISTRATIONS
________________________________________________________________________________
TRADEMARK REG. NO. REG. DATE
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
U.S. TRADEMARK APPLICATIONS
________________________________________________________________________________
TRADEMARK REG. NO. REG. DATE
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
1
EXCLUSIVE TRADEMARK LICENSES
Name of Parties Date of Subject
Agreement Licensor/Licensee Agreement Matter
------------ --------------------- ------------ ----------
2
EXHIBIT E
to Senior Security Agreement
PERFECTION CERTIFICATE
The undersigned, an authorized officer of [NAME OF LIEN GRANTOR], a
[jurisdiction of incorporation] corporation/1/ (the "Company"), hereby certify
with reference to the Senior Security Agreement dated as of April 20, 2001 among
the Company, [the Borrower], the [other] Guarantors and Xxxxxx Guaranty Trust
Company of New York, as Collateral Agent (terms defined therein being used
herein as therein defined), to the Collateral Agent and each other Lender Party
as follows:
1. Names./1/ (a) The exact corporate name of the Company as it
appears in its certificate of incorporation is as follows:
(b) Set forth below is each other corporate name the Company has had
since its organization, together with the date of the relevant change.
(c) Except as set forth in Schedule 1, the Company has not changed
its identity or corporate structure in any way within the past five years.
[Changes in identity or corporate structure would include mergers,
consolidations and acquisitions, as well as any change in the form,
nature or jurisdiction of corporate organization. If any such change
has occurred, include in Schedule 1 the information required by
paragraphs 1, 2 and 3 of this certificate as to each acquiree or
constituent party to a merger or consolidation.]
(d) The following is a list of all other names (including trade names
or similar appellations) used by the Company or any of its divisions or other
business units at any time during the past five years:
2. Current Locations. (a) The chief executive office of the Company
is located at the following address:
Mailing Address County State
--------------------------------- ---------------- -------------
___________
/1/Modify as needed for any Lien Grantor that is not a corporation.
E-1
(b) The following are all the locations where the Company maintains
any books or records relating to any Accounts:
Mailing Address County State
--------------------------------- ---------------- -------------
(c) The following are all the places of business of the Company not
identified above:
Mailing Address County State
--------------------------------- ---------------- -------------
(d) The following are all the locations where the Company maintains
any Inventory not identified above:
Mailing Address County State
--------------------------------- ---------------- -------------
(e) The following are the names and addresses of all Persons other
than the Company which have possession of any of the Company's Inventory:
Mailing Address County State
--------------------------------- ---------------- -------------
3. Prior Locations. (a) Set forth below is the information required
by subparagraphs 2(a), 2(b) and 2(c) above with respect to each location or
place of business maintained by the Company at any time during the past five
years:
(b) Set forth below is the information required by subparagraphs 2(d)
and 2(e) above with respect to each location or bailee where or with whom
Inventory has been lodged at any time during the past four months:
4. Unusual Transactions. Except as set forth in Schedule 4, all
Accounts have been originated by the Company and all Inventory and Equipment has
been acquired by the Company in the ordinary course of its business.
5. File Search Reports. Attached hereto as Schedule 5(A) is a true
copy of a file search report from the Uniform Commercial Code filing officer in
each jurisdiction identified in paragraph 2 or 3 above with respect to each name
E-2
set forth in paragraph 1 above. Attached hereto as Schedule 5(B) is a true copy
of each financing statement or other filing identified in such file search
reports.
6. UCC Filings. A duly signed financing statement on Form UCC-1 in
the form required by the Collateral Agent pursuant to the Security Agreement has
been provided to the Collateral Agent for due filing in the Uniform Commercial
Code filing office in each jurisdiction identified in paragraph 2 hereof.
7. Filing Fees. All filing fees and taxes payable in connection with
the filings described in paragraph 6 above have been paid or will be paid before
or at the time of such filing.
E-3
IN WITNESS WHEREOF, we have hereunto set our hands this __ day of
__________, 20____
____________________________
Name:
Title:
E-4
EXHIBIT F
to Senior Security Agreement
FORM OF SENIOR LEASEHOLD MORTGAGE
F-1
EXHIBIT G
to Senior Security Agreement
FORM OF SENIOR FEE MORTGAGE
G-1
EXHIBIT H
to Senior Security Agreement
FORM OF ACCOUNT CONTROL AGREEMENT
[Circulated as a separate agreement.]
H-1
EXHIBIT C
SENIOR SUBSIDIARY GUARANTY AGREEMENT
Guaranty Agreement dated as of April 20, 2001 (as amended from time to
time, this "Guaranty Agreement") by the undersigned Subsidiaries (the
"Subsidiary Guarantors") of Vencor Operating, Inc. (to be renamed Kindred
Healthcare Operating, Inc.), a Delaware corporation (the "Borrower"), for the
benefit of the Lender Parties and the Interest Hedge Counterparties (as such
terms are defined in the Credit Agreement referred to below).
WHEREAS, the Borrower has entered into a $120,000,000 Credit Agreement
dated as of April 20, 2001 (the "Credit Agreement") among the Borrower, Vencor,
the Lenders party thereto, the Swingline Bank party thereto, the LC Issuing
Banks party thereto, Xxxxxx Guaranty Trust Company of New York, as
Administrative Agent and Collateral Agent, and General Electric Capital
Corporation, as Documentation Agent and Collateral Monitoring Agent, pursuant to
which the Borrower desires to borrow funds and obtain letters of credit, all on
the terms and conditions set forth therein; and
WHEREAS, the Lenders, the Swingline Bank and the LC Issuing Banks are not
willing to make loans or issue or participate in letters of credit under the
Credit Agreement unless the Borrower causes each of its Restricted Subsidiaries
to guarantee the performance of the Borrower's obligations under the Financing
Documents referred to therein; and
WHEREAS, the Borrower desires to assume obligations under certain interest
rate hedging arrangements and the counterparties to such arrangements are not
willing to enter into such arrangements unless the Restricted Subsidiaries
guarantee the performance of the Borrower's obligations thereunder;
NOW, THEREFORE, each Subsidiary Guarantor agrees as follows:
Section 1. Definitions. Terms defined in the Credit Agreement and not
otherwise defined herein have, as used herein, the respective meanings provided
for therein.
Section 2. The Guarantees. Each Subsidiary Guarantor, jointly and
severally, unconditionally and irrevocably guarantees the full and punctual
payment of all present and future indebtedness and other obligations of the
Borrower evidenced by or arising under any Financing Document or Designated
Interest Rate Agreement as and when the same shall become due and payable,
whether at maturity or by declaration or otherwise, according to the terms
hereof and thereof (including any interest which accrues on any of the foregoing
obligations after the commencement of any case, proceeding or other action
relating to the bankruptcy, insolvency or reorganization of the Borrower,
whether or not allowed or allowable as a claim in any such proceeding). If the
Borrower fails punctually to pay any indebtedness or other obligation guaranteed
hereby, each Subsidiary Guarantor unconditionally agrees to cause such payment
to be made punctually as and when the same shall become due and payable, whether
at maturity or by declaration or otherwise, and as if such payment were made by
the Borrower.
Section 3. Taxes. Each Subsidiary Guarantor agrees to comply with Section
10.04 of the Credit Agreement as if it were a party thereto.
Section 4. Guarantee Unconditional. Except as provided in Section 9 hereof,
the obligations of each Subsidiary Guarantor under this Guaranty Agreement shall
be unconditional and absolute and, without limiting the generality of the
foregoing, shall not be released, discharged or otherwise affected by:
(a) any extension, renewal, settlement, compromise, waiver or release in
respect of any obligation of the Borrower or any other Guarantor under any
Financing Document or Designated Interest Rate Agreement by operation of law or
otherwise;
(b) any modification, amendment or waiver of or supplement to any
Financing Document or Designated Interest Rate Agreement;
(c) any release, impairment, non-perfection or invalidity of any direct or
indirect security, or of any guarantee or other liability of any third party,
for any obligation of the Borrower or any other Guarantor under any Financing
Document or Designated Interest Rate Agreement;
(d) any change in the corporate existence, structure or ownership of the
Borrower or any other Guarantor, or any insolvency, bankruptcy, reorganization
or other similar proceeding affecting the Borrower or any other Guarantor or its
assets, or any resulting release or discharge of any obligation of the Borrower
or any other Guarantor contained in any Financing Document or Designated
Interest Rate Agreement;
2
(e) the existence of any claim, set-off or other rights which such
Subsidiary Guarantor may have at any time against the Borrower, any other
Guarantor, any Lender Party or any other Person, whether or not arising in
connection with this Guaranty Agreement; provided that nothing herein shall
prevent the assertion of any such claim by separate suit or compulsory
counterclaim;
(f) any invalidity or unenforceability relating to or against the
Borrower or any other Guarantor for any reason of any Financing Document or
Designated Interest Rate Agreement, or any provision of applicable law or
regulation purporting to prohibit the payment by the Borrower or any other
Guarantor of any amount payable by it under any Financing Document or Designated
Interest Rate Agreement; or
(g) any other act or omission to act or delay of any kind by the Borrower,
any other Guarantor, any Lender Party or any other Person or any other
circumstance whatsoever that might, but for the provisions of this Section,
constitute a legal or equitable discharge of such Subsidiary Guarantor's
obligations under this Guaranty Agreement.
Section 5. Discharge Only Upon Payment in Full; Reinstatement in Certain
Circumstances. Each Subsidiary Guarantor's obligations under this Guaranty
Agreement constitute a continuing guaranty and shall remain in full force and
effect until the Revolving Credit Exposure of each Lender shall have been
reduced to zero, the Designated Interest Rate Agreements shall have been
terminated and all amounts payable by the Borrower under the Financing Documents
and Designated Interest Rate Agreements shall have been paid in full. If at any
time any amount payable by the Borrower under any Financing Document or
Designated Interest Rate Agreement is rescinded or must be otherwise restored or
returned upon the insolvency, bankruptcy or reorganization of the Borrower or
otherwise, each Subsidiary Guarantor's obligations under this Guaranty Agreement
with respect to such payment shall be reinstated at such time as though such
payment had become due but had not been made at such time.
Section 6. Waiver. Each Subsidiary Guarantor irrevocably waives acceptance
hereof, presentment, demand, protest and any notice not provided for herein, as
well as any requirement that at any time any action be taken by any Person
against the Borrower or any other Person or against any security.
Section 7. Subrogation and Contribution. When any Subsidiary Guarantor
makes any payment hereunder with respect to the obligations of the Borrower,
such Subsidiary Guarantor shall be subrogated to the rights of the payee against
the Borrower with respect to the portion of such obligations paid by such
Subsidiary Guarantor, and shall also have a right of contribution in respect of
such
3
payment against all other Guarantors pro rata among them based on their
respective net fair value as enterprises; provided that such Subsidiary
Guarantor shall not enforce any payment by way of subrogation against the
Borrower or contribution against any other Guarantor so long as any Lender has
any Revolving Credit Exposure under the Credit Agreement or any Designated
Interest Rate Agreement has not been terminated or any amount payable by the
Borrower under any Financing Document or Designated Interest Rate Agreement
remains unpaid.
Section 8. Stay of Acceleration. If acceleration of the time for payment of
any amount payable by the Borrower under any Financing Document or Designated
Interest Rate Agreement is stayed upon the insolvency, bankruptcy or
reorganization of the Borrower, all such amounts otherwise subject to
acceleration under the terms of such Financing Document or Designated Interest
Rate Agreement shall nonetheless be payable by each Subsidiary Guarantor
hereunder forthwith on demand by the Administrative Agent made, in the case of
any Loans, at the request of the Required Lenders or, in the case of obligations
under a Designated Interest Rate Agreement, at the request of the relevant
Interest Hedge Counterparty.
Section 9. Limit of Liability. The Subsidiary Guarantors and the
beneficiaries of this Guaranty Agreement intend that this Guaranty Agreement
shall be enforced to the fullest extent permissible under the laws and public
policies applied in each jurisdiction in which enforcement is sought. If and to
the extent that the obligations of any Subsidiary Guarantor under this Guaranty
Agreement would, in the absence of this sentence, be adjudicated to be invalid
or unenforceable because of any applicable state or federal law relating to
fraudulent conveyances or transfers, then the amount of such Subsidiary
Guarantor's liability hereunder in respect of the obligations of the Borrower
guaranteed hereunder shall be deemed to be reduced ab initio to the maximum
amount which would be permitted without causing such Subsidiary Guarantor's
obligations hereunder to be so invalidated.
Section 10. Notices. Notices and other communications hereunder shall be
given in writing in the manner specified in or pursuant to Section 11.01 of the
Credit Agreement.
Section 11. GOVERNING LAW; SUBMISSION TO JURISDICTION. THIS GUARANTY
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL
LAWS OF THE STATE OF NEW YORK (INCLUDING SECTION 5-1401 OF THE GENERAL
OBLIGATIONS LAW OF THE STATE OF NEW YORK), WITHOUT REGARD TO CONFLICTS OF LAWS
PRINCIPLES. EACH SUBSIDIARY GUARANTOR HEREBY SUBMITS TO THE NONEXCLUSIVE
JURISDICTION OF THE UNITED
4
STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK AND OF ANY NEW YORK
STATE COURT SITTING IN NEW YORK CITY FOR PURPOSES OF ALL LEGAL PROCEEDINGS
ARISING OUT OF OR RELATING TO THE FINANCING DOCUMENTS OR THE TRANSACTIONS
CONTEMPLATED THEREBY. EACH SUBSIDIARY GUARANTOR IRREVOCABLY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER
HAVE TO THE LAYING OF THE VENUE OF ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT
AND ANY CLAIM THAT ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT HAS BEEN BROUGHT
IN AN INCONVENIENT FORUM.
Section 12. Successors and Assigns. This Guaranty Agreement is for the
benefit of the Lender Parties and the Interest Hedge Counterparties and their
respective successors and assigns. If any Loans, participations in Letters of
Credit, Notes or other amounts payable under the Financing Documents are
assigned pursuant to Section 10.06 or 11.06(c) of the Credit Agreement, the
rights hereunder, to the extent applicable to the indebtedness so assigned,
shall be transferred with such indebtedness.
Section 13. No Waiver. No failure or delay by any Lender Party or Interest
Hedge Counterparty in exercising any right, power or privilege under any
Financing Document or Designated Interest Rate Agreement shall operate as a
waiver thereof nor shall any single or partial exercise thereof preclude any
other or further exercise thereof or the exercise of any other right, power or
privilege. The rights and remedies provided in the Financing Documents and
Designated Interest Rate Agreements shall be cumulative and not exclusive of any
rights or remedies provided by law.
Section 14. Amendments and Waivers. Any provision of this Guaranty
Agreement may be amended, supplemented, modified or waived as (and only as)
provided in Section 11.05 of the Credit Agreement.
Section 15. Counterparts. This Guaranty Agreement may be signed in any
number of counterparts, each of which shall be an original, with the same effect
as if the signatures thereto were upon the same instrument.
Section 16. WAIVER OF JURY TRIAL. EACH SUBSIDIARY GUARANTOR HEREBY
IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING
ARISING OUT OF OR RELATING TO THIS GUARANTY AGREEMENT, THE OTHER FINANCING
DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED THEREBY. EACH SUBSIDIARY GUARANTOR
(A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS
REPRESENTED, EXPRESSLY OR
5
OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO
ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES
TO THE FINANCING DOCUMENTS HAVE BEEN INDUCED TO ENTER INTO THIS GUARANTY
AGREEMENT AND THE OTHER FINANCING DOCUMENTS, AS APPLICABLE, BY (AMONG OTHER
THINGS) THE WAIVERS AND CERTIFICATIONS IN THIS SECTION 16 AND SECTION 11.10 OF
THE CREDIT AGREEMENT.
6
IN WITNESS WHEREOF, each Subsidiary Guarantor has caused this Guaranty
Agreement to be duly executed by its authorized officer as of the day and year
first above written.
[ ]
By: _______________________________
Name:
Title:
[ ]
By: _______________________________
Name:
Title:
[ ]
By: _______________________________
Name:
Title:
7
EXHIBIT D
SENIOR VENCOR GUARANTY AGREEMENT
Guaranty Agreement dated as of April 20, 2001 (as amended from time to
time, this "Guaranty Agreement") by Vencor, Inc. (to be renamed Kindred
Healthcare, Inc.), a Delaware corporation ("Vencor"), for the benefit of the
Lender Parties and the Interest Hedge Counterparties (as such terms are defined
in the Credit Agreement referred to below).
WHEREAS, Vencor Operating, Inc. (to be renamed Kindred Healthcare
Operating, Inc.), a Delaware corporation and wholly owned subsidiary of Vencor
(the "Borrower"), has entered into a $120,000,000 Credit Agreement dated as of
April 20, 2001 (the "Credit Agreement") among the Borrower, Vencor, the Lenders
party thereto, the Swingline Bank party thereto, the LC Issuing Banks party
thereto, Xxxxxx Guaranty Trust Company of New York, as Administrative Agent and
Collateral Agent, and General Electric Capital Corporation, as Documentation
Agent and Collateral Monitoring Agent, pursuant to which the Borrower desires to
borrow funds and obtain letters of credit, all on the terms and conditions set
forth therein; and
WHEREAS, the Lenders, the Swingline Bank and the LC Issuing Banks are
not willing to make loans or issue or participate in letters of credit under the
Credit Agreement unless Vencor guarantees the performance of the Borrower's
obligations under the Financing Documents referred to therein; and
WHEREAS, the Borrower desires to assume obligations under certain
interest rate hedging arrangements and the counterparties to such arrangements
are not willing to enter into such arrangements unless Vencor guarantees the
performance of the Borrower's obligations thereunder;
NOW, THEREFORE, Vencor agrees as follows:
Section 1. Definitions. Terms defined in the Credit Agreement and not
otherwise defined herein have, as used herein, the respective meanings provided
for therein.
Section 2. The Guarantee. Vencor unconditionally and irrevocably
guarantees the full and punctual payment of all present and future indebtedness
and other obligations of the Borrower evidenced by or arising under any
Financing Document or Designated Interest Rate Agreement as and when the same
shall become due and payable, whether at maturity or by declaration or
otherwise, according to the terms hereof and thereof (including any interest
which accrues on any of the foregoing obligations after the commencement of any
case, proceeding or other action relating to the bankruptcy, insolvency or
reorganization of the Borrower, whether or not allowed or allowable as a claim
in any such proceeding). If the Borrower fails punctually to pay any
indebtedness or other obligation guaranteed hereby, Vencor unconditionally
agrees to cause such payment to be made punctually as and when the same shall
become due and payable, whether at maturity or by declaration or otherwise, and
as if such payment were made by the Borrower.
Section 3. Guarantee Unconditional. The obligations of Vencor under
this Guaranty Agreement shall be unconditional and absolute and, without
limiting the generality of the foregoing, shall not be released, discharged or
otherwise affected by:
(a) any extension, renewal, settlement, compromise, waiver or release
in respect of any obligation of the Borrower or any other Guarantor under any
Financing Document or Designated Interest Rate Agreement by operation of law or
otherwise;
(b) any modification, amendment or waiver of or supplement to any
Financing Document or Designated Interest Rate Agreement;
(c) any release, impairment, non-perfection or invalidity of any
direct or indirect security, or of any guarantee or other liability of any third
party, for any obligation of the Borrower or any other Guarantor under any
Financing Document or Designated Interest Rate Agreement;
(d) any change in the corporate existence, structure or ownership of
the Borrower or any other Guarantor, or any insolvency, bankruptcy,
reorganization or other similar proceeding affecting the Borrower or any other
Guarantor or its assets, or any resulting release or discharge of any obligation
of the Borrower or any other Guarantor contained in any Financing Document or
Designated Interest Rate Agreement;
(e) the existence of any claim, set-off or other rights which Vencor
may have at any time against the Borrower, any other Guarantor, any Lender Party
or any other Person, whether or not arising in connection with this Guaranty
2
Agreement; provided that nothing herein shall prevent the assertion of any such
claim by separate suit or compulsory counterclaim;
(f) any invalidity or unenforceability relating to or against the
Borrower or any other Guarantor for any reason of any Financing Document or
Designated Interest Rate Agreement, or any provision of applicable law or
regulation purporting to prohibit the payment by the Borrower or any other
Guarantor of any amount payable by it under any Financing Document or Designated
Interest Rate Agreement; or
(g) any other act or omission to act or delay of any kind by the
Borrower, any other Guarantor, any Lender Party or any other Person or any other
circumstance whatsoever that might, but for the provisions of this Section,
constitute a legal or equitable discharge of Vencor's obligations under this
Guaranty Agreement.
Section 4. Discharge Only Upon Payment in Full; Reinstatement in
Certain Circumstances. Vencor's obligations under this Guaranty Agreement
constitute a continuing guaranty and shall remain in full force and effect until
the Revolving Credit Exposure of each Lender shall have been reduced to zero,
the Designated Interest Rate Agreements shall have been terminated and all
amounts payable by the Borrower under the Financing Documents and Designated
Interest Rate Agreements shall have been paid in full. If at any time any amount
payable by the Borrower under any Financing Document or Designated Interest Rate
Agreement is rescinded or must be otherwise restored or returned upon the
insolvency, bankruptcy or reorganization of the Borrower or otherwise, Vencor's
obligations under this Guaranty Agreement with respect to such payment shall be
reinstated at such time as though such payment had become due but had not been
made at such time.
Section 5. Waiver. Vencor irrevocably waives acceptance hereof,
presentment, demand, protest and any notice not provided for herein, as well as
any requirement that at any time any action be taken by any Person against the
Borrower or any other Person or against any security.
Section 6. Subrogation. When Vencor makes any payment hereunder with
respect to the obligations of the Borrower, Vencor shall be subrogated to the
rights of the payee against the Borrower with respect to the portion of such
obligations paid by Vencor; provided that Vencor shall not enforce any payment
by way of subrogation against the Borrower so long as any Lender has any
Revolving Credit Exposure under the Credit Agreement or any Designated Interest
Rate Agreement has not been terminated or any amount payable by the Borrower
under any Financing Document or Designated Interest Rate Agreement remains
unpaid.
3
Section 7. Stay of Acceleration. If acceleration of the time for
payment of any amount payable by the Borrower under any Financing Document or
Designated Interest Rate Agreement is stayed upon the insolvency, bankruptcy or
reorganization of the Borrower, all such amounts otherwise subject to
acceleration under the terms of such Financing Document or Designated Interest
Rate Agreement shall nonetheless be payable by Vencor hereunder forthwith on
demand by the Administrative Agent made, in the case of any Loans, at the
request of the Required Lenders or, in the case of obligations under a
Designated Interest Rate Agreement, at the request of the relevant Interest
Hedge Counterparty.
Section 8. Notices. Notices and other communications hereunder shall
be given in writing in the manner specified in or pursuant to Section 11.01 of
the Credit Agreement.
Section 9. GOVERNING LAW; SUBMISSION TO JURISDICTION. THIS GUARANTY
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL
LAWS OF THE STATE OF NEW YORK (INCLUDING SECTION 5-1401 OF THE GENERAL
OBLIGATIONS LAW OF THE STATE OF NEW YORK), WITHOUT REGARD TO CONFLICTS OF LAWS
PRINCIPLES.
Section 10. Successors and Assigns. This Guaranty Agreement is for the
benefit of the Lender Parties and the Interest Hedge Counterparties and their
respective successors and assigns. If any Loans, participations in Letters of
Credit, Notes or other amounts payable under the Financing Documents are
assigned pursuant to Section 10.06 or 11.06(c) of the Credit Agreement, the
rights hereunder, to the extent applicable to the indebtedness so assigned,
shall be transferred with such indebtedness.
Section 11. No Waiver. No failure or delay by any Lender Party or
Interest Hedge Counterparty in exercising any right, power or privilege under
any Financing Document or Designated Interest Rate Agreement shall operate as a
waiver thereof nor shall any single or partial exercise thereof preclude any
other or further exercise thereof or the exercise of any other right, power or
privilege. The rights and remedies provided in the Financing Documents and
Designated Interest Rate Agreements shall be cumulative and not exclusive of any
rights or remedies provided by law.
Section 12. Amendments and Waivers. Any provision of this Guaranty
Agreement may be amended, supplemented, modified or waived as (and only as)
provided in Section 11.05 of the Credit Agreement.
4
IN WITNESS WHEREOF, Vencor has caused this Guaranty Agreement to be
duly executed by its authorized officer as of the day and year first above
written.
VENCOR, INC.
(to be renamed Kindred Healthcare, Inc.)
By: __________________________________
Name:
Title:
5
EXHIBIT E
SUBORDINATION AND INTERCREDITOR AGREEMENT
dated as of
April 20, 2001
among
VENCOR OPERATING, INC.
(to be renamed Kindred Healthcare Operating, Inc.)
VENCOR, INC.,
(to be renamed Kindred Healthcare, Inc.)
and
XXXXXX GUARANTY TRUST COMPANY OF NEW YORK,
as collateral agent for the Senior Lenders
and
XXXXXX GUARANTY TRUST COMPANY OF NEW YORK,
as collateral agent for the Second Priority Lenders
TABLE OF CONTENTS
_______________
Page
----
ARTICLE 1
Definitions
Section 1.01. Incorporation by Reference.......................................... 2
Section 1.02. Certain Definitions................................................. 2
ARTICLE 2
Determinations Relating to Collateral; Remedies
Section 2.01. Determinations Relating to Collateral............................... 7
Section 2.02. Concentration and Collateral Accounts............................... 7
Section 2.03. Remedies............................................................ 8
Section 2.04. Right to Make Advances.............................................. 8
Section 2.05. Nature of Secured Parties' Rights................................... 9
Section 2.06. Senior Obligation Payment Date...................................... 9
ARTICLE 3
Application of Certain Amounts; Mandatory Prepayments
Section 3.01. Application of Proceeds of Collateral after Triggering Event........ 9
Section 3.02. Payment Provisions.................................................. 10
Section 3.03. Reduction Events; Mandatory Prepayments............................. 11
ARTICLE 4
Subordination
Section 4.01. Perfection and Priority of Security Interests....................... 12
Section 4.02. No Interference; No Right to Instruct Senior Collateral Agent;
Payment Over; Reinstatment; Permitted Actions............................... 17
ARTICLE 5
Amendments of Documents; Limitations on Facility Amounts
Section 5.01. Amendments and Modifications of Second Priority Financing
Documents................................................................... 20
Section 5.02. Limitation on Senior Credit Agreement............................... 20
PAGE
----
Article 6
Release of Collateral; Expiration of Certain Rights
Section 6.01. Releases of Collateral............................................. 21
Article 7
Miscellaneous
Section 7.01. Amendments, Supplements and Waivers................................ 22
Section 7.02. Notices............................................................ 22
Section 7.03. Headings........................................................... 24
Section 7.04. Severability....................................................... 24
Section 7.05. Dealings with the Borrower and the Guarantors...................... 24
Section 7.06. Binding Effect..................................................... 24
Section 7.07. Counterparts....................................................... 25
Section 7.08. NEW YORK LAW....................................................... 25
Section 7.09. CONSENT TO JURISDICTION AND SERVICE OF PROCESS..................... 25
Section 7.10. WAIVER OF JURY TRIAL............................................... 25
Section 7.11. Bailee for Perfection.............................................. 26
ii
SUBORDINATION AND INTERCREDITOR AGREEMENT
SUBORDINATION AND INTERCREDITOR AGREEMENT (as amended and modified from
time to time, this "Agreement") dated as of April 20, 2001, among VENCOR
OPERATING, INC. (to be renamed Kindred Healthcare Operating, Inc.), a Delaware
corporation (the "Borrower"), VENCOR, INC. (to be renamed Kindred Healthcare,
Inc.), a Delaware corporation ("Vencor"), XXXXXX GUARANTY TRUST COMPANY OF NEW
YORK, as collateral agent for the Senior Lenders from time to time under the
Senior Financing Documents (in such capacity, together with its successors and
assigns, the "Senior Collateral Agent") and XXXXXX GUARANTY TRUST COMPANY OF NEW
YORK, as collateral agent for the Second Priority Lenders from time to time
under the Second Priority Financing Documents (in such capacity, together with
its successors and assigns, the "Second Priority Collateral Agent").
RECITALS
WHEREAS, the Borrower and Vencor are parties to the Senior Credit
Agreement (such term and other capitalized terms used in these recitals without
definition having the meanings set forth below) pursuant to which the Borrower
intends to borrow funds and obtain letters of credit from the Senior Lenders all
on the terms and conditions set forth therein;
WHEREAS, the Borrower will secure its obligations under the Senior
Credit Agreement, the other Senior Financing Documents and certain specified
interest rate agreements by granting Liens on its assets to the Senior
Collateral Agent on behalf of the Senior Lenders as provided in the Senior
Security Agreement and the other Senior Collateral Documents;
WHEREAS, the Borrower and Vencor are parties to the Second Priority
Credit Agreement pursuant to which the Borrower intends to issue senior secured
notes with a stated principal amount of $300,000,000 to the Second Priority
Lenders in partial satisfaction of the claims of the Second Priority Lenders
arising under the $1,000,000,000 Credit Agreement dated as of April 29, 1998 (as
amended, the "Pre-Petition Senior Credit Agreement") among the Borrower, Vencor
and a group of banks and other financial institutions, in connection with which
Bank of America N.A. (previously named Nationsbank N.A.) acted as administrative
agent and Xxxxxx Guaranty Trust Company of New York acted as documentation agent
and collateral agent;
WHEREAS, the Borrower will secure its obligations under the Second
Priority Credit Agreement and the other Second Priority Financing Documents by
granting second priority Liens on its assets to the Second Priority Collateral
Agent
on behalf of the Second Priority Lenders as provided in the Second Priority
Security Agreement and the other Second Priority Collateral Documents;
NOW, THEREFORE, in consideration of the premises and the agreements,
provisions and covenants herein contained, the parties hereto agree as follows:
ARTICLE 1
Definitions
Section 1.01. Incorporation by Reference. Capitalized terms used but
not defined herein shall have the meanings assigned to such terms in the Senior
Credit Agreement.
Section 1.02. Certain Definitions. (a) As used in this Agreement, the
capitalized terms defined in the recitals hereto shall have the meanings
specified therein, and the following terms have the meanings specified below:
"Bankruptcy Proceeding" means any proceeding under the Bankruptcy Code
or any other Federal, state or foreign bankruptcy, insolvency, reorganization,
receivership or similar law.
"Collateral" means the Senior Collateral and the Second Priority
Collateral.
"Collateral Accounts" means "Collateral Accounts", as defined in the
Senior Security Agreement or the Second Priority Security Agreement as the
context may require.
"Collateral Documents" means (i) the Senior Collateral Documents and
(ii) the Second Priority Collateral Documents.
"Concentration Accounts" means "Concentration Accounts", as defined in
the Senior Security Agreement or the Second Priority Security Agreement as the
context may require.
"Default Rate" means on any day (i) with respect to any payment to be
made by the Borrower or any Guarantor to any Senior Secured Party on such day,
the "Default Rate", as defined in the Senior Credit Agreement, for such day and
(ii) with respect to any payment to be made by the Borrower or any Guarantor to
2
any Second Priority Secured Party on such day, the "Default Rate", as defined in
the Second Priority Credit Agreement, for such day.
"Distribution Date" means the date on which any funds are distributed
by the Senior Collateral Agent or the Second Priority Collateral Agent in
accordance with the provisions of Section 3.01.
"Event of Default" means any "Event of Default" under any Senior
Financing Document or any "Event of Default" under any Second Priority Financing
Document.
"Fees" means, with respect to the Senior Collateral Agent or the Second
Priority Collateral Agent, any fees, expenses, reimbursements or
indemnifications payable by the Borrower or any Guarantor to such Person in such
capacity.
"Financing Documents" means (i) the Senior Financing Documents and (ii)
the Second Priority Financing Documents.
"Instructing Group" means, until the Senior Obligation Payment Date,
the Required Senior Lenders, and thereafter the Required Second Priority
Lenders.
"Mortgaged Property" means all property of the Borrower and the
Guarantors subject to any of the Mortgages.
"Reduction Event Account" means "Reduction Event Account", as defined
in the Senior Security Agreement or the Second Priority Security Agreement as
the context may require.
"Representatives" means (i) the Senior Collateral Agent and (ii) the
Second Priority Collateral Agent.
"Required Second Priority Lenders" means the "Required Lenders", as
defined in the Second Priority Credit Agreement.
"Required Senior Lenders" means the "Required Lenders", as defined in
the Senior Credit Agreement.
"Second Priority Collateral" means all the "Collateral" as defined in
the Second Priority Collateral Documents and shall also include the Mortgaged
Property and the proceeds thereof.
"Second Priority Collateral Documents" means the "Collateral
Documents", as defined in the Second Priority Security Agreement.
3
"Second Priority Credit Agreement" means the $300,000,000 Credit
Agreement dated as of April 20, 2001, among the Borrower, Vencor, the financial
institutions party thereto, and Xxxxxx Guaranty Trust Company of New York, as
administrative agent and collateral agent, as the same may be amended, restated,
supplemented or otherwise modified from time to time, together with all
replacements, refinancings, refundings and renewals thereof from time to time.
"Second Priority Enforcement Notice" means any "Enforcement Notice", as
defined in the Second Priority Credit Agreement.
"Second Priority Financing Documents" means the "Financing Documents",
as defined in the Second Priority Credit Agreement.
"Second Priority Guaranty Agreements" means the "Guaranty Agreements",
as defined in the Second Priority Credit Agreement.
"Second Priority Lenders" means the "Lenders", as defined in the Second
Priority Credit Agreement.
"Second Priority Lien" means the Liens on the Second Priority
Collateral in favor of the Second Priority Secured Parties under the Second
Priority Collateral Documents.
"Second Priority Mortgages" means the "Mortgages", as defined in the
Second Priority Credit Agreement.
"Second Priority Obligations" means the "Secured Obligations", as
defined in the Second Priority Security Agreement.
"Second Priority Secured Party" means each holder from time to time of
the Second Priority Obligations.
"Second Priority Security Agreement" means the "Security Agreement", as
defined in the Second Priority Credit Agreement.
"Second Priority Subsidiary Guaranty Agreement" means the "Subsidiary
Guaranty Agreement", as defined in the Second Priority Credit Agreement.
"Second Priority Vencor Guaranty Agreement" means the "Vencor Guaranty
Agreement", as defined in the Second Priority Credit Agreement.
4
"Secured Obligations" means, without duplication, (i) the Senior
Obligations and (ii) the Second Priority Obligations.
"Secured Parties" means (i) the Senior Secured Parties and (ii) the
Second Priority Secured Parties.
"Senior Collateral" means all the "Collateral" as defined in the Senior
Collateral Documents and shall also include the Mortgaged Property and the
proceeds thereof.
"Senior Collateral Documents" means the "Collateral Documents", as
defined in the Senior Security Agreement.
"Senior Credit Agreement" means the $120,000,000 Credit Agreement dated
as of April 20, 2001, among the Borrower, Vencor, the financial institutions
party thereto, Xxxxxx Guaranty Trust Company of New York, as administrative
agent and collateral agent, and General Electric Capital Corporation, as
documentation agent and collateral monitoring agent, as the same may be amended,
restated, supplemented or otherwise modified from time to time, together with
all replacements, refinancings, refundings and renewals thereof from time to
time.
"Senior Enforcement Notice" means any "Enforcement Notice", as defined
in the Senior Credit Agreement.
"Senior Financing Documents" means the "Financing Documents", as
defined in the Senior Credit Agreement.
"Senior Lenders" means the "Lenders", as defined in the Senior Credit
Agreement.
"Senior Lien" means the Liens on the Senior Collateral in favor of the
Senior Secured Parties under the Senior Collateral Documents.
"Senior Mortgages" means the "Mortgages", as defined in the Senior
Credit Agreement.
"Senior Obligation Payment Date" means the date on which (i) the Senior
Obligations have indefeasibly been paid in full in cash or cash equivalents,
(ii) all lending commitments under the Senior Credit Agreement have been
terminated and (iii) there are no outstanding Letters of Credit issued under the
Senior Credit Agreement other than such as have been fully cash collateralized
5
under documents and arrangements satisfactory to the issuer of such letters of
credit.
"Senior Obligations" means the "Secured Obligations", as defined in the
Senior Security Agreement; provided that the principal amount of the
indebtedness under the Senior Credit Agreement included in the Senior
Obligations shall not exceed the maximum amount from time to time permitted to
be outstanding by this Agreement.
"Senior Secured Party" means each holder from time to time of the
Senior Obligations.
"Senior Security Agreement" means the "Security Agreement", as defined
in the Senior Credit Agreement.
"Triggering Event" means (x) the occurrence of any Event of Default
and, as a result thereof, (A) the acceleration (including any automatic
acceleration in connection with any Bankruptcy Proceeding) of the principal
amount of any Senior Obligations or Second Priority Obligations under the terms
of any Financing Document, (B) the receipt by the Senior Collateral Agent of a
Senior Enforcement Notice or of written instructions given by the Required
Senior Lenders while a Senior Enforcement Notice is in effect, in either case,
directing the Senior Collateral Agent to exercise one or more specific rights or
remedies under the Senior Collateral Documents or (C) the receipt by the Second
Priority Collateral Agent of a Second Priority Enforcement Notice or of written
instructions given by the Required Second Priority Lenders while a Second
Priority Enforcement Notice is in effect, in either case, directing the Second
Priority Collateral Agent to exercise one or more specific rights or remedies
under the Second Priority Collateral Documents and (y) in any such case, receipt
by the Second Priority Collateral Agent of written notice thereof from the
Senior Collateral Agent (in the case of any such Event of Default arising under
the Senior Financing Documents) or receipt by the Senior Collateral Agent of
written notice thereof from the Second Priority Collateral Agent (in the case of
any such Event of Default arising under any Second Priority Financing Document).
(b) References in this Agreement to "Articles", "Sections", "Schedules"
or "Exhibits" are to Articles, Sections, Schedules or Exhibits of or to this
Agreement unless otherwise specifically provided. Any of the terms defined in
Section 1.02 may, unless the context otherwise requires, be used in the singular
or plural depending on the reference. "Include", "includes" and "including" are
deemed to be followed by "without limitation" whether or not they are in fact
followed by such words or words of like import. "Writing", "written" and
comparable terms refer to printing, typing, facsimile and other
6
means of reproducing words on paper. References to any agreement or contract are
to such agreement or contract as amended, modified or supplemented from time to
time (whether before, on or after the Closing Date) in accordance with the terms
hereof and thereof. "Hereto", "herein" and "hereof" refer to this Agreement as
amended from time to time. "Any of the Mortgaged Property" means "the Mortgaged
Property or any part thereof or interest therein".
ARTICLE 2
Determinations Relating to Collateral; Remedies
Section 2.01. Determinations Relating to Collateral. If (i) the Second
Priority Collateral Agent shall receive any written request from the Borrower or
any Guarantor under any Second Priority Collateral Document for consent or
approval with respect to any matter or thing relating to any Collateral or the
Borrower or any Guarantor's obligations with respect thereto or (ii) there shall
be due to or from the Second Priority Collateral Agent under the provisions of
any Second Priority Collateral Document any material performance or the delivery
of any material instrument or (iii) the Second Priority Collateral Agent shall
become aware of any nonperformance by the Borrower or any Guarantor of any
covenant or any breach of any representation or warranty set forth in any Second
Priority Financing Document, then, in each such event, the Second Priority
Collateral Agent shall promptly advise the Senior Collateral Agent of the matter
or thing as to which consent has been requested or the performance or instrument
required to be delivered or the nonperformance or breach of which the Second
Priority Collateral Agent has become aware. Until the occurrence of the Senior
Obligation Payment Date, and subject to Section 6.01, the Senior Collateral
Agent and the Required Senior Lenders shall have the exclusive authority to
direct the Second Priority Collateral Agent's response to any of the events or
circumstances contemplated in clauses (i), (ii) and (iii) above.
Section 2.02. Concentration and Collateral Accounts. Until the
occurrence of the Senior Obligation Payment Date, all Concentration Accounts and
Collateral Accounts shall be established and maintained and all amounts therein
shall be applied in accordance with the provisions of the Senior Financing
Documents and this Agreement; provided that (x) the Second Priority Collateral
Agent, on behalf of the Second Priority Lenders, shall have a second priority
security interest in such accounts and in all Temporary Cash Investments
standing to the credit thereof as set forth in the Second Priority Security
Agreement and (y) the Senior Collateral Agent shall release or arrange for the
release of amounts from such accounts from time to time to enable the Borrower
or the Second Priority Collateral Agent to make timely payments of amounts as
and when they
7
fall due for payment under the Second Priority Financing Documents but only if
the payment of such amounts is then not prohibited by any provision hereof or of
the Senior Financing Documents. Following the occurrence of the Senior
Obligation Payment Date, all amounts in the Concentration Accounts and the
Collateral Accounts established under the Senior Security Agreement shall be
transferred to Concentration Accounts and Collateral Accounts established in
accordance with the provisions of the Second Priority Security Agreement and
such accounts shall thereafter be maintained and all amounts therein shall be
applied in accordance with the provisions of the Second Priority Security
Agreement.
Section 2.03. Remedies. (a) Until the Senior Obligation Payment Date,
the Senior Collateral Agent and the Required Senior Lenders shall have the
exclusive right to exercise any right or remedy with respect to the Collateral
and shall have the exclusive right to determine and direct the time, method and
place for exercising such right or remedy or conducting any proceeding with
respect thereto. Following the Senior Obligation Payment Date, the Second
Priority Collateral Agent and the Required Second Priority Lenders shall have
the exclusive right to exercise any right or remedy with respect to the
Collateral, and the Required Second Priority Lenders shall have the exclusive
right to direct the time, method and place of exercising or conducting any
proceeding for the exercise of any right or remedy available to the Second
Priority Collateral Agent with respect to the Collateral, or of exercising any
power conferred on the Second Priority Collateral Agent, or for the taking of
any other action authorized by the Second Priority Collateral Documents;
provided, however, that nothing in this Section shall impair the right of the
Second Priority Collateral Agent in its discretion to take any action deemed
proper by the Second Priority Collateral Agent and which is not inconsistent
with the terms hereof or any such direction by the Required Second Priority
Lenders.
(b) The Senior Collateral Agent will give the Second Priority
Collateral Agent prompt written notice of the occurrence of the Senior
Obligation Payment Date.
Section 2.04. Right to Make Advances. If an advance of funds shall at
any time be required for the preservation or maintenance of any Collateral, the
Senior Collateral Agent or the Second Priority Collateral Agent shall be
entitled to make such advance after notice to the Borrower and the other
Representative of its intention to do so but without notice to any other Secured
Party; provided that the Second Priority Collateral Agent shall not be entitled
to make any such advance unless (a) it shall have given at least two days' prior
notice to the Senior Collateral Agent of its intention to do so and (b) the
Senior Collateral Agent shall not have objected during such two day period to
the Second Priority Collateral Agent
8
making such advance (such objection, if any, to be received by the Second
Priority Collateral Agent during such two day period). Each such advance shall
be reimbursed, with interest accrued from the date such advance was made at the
Default Rate, by the Borrower upon demand by the Senior Collateral Agent or the
Second Priority Collateral Agent, and if the Borrower fails to comply with any
such demand, out of the proceeds of any Collateral in accordance with the
provisions of Section 3.01. If any Secured Party shall receive any funds which,
under this Section 2.04, belong to the Senior Collateral Agent or the Second
Priority Collateral Agent, such Secured Party shall remit such funds promptly to
the Senior Collateral Agent or the Second Priority Collateral Agent for
distribution to itself, and before such remittance shall hold such funds in
trust for the Senior Collateral Agent or the Second Priority Collateral Agent,
as the case may be.
Section 2.05. Nature of Secured Parties' Rights. All of the Secured
Parties shall be bound by any instruction or direction given by the Instructing
Group pursuant to this Agreement.
Section 2.06. Senior Obligation Payment Date. Promptly upon the
occurrence of the Senior Obligation Payment Date, the Senior Collateral Agent
shall notify the Second Priority Collateral Agent and any insurer that has
issued a lender's title insurance policy with respect to the Mortgaged
Properties of the occurrence thereof.
ARTICLE 3
Application of Certain Amounts; Mandatory Prepayments
Section 3.01. Application of Proceeds of Collateral after Triggering
Event. If, following a Triggering Event, any Collateral is sold or otherwise
realized upon (whether pursuant to the exercise of any remedy set forth in any
Collateral Document, in a Bankruptcy Proceeding or otherwise), the proceeds in
respect of such Collateral shall be applied as soon as practicable after receipt
as follows:
FIRST: to the Senior Collateral Agent in an amount equal to
the Fees thereof which are unpaid as of the applicable
Distribution Date, to any Senior Secured Party which has
theretofore advanced or paid any such Fees in an amount equal to
the amount thereof so advanced or paid by such Senior Secured
Party, pro rata based on the amounts of such Fees (or such
advance or payment) and, without duplication, to the Senior
Collateral Agent towards the
9
payment of any other costs, expenses or amounts payable pursuant
to clause first of Section 15(b) of the Senior Security Agreement
based on the amounts payable thereunder;
SECOND: to the Senior Collateral Agent and the Second Priority
Collateral Agent to reimburse to the Senior Collateral Agent and
the Second Priority Collateral Agent for the amount of any
advance made pursuant to Section 2.04 hereof (with interest
thereon at the Default Rate), pro rata based on the amounts so
advanced;
THIRD: until the Senior Obligation Payment Date, to the Senior
Collateral Agent, for distribution to the Senior Secured Parties
to be applied to the payment of the Senior Obligations in
accordance with clauses second, third and fourth of Section 15(b)
of the Senior Security Agreement;
FOURTH: to the Second Priority Collateral Agent in an amount
equal to the Fees thereof which are unpaid as of the applicable
Distribution Date, to any Second Priority Secured Party which has
theretofore advanced or paid any such Fees in an amount equal to
the amount thereof so advanced or paid by such Second Priority
Secured Party, pro rata based on the amounts of such Fees (or
such advance or payment) and, without duplication, to the Second
Priority Collateral Agent towards the payment of any other costs,
expenses or amounts payable pursuant to clause first of Section
15(b) of the Second Priority Security Agreement based on the
amounts payable thereunder;
FIFTH: to the Second Priority Collateral Agent, for distribution
to the Second Priority Secured Parties to be applied to the
payment of the Second Priority Obligations in accordance with
clauses second, third and fourth of Section 15(b) of the Second
Priority Security Agreement, until all the Second Priority
Obligations have been paid in full; and
SIXTH: after payment in full of all Secured Obligations, to the
Borrower and the Guarantors or their successors or assigns, as
their interests may appear, or to whosoever may be lawfully
entitled to receive the same or as a court of competent
jurisdiction may direct.
Section 3.02. Payment Provisions. For the purposes of applying the
provisions of Section 3.01, all interest, fees and other amounts to be paid on
any of the Secured Obligations pursuant to the terms of any Financing Document
10
shall, as among the Secured Parties and regardless of whether any such interest,
fees or other amounts are or would be recognized or allowed as a claim in any
bankruptcy or similar proceeding, be treated as due and owing on the Secured
Obligations.
Section 3.03. Reduction Events; Mandatory Prepayments. (a) Until the
occurrence of the Senior Obligation Payment Date but prior to the occurrence of
a Triggering Event, if any Net Cash Proceeds of any Asset Sale (other than in
connection with the Kingfish Transaction) of the Borrower or any Restricted
Subsidiary or if any Casualty Proceeds with respect to property of the Borrower
or any Restricted Subsidiary are to be deposited into a Collateral Account
pursuant to Section 2.11(a) of the Senior Credit Agreement or Section 2.06(a) of
the Second Priority Credit Agreement, such Net Cash Proceeds or Casualty
Proceeds, as the case may be, shall be applied: first as set forth in Section
7(b) and (c) of the Senior Security Agreement and, without duplication, second
as set forth in Section 7(c) of the Second Priority Security Agreement.
Following the occurrence of the Senior Obligation Payment Date but prior to the
occurrence of a Triggering Event, such Net Cash Proceeds or Casualty Proceeds,
as the case may be, shall be applied as set forth in Section 7(b) and (c) of the
Second Priority Security Agreement.
(b) If on any date on or after the Closing Date but prior to the
occurrence of the Senior Obligation Payment Date or a Triggering Event, Vencor
receives any Net Cash Proceeds from any Equity Issuance, such Net Cash Proceeds
(or the applicable portion thereof) shall be applied: first as set forth in
Section 2.11(b) of the Senior Credit Agreement and, without duplication, second
as set forth in Section 2.06(b) of the Second Priority Credit Agreement.
Following the occurrence of the Senior Obligation Payment Date, such Net Cash
Proceeds shall be applied as set forth in Section 2.06(b) of the Second Priority
Credit Agreement.
(c) If on any date on or after the Closing Date but prior to the
occurrence of the Senior Obligation Payment Date or a Triggering Event, Vencor
receives a cash payment out of the original amount deposited and held in escrow
under the Tax Refund Escrow Agreement, such payment shall be applied: first as
set forth in Section 2.11(c) of the Senior Credit Agreement and, without
duplication, second as set forth in Section 2.06(c) of the Second Priority
Credit Agreement. Following the occurrence of the Senior Obligation Payment
Date, such cash payment shall be applied as set forth in Section 2.06(c) of the
Second Priority Credit Agreement.
(d) Each prepayment of loans required pursuant to the foregoing
provisions of this Section will be made together with accrued interest to the
date of prepayment and any applicable premium in accordance with the terms of
the applicable Financing Document but such interest and premium, if any, shall
not
11
reduce the amount of principal required to be prepaid in accordance with this
Section.
(e) In the event the Borrower or any Restricted Subsidiary shall, at
any time after the occurrence of a Triggering Event, receive any Net Cash
Proceeds of any Asset Sale or any Casualty Proceeds which are attributable to
Collateral, such Net Cash Proceeds shall be subject to and applied in accordance
with the provisions of Section 3.01.
(f) Notwithstanding the foregoing, any payment made or to be made by
any Guarantor in respect of Second Priority Obligations subsequent to the
occurrence of a Triggering Event other than from the proceeds of Collateral
shall be subject to, and only made in accordance with, the subordination
provisions of the Second Priority Guaranty Agreements.
(g) For avoidance of doubt, paragraphs (a), (b) and (c) of Section 3.01
do not themselves create any Liens nor do they alter the priorities of Liens
which are created by the Financing Documents.
ARTICLE 4
Subordination
Section 4.01. Perfection and Priority of Security Interests. (a) Any
and all security interests, assignments, pledges, mortgages, deeds of trust,
deeds to secure debt and other liens, charges or encumbrances now existing or
hereafter created or arising of the Borrower or any Guarantor in favor of the
Second Priority Collateral Agent for the benefit of the Second Priority Secured
Parties with respect to the Collateral and securing the Second Priority
Obligations are expressly junior in priority, operation and effect to any and
all security interests, assignments, pledges, mortgages, deeds of trusts, deeds
to secure debt and other liens, charges or encumbrances now existing or
hereafter created or arising in favor of the Senior Collateral Agent for the
benefit of the Senior Secured Parties with respect to the Collateral and
securing the Senior Obligations, notwithstanding anything to the contrary
contained in any agreement or filing to which the Second Priority Collateral
Agent or any Second Priority Secured Party may now or hereafter be a party, and
regardless of the time, order or method of attachment, recording or perfection
of any financing statements or other security interests, assignments, pledges,
mortgages and other liens, charges or encumbrances or any defect or deficiency
or alleged defect or deficiency in any of the foregoing.
12
(b) The Second Priority Collateral Agent, on behalf of itself the other
Second Priority Secured Parties, acknowledges that the Senior Obligations
represent obligations under certain interest rate agreements and debt that is
revolving in nature and that the amount thereof that may be outstanding at any
time or from time to time may be increased or reduced and subsequently
reborrowed, and that the terms of the Senior Obligations may be modified,
extended or amended from time to time, and the aggregate amount of the Senior
Obligations may be increased, replaced or refinanced, all in accordance with
Section 5.02 hereof but otherwise without notice to or consent by the Second
Priority Secured Parties and without affecting the provisions hereof. The lien
priorities provided in this Section 4.01 shall not be altered or otherwise
affected by any such amendment, modification, supplement, extension, repayment,
reborrowing, increase, replacement, renewal, restatement or refinancing of
either the Senior Obligations or the Second Priority Obligations, or any portion
thereof, nor by any action that the Senior Secured Parties or the Second
Priority Secured Parties may take or fail to take in respect of the Collateral
in accordance with this Agreement.
(c) For purposes of perfecting the Second Priority Lien in the
Collateral and the proceeds thereof, the Borrower and Vencor, on behalf of
themselves and the Subsidiary Guarantors, and the Senior Collateral Agent hereby
acknowledge that UCC-1 financing statements, patent/trademark/copyright filings
and mortgages or other filings or recordings covering the Collateral, naming the
Borrower and one or more Guarantors as debtor, and the Second Priority
Collateral Agent, on behalf of the Second Priority Secured Parties, as secured
party, may be filed in appropriate public offices from time to time.
(i) The Second Priority Collateral Agent and each Second
Priority Secured Party agrees that all UCC-1 financing statements,
patent/trademark/copyright filings (except as provided in clause (ii)
below) or other filings or recordings filed or recorded by or on behalf
of the Second Priority Secured Parties shall be in form satisfactory to
the Senior Collateral Agent and shall contain the following notation
(or other notation substantially similar thereto): "The interest of the
Secured Party in the collateral described herein is junior and
subordinate to the interests of Xxxxxx Guaranty Trust Company of New
York, and its successors and assigns, as collateral agent for certain
secured parties, including the lenders from time to time party to that
certain $120,000,000 Credit Agreement dated as of April 20, 2001, as
amended, restated, supplemented, modified, refinanced or replaced from
time to time, with Vencor Operating Inc. (to be renamed Kindred
Healthcare Operating, Inc.) and Vencor, Inc. (to be renamed Kindred
Healthcare, Inc.) in accordance with the provisions of that certain
Subordination and Intercreditor
13
Agreement dated as of April 20, 2001, among Vencor Operating Inc. (to
be renamed Kindred Healthcare Operating, Inc.) and Vencor, Inc. (to be
renamed Kindred Healthcare, Inc.), and Xxxxxx Guaranty Trust Company of
New York, as Second Priority Collateral Agent and as Senior Collateral
Agent, as amended from time to time."
(ii) In addition, the Second Priority Collateral Agent and
each Second Priority Secured Party agrees that all mortgages, deeds of
trust, deeds to secure debt and similar instruments (collectively,
"mortgages") now or hereafter filed against real and/or personal
property pursuant to any Second Priority Collateral Document in favor
of or for the benefit of the Second Priority Collateral Agent and/or
the Second Priority Secured Parties shall be in form satisfactory to
the Senior Collateral Agent and shall contain the following provision
(or other provision substantially similar thereto): "Notwithstanding
any provision to the contrary herein, the terms of this [Mortgage], the
Liens created hereby, and the rights and remedies of the Mortgagee and
the Secured Parties hereunder, are subject to the Intercreditor
Agreement and subordinated as provided therein."
(d) The Second Priority Collateral Agent, on behalf of itself and the
other Second Priority Secured Parties, hereby agrees:
(i) to subordinate the Second Priority Collateral Documents
to any lease of any of the Mortgaged Properties to the same extent that
the Senior Collateral Documents are or have been subordinated to such
lease, but without affecting the relative priority of the Senior
Collateral Documents and the Second Priority Collateral Documents,
(ii) to grant nondisturbance rights with respect to any lease
of any of the Mortgaged Properties with respect to which the Senior
Collateral Agent has granted nondisturbance on substantially the same
terms as granted by the Senior Collateral Agent,
(iii) that if all or any portion of a Mortgaged Property is a
leasehold interest, (A) upon termination of any lease creating such
leasehold interest (the "Original Lease"), any right of the Second
Priority Collateral Agent to request a "new lease" pursuant to the
terms of the Original Lease shall be junior and subordinate to the
right of the Senior Collateral Agent to request such a new lease and
the Second Priority Collateral Agent shall not exercise any such right
without the prior written consent of the Senior Collateral Agent, (B)
the Second Priority Collateral Agent shall waive, surrender and give up
any right either the Second Priority Collateral Agent or the Second
Priority Secured Parties may have
14
to redeem the premises demised by the Original Lease or to continue the
Original Lease for its original term after the lessee thereunder has
been dispossessed or ejected therefrom by process of law or otherwise
and (C) the Senior Lien and the Second Priority Lien shall remain in
force or be reinstated with the same relative priority that existed
with respect to the Original Lease, and
(iv) that if the holder or grantor of a Second Priority
Collateral Document pays or discharges any liens prior in right to the
lien created by the Senior Collateral Documents with funds provided by
the Second Priority Collateral Agent or any Second Priority Secured
Party, neither the Second Priority Collateral Agent nor any Second
Priority Secured Party shall acquire, by subrogation or otherwise, any
claim superior or equivalent to the lien of the Senior Collateral
Documents so long as any indebtedness secured by the Senior Collateral
Documents remains outstanding.
Notwithstanding anything to the contrary in the Senior Mortgages, the
Senior Collateral Agent and the Senior Secured Parties hereby consent to the
assignment of leases and rents to the Second Priority Collateral Agent for the
Second Priority Secured Parties contained in the Second Priority Mortgages for
the purpose of securing and discharging the performance by the Borrower and the
Guarantors party thereto, provided however, that such assignment is subject to
the terms of this Agreement. The Senior Collateral Agent and the Senior Secured
Parties agree that the terms of each Senior Mortgage and the rights and remedies
of the parties thereto are subject to this Agreement. The Second Priority
Collateral Agent and the Second Priority Secured Parties agree that the terms of
each Second Priority Mortgage and the rights and remedies of the parties thereto
are subject to this Agreement and subordinated as provided herein.
(e) The Second Priority Collateral Agent, on behalf of itself and the
other Second Priority Secured Parties, acknowledges and agrees with the Senior
Collateral Agent and the Senior Secured Parties that the arrangements described
in clauses (a), (b), (c) and (d) above are solely for the purpose of providing
the Second Priority Secured Parties with a perfected second priority Lien in the
Collateral under the Second Priority Collateral Documents and shall in no way be
construed as imposing any duties or other obligations on the Senior Collateral
Agent other than to transfer to the Second Priority Collateral Agent in
accordance with the Financing Documents (or as a court of competent jurisdiction
may otherwise direct) the proceeds, if any, that remain following a sale,
transfer or other disposition of the Collateral and the occurrence of the Senior
Obligation Payment Date or, if the Senior Collateral Agent shall still be in
possession of all or any part of such Collateral after the Senior Obligation
Payment Date, such
15
Collateral or such part thereof remaining, without representation or warranty on
the part of the Senior Collateral Agent or the Senior Secured Parties.
In furtherance of the foregoing, the Second Priority Collateral Agent
and the Second Priority Secured Parties acknowledge and agree with the Senior
Secured Parties that, at all times following a Triggering Event until the Senior
Obligation Payment Date, the Senior Collateral Agent shall have the right to
sell, transfer or otherwise dispose of or deal with the Collateral as provided
in the Senior Collateral Documents without regard to the security interest of
the Second Priority Secured Parties therein, or any rights to which the Second
Priority Secured Parties would otherwise be entitled as a result of such
security interest, the only obligation of the Senior Collateral Agent to the
Second Priority Secured Parties in respect thereof being to deliver to the
Second Priority Collateral Agent (unless otherwise directed in writing by the
Second Priority Collateral Agent or by a court of competent jurisdiction) any
proceeds remaining from such sale, transfer or other disposition of such
Collateral after the Senior Obligation Payment Date or, if the Senior Collateral
Agent shall still be in possession of all or any part of such Collateral after
such payment and satisfaction in full, such Collateral or such part thereof
remaining, without representation or warranty on the part of the Senior
Collateral Agent or the Senior Secured Parties, provided that nothing contained
in this sentence shall be construed to give rise to, nor shall the Second
Priority Collateral Agent or the Second Priority Secured Parties have, any
claims whatsoever against the Senior Collateral Agent or any Senior Secured
Party on account of any act or omission to act in connection with the exercise
of any right or remedy of the Senior Collateral Agent with respect to the
Collateral that is permitted by the Collateral Documents (other than with
respect to any claims that may arise as a result of the failure of the Senior
Collateral Agent, after the Senior Obligation Payment Date, to deliver any such
remaining Collateral or proceeds to the Second Priority Collateral Agent). The
Second Priority Collateral Agent, on behalf of itself and the other Second
Priority Secured Parties, agrees that it shall not, and shall not attempt to,
exercise any rights with respect to (A) the Senior Lien in the Collateral or (B)
the Second Priority Lien in the Collateral, whether pursuant to the Second
Priority Collateral Documents or otherwise, until the Senior Obligation Payment
Date; provided that nothing in this sentence (or elsewhere in the Agreement)
shall preclude (x) exercise of the rights expressly reserved to the Second
Priority Collateral Agent and the Second Priority Secured Parties in accordance
with the terms of this Agreement or (y) the enforcement of this Agreement.
(f) In any Bankruptcy Proceeding, until the Senior Obligation Payment
Date, the Second Priority Collateral Agent, on behalf of itself and the other
Second Priority Secured Parties, agrees not to take any action whatsoever
(including, without limitation, voting any claim) in respect of or relating to
the
16
Second Priority Obligations, insofar as any such action arises from or relates
to the Second Priority Collateral Documents, the Second Priority Lien or relates
to the Collateral, in any manner that is inconsistent with or adverse to the
rights and priorities of the Senior Secured Parties as set forth herein.
(g) In the event that in any Bankruptcy Proceeding, the Second
Priority Secured Parties shall not have filed a proof of claim in respect of any
Second Priority Obligation by the date ten days prior to the latest date on
which such proof of claim may be filed, the Senior Collateral Agent is hereby
authorized but not obligated, on behalf of any applicable Second Priority
Secured Party, to file such proof of claim; provided that the Second Priority
Secured Parties shall be entitled to amend, vote or otherwise exercise rights in
respect of any such proof of claim so filed by the Senior Collateral Agent to
the same extent as they would be permitted under this Agreement to do so had
such proof of claim been filed by them.
Section 4.02. No Interference; No Right to Instruct Senior Collateral
Agent; Payment Over; Reinstatment; Permitted Actions. (a) The Second Priority
Collateral Agent, on behalf of itself and the other Second Priority Secured
Parties, agrees that:
(i) it will not take or cause to be taken any action, the
purpose or effect of which is to make any Second Priority Lien pari
passu with, or to give any Second Priority Secured Party any preference
or priority relative to, the Senior Lien or the Senior Secured Parties
with respect to the Collateral or any part thereof,
(ii) it will not interfere with, hinder or delay, in any manner,
whether by judicial proceedings or otherwise, any sale, transfer or
other disposition of the Collateral by the Senior Collateral Agent or
any other Senior Secured Party or any other action taken by or on
behalf of the Senior Collateral Agent or any Senior Secured Party
permitted to be taken by it pursuant to the Senior Collateral
Documents,
(iii) it has no right to (A) direct the Senior Collateral Agent
or any other Senior Secured Party to exercise any right, remedy or
power with respect to the Collateral or pursuant to the Senior
Collateral Documents or (B) consent to the exercise by the Senior
Collateral Agent or any other Senior Secured Party of any right, remedy
or power with respect to the Collateral or pursuant to the Senior
Collateral Documents,
(iv) it will not institute or assert in any suit, Bankruptcy
Proceeding or other proceeding any claim against the Senior Collateral
17
Agent or any other Senior Secured Party seeking damages from or other
relief by way of specific performance, instructions or otherwise, with
respect to, and none of the Senior Collateral Agent nor any other
Senior Secured Party shall be liable for, any action taken or omitted
to be taken by the Senior Collateral Agent or the Senior Secured
Parties with respect to the Collateral or pursuant to the Senior
Collateral Documents,
(v) until the Senior Obligation Payment Date, it will not make
any judicial or nonjudicial claim or demand or commence any judicial or
non-judicial proceedings against the Borrower or any Guarantor under or
with respect to any Collateral Document seeking payment or damages from
or other relief by way of specific performance, instructions or
otherwise under or with respect to any Collateral Document (other than
filing a proof of claim) or exercise any right, remedy or power under
or with respect to, or otherwise take any action to enforce, other than
filing a proof of claim, any Collateral Document; provided, however,
that (A) if there is a Bankruptcy Proceeding with respect to the
Borrower, the Second Priority Collateral Agent or any Second Priority
Secured Party may make claims under and seek to enforce any Second
Priority Guaranty Agreement, subject to the subordination provisions
thereof and to the other provisions of this Agreement and (B) none of
the Second Priority Collateral Agent or any other Second Priority
Secured Party may exercise any right, remedy or power under or with
respect to any other Second Priority Collateral Document, or otherwise
take any action to enforce rights or remedies with respect to any
Collateral,
(vi) until the Senior Obligation Payment Date, it will not
commence judicial or nonjudicial foreclosure proceedings with respect
to, seek to have a trustee, receiver, liquidator or similar official
appointed for or over, attempt any action to take possession of any
Collateral, exercise any right, remedy or power with respect to, or
otherwise take any action to enforce its interest in or realize upon,
the Collateral or pursuant to the Second Priority Collateral Documents;
provided that nothing in this paragraph (or elsewhere in this
Agreement) shall restrict the right of the Second Priority Collateral
Agent or any other Second Priority Secured Party to request "adequate
protection" (within the meaning of Section 361 of the Bankruptcy Code)
for the interests of the Second Priority Secured Parties in the Second
Priority Collateral in the event of any Bankruptcy Proceeding on a
basis that is not inconsistent with the rights and priorities of the
Senior Secured Parties as set forth herein and in the Financing
Documents,
18
(vii) it will not seek, and hereby waives any right, to have the
Collateral or any part thereof marshaled upon any foreclosure or other
disposition of the Collateral, and
(viii) it will not attempt, directly or indirectly, whether by
judicial proceedings or otherwise, to challenge the enforceability of
any provision of this Agreement or any Senior Financing Document or the
validity, perfection, priority or enforceability of the Senior Lien.
(b) The Second Priority Collateral Agent, on behalf of itself and the
other Second Priority Secured Parties, hereby agrees that, in the event of a
sale, transfer or other disposition of Collateral following a Triggering Event,
any security interest or lien of the Second Priority Secured Parties in such
Collateral (but not the proceeds thereof to the extent that such proceeds are to
be applied to Second Priority Obligations pursuant to Section 3.01) shall
terminate and be released automatically and without further action if the Senior
Lien in such Collateral is released. The Second Priority Collateral Agent will
execute and deliver to the Senior Collateral Agent promptly upon request
therefor all necessary instruments and documents to evidence such termination
and release.
(c) Except with respect to proceeds of any sale or other realization
on Collateral (i) payable prior to the occurrence of a Triggering Event to the
Second Priority Collateral Agent for the benefit of the Second Priority Secured
Parties pursuant to Section 3.03 or (ii) received by the Second Priority
Collateral Agent pursuant to distributions made by the Senior Collateral Agent
after the occurrence of a Triggering Event under Section 3.01, the Second
Priority Collateral Agent, on behalf of itself and the other Second Priority
Secured Parties, hereby agrees that if it shall obtain possession of any of the
Collateral, or shall realize any payment of insurance (including any payment on
any lender's title insurance policy with respect to the Mortgaged Properties) or
condemnation proceeds, proceeds of any sale or other disposition, rents, profits
or other income, reserve or compensation of any kind in respect of the
Collateral, in any case before the Senior Obligation Payment Date, then it shall
hold such Collateral or payment in trust for the Senior Secured Parties and
transfer such Collateral or payment, as the case may be, to the Senior
Collateral Agent for application in accordance with the provisions of Section
3.01. If, at any time, all or part of any payment with respect to the Senior
Obligations previously made is rescinded for any reason whatsoever, (i) the
Second Priority Collateral Agent and the Second Priority Secured Parties shall
promptly pay over to the Senior Collateral Agent any payment received by any of
them after the occurrence of a Triggering Event in respect of the Collateral or
proceeds thereof, and shall promptly turn any Collateral then held by any of
them over to the Senior Collateral Agent, in each case to the extent that the
Second Priority Secured Parties would not have been entitled to receive or hold
such
19
payment or Collateral pursuant to the terms of this Agreement had the rescinded
payment in respect of the Senior Obligations never been made in the first
instance and (ii) the provisions set forth in this Agreement shall be reinstated
as if such rescinded payment had not been made, until the Senior Obligation
Payment Date; provided, however, that the foregoing shall not require the Second
Priority Secured Parties to pay over to the Senior Collateral Agent any payment
received by them or Collateral delivered to them if such payment or delivery is
itself rescinded for any reason (and any such payment or Collateral theretofore
paid over to the Senior Secured Parties pursuant to the foregoing provisions
shall be released and delivered to the appropriate Person to the extent
necessary to effect such rescission.)
(d) With respect to proceeds of any sale or other realization on
Collateral to the extent payable to the Second Priority Collateral Agent for the
benefit of the Second Priority Secured Parties pursuant to Section 3.01, the
Senior Collateral Agent, on behalf of itself and the other Senior Secured
Parties, hereby agrees that if any of them shall obtain possession of any of
such proceeds before the time when the Second Priority Obligations have been
paid in full, then it shall hold such proceeds in trust for the holders of the
Second Priority Obligations and transfer such proceeds to the Second Priority
Collateral Agent.
ARTICLE 5
Amendments of Documents; Limitations on Facility Amounts
Section 5.01. Amendments and Modifications of Second Priority Financing
Documents. (a) Unless the Required Senior Lenders have consented thereto in
writing, the Borrower shall not, Vencor shall not, the Borrower shall not permit
any Restricted Subsidiary to, and no Second Priority Secured Party shall,
consent to or solicit any amendment or supplement to, or any waiver or other
modification of any Second Priority Financing Document if the effect thereof
would be to (i) increase the amount, or accelerate the date of payment, of any
obligation of the Borrower or any Guarantor thereunder or (ii) modify or alter
in any respect the terms of the subordination provisions set forth therein
(including without limitation, in Article 11 and Section 12.05(g) of the Second
Priority Credit Agreement) or impair in any way the rights and benefits of the
Senior Secured Parties thereunder.
Section 5.02. Limitation on Senior Credit Agreement. None of the
Borrower, Vencor or the Senior Secured Parties will amend or modify, or consent
to any amendment or modification of, the Senior Credit Agreement if the effect
thereof would be to increase the principal amount or commitments thereunder to
20
an amount in excess of $120,000,000 less any amounts up to an aggregate of
$45,000,000 by which the commitments under the Senior Credit Agreement have been
permanently reduced; provided that any amounts owing by the Borrower or any
Guarantor under any Designated Interest Rate Agreement (as defined in the Senior
Credit Agreement) shall be excluded form the calculation of the foregoing
amounts.
ARTICLE 6
Release of Collateral; Expiration of Certain Rights
Section 6.01. Releases of Collateral. At any time during which no
Triggering Event has occurred and is continuing:
(a) If (i) any Collateral is to be disposed of in a disposition that
is specifically permitted by the Financing Documents, (ii) the Borrower delivers
a certificate to such effect to the Second Priority Collateral Agent and the
Senior Collateral Agent at least three Business Days before the date of the
requested release, and (iii) neither the Senior Collateral Agent nor the Second
Priority Collateral Agent objects before the date of the requested release that
such disposition is prohibited by the Senior Financing Documents or the Second
Priority Financing Documents, as the case may be, then the Liens in favor of the
Secured Parties under the Collateral Documents with respect to such Collateral
(but, except in the case of the Kingfish Transaction, not the proceeds thereof)
will be released automatically upon consummation of such disposition, without
the need for any consent or approval by any other Secured Party, and the Second
Priority Collateral Agent and the Senior Collateral Agent, at the expense of the
Borrower, shall execute such documents as are reasonably necessary to effectuate
such release. No such release shall require any consent or approval by any other
Secured Party.
(b) The Lien of any Senior Collateral Document may, at any time, be
released in whole or in part by the Senior Collateral Agent pursuant to written
directions signed by the Required Senior Lenders (or the Senior Collateral Agent
on behalf of the Required Senior Lenders), and the Lien of any Second Priority
Collateral Document may, at any time, be released in whole or in part by the
Second Priority Collateral Agent pursuant to written directions signed by the
Required Second Priority Lenders (or the Second Priority Collateral Agent on
behalf of the Required Second Priority Lenders); provided that the release of
all or substantially all of the Collateral shall require the written consent of
all Secured Parties. Except as aforesaid, no such release shall require any
consent or approval by any other Secured Party.
21
ARTICLE 7
Miscellaneous
Section 7.01. Amendments, Supplements and Waivers. The Required Senior
Lenders and the Required Second Priority Lenders (and with respect to any such
amendment, supplement or waiver (i) which increases the obligations or reduces
the rights of the Borrower or Vencor, with the consent of the Borrower and
Vencor, (ii) which increases the obligations or reduces the rights of the Senior
Collateral Agent, with the consent of the Senior Collateral Agent and (iii)
which increases the obligations or reduces the rights of the Second Priority
Collateral Agent, with the consent of the Second Priority Collateral Agent) may
from time to time amend, supplement or waive any provision hereof. Any such
amendment, supplement or waiver shall be in writing and shall be binding upon
the Secured Parties and their respective successors and assigns.
Section 7.02. Notices. All notices, requests and other communications
to any party hereunder shall be in writing (including facsimile transmission or
similar writing) and shall be given to such party:
(i) in the case of the Borrower or Vencor, to it at:
Vencor, Inc.
(to be renamed Kindred Healthcare, Inc.)
000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attn: General Counsel
Facsimile: (000) 000-0000
with copies to:
Vencor, Inc.
(to be renamed Kindred Healthcare, Inc.)
000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attn: Assistant Treasurer
Facsimile: (000) 000-0000
Cleary, Gottlieb, Xxxxx & Xxxxxxxx
Xxx Xxxxxxx Xxxxx
Xxx Xxxx, XX 00000
22
Attn: Xxxxxx Xxxxxxx, Esq.
Xxxxxxx Xxxxxxxxx, Esq.
(ii) in the case of the Senior Collateral Agent, to it at:
Xxxxxx Guaranty Trust Company of New York
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Houston Xxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to:
X.X. Xxxxxx Services
000 Xxxxxxx Xxxxxxxxxx Xxxx
Xxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx Xxxxxxx and Xxxxx Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
(iii) in the case of the Second Priority Collateral Agent, to
it at:
Xxxxxx Guaranty Trust Company of New York
60 Wall Street
New York, New York 10260
Attention: Houston Stebbins
Telephone: (212) 648-7875
Facsimile: (212) 648-5005
with a copy to:
J.P. Morgan Services
500 Stanton Christiana Road
Newark, Delaware 19713
Attention: Sandra Doherty and Linda Palmer
Telephone: (302) 634-3316
Facsimile: (302) 634-4300
(iv) in the case of any party, to it at such other address or
facsimile number as such party may hereafter specify for the purpose
by notice to the other parties hereto.
23
Each such notice, request or other communication shall be effective (x) if given
by facsimile transmission, when transmitted to the facsimile number referred to
in this Section and confirmation of receipt is received, (y) if given by mail,
five days after such communication is deposited in the mails with first class
postage prepaid, addressed as aforesaid or (z) if given by any other means, when
delivered at the address referred to in this Section.
Section 7.03. Headings. Headings used in this Agreement are for
convenience only and shall not affect the construction of this Agreement.
Section 7.04. Severability. If any provision of this Agreement is
invalid or unenforceable in any jurisdiction, then, to the fullest extent
permitted by law, the other provisions of this Agreement shall remain in full
force and effect in such jurisdiction and shall be liberally construed in favor
of the Senior Collateral Agent and the Senior Secured Parties in order to carry
out the intentions of the parties hereto as nearly as may be possible; and the
invalidity or unenforceability of any provision thereof in any jurisdiction
shall not affect the validity or enforceability of such provision in any other
jurisdiction.
Section 7.05. Dealings with the Borrower and the Guarantors. Upon any
application or demand by the Borrower or any Guarantor to the Second Priority
Collateral Agent or the Senior Collateral Agent to take or permit any action
under any of the provisions of this Agreement or under any Collateral Document,
the Borrower or such Guarantor, as appropriate, shall furnish to the Second
Priority Collateral Agent or the Senior Collateral Agent a certificate of an
appropriate officer stating that all conditions precedent, if any, provided for
in this Agreement or such Collateral Document, as the case may be, relating to
the proposed action have been complied with, except that in the case of any such
application or demand as to which the furnishing of such documents is
specifically required by any provision of this Agreement or any Collateral
Document relating to such particular application or demand, no additional
certificate or opinion need be furnished.
Section 7.06. Binding Effect. (a) This Agreement shall be binding upon
and inure to the benefit of each of the parties hereto and each of the Secured
Parties and their respective successors and assigns, and nothing herein or in
any Collateral Document is intended or shall be construed to give any other
person any right, remedy or claim under, to or in respect of this Agreement or
the Collateral.
(b) Morgan may resign as Senior Collateral Agent or Second Priority
Collateral Agent at any time and may appoint any other subsidiary of J.P. Morgan
Chase & Co. to such role by giving written notice thereof to each of the Secured
24
Parties and the Borrower. Upon such appointment, such subsidiary shall thereupon
succeed to and become vested with all the rights and duties of Morgan in such
capacity and Morgan shall be discharged from its duties and obligations in such
capacity hereunder.
Section 7.07. Counterparts. This Agreement may be executed in separate
counterparts, each of which shall be an original and all of which taken together
shall constitute one and the same instrument.
Section 7.08. NEW YORK LAW. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK
(INCLUDING SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW
YORK), WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES, EXCEPT AS OTHERWISE
REQUIRED BY MANDATORY PROVISIONS OF LAW AND EXCEPT TO THE EXTENT THAT REMEDIES
PROVIDED BY THE LAWS OF ANY JURISDICTION OTHER THAN THE STATE OF NEW YORK ARE
GOVERNED BY THE LAWS OF SUCH JURISDICTION.
Section 7.09. CONSENT TO JURISDICTION AND SERVICE OF PROCESS. THE
BORROWER AND VENCOR EACH HEREBY SUBMITS TO THE NONEXCLUSIVE JURISDICTION OF THE
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK AND OF ANY
NEW YORK STATE COURT SITTING IN NEW YORK CITY FOR PURPOSES OF ALL LEGAL
PROCEEDINGS ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OF THE FINANCING
DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY. THE BORROWER AND
VENCOR EACH IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY
OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY
SUCH PROCEEDING BROUGHT IN SUCH A COURT AND ANY CLAIM THAT ANY SUCH PROCEEDING
BROUGHT IN SUCH A COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
Section 7.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY
IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE FINANCING DOCUMENTS OR THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY. EACH PARTY HERETO (A) CERTIFIES
THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY
25
HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE
EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES
THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS
AGREEMENT AND THE FINANCING DOCUMENTS, AS APPLICABLE, BY, AMONG OTHER THINGS,
THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 7.10.
Section 7.11. Bailee for Perfection. The Senior Collateral Agent hereby
acknowledges that, to the extent that it holds, or a third party holds on its
behalf, possession of Collateral pursuant to the Senior Collateral Documents
which is also Collateral under the Second Priority Collateral Documents, such
possession is also for the benefit of the Second Priority Collateral Agent and
the Second Priority Secured Parties to the extent required to perfect their
security interest in such Collateral. Nothing in the preceding sentence shall be
construed to impose any additional duty on the Senior Collateral Agent with
respect to such Collateral or provide the Second Priority Collateral Agent or
any Second Priority Secured Party with any rights with respect to such
Collateral beyond those specified in this Agreement.
26
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
VENCOR OPERATING, INC.,
(to be renamed Kindred Healthcare Operating, Inc.)
By________________________________
Name:
Title:
VENCOR, INC.,
(to be renamed Kindred Healthcare, Inc.)
By________________________________
Name:
Title:
MORGAN GUARANTY TRUST COMPANY OF
NEW YORK, as Senior Collateral
Agent for and on behalf of the
Senior Lenders,
By________________________________
Name:
Title:
MORGAN GUARANTY TRUST COMPANY OF
NEW YORK, as Second Priority
Collateral Agent for and on behalf
of the Second Priority Lenders,
By________________________________
Name:
Title:
28
Exhibit F-1
April ___, 2001
To the Swingline Bank, the LC Issuing Bank,
The Lenders and the Agents referred to below
c/o Morgan Guaranty Trust Company
of New York
as Collateral Agent and Administrative Agent
60 Wall Street
New York, NY 10260
Ladies and Gentlemen:
In my capacity as general counsel of Vencor, Inc. (to be renamed Kindred
Healthcare, Inc.), a Delaware corporation ("Vencor"), I have acted as general
counsel of each of the Persons listed on Annex A hereto (the "Covered
Companies") in connection with (i) the Credit Agreement dated as of April ___,
2001 (the "Credit Agreement") among Vencor Operating, Inc. (to be renamed
Kindred Healthcare Operating, Inc.), a Delaware corporation (the "Borrower"),
Vencor, the Swingline Bank, the LC Issuing Bank and the Lenders party thereto
(the "Lenders"), Morgan Guaranty Trust Company of New York, as Collateral Agent
and Administrative Agent, and General Electric Capital Corporation, as
Documentation and Collateral Monitoring Agent, and the other Financing Documents
referred to therein and (ii) the Master Lease Agreements referred to therein.
This opinion is being rendered to you pursuant to Section 3.01(r)(i)(A) of the
Credit Agreement.
Unless otherwise defined herein, capitalized terms defined in the Credit
Agreement or the Security Agreement are used herein as defined therein.
I, or attorneys in the legal department of Vencor under my direction, have
examined originals or copies, certified or otherwise identified to my
satisfaction, of each of the agreements listed on Annex B hereto (the "Covered
Financing Documents"), the Master Lease Agreements and such other documents,
corporate records, certificates of public officials and other instruments, and
have conducted such other investigations of fact and law, as I have deemed
necessary or advisable for purposes of this opinion.
Upon the basis of the foregoing, I am of the opinion that:
1. Each Covered Company has been incorporated or organized and is existing
in good standing as a corporation, limited liability company or partnership
under the laws of its jurisdiction of incorporation or organization, with power
and authority (corporate and other) to own its properties and conduct its
business as contemplated by the Plan of Reorganization.
2. Each Covered Company has been qualified as a foreign corporation,
limited liability company or partnership for the transaction of business and is
in good standing under the
2 _______________,2001
laws of each other jurisdiction in which it owns or leases properties, or
conducts any business, so as to require such qualification, except where
failures to be so qualified would not, in the aggregate, have a Material Adverse
Effect.
3. All of the outstanding shares of capital stock pledged under the
Security Agreement have been duly and validly authorized and issued, are fully
paid and non-assessable, and are owned directly or indirectly by the applicable
Lien Grantor as set forth in the Security Agreement, free and clear of all
Liens, equities or claims, except the Liens in favor of the Collateral Agent and
the Senior Secured Collateral Agent.
4. To the best of my knowledge after due inquiry, upon consummation by the
Covered Companies of the transactions contemplated on the Effective Date, no
Covered Company is, or with the giving of notice or lapse of time or both would
be, in violation of or in default under (a) its Organizational Documents, (b)
any indenture, mortgage, deed of trust or loan agreement, (c) any lease or other
agreement or instrument known to me after due inquiry to which any Covered
Company is a party or by which it or any of its properties is bound or (d) the
Plan of Reorganization, except for violations and defaults which in the
aggregate would not have a Material Adverse Effect.
5. To the best of my knowledge after due inquiry, the execution and
delivery by each Covered Company and its performance of its obligations under
the Covered Financing Documents and the Master Lease Agreements to which it is a
party and the consummation of the transactions contemplated therein will not:
(a) conflict with or result in a breach of any of the terms or
provisions of, or constitute a default under, any indenture, mortgage,
deed of trust, loan agreement, lease or other agreement or instrument
known to me after due inquiry to which any Covered Company is a party
or by which any Covered Company is bound or result in the creation or
imposition of any Lien upon any property or assets of any Covered
Company;
(b) result in any violation of the provisions of the
Organizational Documents of any Covered Company, the Plan of
Reorganization or any applicable law or statute or any order, rule or
regulation of any court or governmental agency or body having
jurisdiction over any Covered Company or any of its properties; or
(c) require any action by or in respect of, or filing with, any
governmental body, agency or official, except (i) filings of Uniform
Commercial Code financing statements (as in effect in the State of
California) delivered to the Collateral Agent on or before the date
hereof for filing promptly after the date hereof, (ii) Intellectual
Property Filings, (iii) the due recordation of memoranda of lease with
respect to the Master Lease Agreements and any assignment thereof to
the Borrower, (iv) the due recordation of the Leasehold Mortgages, (v)
the due recordation of the Fee Mortgages, (vi) any other filings
required after the date hereof pursuant to Section 5.08 of the Credit
Agreement, (vii) such other actions or filings as have been taken or
made before the date hereof and are in full force
3 ___________,2001
and effect on the date hereof and (viii) filings of Uniform Commercial
Code continuation statements when required,
except for such conflicts, breaches, defaults, Liens and violations which
in the aggregate would not be material to the Covered Companies, taken as a
whole, and would not otherwise have a Material Adverse Effect.
6. Except as set forth in Schedule 8 to the Credit Agreement, there are
no legal or governmental investigations, actions, suits or proceedings pending
or, to the best of my knowledge, threatened against or affecting any Covered
Company or any of its properties or to which any Covered Company is or may be a
party or to which any property of any Covered Company is or may be the subject
which, if determined adversely to any Covered Company, could in the aggregate
have, or reasonably be expected to have, a Material Adverse Effect; and, to the
best of my knowledge, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others.
7. Each Covered Company owns, possesses or has obtained all licenses,
permits, certificates, consents, orders, approvals and other authorizations
from, and has made all declarations and filings with, all Federal, state, local
and other governmental authorities, all self-regulatory organizations and all
courts and other tribunals, domestic or foreign, necessary to own or lease, as
the case may be, and to operate its properties and to carry on its business as
conducted as of the date hereof, except where failures to own, possess or obtain
any such licenses, permits, certificates, consents, orders, approvals or other
authorizations would not have, and could not reasonably be expected to have, in
the aggregate a Material Adverse Effect; no Covered Company has received any
notice of any proceeding relating to revocation or modification of any such
license, permit, certificate, consent, order, approval or other authorization,
except where such revocations or modifications would not have, and could not
reasonably be expected to have, in the aggregate a Material Adverse Effect; and
each Covered Company is in compliance with all laws and regulations relating to
the conduct of its business except where such noncompliance would not have, and
could not reasonably be expected to have, in the aggregate a Material Adverse
Effect.
8. The chief executive office of each Covered Company for purposes of
KRS 355.9-103(3)(d) is 680 South Fourth Avenue, Louisville, Kentucky 40202.
9. Each Covered Financing Document and Master Lease Agreement has been
duly authorized, executed and delivered by each Covered Company party thereto.
10. Each Covered Financing Document and Master Lease Agreement constitutes
a valid and legally binding obligation of each Covered Company party thereto,
enforceable in accordance with its terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to general equity
principles.
I am a member of the bar of the State of California. The foregoing
opinions (with the exception of paragraphs (1) and (2), above) are limited to
the Federal laws of the United States, and the laws of the States of California
and New York and the General Corporation Law of the
4 ______________,2001
State of Delaware and I am expressing no opinion as to the effect of laws of any
other jurisdiction. In rendering the foregoing opinions, I have relied (A) as to
matters involving the application of laws of the State of New York, upon the
opinion of Cleary, Gottlieb, Steen & Hamilton, dated and delivered to you today,
and (B) as to matters of fact, on certificates of responsible officers of the
Borrower and Vencor and information obtained from public officials and other
sources believed by me to be responsible. With respect to the opinions expressed
in paragraph (1) above, I have relied upon certificates of good standing issued
by the Secretary of State of the respective jurisdiction of incorporation of
each Covered Company. In addition, I have assumed that the Covered Documents
have been duly authorized, executed and delivered by all parties thereto other
than the Covered Companies parties thereto.
5 ____________,2001
This opinion is rendered solely to you in connection with the above matter.
This opinion may not be relied upon by you for any other purpose or relied upon
by any other person without my prior written consent.
Very truly yours,
__________________
M. Suzanne Riedman
Annex A - Covered Companies
---------------------------
1. Vencor, Inc. (to be renamed Kindred Healthcare, Inc.), a Delaware
corporation.
2. Vencor Operating, Inc. (to be renamed Kindred Healthcare Operating, Inc.), a
Delaware corporation.
3. Each Restricted Subsidiary listed in Schedule 1 to the Credit Agreement.
Annex B - Covered Financing Documents
-------------------------------------
1. Credit Agreement
2. Notes issued to the Lenders signatory to the Credit Agreement and the
Swingline Note issued to the Swingline Bank on the date hereof
3. Subsidiary Guaranty Agreement
4. Vencor Guaranty Agreement
5. Security Agreement
6. Leasehold Mortgages relating to the Initial Master Lease Properties and the
Other Leased Properties
7. Fee Mortgages relating to the Owned Properties
8. Intercreditor Agreement
9. Account Control Agreement
10. Copyright Security Agreement
11. Trademark Security Agreement
EXHIBIT F-2
April , 2001
To the Swingline Bank, the LC Issuing Bank,
The Lenders and the Agents referred to below
c/o Morgan Guaranty Trust Company
of New York
as Collateral Agent and Administrative Agent
60 Wall Street
New York, NY 10260
Ladies and Gentlemen:
This opinion is being rendered to you in my capacity as Vice President of
Corporate Legal Affairs and Corporate Secretary of Vencor, Inc. (to be renamed
Kindred Healthcare, Inc.), a Delaware corporation ("Vencor"), in connection with
(i) the Credit Agreement dated as of April ___, 2001 (the "Credit Agreement")
among Vencor Operating, Inc. (to be renamed Kindred Healthcare Operating, Inc.),
a Delaware corporation (the "Borrower"), Vencor, the Swingline Bank, the LC
Issuing Bank and the Lenders party thereto (the "Lenders"), Morgan Guaranty
Trust Company of New York, as Collateral Agent and Administrative Agent, and
General Electric Capital Corporation, as Documentation and Collateral Monitoring
Agent, and the other Financing Documents referred to therein and (ii) the Master
Lease Agreements referred to therein. This opinion is being issued to you
pursuant to Section 3.01(r)(i)(B) of the Credit Agreement.
Unless otherwise defined herein, capitalized terms defined in the Credit
Agreement or the Security Agreement are used herein as defined therein.
I have examined originals or copies, certified or otherwise identified to
my satisfaction, of each of the agreements listed on Annex A hereto (the
"Covered Financing Documents"), the Master Lease Agreements and such other
documents, corporate records, certificates of public officials and other
instruments, and have conducted such other investigations of fact and law, as I
have deemed necessary or advisable for purposes of this opinion.
Upon the basis of the foregoing, I am of the opinion that:
1. To the best of my knowledge after due inquiry, the execution and
delivery by each of the Persons listed on Annex B hereto (each, a "Covered
Company") and its performance of its obligations under the Covered Financing
Documents and the Master Lease Agreements to which it is a party and the
consummation of the transactions contemplated therein will not require any
action by or in respect of, or filing with, any governmental body, agency or
official, except (i) filings of Uniform Commercial Code financing statements (as
in effect in the Commonwealth of Kentucky) delivered to the Collateral Agent on
or before the date hereof for filing promptly after the date hereof, (ii)
Intellectual Property Filings, (iii) the due recordation of memoranda of lease
2
with respect to the Master Lease Agreements and any assignment thereof to the
Borrower, (iv) the due recordation of the Leasehold Mortgages, (v) the due
recordation of the Fee Mortgages, (vi) any other filings required after the date
hereof pursuant to Section 5.08 of the Credit Agreement, (vii) such other
actions or filings as have been taken or made before the date hereof and are in
full force and effect on the date hereof and (viii) filings of Uniform
Commercial Code continuation statements when required.
2. The financing statements attached hereto as Annex C are in appropriate
-------
form for filing with the Secretary of State and the Jefferson County Clerk of
the Commonwealth of Kentucky. To the extent that a security interest in the
Personal Property Collateral may be perfected by the filing of a financing
statement in the Commonwealth of Kentucky, the security interest in the Personal
Property Collateral will be perfected upon the filing of such financing
statements with the Secretary of State and the Jefferson County Clerk of the
Commonwealth of Kentucky, and no further filing or recording of any document or
instrument or other action will be required so to perfect such security
interest, except that (i) continuation statements with respect to each such
financing statement must be filed within five years after the date of filing of
such financing statements and (ii) additional filings may be necessary if any
Lien Grantor changes its name, identity or corporate structure or the
jurisdiction in which its places of business, its chief executive office or its
Personal Property Collateral are located.
I am a member of the bar of the Commonwealth of Kentucky. The foregoing
opinions are limited to the laws of the Commonwealth of Kentucky and I am
expressing no opinion as to the effect of laws of any other jurisdiction.
3
This opinion is rendered solely to you in connection with the above matter.
This opinion may not be relied upon by you for any other purpose or relied upon
by any other person without my prior written consent.
Very truly yours,
Joseph L. Landenwich
Annex A - Covered Financing Documents
-------------------------------------
1. Credit Agreement
2. Notes issued to the Lenders signatory to the Credit Agreement and the
Swingline Note issued to the Swingline Bank on the date hereof
3. Subsidiary Guaranty Agreement
4. Vencor Guaranty Agreement
5. Security Agreement
6. Leasehold Mortgages relating to the Initial Master Lease Properties and the
Other Leased Properties
7. Fee Mortgages relating to the Owned Properties
8. Intercreditor Agreement
9. Account Control Agreement
10. Copyright Security Agreement
11. Trademark Security Agreement
Annex B - Covered Companies
---------------------------
1. Vencor, Inc. (to be renamed Kindred Healthcare, Inc.), a Delaware
corporation.
2. Vencor Operating, Inc. (to be renamed Kindred Healthcare Operating, Inc.), a
Delaware corporation.
3. Each Restricted Subsidiary listed in Schedule 1 to the Credit Agreement.
Annex C Financing Statements
-----------------------------
EXHIBIT G
Writer's Direct Dial: (212) 225-2280
April 20, 2001
To the Lenders, Swingline Bank, LC
Issuing Banks and Agents
referred to below
c/o Morgan Guaranty Trust Company
of New York,
as Collateral Agent and Administrative Agent
60 Wall Street
New York, NY 10260
Ladies and Gentlemen:
We have acted as special New York counsel to each of Vencor, Inc. (to
be renamed Kindred Healthcare, Inc.), a Delaware corporation ("Vencor") and
Vencor Operating, Inc. (to be renamed Kindred Healthcare Operating, Inc.), a
Delaware corporation (the "Company" and, collectively with Vencor and each
Restricted Subsidiary listed in Schedule 1 to the Credit Agreement referred to
below, the "Covered Companies"), in connection with (i) the Credit Agreement
dated as of April 20, 2001 (the "Credit Agreement") among the Company, Vencor,
the Swingline Bank, LC Issuing Banks and Lenders party thereto (the "Lenders"),
and Morgan Guaranty Trust Company of New York, as Collateral Agent and
Administrative Agent, and General Electric Capital Corporation, as Documentation
Agent and Collateral Monitoring Agent, and the other Financing Documents
referred to therein and (ii) the Master Lease Agreements. This opinion is being
rendered to you pursuant to Section 3.01(r)(ii) of the Credit Agreement.
Unless otherwise defined herein, capitalized terms defined in the
Credit Agreement or the Security Agreement are used herein as defined therein.
Morgan Guaranty Trust Company of New York
As Collateral Agent and Administrative Agent, et. al.
------
April 20, 2001
p. 2
In arriving at the opinions expressed below, we have examined the
following documents:
(a) an executed copy of the Credit Agreement;
(b) copies of the Notes and Swingline Note as issued by the
Company to the Lenders and to the Swingline Bank, respectively;
(c) an executed copy of the Subsidiary Guaranty Agreement;
(d) an executed copy of the Vencor Guaranty Agreement;
(e) an executed copy of the Security Agreement;
(f) an executed copy of the Intercreditor Agreement;
(g) an executed copy of the Account Control Agreement;
(h) an executed copy of the Copyright Security Agreement;
(i) an executed copy of the Trademark Security Agreement;
(j) executed copies of the Master Lease Agreements;
(k) executed copies of the Fee Mortgages relating to the Owned
Properties (the "Covered Fee Mortgages");
(l) executed copies of the Leasehold Mortgages relating to the
Initial Master Lease Properties and the Other Leased Properties
(collectively, the "Covered Leasehold Mortgages"); and
(m) the Plan of Reorganization.
The documents referenced in items (a) through (j) above are
collectively referred to herein as the "Covered Financing Documents", and the
Covered Financing Documents, Covered Fee Mortgages and Covered Leasehold
Mortgages are collectively referred to herein as the "Covered Documents".
In addition, we have examined the originals, or copies certified or
otherwise identified to our satisfaction, of corporate records of each Covered
Company that is organized under the laws of the State of New York or Delaware
(each such Covered Company, a "Domestic Covered Company"), certificates of
public officials and of officers and representatives of each Domestic Covered
Company and such other persons, and we have made such investigations of law, as
we have deemed necessary as a basis for the opinions expressed below.
Morgan Guaranty Trust Company of New York
As Collateral Agent and Administrative Agent, et. al.
------
April 20, 2001
p. 3
In rendering the opinions expressed below, we have assumed the
authenticity of all documents submitted to us as originals and the conformity to
the originals of all documents submitted to us as copies. In addition, we have
assumed and have not verified the accuracy as to factual matters of each
document we have reviewed (including, without limitation, the accuracy of the
representations and warranties of the Company and Vencor in the Credit
Agreement).
Based upon the foregoing and subject to further assumptions and
qualifications set forth below, it is our opinion that:
1. Each Covered Document has been duly authorized, executed and
delivered by all necessary corporate action of each Domestic Covered Company
party thereto and has been duly executed and delivered under the laws of the
State of New York by each Covered Company other than a Domestic Covered Company
(each such Covered Company, a "Foreign Covered Company").
2. Each Covered Financing Document constitutes a valid and binding
obligation of each Covered Company party thereto, enforceable in accordance with
its terms, provided that we express no opinion with respect to any provision
under any Covered Financing Document which under the terms of such Covered
Financing Document is governed by the laws of a jurisdiction other than the
State of New York.
3. The execution and delivery of (i) the Covered Financing Documents
by each Covered Company party thereto and its performance of its obligations
thereunder, and (ii) the Covered Fee Mortgages and the Covered Leasehold
Mortgages by each Covered Company party thereto, and, in the case of clauses (i)
and (ii), the consummation of the transactions contemplated in each such Covered
Document at the time and in the manner therein contemplated, comply with the
requirements of, and are authorized by, the Plan of Reorganization, and will not
conflict with or result in a breach of any of the terms or provisions of, or
constitute a default under any Covered Financing Document, the Senior Secured
Credit Agreement or the Plan of Reorganization.
4. The execution and delivery by each Covered Company and its
performance of its obligations under the Covered Documents to which it is a
party do not require any approval, consent, authorization or other action by, or
filing, recording or registration with, any governmental authority of the State
of New York, except (i) filings of Uniform Commercial Code (as in effect in the
State of New York, the "UCC") financing statements delivered to the Collateral
Agent on or before the date hereof for filing promptly after the date hereof,
(ii) Intellectual Property Filings, (iii) any other filings required after the
date hereof pursuant to Section 5.08 of the Credit Agreement, (iv) filings of
UCC continuation statements when required, and (v) such other consents,
authorizations, approvals or filings, if any, as may be required in connection
with the performance of the Covered Documents due to the specific nature or
scope of any particular business or activity conducted, or asset held, by a
Covered Company.
Morgan Guaranty Trust Company of New York
As Collateral Agent and Administrative Agent, et. al.
------
April 20, 2001
p. 4
5. No Covered Company is, or after giving effect to the transactions
contemplated by the Covered Documents will be, (i) an "investment company" or a
company "controlled" by an "investment company" within the meaning of the
Investment Company Act of 1940, as amended, (ii) a "holding company" or an
"affiliate" of a "holding company" or a "subsidiary company" of a "holding
company", within the meaning of the Public Utility Holding Company Act of 1935,
as amended, or (iii) otherwise subject to any regulatory scheme under the
Federal laws of the United States or under the laws of the State of New York
which restricts its ability to incur Debt under the Credit Agreement.
6. The provisions of the Security Agreement are effective to create,
in favor of the Collateral Agent for the benefit of the Secured Parties, a valid
security interest in all Personal Property Collateral that is subject to Article
8 or 9 of the UCC of each Lien Grantor, as security for the Secured Obligations
of such Lien Grantor, except that the Security Agreement will create such
security interest in Personal Property Collateral in which such Lien Grantor has
no present rights only when such Lien Grantor acquires rights therein.
7. Assuming that the Secured Parties have no notice of any adverse
claim (as defined in the UCC) to any of the collateral described below, and no
notice that any Instruments are overdue or have been dishonored or of any
defense against or claim to such Instrument on the part of any Person, the
Security Agreement, together with possession and retention in the State of New
York by the Collateral Agent of (i) certificated securities under Article 8 of
the UCC constituting Pledged Equity Interests, and (ii) Instruments constituting
Pledged Instruments, in each case will create, together with related duly
executed and completed blank endorsements thereof, as of the effective date of
such pledge, a valid and perfected security interest under the UCC in such
Pledged Equity Interests or Pledged Instruments, as the case may be, in favor of
the Collateral Agent for the benefit of the Secured Parties, and such security
interest will have priority over all other security interests created under the
UCC in such Pledged Equity Interests and Pledged Instruments by the Covered
Company pledging such asset.
8. The making of the Loans and Swingline Loans, the issuance of the
Letters of Credit and the use of proceeds thereof as contemplated by the Credit
Agreement do not violate Regulation T, U or X of the Board of Governors of the
Federal Reserve System (the "Board").
In rendering the opinions set forth in paragraph (2) above, we express
no opinion with respect to:
(i) the validity, binding effect or enforceability of any provision in
the Security Agreement or any other Covered Document that purports to (A) impose
on the Collateral Agent or any other person standards for the care of Personal
Property Collateral in its possession other than as provided for in Section 9-
207 of the UCC, (B) permit the Collateral Agent or any other person to vote or
otherwise exercise any rights with respect to any of the Personal Property
Collateral absent compliance with the requirements of applicable laws and
regulations as to the voting of or other exercise of rights with respect to such
Personal Property Collateral, (C) waive, or consent to the absence of compliance
with, any rights of any Covered Company, or duties owing to it as a matter of
law, except to the extent that the Covered Company may so waive or
Morgan Guaranty Trust Company of New York
As Collateral Agent and Administrative Agent, et. al.
------
April 20, 2001
p. 5
consent under applicable law, or (D) provide indemnification of any person to
the extent such provision covers or could be construed to cover losses or claims
under federal or state securities laws or to the extent inconsistent with public
policy;
(ii) other than as specifically set forth in paragraph (7) above, the
priority of any security interest in or to any of the Personal Property
Collateral or the perfection of any security interest in or to any of the
Personal Property Collateral; or
(iii) the creation of the leasehold estate or provisions of the Master
Lease Agreements relating thereto or the remedies set forth in Article XVI of
the Master Lease
Agreements, which are governed by the laws of the state in which the relevant
leased property is located.
Insofar as the foregoing opinions relate to the validity, binding
effect or enforceability of any agreement or obligation of any Covered Company
(a) we have assumed that each party to such an agreement or obligation has
satisfied those legal requirements that are applicable to it to the extent
necessary to make such agreement or obligation enforceable against it (except
that no such assumption is made as to (i) any Domestic Covered Company and (ii)
any Foreign Covered Company regarding matters of the federal law of the United
States of America or the law of the State of New York) and (b) such opinions are
subject to applicable bankruptcy, insolvency and similar laws affecting
creditors' rights generally and to general principles of equity. In addition,
certain of the remedial provisions of the Covered Documents may be further
limited or rendered unenforceable by other applicable laws and judicially
adopted principles, which, however, in our judgment do not make the remedies
provided for therein (taken as a whole) inadequate for the practical realization
of the principal benefits purported to be afforded thereby (except for the
economic consequences of procedural or other delay).
In rendering the opinion in paragraph 3 above, we have assumed that
all conditions precedent to the Effective Date have been satisfied as set forth
in the Plan of Reorganization.
In rendering the opinion in paragraph 4 above, we have assumed that
the Covered Companies are subject only to New York State laws and regulations
generally applicable to companies doing business in the State of New York.
In rendering the opinion in paragraph 7 above, we have assumed that as
of the date hereof and at any time an Instrument or a certificated security is
delivered to the Collateral Agent for the benefit of the Secured Parties, the
relevant Lien Grantor will own Collateral represented by such Instrument or
certificated security free and clear of any lien, claim or encumbrance (and we
express no opinion with respect thereto). We express no opinion with respect to
the priority of the security interest of the Secured Parties against (i) any
lien, claim or other interest that arises by operation of law and is given
priority over perfected security interests, (ii) any lien or claim in favor of
the United States or any agency or instrumentality thereof (other than liens
arising under the federal or state tax laws or ERISA), and (iii) any claim given
priority pursuant to 31 U.S.C. (S)3713. In addition, insofar as the security
interest secures
Morgan Guaranty Trust Company of New York
As Collateral Agent and Administrative Agent, et. al.
------
April 20, 2001
p. 6
"future advances" within the meaning of the UCC, the priority of such security
interest will be subject to the limitations set forth in Sections 9-301(4) and
9-312(7) of the UCC.
In rendering the opinion in paragraph 8 above, we have assumed that
none of the Lenders is a "creditor" within the meaning of Regulation T of the
Board.
We express no opinion as to (i) Section 11.04 of the Credit Agreement
insofar as it provides that any holder of a participation in a Loan or LC
Reimbursement Obligation may exercise set-off or similar rights with respect to
such participation and (ii) the effect of the law of any jurisdiction other than
the State of New York wherein any Lender may be located or wherein enforcement
of the Credit Agreement, or any of the other Covered Financing Documents may be
sought that limits the rates of interest legally chargeable or collectible.
With respect to the submission in any Covered Document to the
jurisdiction of a United States federal court sitting in the State of New York,
we express no opinion as to the subject matter jurisdiction of any such court to
adjudicate any action relating to the Covered Document where jurisdiction based
on diversity of citizenship under 28 U.S.C. (S)1332 does not exist.
We note that the designation in any Covered Document of the U.S.
federal courts sitting in New York City as the venue for actions or proceedings
relating to such Covered Document is (notwithstanding the waiver contained in
any such Covered Document) subject to the power of such courts to transfer
actions pursuant to 28 U.S.C. (S)1404(a) or to dismiss such actions or
proceedings on the grounds that such a federal court is an inconvenient forum
for such an action or proceeding.
The foregoing opinion is limited to the Federal laws of the United
States, and the laws of the State of New York and the General Corporation Law of
the State of Delaware, and we are expressing no opinion as to the effect of the
laws of any other jurisdiction.
Morgan Guaranty Trust Company of New York
As Collateral Agent and Administrative Agent, et. al.
------
April 20, 2001
p. 7
We are furnishing this opinion letter to you in connection with the
Covered Documents. This opinion is not to be used, circulated, quoted or
otherwise referred to for any other purpose.
Very truly yours,
CLEARY, GOTTLIEB, STEEN & HAMILTON
By: /s/ James F. Munsell
------------------------------
James F. Munsell
EXHIBIT H
April 20, 2001
To the Lenders and Agents referred to below
c/o Morgan Guaranty Trust Company of New York
As Collateral Agent and Administrative Agent
60 Wall Street
New York, NY 10260
Re: Vencor, Inc., et al.
--------------------
Ladies and Gentlemen:
We have acted as Delaware bankruptcy counsel to (i) Vencor, Inc. (to
be renamed Kindred Healthcare, Inc.), a Delaware corporation ("Vencor"), and a
debtor and debtor-in-possession in a jointly administered bankruptcy case, Case
Nos. 3199-3327 (the "Case"), in the United States Bankruptcy Court for the
District of Delaware (the "Bankruptcy Court"), pending under chapter 11 of the
United States Code (the "Bankruptcy Code"), and (ii) the corporations listed on
Annex A attached hereto, in connection with the Credit Agreement, dated as of
April 20, 2001 (the "Credit Agreement"), among Vencor Operating, Inc. (to be
renamed Kindred Healthcare Operating, Inc.), a Delaware corporation, Vencor, the
Swingline Bank, LC Issuing Banks and the Lenders party thereto (collectively,
the "Lenders"), Morgan Guaranty Trust Company of New York, as collateral agent
and administrative agent for the Lenders, and General Electric Capital
Corporation, as documentation agent and collateral monitoring agent, the other
Financing Documents referred to therein, and the Master Lease Agreements
referred to therein. This opinion is being delivered to you pursuant to the
requirements of the Credit Agreement.
In rendering this opinion, we have examined and relied upon copies of
the following documents: the Findings of Fact, Conclusions of Law and Order
Under 11 U.S.C. (S) 1129 and Rule 3020 of the Federal Rules of Bankruptcy
Procedure Confirming the Fourth Amended Plan of Reorganization of Vencor, Inc.,
et al., dated March 16, 2001 (the "Confirmation Order") executed by Judge Mary
F. Walrath in connection with the Case, a copy of which is attached hereto as
Exhibit A and a certified copy of the docket of the Clerk of the Bankruptcy
Court in the Case for the period of March 16, 2001 to April 20, 2001 (the
"Docket"), a copy of which is attached hereto as Exhibit B. In our examination
of documents, we have
Morgan Guaranty Trust Company of New York
As Collateral Agent and Administrator Agent. et al.
-----
April 20, 2001
Page 2
assumed the genuineness of the signatures, the authenticity of all documents
submitted to us as originals, the conformity to original documents of all
documents submitted to us as copies and the legal capacity of natural persons to
complete the execution of documents. As to facts material to our opinion, we
have relied without independent investigation on the above-referenced documents
and on the accuracy as of the date hereof of the matters therein contained. We
express no opinion below as to the existence or effect of any matter entered on
the Docket after the effective time of our review of the Docket (as referenced
below). Further, we express no view whether the terms of the Confirmation Order
are in conformance with the Bankruptcy Code or other applicable law.
Based on and subject to the foregoing, and limited in all respects to
matters of Delaware law and federal bankruptcy law, it is our view, based solely
upon our review of the Docket as it existed as of 12:32 p.m. on April 20, 2001,
that no notice of appeal of the Confirmation Order has been filed with the
Bankruptcy Court.
The opinions herein expressed are intended solely for the benefit of
the addressee hereof and the Lenders and the Agents in connection with the
transactions contemplated by the Credit Agreement and may not be relied upon by
any other person or entity, or for any other purpose, without our prior written
consent. Notwithstanding the forgoing, we hereby consent to reliance hereon by
any person becoming a Lender under the Credit Agreement. This opinion speaks
only as of the date hereof and is based on our understandings and assumptions as
to present facts, and our review of the above-referenced documents and the
application of Delaware and federal bankruptcy law as the same exist on the date
hereof, and we undertake no obligation to update or supplement this opinion
after the date hereof for the benefit of any person or entity with respect to
any facts or circumstances that may hereafter come to our attention or any
changes in facts or law that may hereafter occur or take effect.
Very truly yours,
Robert J. Dehney
Enclosures
ANNEX A
TO
EXHIBIT H
Annex A--Covered Companies
--------------------------
1. Vencor, Inc. (to be renamed Kindred Healthcare, Inc.), a Delaware
corporation.
2. Vencor Operating, Inc. (to be renamed Kindred Healthcare Operating,
Inc.), a Delaware corporation.
3. Each Restricted Subsidiary listed in Schedule 1 to the Credit
Agreement.
EXHIBIT A
TO
EXHIBIT H
IN THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF DELAWARE
In re: ) Case Nos. 99-3199 (MFW)
) through 99-3327 (MFW)
Vencor, Inc., et al., )
) Chapter 11
Debtors and Debtors in Possession )
) Jointly Administered
FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER
UNDER 11 U.S.C. (S) 1129 AND RULE 3020 OF THE FEDERAL
RULES OF BANKRUPTCY PROCEDURE CONFIRMING
THE FOURTH AMENDED PLAN OF REORGANIZATION
OF VENCOR, INC., et al.
----------------------------------------------------------
Upon the Fourth Amended Joint Plan Of Reorganization of Vencor, Inc.
And Affiliated Debtors Under Chapter 11 Of The Bankruptcy Code, dated as of
December 14, 2000 (including all amendments and modification thereof and
exhibits thereto, the "Plan") (D.I. 4031), filed with this Court by the above-
captioned debtors and debtors in possession (collectively, the "Debtors"), and
the Fourth Amended Disclosure Statement Pursuant To Section 1125 Of The
Bankruptcy Code With Respect To The Joint Plan Of Reorganization Of Vencor Inc.
And Affiliated Debtors Under Chapter 11 of The Bankruptcy Code and the Short-
Form of Fourth Amended Disclosure Statement Pursuant To Section 1125 Of The
Bankruptcy Code With Respect To The Joint Plan Of Reorganization Of Vencor, Inc.
Any Affiliated Debtors Under Chapter 11 of The Bankruptcy Code dated as of
December 14, 2000 (respectively, the "Disclosure Statement" (D.I. 4031), the
"Short-Form Disclosure Statement" (D.I. 4032), and collectively, the "Disclosure
Materials"), and the Fourth Amended Plan Supplement To Joint Plan of
Reorganization of Vencor, Inc. And Affiliated Debtors Under Chapter 11 Of The
Bankruptcy Code (including all amendments and modification of the exhibits
thereto, the "Plan
Supplement") (D.I. 4588) filed with this Court by the Debtors; and upon (a) the
hearing before this Court on December 6, 2000 to consider approval of the
Disclosure Materials and (b) the Order dated December 6, 2000 approving the
Disclosure Materials (the "Disclosure Materials Order") (D.I. 4108); and
solicitation of acceptances of the Plan having been authorized by Order dated
December 7, 2000, establishing voting procedures and approving form of ballots
and notices (the "Voting Procedures Order") (D.I. 3828); and it appearing from
the affidavits of mailing and publication filed with this Court and the Voting
Affidavit (as defined herein) that copies of the Disclosure Statement (including
the Plan as annexed thereto as Exhibit A) or Short-Form Disclosure Statement,
notice of the Confirmation Hearing (as defined herein), and ballots for
acceptances or rejections of the Plan, were transmitted to the holders of Claims
against and Interests in Vencor, Inc., et al. and other parties in interest as
required by the Voting Procedures Order, and such transmissions at such time
being due and adequate notice under the circumstances, and that notice of the
Confirmation Hearing was published in the manner required by the Voting
Procedures Order; and the Voting Procedures Order fixing February 15, 2001 at
4:00 p.m. (Eastern Standard Time) as the deadline for filing of objections to
confirmation of the Plan; and upon the declaration of George C. Vitelli (D.I.
5807), the declaration of John K. Henebery (D.I. 5806) and the statement of the
Department of Justice in support of the Plan (D.I. 5815); and upon the Ventas
Entities' response in conditional support of the Plan (D.I. 5814); and upon this
Court's Order, dated January 16, 2001 extending the time for Ventas, Inc. and
Ventas Realty, Limited Partnership to vote on the Plan and/or file a response or
objection to confirmation of the Plan (the "Ventas Voting Stipulation") (D.I.
5008); and upon the affidavit of Edward L. Kuntz dated February 20, 2001, filed
in support of confirmation of the Plan (D.I. 5779); and upon the affidavit of
Steven M. Zelin dated February 21, 2001, filed in
2
support of confirmation of the Plan (D.I. 5777); and a hearing to consider
confirmation of the Plan having been held before this Court commencing on March
1, 2001 (the "Confirmation Hearing"); and upon the full and complete record of
the Confirmation Hearing, including without limitation the exhibits presented
and the testimonial proffers that were accepted into evidence, and all matters
and proceedings heretofore part of the record in these cases; and for the
reasons set forth on the record by the Court and after due deliberation and
sufficient cause appearing therefor;
FINDINGS OF FACT AND CONCLUSIONS OF LAW
---------------------------------------
IT IS HEREBY FOUND AND DETERMINED THAT:
1. All capitalized terms used but not defined herein shall have the
meanings ascribed to such terms in the Plan, unless the context otherwise
requires.
2. This Court has jurisdiction over the Reorganization Cases pursuant
to 28 U.S.C. (S)(S) 157 and 1334. Venue is proper before this Court pursuant to
28 U.S.C. (S)(S) 1408 and 1409. Confirmation of the Plan is a core proceeding
under 28 U.S.C. (S) 157(b)(2), and this Court has exclusive jurisdiction to
determine whether the Plan complies with the applicable provisions of title 11
of the United States Code (the "Bankruptcy Code") and the Federal Rules of
Bankruptcy Procedures (the "Bankruptcy Rules") and should be confirmed.
3. This Court takes judicial notice of the docket of the
Reorganization Cases maintained by the Clerk of the Court and/or its duly
appointed agent, including, without limitation, all pleadings and other
documents filed, all orders entered, and all evidence and arguments made,
proffered or adduced at, the hearings held before the Court during the pendency
of the Reorganization Cases, including, without limitation, the hearing to
consider the adequacy of the Disclosure Materials.
3
4. The Debtors, as proponents of the Plan, have the burden of proving
the elements of Section 1129 by a preponderance of the evidence.
5. Notice of the Confirmation Hearing and the relevant deadlines for
submission of objections and ballots, as prescribed by this Court in the Voting
Procedures Order, has been provided and is adequate and sufficient pursuant to
Section 1128 of the Bankruptcy Code, Rules 2002(b) and 3020 of the Bankruptcy
Rules and other applicable law and rules. Notice provided of the Confirmation
Hearing and the relevant deadlines for submission of objections and ballots and
service of the Disclosure Materials upon the individuals subject to the Debtors'
Motion for an Order Pursuant to Section 105(a) of the Bankruptcy Code and Rule
1009(a) of The Federal Rules of Bankruptcy Procedure Disallowing Certain
Scheduled Claims For Purposes Of Voting. On The Fourth Amended Joint Plan Of
Reorganization Under Chapter 11 Of The Bankruptcy Code, as set forth in the
Affidavit of Mailing of Bridget Gallerie dated January 10, 2001 and the
Affidavit of Kathy Gerber dated January 23, 2001, is adequate and sufficient
pursuant to Section 1128 of the Bankruptcy Code, Rules 2002(b) and 3020 of the
Bankruptcy Rules and other applicable law and rules.
6. Ballots were transmitted to holders of claims in classes eligible
to vote on the Plan (the "Voting Classes") in accordance with the Voting
Procedures Order.
7. The Debtors solicited votes for the Plan from the Voting Classes
in good faith and in a manner consistent with the Bankruptcy Code.
8. The affidavits of Diane Rocano, dated February 26, 2001 (the
"Voting Affidavit") (D.I. 5801) and March 7, 2001 (the "Supplemental Voting
Affidavit") (D.I.T.B.D.), are consistent with Bankruptcy Rule 3018.
4
9. The classification scheme of Claims and Interests under the Plan
is reasonable. Claims or Interests in each Class are substantially similar to
other Claims or Interests in such Class, and the Plan therefore satisfies the
requirements of Section 1122(a) of the Bankruptcy Code.
10. The Plan provides for the treatment of Allowed Administrative
Claims and Allowed Priority Tax Claims. In addition, the Plan establishes the
following Classes of Claims and Interests: Class 1 (Priority Claims); Class 2
(Secured Claims); Class 3A (Convenience Claims); Class 3B (Trade Claims,
Malpractice and Other Litigation Claims, Benefits Claims, Indemnification
Claims, Employee Contact Claims and Unsecured Claims that are not Convenience
Claims); Class 4 (Senior Debt Claims); Class 5 (Ventas Claim); Class 6 (Class 6
Claims); Class 7A (Subordinated Noteholder Claims); Class 7B (Noteholder
Securities Fraud Claims); Class 8 (Put Rights); Class 10 (Punitive Damage
Claims); Class 11A (Preferred Equity Interests); Class 11B (Preferred Equity
Securities Fraud Claims); Class 12A (Common Equity Interests); and Class 12B
(Common Equity Securities Fraud Claims). The Plan satisfies the requirements of
Section 1123(a)(1) of the Bankruptcy Code.
11. The Plan establishes as Class 3A a class of claims consisting
only of unsecured claims that are reduced to or less than $3,000.00. Pursuant
to Section 1122(b) of the Bankruptcy Code, this is a reasonable amount necessary
for administrative convenience.
12. The following Classes of Claims are impaired and comprise the
Classes entitled to vote under the Plan: Classes 3A, 3B, 4, 5, 6, 7A and 8
(collectively, the "Voting Classes"). The following Classes of Claims are
unimpaired under the Plan Classes 1 and 2. The following Classes of Claims or
Interests are deemed to reject the Plan by virtue of receiving no distributions
thereunder, except as otherwise provided for under this Order: Classes 7B, 10,
11A,
5
11B, 12A and 12B. The treatment of Claims in unimpaired Classes is specified in
Article IV of the Plan, and the treatment of Claims and Interests in impaired
Classes is specified in Article V of the Plan. Therefore, the Plan satisfies the
requirements of Sections 1123(a)(2) and 1123(a)(3) of the Bankruptcy Code.
13. The Plan provides for the same treatment of each Claim or
Interest of a particular Class, and the Plan satisfies the requirements of
Section 1123(a)(4) of the Bankruptcy Code.
14. The Plan provides for adequate means for its implementation, and
therefore satisfies the requirements of Section 1123(a)(5) of the Bankruptcy
Code.
15. The Plan provides for the amendment of the Certificates of
Incorporation of the Debtors in substantially the form of the Vencor Amended and
Restated Certificate of Incorporation and the Form of Certificate of Amendment
of the Certificate of Incorporation of Each Corporate Debtor filed with this
Court in the Plan Supplement on December 29, 2000 (collectively and as may be
amended or modified, the "Amended Certificates of Incorporation"), which
prohibit the issuance of nonvoting equity securities. Any revisions to the
Amended Certificates of Incorporation filed on or prior to the Effective Date
also shall prohibit the issuance of a non-voting equity securities.
Accordingly, the Plan complies with Section 1123(a)(6) of the Bankruptcy Code.
16. The Plan impairs or leaves unimpaired, as the case may be, each
Class of Claims or Interests, and the Plan therefore is consistent with the
provisions of Section 1123(b)(1) of the Bankruptcy Code.
17. The Plan provides for the treatment under Section 365 of the
Bankruptcy Code, of all executory contracts and unexpired leases not previously
assumed or rejected or the
6
subject of a motion either to assume or reject pursuant to such section, and the
Plan therefore complies with the provisions of Section 1123(b)(2) of the
Bankruptcy Code.
18. Furthermore, the provisions of the Plan constitute a good faith
compromise and settlement of all Claims and Interests, and all controversies
respecting Claims and Interests are resolved pursuant to the Plan. This
Confirmation Order constitutes the Court's approval of all such compromises and
settlements which, based upon the representations by the Debtors, all other
testimony proffered and evidence introduced at the Confirmation Hearing and the
full record of the Reorganization Cases, the Court finds to be fair, equitable,
within the range of reasonableness and in the best interests of the Debtors, the
Estates, creditors and other parties in interest. Accordingly, the Plan
satisfies Section 1123(b)(3) of the Bankruptcy Code.
19. The Plan contains no provision that is inconsistent with the
applicable provisions of the Bankruptcy Code and therefore satisfies Section
1123(b)(6) of the Bankruptcy Code.
20. The Government Settlement and the allowance and settlement of the
Class 6 Claims and the payment of such claims, as set forth in Sections 5.05 and
6.12 of the Plan, constitute a good faith compromise and settlement pursuant to
Bankruptcy Rule 9019, and the Government Settlement, including the settlement
amount allocated for each of the Qui Tam Actions as enumerated on Schedule E to
the Plan, is fair, adequate and reasonable under all the circumstances. As to
United States, et al. ex rel. Phillips-Minks, et al. v. Behavioral Healthcare
-----------------------------------------------------------------------------
Corp., et al. referenced on Schedule E and Exhibit 5 to the Plan, the
-------------
government's settlement of this Qui Tam Action is effective only to the extent
the United States has authority to compromise and settle this Qui Tam Action
pursuant to the Federal Claims Act ("FCA"). The District Court in that action
may determine, on motion of any party to that action, whether the government had
7
authority to settle that action. In the event the United States does not have
authority to compromise and settle this Qui Tam Action, the Claims relating to
this Qui Tam Action shall be treated as stated on the record at the Confirmation
Hearing as a Class 3B claim.
21. The treatment provided to the Ventas Entities under the Plan,
including, without limitation, under Section 5.04 and Article XI of the Plan,
constitute a good faith compromise and settlement pursuant to Bankruptcy Rule
9019.
22. All settlements in these cases, including but not limited to
settlements with the creditors in Classes 3A, 3B, 4, 5, 6, 7A, 8 and 10,
constitute good faith compromises and settlements pursuant to Bankruptcy Rule
9019.
23. Pursuant to Section 1123(b)(3)(B) of the Bankruptcy Code, the
Plan, except as provided therein, provides for the retention and enforcement of
all claims, rights and causes of action of the Debtors and the Estates, whether
prepetition or postpetition, and regardless of whether such claims, rights or
causes of action arise under any or all agreements and applicable law or equity,
exclusively by the Reorganized Debtors. Under the Plan, all such claims, rights
and causes of action of the Debtors and the Estates, upon the Effective Date,
shall vest in the Reorganized Debtors and may be pursued by the Reorganized
Debtors except to the extent released under the Plan. Accordingly, the
retention and enforcement of all such claims, rights and causes of action of the
Debtors and the Estates exclusively by the Reorganized Debtors will benefit the
Debtors' creditors and the requirements of Sections 550(a) and 1123(b)(3)(B) of
the Bankruptcy Code are satisfied.
24. The Plan complies with the applicable provisions of the
Bankruptcy Code, including, without limitation, Sections 1122 and 1123 of the
Bankruptcy Code. Therefore, the Plan satisfies the requirements of Section
1129(a)(1) of the Bankruptcy Code. In addition, in
8
accordance with Bankruptcy Rule 3016(a), the Plan is dated and identified with
the names of the Debtors.
25. The Debtors, as proponents of the Plan, have complied with each
of the applicable provisions of the Bankruptcy Code including, without
limitation, Sections 1125 and 1126 of the Bankruptcy Code, and therefore have
satisfied the requirements of Section 1129(a)(2) of the Bankruptcy Code, as
follows: (a) the Debtors are proper debtors under Section 109 of the Bankruptcy
Code and proper proponents of the Plan under Section 1121(a) of the Bankruptcy
Code; (b) the Debtors have complied with each of the applicable provisions of
the Bankruptcy Code, except as otherwise provided or permitted by orders of the
Court; and (c) the Debtors have complied with each of the applicable provisions
of the Bankruptcy Code, the Bankruptcy Rules, the Voting Procedures Order and
the Ventas Voting Stipulation in transmitting notices and solicitation materials
and in soliciting and tabulating votes on the Plan.
26. The Plan has been proposed in good faith and not by any means
forbidden by law. In determining that the Plan has been proposed in good faith,
the Court has examined the totality of the circumstances surrounding the filing
and prosecution of the Debtors' Reorganization Cases and the formulation of the
Plan. The Debtors' chapter 11 cases were filed and the Plan was proposed with
the proper purpose of reorganizing the Debtors, and expeditiously making
distributions to their creditors. Furthermore, the Plan is the product of
extensive, arms' length negotiations among the Debtors, Ventas, the United
States, the Creditors' Committee, certain holders of the Senior Debt Claims and
Subordinated Noteholders, and each of their respective counsel and financial
advisors. The Plan reflects the results of these negotiations and is reflective
of the interests of all the Estates' constituencies. Thus, the Plan satisfies
the requirements of Section 1129(a)(3) of the Bankruptcy Code.
9
27. Any payments made or to be made by the Debtors for services or
for costs and expenses in, or in connection with, the Debtors' chapter 11 cases
have, to the extent required by the Bankruptcy Code, the Bankruptcy Rules and
the Orders of this Court, been approved by, or are subject to the approval of
this Court as reasonable. Accordingly, the Plan satisfies the requirements of
Section 1129(a)(4) of the Bankruptcy Code.
28. Section 8.07 of the Plan provides that Reorganized Vencor shall
have a board of directors consisting of seven (7) directors. The Board of
Directors or other current internal governance, as applicable, of the other
Reorganized Directors shall initially remain the same. The names and
affiliations of the persons designated pursuant to Section 8.07 of the Plan as
the initial members of the board of directors of each of the Reorganized Debtors
were disclosed to this Court prior to the Confirmation Hearing. In addition, the
Debtors disclosed the identity of any insiders that will be employed by the
Reorganized Debtors and the nature of their compensation. The appointment to
such office of each of the proposed directors and officers of each of the
Reorganized Debtors is consistent with the interests of creditors and equity
security holders and with public policy with respect to the manner of selection
of any officer or director of the Reorganized Debtors. Accordingly, the Plan
complies with Section 1123(a)(7) and 1129(a)(5) of the Bankruptcy Code.
29. Section 1129(a)(6) of the Bankruptcy Code is satisfied because
the Plan does not provide for any change in rates over which a governmental
regulatory commission has jurisdiction.
30. With respect to each impaired Class of Claims or Interests, each
holder of a Claim or Interest in such Class: (a) has accepted the Plan; or (b)
will receive or retain under the Plan on account of such Claim or Interest,
property of a value, as of the Effective Date of the
10
Plan, that is not less than the amount that such holder would so receive or
retain if such Debtor were to be liquidated under chapter 7 of the Bankruptcy
Code on such date. Accordingly, the Plan is in the best interests of the
creditors and satisfies the requirements of Section 1129(a)(7) of the Bankruptcy
Code.
31. As evidenced by the Voting Affidavit and the Supplemental Voting
Affidavit, the Plan has been accepted by each of the Voting Classes in
accordance with Section 1126 of the Bankruptcy Code and consistent with
Bankruptcy Rule 3018, the Voting Procedures Order and the Ventas Voting
Stipulation.
32. The Plan is deemed rejected, pursuant to Section 1126(g) of the
Bankruptcy Code, by the members of Classes 7B, 10, 11A, 11B, 12A and 12B, who
will receive no distribution and retain no interest on account of their
respective Claims or Interests, except as otherwise provided for under this
Order.
33. With respect to each Class of Claims or Interests designated by
the Plan, other than Classes 7B, 10, 11A, 11B, 12A and 12B, either: (a) such
Class has accepted the Plan; or (b) such Class is not impaired under the Plan.
Accordingly, the requirements of Section 1129(a)(8) of the Bankruptcy Code have
been satisfied with respect to all Claims and Interests other than those in
Classes 7B, 10, 11A, 11B, l2A and 12B. The Plan nevertheless may be confirmed
with respect to these Classes because, as stated below, the requirements of
Section 1129(b) of the Bankruptcy Code are satisfied with respect to these
Classes.
34. The treatment of Allowed Administrative Claims, Allowed Tax
Claims and Allowed Priority Claims under Sections 2.01, 2.03 and 4.01 of the
Plan satisfies the applicable requirements of Section 1129(a)(9)(A),(B) and (C)
of the Bankruptcy Code.
11
35. The Plan has been accepted by Classes 3A, 3B, 4, 5, 6 and 7A,
and, therefore, has been accepted by at least one impaired Class of Claims or
Interests, which acceptance has been determined without including any
acceptances of the Plan by any insider holding a Claim in such Class.
Accordingly, the requirements of Section 1129(a)(10) of the Bankruptcy Code are
satisfied with respect to the Plan.
36. The Plan satisfies Section 1129(a)(11) of the Bankruptcy Code
because confirmation of the Plan is not likely to be followed by liquidation or
the need for further financial reorganization of the Reorganized Debtors.
37. The fees payable by the Debtors to the United States Trustee or
the Clerk of this Court, as provided under 28 U.S.C. (S) 1930(a)(6), constitute
administrative expenses entitled to Priority under Section 507(a)(1) of the
Bankruptcy Code and the treatment of such fees in the Plan satisfies the
requirements of Section 1129(a)(12) of the Bankruptcy Code.
38. To the extent the Debtors are required to continue to provide any
retiree benefits (as that term is defined under Section 1114 of the Bankruptcy
Code), such benefits shall be continued under the Plan, and the Plan satisfies
the requirements of Section 1129(a)(13) of the Bankruptcy Code.
39. The requirements of Section 1129(b) of the Bankruptcy Code are
satisfied as to holders of Claims in Classes 7B, 10, 11A, 11B, 12A and 12B
because the Plan does not discriminate unfairly, and is fair and equitable, with
respect to each Class of Claims or Interests that is Impaired under, and that
has not accepted, the Plan, and no holder of any Interests of the Debtors that
is junior to the Interests of such Classes will receive or retain any property
under the Plan on account of such junior Interests.
12
40. Other than the Plan, no plan has been filed in these cases.
Accordingly, the requirements of Section 1129(c) of the Bankruptcy Code have
been satisfied.
41. No party in interest that is a governmental unit has requested
that the Court not confirm the Plan on the grounds that the principal purpose of
the Plan is the avoidance of taxes or the avoidance of the application of
Section 5 of the Securities Act of 1933, 15 U.S.C. (S) 77e, and the principal
purpose of the Plan is not such avoidance. Accordingly, the Plan satisfies the
requirements of Section 1129(d) of the Bankruptcy Code.
42. To the extent the terms of this Order may be construed to
constitute modifications to the Plan (the "Plan Modifications'), such Plan
Modifications do not materially or adversely affect or change the treatment of
any Claim against or Interest in any Debtor. Accordingly, pursuant to Bankruptcy
Rule 3019, the Plan Modifications do not require additional disclosure under
Section 1125 of the Bankruptcy Code or the resolicitation of acceptances or
rejections under Section 1126 of the Bankruptcy Code, nor do they require that
holders of Claims against or Interests in any Debtor to be afforded an
opportunity to change previously cast acceptances or rejections of the Plan as
filed with the Court. Disclosure of the Plan Modifications on the record at the
Confirmation Hearing constitutes due and sufficient notice thereof under the
circumstances of these Reorganization Cases. All references to the Plan in this
Order shall be to the Plan as so modified.
43. Based upon the record before the Court, the Debtors and their
agents, counsel and financial advisors have solicited votes on the Plan in good
faith and in compliance with the applicable provisions of the Bankruptcy Code
and are entitled to the protections afforded by Section 1125(e) of the
Bankruptcy Code and the exculpatory and injunctive provisions set forth in
Article XI of the Plan.
13
44. The Debtors, the Ventas Entities, each of their respective
Representatives, benefit plan administrators and trustees, and their officers,
directors, employees, agents, advisors legal and financial advisors, attorneys,
professionals, principals and agents, the Creditors' Committee and its members,
officers, directors, employees, agents, advisors, legal and financial advisors,
attorneys, professionals, principals and agents, the holders of the Senior Debt
Claims, their officers, directors, employees, agents, advisors, legal and
financial advisors, attorneys, professionals, principals and agents, and the
Subordinated Noteholders, their officers, directors, employees, agents,
advisors, legal and financial advisors, attorneys, professionals, principals and
agents (each of the foregoing solely in their capacity as such), have acted in
good faith and in compliance with the applicable provisions of the Bankruptcy
Code pursuant to Section1125(e) of the Bankruptcy Code and 1129(a)(3) of the
Bankruptcy Code, with respect to the administration of the Plan, the
solicitation of acceptances with regard thereto and the property to be
distributed thereunder.
45. The Court may properly retain jurisdiction over the matters set
forth in Section 13.01 of the Plan.
46. Upon entry of this Order, each of the conditions to confirmation
contained in Section 10.01 of the Plan shall have been satisfied.
DECREES
-------
NOW THEREFORE IT IS HEREBY ORDERED, ADJUDGED, DECREED AND DETERMINED
THAT:
1. To the extent that any objections have not been withdrawn or
resolved by stipulation prior to the entry of this Confirmation Order or are not
resolved by the relief granted herein or as stated on the record of the
Confirmation Hearing, all such objections are hereby overruled. The stipulations
entered into with (a) the State of Georgia, Department of Revenue
14
(D.I. 5834), (b) the Louisiana Department of Revenue (D.I. 5835), (c) the
Missouri Department of Revenue (D.I. 5836), (d) the Tennessee Department of
Revenue (D.I. 5837), and (e) the Texas Tax Authorities (D.I. 5838) fully resolve
the objections raised by these parties and govern the treatment of the claims of
these entities under the Plan.
2. The findings of this Court set forth above and the conclusions of
law stated herein shall constitute findings of fact and conclusions of law
pursuant to Bankruptcy Rule 7052, made applicable to this proceeding by
Bankruptcy Rule 9014. To the extent any findings of fact shall be determined to
be a conclusion of law, it shall be so deemed, and vice versa.
3. The Plan complies with the requirements of Sections 1122, 1123 and
1129 of the Bankruptcy Code.
4. To the extent the IRS holds an allowed claim properly classified,
and to the extent entitled to interest, the interest rate shall be at the
federal statutory rate as provided by the Internal Revenue Code.
5. The Plan (as modified by any modifications contained in this
Confirmation Order) is confirmed under Section 1129 of the Bankruptcy Code.
6. The provisions of the Plan and this Confirmation Order, including
the findings of fact and conclusions of law set forth herein, are nonseverable
and mutually dependent.
7. Plan Classification Controlling. The classification of Claims and
-------------------------------
Interests for purposes of the distributions to be made under the Plan shall be
governed solely by the terms of the Plan. The classifications and amounts of
Claims, if any, set forth in the Ballots tendered or returned by the Debtors'
creditors in connection with voting on the Plan (i) were set forth on the
Ballots solely for purposes of voting to accept or reject the Plan, (ii) do not
necessarily represent, and in no event shall be deemed to modify or otherwise
affect the actual classification of such
15
Claims or Interests under the Plan for distribution purposes and (iii) shall not
be binding on the Debtors, the Estates, or the Reorganized Debtors.
8. Certain Effects of Confirmation; Discharge; Injunction; Releases.
----------------------------------------------------------------
All of the provisions of Article XI, including Sections 11.01, 11.02(a),
11.02(b), 11.03, 11.04, 11.05, 11.06, 11.07 and 11.08 of the Plan, as restated
or amended by this paragraph, are incorporated herein by reference as if set
forth herein in extenso. Notwithstanding anything to the contrary contained in
----------
the Plan, nothing in Article XI of the Plan shall be construed as providing a
discharge or release of any claims that have been or may be asserted-by
Cornerstone Insurance Company ("Cornerstone") against any of the Ventas Parties
or by one or more of the Ventas Parties against Cornerstone. The evidence
presented in connection with the Confirmation Hearing establishes that the
releases of the nondebtor Entities contained in Article XI of the Plan are fair
and necessary to the reorganization of the Debtors, and that the nondebtor
Entities receiving the benefit of the releases contained in Article XI of the
Plan have made substantial contributions toward the reorganization of the
Debtors, which are integral to the effectuation of the Plan and the consummation
of the transactions contemplated therein (including, without limitation, the
funding of distributions to holders of Allowed Claims and the Debtors'
performance under the contracts and leases assumed pursuant to the Plan).
9. Retention and Enforcement of Estates' Claims and Rights. Except
-------------------------------------------------------
as set forth in the Plan or this Confirmation Order, the Debtors shall not be
deemed to have waived or relinquished:
(i) any rights of causes of action (prepetition or postpetition) that
the Debtors or the Reorganized Debtors may have currently or
which the Reorganized Debtors may choose to assert on behalf of
their Estates under any provision of the Bankruptcy Code or any
similar applicable non-bankruptcy law, including without
limitation, (i) breach of contract claims, (ii) the avoidance of
any transfer by or obligation of the Debtors or (iii) the
16
turnover of any property to the Estates, all of which are
expressly reserved by the Plan and may only be pursued by the
Reorganized Debtors;
(ii) any claim, cause of action, right of setoff or other legal or
equitable defense which the Debtors had immediately prior to the
Petition Date, against or with respect to any Claim left
unaltered or Unimpaired by the Plan. The Reorganized Debtors
shall have, retain, reserve and be entitled to assert all such
claims, causes of action, rights of setoff and other legal or
equitable defenses which they had immediately prior to the
Petition Date fully as if the chapter 11 cases had not been
commenced; and all of the Reorganized Debtors' legal and
equitable rights respecting any Claim left unaltered or
Unimpaired by the Plan may be asserted after the Confirmation
Date to the same extent as if the chapter 11 cases had not been
commenced.
10. As of the Effective Date, the Government Settlement and the
allowance and settlement of the Class 6 Claims and the payment of such claims,
as set forth in Sections 5.05 and 6.12 of the Plan, is approved as a good faith
compromise and settlement pursuant to Bankruptcy Rule 9019, and the Government
Settlement, including the settlement amount allocated for each of the Qui Tam
Actions as enumerated on Schedule E to the Plan, is fair, adequate and
reasonable under all the circumstances. As to United States, et al. ex rel.
-----------------------------
Phillips-Minks, et al. v. Behavioral Healthcare Corp., et al. referenced on
-------------------------------------------------------------
Schedule E and Exhibit 5 to the Plan, the government's settlement of this Qui
Tam Action is effective only to the extent the United States has authority to
compromise and settle this Qui Tam Action pursuant to the Federal Claims Act
("FCA"). The District Court in that action may determine, on motion of any party
to that action, whether the government had authority to settle that action. In
the event the United States does not have authority to compromise and settle
this Qui Tam Action, the Claims relating to this Qui Tam Action shall be treated
as stated on the record at the Confirmation Hearing as a Class 3B claim.
17
11. As of the Effective Date, the treatment provided to the Ventas
Entities under the Plan, including, without limitation, under Section 5.04 and
Article XI of the Plan, constitute a good faith compromise and settlement
pursuant to Bankruptcy Rule 9019.
12. All settlements in these cases, including settlements with the
creditors in Class 3A, 3B, 4, 5, 6, 7A, 8 and 10 are hereby approved as good
faith compromises and settlements pursuant to Bankruptcy Rule 9019.
13. Binding Effect. Pursuant to Section 1141 of the Bankruptcy Code,
--------------
effective as of the Confirmation Date, but subject to the occurrence of the
Effective Date, and except as expressly provided in the Plan, the Plan Documents
or this Confirmation Order, the provisions of the Plan (including the exhibits
to, and all documents and agreements contemplated by and executed pursuant to
the Plan) and this Confirmation Order shall be binding on (i) the Debtors, (ii)
the Reorganized Debtors, (iii) all holders of Claims against and Interests in
the Debtors, whether or not impaired under the Plan and whether or not, if
impaired, such holders accepted the Plan, and (iv) each Person or Entity
acquiring property under the Plan. The holders of liens satisfied, discharged
and released under the Plan shall execute any and all documentation reasonably
requested by the Debtors or the Reorganized Debtors evidencing the satisfaction,
discharge and release of such liens and such liens shall be deemed satisfied,
discharged and released by operation of this Order.
14. Revesting of Assets. On the Effective Date, the assets of the
-------------------
Debtors shall vest in the Reorganized Debtors. Thereafter, the Reorganized
Debtors may operate their businesses and may use, acquire, and dispose of
property free of any restrictions of the Bankruptcy Code, the Bankruptcy Rules
and the Court. All property of the Reorganized Debtors shall be free and clear
of all Claims and Interests, and all such Claims and Interests shall be both
18
discharged and released to the Reorganized Debtors, except as specifically
provided in the Plan, the New Collateral Documents, the New Senior Secured
Credit Agreement, the New Senior Secured Notes, the Exit Facility, the Amended
Ventas Leases, the Tax Refund Escrow Agreement or any other Plan Document or any
documents or instruments executed in accordance therewith, or the Confirmation
Order.
15. Assumption and Rejection of Contracts and Leases. Subject to
------------------------------------------------
Section 5.04 of the Plan, on the Effective Date, all executory contracts and
unexpired leases, including the Five Ventas Leases as assumed and simultaneously
amended to become the Amended Ventas Leases, of the Estates shall be assumed by
the Debtors pursuant to the provisions of Sections 365 and 1123 of the
Bankruptcy Code, except: (i) any executory contract or unexpired lease that is
the subject of a separate motion filed pursuant to Section 365 of the Bankruptcy
Code by the Debtors prior to the Confirmation Date; (ii) such contracts or
leases as are listed on Exhibit 8 to the Plan Supplement filed by the Debtors on
or before the Effective Date; and (iii) all executory contracts or unexpired
leases rejected under the Plan or by order of the Court entered before the
Effective Date and not subsequently assumed pursuant to an order of the Court.
Any order entered after the Confirmation Date by the Bankruptcy Court, after
notice and hearing, authorizing the rejection of an executory contract or
unexpired lease (other than a contract or lease governed by Section 5.04 of the
Plan) shall cause such rejection to be a prepetition breach under Sections
365(g) and 502(g) of the Bankruptcy Code, as if such relief were granted and
such order were entered prior to the Confirmation Date. Any Claims arising out
of the rejection of executory contracts or leases (other than a contract or
lease governed by Section 5.04 of the Plan) must be filed with the Court within
the later of the time set by any Final Order rejecting such executory contract
or unexpired lease or 30 days after the Effective Date. Any Claims not
19
filed within such time will be forever barred from assertion against any of the
Debtors or Reorganized Debtors, their Estates and their property. Except as
provided in Section 5.04 of the Plan, the Reorganized Debtors shall pay allowed
cure amounts arising from the assumption of executory contracts or leases as
Administrative Claims under the Plan without the need for the filing of a proof
of claim by the claimant. In addition to the retention of jurisdiction provision
contained in Section 13.01 of the Plan and subject to the provisions thereof,
the Court expressly retains jurisdiction to resolve any disputes between the
Reorganized Debtors and a party to an executory contract or lease that is
assumed regarding the cure amount that is owed as a result of the assumption of
the contract or lease, which either party can seek to resolve by application to
the Court on or after forty-five (45) days after the Effective Date if the
parties are unable to resolve the dispute consensually.
16. General Authorizations. The Debtors and the Reorganized Debtors
----------------------
are authorized and empowered pursuant to Sections 105 and 1142(b) of the
Bankruptcy Code, and as applicable, Section 303 of the General Corporation Law
of the State of Delaware, 8 Del. Code (S) 303, and any other applicable state
---- ----
law to take any and all actions reasonably necessary to implement the
transactions contemplated by the Confirmation Order (including without
limitation transactions contemplated by the Plan and Plan Documents as confirmed
under the Confirmation Order), all without further corporate action or action by
(or vote of) directors or stockholders of the Debtors or Reorganized Debtors,
including, without limitation, the following: (a) to reconstitute the board of
directors of each Reorganized Debtor; (b) to amend the Reorganized Debtors'
respective certificates of incorporation and by-laws, including without
limitation to effectuate a change of name with respect to Reorganized Vencor and
certain of the other Reorganized Debtors, provided that any such amended
certificates of incorporation and
20
amended bylaws shall continue to prohibit the issuance of non-voting equity
securities; (c) to merge any or all of the Debtors; (d) to enter into, execute
and deliver the Exit Facility and the Plan Documents, including without
limitation the New Senior Secured Credit Agreement, the New Senior Secured
Notes, the New Collateral Documents, the Amended Ventas Leases, the Registration
Rights Agreement, the New Warrant Agreement and the Tax Refund Escrow Agreement;
(e) to adopt and implement the Long-Term Incentive Plan, the Restricted Share
Plan and the New Stock Option Plan, and to pay the Performance Bonuses and
Retention Bonuses, to the extent not previously authorized by the Court and/or
paid by the Debtors; and (f) to authorize the appropriate officers of the
Reorganized Debtors to execute any documents, instruments or agreements
necessary, and perform any act that is desirable or required to comply with the
terms and conditions of the Plan and consummation of the Plan, including all
documents necessary and appropriate to execute and consummate the Exit Facility.
Such actions are approved in all respects and shall be deemed to have occurred
and be effective on the Effective Date.
17. Subordination Rights. Subject to the provisions of Section 8.15
--------------------
of the Plan, as of the Effective Date, to the fullest extent permitted by
applicable law (including but not limited to subsections (a) or (c) of Section
510 of the Bankruptcy Code), all Claims against and Interests in the Debtors and
all rights and claims between or among creditors or holders of Interests
relating in any manner whatsoever to Claims against or Interests in the Debtors,
based on any subordination rights, either contractual, legal or equitable, shall
be terminated and discharged in the manner provided for in the Plan, and all
such Claims, Interests and rights so based and all such subordination rights to
which any Entity may be entitled shall be irrevocably waived by the acceptance
by such Entity of the Plan or of any distribution pursuant to the Plan.
21
18. Status of Corporate Indemnities. The continuance of the
-------------------------------
Corporate Indemnities by the Reorganized Debtors, as provided in Section 12.03
of the Plan, shall be authorized and approved in all respects without any
requirement of further action by stockholders or directors of any of the Debtors
or Reorganized Debtors.
19. No Post-Confirmation Amendment or Filing of Claims. Except as
--------------------------------------------------
otherwise provided herein or in the Plan, a Claim may not be filed or amended
after the Confirmation Date without the prior authorization of the Court and,
even with such Court authorization may be amended by the holder of such Claim
solely to decrease, but not to increase, the amount or priority of the Claim.
Except as otherwise permitted herein or in the Plan, a Claim filed or amended
alter the Confirmation Date shall be deemed disallowed in full and expunged
without any action by the Debtors or the Reorganized Debtors if prior Court
authorization has not been obtained.
20. Payment of Fees. As set forth in Section 14.07 of the Plan, all
---------------
fees payable pursuant to Section 1930 of Title 28 of the United States Code
shall be paid on or before the Effective Date, and to the extent required and
unless relieved of these obligations by further Order of the Court, shall be
paid until the Reorganization Cases are closed.
21. Retention of Jurisdiction. Notwithstanding confirmation of the
-------------------------
Plan or occurrence of the Effective Date, and except as specified in the Exit
Facility, this Court shall retain such jurisdiction as is legally permissible,
including, without limitation, for the purposes set forth in Section 13.01 of
the Plan and for the determination of cure amounts as described in this Order,
subject to the limitations set forth in Section 13.01 of the Plan.
22. Modification of Plan. Subject to Section 14.12 of the Plan,
--------------------
after the entry of this Order, the Reorganized Debtors may, upon order of the
Court, amend or modify the Plan in
22
accordance with Section 1127(b) of the Bankruptcy Code, or remedy any defect or
omission or reconcile any inconsistency in the Plan in such manner as may be
necessary to carry out the purpose and intent of the Plan, as modified by this
Order.
23. The treatment of Class 10 (Punitive Damage Claims) under the Plan
is hereby amended pursuant to Section 1127(b) of the Bankruptcy Code to provide
solely with respect to any Allowed Punitive Damage Claims that have been filed
in the State of Florida ("Florida Punitive Damage Claims") that such Claims
shall be treated as Class 3B Claims in an amount up to the lesser of (a) any
applicable state law limits with respect to such Claim or (b) the greater of (i)
$500,000 or (ii) three times any compensatory damages award (the "Punitive
Damage Amount"). To the extent that any judgment with respect to any Florida
Punitive Damage Claim exceeds the Punitive Damage Amount, the amount in excess
of the Punitive Damage Amount shall be treated as a Class 10 Claim and the
Claimant shall receive no payment for such excess amount.
24. Exemption from Securities Laws. The exemption from the
------------------------------
requirements of Section 5 of the Securities Act of 1933, 15 U.S.C. (S) 77e, and
any state and local law requiring registration for the offer or sale of a
security provided for in Section 1145 of the Bankruptcy Code shall apply to the
New Senior Secured Notes, the New Common Stock (including New Common Stock
issued under the Performance Plan), the New Warrants, and the New Stock Options
issued pursuant to the Plan.
25. Exemptions from Taxation. Pursuant to Section 1146(c) of the
------------------------
Bankruptcy Code: (1) the issuance, distribution, transfer or exchange of the New
Senior Secured Notes and the entry into the Exit Facility or (2) the making,
delivery or recording of any other instrument of transfer under, in furtherance
of, or in connection with, the Plan, including any mortgages, deeds
23
of trust, deed to secure debt, assignments or other instruments of transfer
executed in connection with any transactions arising out of, contemplated by or
in any way related to the Plan or this Confirmation Order (and including without
limitation the Security Documents, as defined in Schedule A, attached hereto)
granted by any of the Reorganized Debtors in favor of Morgan Guaranty Trust
Company as Collateral Agent), shall not be subject to any document recording
tax, stamp tax, conveyance fee, intangibles or similar tax, mortgage tax, real
estate transfer tax, documentary transfer tax, mortgage recording tax or other
similar tax or governmental assessment, and the appropriate state and local
governmental officials or agents, including but not limited to the land title
recording officers of Alabama, Florida, Georgia, Minnesota, Oklahoma, Tennessee,
Virginia, and counties therein, and the City of New Orleans, Louisiana shall be,
and hereby are, ordered and directed to forego the collection of any such tax or
governmental assessment and to accept for filing and recordation any of the
foregoing instruments or other documents without the payment of any such tax or
governmental assessment.
26. Validity of Liens. The liens granted pursuant to the Exit
-----------------
Facility and the New Senior Secured Notes and the New Senior Secured Credit
Agreement shall be legal, valid and enforceable first priority liens, except as
otherwise provided in the Exit Facility, the New Senior Secured Credit Agreement
and the New Senior Secured Notes, and the documents to be executed and delivered
pursuant thereto shall constitute the legal, valid and binding obligations of
the Reorganized Debtors that are parties thereto.
27. References to Plan Provisions. The failure specifically to
-----------------------------
include or reference any particular provision of the Plan in this Confirmation
Order shall not diminish or
24
impair the effectiveness of such provision, it being the intent of the Court
that the Plan be confirmed in its entirety.
28. Confirmation Order Controlling. If there is any direct conflict
------------------------------
between the Plan and this Confirmation Order, the terms of this Confirmation
Order shall control.
29. Reversal. If any or all of the provisions of this Confirmation
--------
Order are hereafter reversed, modified or vacated by subsequent order of this
Court or any other Court, subject to Section 14.12 of the Plan, such reversal,
modification or vacatur shall not affect the validity or enforceability of the
acts or obligations incurred or undertaken under or in connection with the Plan
prior to the Debtors' receipt of written notice of such order including, without
limitation, the obligations and indebtedness created under the Exit Facility.
Notwithstanding any such reversal, modification or vacatur of this Confirmation
Order, but subject to Section 14.12 of the Plan, any such act or obligation
incurred or undertaken pursuant to, and in reliance on, this Confirmation Order
prior to the effective date of such reversal, modification or vacatur shall be
governed in all respects by the provisions of this Confirmation Order and the
Plan and all related documents or any amendments or modifications thereto.
30. No Stay of Confirmation Order. Pursuant to Bankruptcy Rule
-----------------------------
3020(e), this Order shall not be stayed and shall be effective upon entry on the
docket of this Court.
31. Applicable Non-Bankruptcy Law. To the extent provided in
-----------------------------
Sections 1123(a) and 1142(a) of the Bankruptcy Code, the provisions of this
Confirmation Order, the Plan or any amendments or modifications thereto shall
apply and be enforceable notwithstanding any otherwise applicable nonbankruptcy
law.
32. Dissolution of the Creditors' Committee. On the Effective Date,
---------------------------------------
the Creditors' Committee shall cease to exist and its members, employees or
agents (including
25
without limitation, attorneys, financial advisors, and any other professionals)
shall be released and discharged in their capacity as such from all further
authority, duties, responsibilities, and obligations related to, arising from or
in connection with the Reorganization Cases except with respect to: (i) any
matters pending before the Court to which the Creditors' Committee is a party,
until such objections or matters are resolved, (ii) all fee applications filed
or to be filed after the Effective Date pursuant to Section 330 of the
Bankruptcy Code by or on behalf of members of the Creditors' Committee or any
professionals employed by the Debtors or the Creditors' Committee, (iii)
effectuating consummation of the Plan and (iv) any post-confirmation
modifications to the Plan or the Confirmation Order.
33. Record Date for Distributions. The record date for determining
-----------------------------
the holders of the Senior Debt Claims and the Subordinated Noteholders, entitled
to receive distributions under the Plan shall be the Confirmation Date.
34. Distribution of New Common Stock and New Warrants. On the
-------------------------------------------------
Effective Date the Reorganized Debtors shall deliver all of the New Common Stock
and New Warrants to be distributed to the holders of Allowed Class 4, 5 and 7A
Claims to the Exchange Agent on behalf of such holders (or in the case of Ventas
Realty, Limited Partnership, any designee named by Ventas Realty, Limited
Partnership prior to the Effective Date) in accordance with the provisions of
Article VI of the Plan. Pursuant to Section 6.02 of the Plan, the Debtors have
designated Wells Fargo Bank of Minnesota, NA. ("Wells Fargo"), as the Exchange
Agent and the Court hereby approves the designation of Wells Fargo as the
Exchange Agent. Holders of Allowed Claims in Classes 4 and 7A who do not
receive distributions of New Common Stock or New Warrants due to their failure
to comply with the procedural requirements of Article VI related to the
distribution of such securities shall be treated in the same manner as provided
in
26
Section 6.09 of the Plan for holders of Claims that cannot be located within one
(1) year of the Effective Date, and the distributions that would otherwise be
made to such holders shall instead be reallocated and distributed pro rata among
the remaining holders of Claims in the same Class.
35. Administrative Claims Bar Date. All applications for payment of
------------------------------
fees and expenses pursuant to Section 330 and 503(b) of the Bankruptcy Code
which were incurred before the Effective Date must be filed with the Court on or
before 4:00 p.m. (Eastern Standard Time) on the date that is the forty-five (45)
days after the Effective Date; provided however that the foregoing shall not
apply to the Class 5 Claim. Any Person who fails to file such an application
with the Court on or before such time and date shall be forever barred from
asserting such claim against any of the Debtors, the Reorganized Debtors, or
their property, and the holder thereof shall be enjoined from commencing or
continuing any action, employment of process or act to collect, offset or
recover such claim. Notwithstanding any prior order of this Court in these
Reorganization Cases, all requests for approval and payment of professional fees
and reimbursement of expenses, whether or not previously applied for by interim
application, may be included in such professionals' final applications for
payment of Claims as set forth herein and in the Plan. Objections, if any, to
such claims shall be filed and served not later than five (5) business days
prior to the date set by the Court for the hearing to consider such claims.
36. Allowance of Malpractice and Other Litigation Claims. The
----------------------------------------------------
Debtors and/or Reorganized Debtors shall file an objection to and/or contest the
allowance of the Malpractice and Other Litigation Claims on or before the
expiration of one-hundred and twenty (120) days from the Effective Date
(hereinafter the "Objection Deadline"). Failure of the Debtors or Reorganized
Debtors to file a objection to a Malpractice and Other Litigation Claim on or
before the expiration of the Objection Deadline shall constitute the allowance
of the Malpractice and
27
Other Litigation Claim subject only to the liquidation of the Malpractice and
Other Litigation Claim in a court of competent jurisdiction. Further, upon the
occurrence of either the filing of the objection to a Malpractice and Other
Litigation Claim by a Debtor or Reorganized Debtor or the deemed allowance of
the claim, the automatic stay of 11 U.S.C. (S) 362 shall be lifted and the
claimant shall be authorized to take all steps necessary to liquidate the
Malpractice and Other Litigation Claim; provided however, that (i) the
liquidation of the Malpractice and Other Litigation Claim shall be undertaken
solely for the purpose of liquidating the claimant's Malpractice and Other
Litigation Claim against the Debtors for purposes of receiving distributions
under the Plan, and/or receiving such insurance proceeds as may be available to
such claimant with respect to such claim; and (ii) the Court shall retain
jurisdiction over the Malpractice and Other Litigation Claims to resolve any
disputes that may arise between the Debtors, the Reorganized Debtors and the
claimants regarding the liquidation of the Malpractice and Other Litigation
Claims and the payment of distributions under the Plan for such claims, subject
to the restrictions on jurisdiction contained in 28 U.S.C. (S) 157.
37. Nothing herein shall be deemed to limit or otherwise preclude a
Debtor and a holder of a Malpractice and Other Litigation Claim from resolving a
Malpractice and Other Litigation Claim by settlement. In addition, to the extent
that a Malpractice and Other Litigation Claim is resolved for an amount, the
payment of which comes exclusively from the Debtors' and/or Reorganized Debtors'
insurance carriers, then no further order or intervention by the Court is
required.
38. The Debtors and Reorganized Debtors reserve the right to seek a
further order of the Court establishing a mediation or alternative dispute
resolution procedure for the liquidation of the Malpractice and Other Litigation
Claims arising in those states in which
28
mediation and/or alternative dispute resolution procedures are not a mandatory
element of the state court process.
39. Indenture Trustee Fees. To the extent that, as of the Effective
----------------------
Date, any pending Administrative Expense Claims of the Indenture Trustees
(including a good faith estimate provided to the Debtors by each of the
Indenture Trustees of its fees and expenses accruing through the Effective
Date), are not yet allowed, the Debtors shall establish on the Effective Date a
separate Cash reserve (the "Indenture Trustees Reserve") for the Indenture
Trustees in the amount of any such outstanding Administrative Expense Claims
including the estimated fees and expenses.
40. The obligation of the Reorganized Vencor to pay the Indenture
Trustees their fees and expenses shall be secured by the amounts in the
Indenture Trustee Reserve established for the Indenture Trustees and the lien
rights of the Indenture Trustees under the respective indentures governing the
Subordinated Notes shall be deemed to attach to the Cash in the Indenture
Trustee Reserve to the same extent as if the Cash in the Indenture Trustees
Reserve were property received by the Indenture Trustees pursuant to the Plan.
The Indenture Trustees shall be conclusively deemed to have taken any and all
action required to perfect their lien rights as to the Cash in the Indenture
Trustees Reserve, including, without limitation, any requirement of possession
for such perfection.
41. In consideration for the foregoing, and subject to the
establishment of the Indenture Trustee Reserve, the Indenture Trustees are
deemed to have waived their lien rights in the property to be distributed under
the Plan to the holders of the Subordinated Notes. Upon the payment by the
Debtors or Reorganized Vencor of the Allowed Administrative Expenses Claims
29
of the Indenture Trustees the lien rights of the Indenture Trustees in the
Indenture Trustee Reserve shall be extinguished.
42. Transfer of Ventas Claims. Any transfer of a Class 5 Claim held
-------------------------
by a Ventas Entity shall be effective and recognized for distribution purposes
of the Plan upon the filing with the Clerk of the Bankruptcy Court by the
respective Ventas Entity of a notice of the transfer.
43. Post-Confirmation Notices. On or before the tenth (10) Business
-------------------------
Day following the date of the entry of this Confirmation Order, the Debtors or
the Reorganized Debtors, as appropriate, shall serve notice of entry of this
Confirmation Order pursuant to Bankruptcy Rules 2002(f)(7), 2002(k) and 3020(c)
to all creditors, indenture trustees and equity security holders of the Debtors
as of the date hereof
44. Subject to Section 14.12 of the Plan, the form of the Amended
Ventas Leases (as appropriately conformed for each master lease portfolio as
described in the form admitted as an exhibit at the Confirmation Hearing), the
Excess Stock Trust Agreement, the Tax Refund Escrow Agreement, the Registration
Rights Agreement, the New Senior Secured Notes, the New Senior Secured Credit
Agreement and the Amended and Restated Certificate of Incorporation shall be
substantially in the forms submitted as exhibits at the Confirmation Hearing or
in the case of the Registration Rights Agreement, filed with the Court, and
shall be executed and delivered on the Effective Data.
45. If the Effective Date does not occur, this Order shall be deemed
vacated and of no force and effect.
46. Postpetition Claims. Notwithstanding any provision of the Plan,
-------------------
for any Claims arising on or after the Petition Date that represent liabilities
incurred by the Debtors in the ordinary course of business during these
Reorganization Cases the Debtors shall remain
30
obligated to pay such Claims as and when they become due and payable in the
ordinary course of business, without the need for Filing an application with the
Court before the bar date for Administrative Claims or at any other time and
without regard to the terms of or any limitation of the Plan, and in accordance
with the terms and conditions of any judgment, award or agreement relating
thereto; this paragraph specifically applies without limitation to Postpetition
Personal Injury Claims alleged against the Debtors that arose on or after the
Petition Date which may be determined, liquidated and resolved in the ordinary
course of business. Holders of Postpetition Personal Injury Claim are authorized
to liquidate such Claims to judgment, settlement or otherwise without further
order of the Court and to seek payment as set forth herein.
Dated: Wilmington, Delaware
March 16, 2001
/s/ Mary F. Walrath
-----------------------------------
UN1TED STATES BANKRUPTCY JUDGE
31
SCHEDULE A
TO
EXHIBIT H
SCHEDULE A
Security Documents
"Security Documents" shall mean: leasehold and fee mortgages,
assignments of leases and rents, security agreements, fixture filings and
financing statements; leasehold and fee deeds of trust, assignments of leases
and rents, security agreements, fixture filings and financing statements;
leasehold and fee deeds to secure debt, assignments of leases and rents,
security agreements, fixture filings and financing statements; UCC-[1] financing
statements with respect to the foregoing instruments; and UCC-[2] fixture
filings with respect to the foregoing instruments.
This schedule is intended to include all Security Documents relating
to property that is owned or leased by Vencor, Inc. or Vencor Operating, Inc.
located in any of the following jurisdictions:
--------------------------------------------------------------------------------
Alabama Arizona Arkansas
------- ------- --------
Jefferson Maricopa Pulaski
Madison Pima
Mobile Yavapai
--------------------------------------------------------------------------------
California Colorado Connecticut
---------- -------- -----------
Alameda Arapahoe Fairfield
Bakersfield Adams Hartford
Kern Denver New London
Los Angeles
Orange
Riverside
Sacramento
San Bernardino
San Diego
San Francisco
San Luis Obispo
San Joaquin
San Mateo
Shasta
Ventura
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Delaware Florida Georgia
-------- ------- -------
Brevard Bibb
Broward Chatham
Clay Clayton
Dade Cobb
Palm Beach De Kalb
Pinellas Fayette
Hernando Fulton
Hillsborough Houston
Lee Meriwether
Manatee
Pasco
Sarasota
Seminole
--------------------------------------------------------------------------------
Idaho Illinois Indiana
----- -------- -------
Ada Cook Boone
Boise De Kalb Barholomew
Canyon Clark
Gem Delaware
Latah Elkhard
Ney Perce Floyd
Shoshone Harrison
Washington Howard
Lawrence
LaGrange
Marion
Marshall
Vanderburgh
Vigo
Wells
--------------------------------------------------------------------------------
2
--------------------------------------------------------------------------------
Iowa Kansas Kentucky
---- ------ --------
Boyle
Casey
Clark
Davies
Fayette
Hardin
Xxxxxxxxx
Xxxxxxxx
Xxxxxx
XxXxxx
Xxxxxx
Xxxxxx
--------------------------------------------------------------------------------
Louisiana Maine Massachusetts
--------- ----- -------------
Caddo Parish Kennebec Barnstable
Orleans Parish Xxxx Berkshire
Saint Tammany Parish Lincoln Bershire
Oxford Bristol
Penobscot Essex
Sagadahoc Franklin
York High Street
Lancaster
Middlesex
Norfold
Plymouth
Stoughton
Suffolk
West Roxbury
Worcester
--------------------------------------------------------------------------------
Michigan Minnesota Mississippi
-------- --------- -----------
Xxxxx Hennepin Xxxxxx
Xxxxxx
--------------------------------------------------------------------------------
Missouri Minnesota Nebraska
-------- --------- --------
Xxxx Beaverhead Lancaster
Xxxxxxx Cascade
St. Louis
--------------------------------------------------------------------------------
3
--------------------------------------------------------------------------------
Nevada New Hampshire New Jersey
------ ------------- ----------
Clark Hanover
Hillsborough
Merrimack
Strafford
--------------------------------------------------------------------------------
New Mexico North Carolina Ohio
---------- -------------- ----
Bernalillo Almance Coshocton
Buncombe Fairfield
Duplin Xxxxxxxx
Xxxxxx Guernsey
Forsyth Xxxxxxx
Xxxxxx Lake
Guilford Licking
Halifax Xxxxx
Hertford Xxxxxx
Xxxxxx Xxxx
Xxxxxxx Summit
Mecklenburg Xxxxxx
Xxxx Washington
New Hanover
Orange
Pasquotank
Union
Xxxxx
Wake
--------------------------------------------------------------------------------
Oklahoma Oregon Pennsylvania
-------- ------ ------------
Oklahoma Xxxxxxx Allegheny
Xxxxxx Xxxxx
Northampton
Philadelphia
--------------------------------------------------------------------------------
Puerto Rico Rhode Island South Carolina
----------- ------------ --------------
Providence
--------------------------------------------------------------------------------
4
--------------------------------------------------------------------------------
Tennessee Texas Utah
--------- ----- ----
Davidson Bexar Xxxxx
Xxxxxxxx Xxxxxx Washington
Xxxxxx Xxxxxx Salt Lake
Xxxxxx Xxxxxxx
--------------------------------------------------------------------------------
Vermont Xxxxxxxx Xxxxxxxxxx
------- -------- ----------
Chittenden Arlington Xxxxx
Princess Xxxx Cowlitz
Suffolk Xxxx Xxxxxx
Snohomish
Whatcom
--------------------------------------------------------------------------------
Wisconsin Wyoming
Xxxxx Carbon
Kenosha Fremont
Langlade Laramie
Manitowoc Sweetwater
Marathon
Milwaukee
Outgamie
Racine
Winnebago
Wood
--------------------------------------------------------------------------------
5
EXHIBIT B
TO
EXHIBIT H
Docket for Case NoDocket Number: 99-03199-MFW VENCOR, INC.
Case Information
341 Meeting: 10/22/99, 11:00 A.M. at location #10
Claim Deadline: 01/07/00 523(c) Complaint Deadline: Not Applicable
District: DELAWARE [District Code 0311]
Office: U.S. BANKRUPTCY COURT [1]
Original Filing Date: 09/13/99 Original Chapter: 11
Judge: Xxxx X. Xxxxxxx [AO Code A591]
Type of Filing: Voluntary Nature of Debt: Business
Assets available for distribution to creditors.
Fee of $830.00 paid in full.
Debtor Information
Type of Filing: Corporation
Debtor
------
VENCOR, INC.
DBA VENCOR HEALTHCARE, INC.
SSN: not available EIN: 00-0000000
Address:
One Vencor Place, 000 X. Xxxxxx Xx.
XXXXXXXXXX, XX 00000-0000
County: Jefferson KY [21111]
Attorney Information
Attorney for Debtor:
-------------------
Xxxxxxx X. Xxxxxx, Xx.
X.X. Xxx 0000
Xxxxxxxxxx, XX 00000
(000) 000-0000
Trustee:
-------
NOT YET APPOINTED
Trustee's Attorney: None assigned.
------------------
Creditor's Attorney: None assigned.
-------------------
Statistical Information
Estimated Number of Creditors: 1000 or more
Estimated Assets: $10,000,001 to 50 Million
Estimated Liabilities: $10,000,001 to 50 Million
Form of business organization: Not Available
Type of business: Not Available
Number of employees: N/A
Number of equity security holders: N/A
Receipt Number: 040284
Docket for Case No. 99-03199-MFW
--------------------------------
VENCOR, INC. (printed 04/23/01 at 14:17)
Filing Date No. Entry
----------------------------------------------------------------------------------------------------------------
03/16/01 5973 CERTIFICATION of Xxxxxxx X. Xxxxxxxx, Esq. & Request for
Modification of Page 7, (P) 20 & Page 17, (P) 10 of Finding of Fact,
Conclusion of Law & Order Confirming Fourth Amended Plan (Filed by
Xxxxxxx X. Xxxxxxxx, Atty./Realtor XXX-XXX XXXXXXXX-XXXXX.) Re: Item # 5950.
[EOD 03/19/01] [JW]
03/16/01 5974 OMNIBUS Objection (TENTH) to Claims (Filed by Xxxxxxx X. Xxxxxxxxx,
Atty./DEBTORS.) [EOD 03/19/01] [JW]
NOTICE of Motion and Hearing (Hearing only if objections filed by
4/5/01 @ 4:00PM) on 04/25/01 at 02:00 P.M. at 000 Xxxxxx Xxxxxx, 0xx Xxxxx,
Xxxxxxxxx #0, Xxxxxxxxxx, XX 00000 [EOD 03/19/01] [JW]
CERTIFICATE of Service [EOD 03/19/011 [JW]
03/16/01 5975 ORDER Signed and Located in Original Document Confirming Chapter 11
Plan Re: Item # 5950. [EOD 03/19/01] [JW]
03/16/01 5976 MOTION for Order Compelling Payment of Post-Petition Administration
Obligation (Filed by Xxx Xxxxxx Xxxxxxxxx, Atty./AREA METROPOLITAN
AMBULANCE Authority, d/b/a MedStar.) [EOD 03/19/01] [JW)
CERTIFICATE of Service [EOD 03/19/01] [JW]
3/16/01 5977 MOTION for Leave to File Proof of Claim (Filed by Xxx Xxxxxx Xxxxxxxxx,
Atty./AREA METROPOLITAN AMBULANCE AUTHORITY, d/b/a MedStar.) [EOD
03/19/01] [JW]
CERTIFICATE of Service [EOD 03/19/01] [JW]
03/16/01 5978 NOTICE of Motion and Hearing (Hearing only if objections filed by
4/6/01 @ 4:00PM) on 04/12/01 at 02:00 P.M. at 000 Xxxxxx Xxxxxx, 0xx
Xxxxx, Xxxxxxxxx #0, Xxxxxxxxxx, XX 00000 Re: Item # 5976. [EOD
03/19/01] [JW]
03/16/01 5979 NOTICE of Motion and Hearing (Hearing only if objections filed by
4/6/01 @ 4:00PM) on 04/12/01 at 02:00 P.M. at 000 Xxxxxx Xxxxxx, 0xx
Xxxxx, Xxxxxxxxx #0, Xxxxxxxxxx, XX 00000 Re: Item # 5977. [EOD
03/19/01] [JW]
03/16/0l 5980 AFFIDAVIT Under 11 U.S.C. (S) 327(e) (Filed by Xxxxxxx X. Xxxxx, Esq.)
[EOD 03/19/01] [JW]
03/16/01 5981 AFFIDAVIT Under 11 U.S.C. (S) 327(e) (Filed by Xxxx X. Xxxxxx, Esq.)
[EOD 03/19/01] [JW]
2
Filing Date No. Entry
----------------------------------------------------------------------------------------------------------------
03/16/01 5982 AFFIDAVIT Under 11 U.S.C. (S) 327(e) (Filed by Xxxx X. Xxxxxx, Esq.)
[EOD 03/19/01] [JW]
03/19/01 5983 AFFIDAVIT Under 11 U.S.C. (S) 327(e) (Filed by Xxxxx X. Xxxxxxxx, Esq.)
[EOD 03/20/01] [JW]
03/19/01 5984 AFFIDAVIT Under 11 U.S.C. (S) 327(e) (Filed by Xxxxx X. Xxxxxx, Esq.)
[EOD 03/20/01] [JW]
CERTIFICATE of Service [EOD 03/20/01] [JW]
03/19/01 5985 NOTICE of Hearing (Filed by Xxxxx X. Xxxxx, Atty./HSBC BANK USA, as
Indenture Trustee.) on 03/30/01 at 09:30 A.M. at 000 Xxxxxx Xxxxxx, 0xx
Xxxxx, Xxxxxxxxx #0, Xxxxxxxxxx, XX 00000 Re: Item 5522. [EOD 03/20/01]
[JW]
CERTIFICATE of Service [EOD 03/20/01] [JW]
03/19/01 5986 NOTICE of Withdrawal of Proofs of Claim (Filed by Xxxxx Xxxxx-Xxxxxxxx,
Atty./EXCELSIOR CARE CENTERS, INC.) [EOD 03/20/01] [JW]
CERTIFICATE of Service [EOD 03/20/01] [JW]
03/19/01 5987 NOTICE of Transfer of Claim (Filed by Xxxxxx XxXxxxx/Liquidity
Solutions, Inc.) (Medical Packaging, Inc./Liquidity Solutions, Inc.)
[EOD 03/22/01] [JW]
03/20/01 5988 NOTICE of Transfer of Claim Other Than for Security and Waiver of
Notice FLOWERS BAKING ATTN XXXX X XXXXX XX. [EOD 03/23/01] [SBM]
03/20/01 5989 NOTICE of Transfer of Claim Other Than for Security and Waiver of
Notice SPARTANBURG NEUROLOGICAL SERVICES [EOD 03/23/01] [SBM]
03/20/01 5990 NOTICE of Transfer of Claim Other Than for Security and Waiver of
Notice DBA SPECIAL MED RENTALS SPECIAL [EOD 03/23/01] [SBM]
03/20/01 5991 NOTICE of Transfer of Claim Other Than for Security and Waiver of
Notice RESPIRATIORY CARE INC [EOD 03/23/01] [SBM]
03/20/01 5992 NOTICE of Transfer of Claim Other Than for Security and Waiver of
Notice WAL MART INC ATTN XXXX XXXXXXX [EOD 03/23/01] [SBM]
03/20/01 5993 NOTICE of Transfer of Claim Other Than for Security and Waiver of
Notice GRUNAU ATTN: XXXXXXXXX X. XXXXXX [EOD 03/23/01] [SBM]
03/20/01 5994 NOTICE of Transfer of Claim Other Than for Security and Waiver of
Notice JET MEDICAL ELECTRONICS INC ATTN XXXXX XXXXXXXXX [EOD 03/23/01]
[SBM]
3
Filing Date No. Entry
----------------------------------------------------------------------------------------------------------------
03/20/01 5995 NOTICE of Transfer of Claim Other Than for Security and Waiver of
Notice C&C WASTE CONTROL ATTN: CTRANE X X XXXXX [EOD 03/23/01] [SBM]
03/20/01 5996 NOTICE of Transfer of Claim Other Than for Security and Waiver of
Notice DESERT COUNTY LIGHTING ATTN: XXXXXXX XXXXXXXXX [EOD 03/23/01]
[SBM]
03/20/01 5997 NOTICE of Transfer of Claim Other Than for Security and Waiver of
Notice XXXXX GLASS ATTN XXX XXXXX [EOD 03/23/01] [SBM]
03/20/01 5998 NOTICE of Transfer of Claim Other Than for Security and Waiver of
Notice CAMBRIDGE NUTRACEUTICALS ATTN: XXXX [EOD 03/23/01] [SBM]
03/20/01 5999 NOTICE of Transfer of Claim Other Than for Security and Waiver of
Notice XXXX XXXXXXXX [EOD 03/23/01] [SBM]
03/20/01 6000 NOTICE of Transfer of Claim Other Than for Security and Waiver of
Notice HOSPITAL WORKERS LOCAL 285 ATTN XXXXX XXXXXX [EOD 03/23/01]
[SBM]
03/20/01 6001 NOTICE of Transfer of Claim Other Than for Security and Waiver of
Notice APA MEDICAL ATTN XXXXXX XXXX [EOD 03/23/01] [SBM]
03/20/01 6002 NOTICE of Transfer of Claim Other Than for Security and Waiver of
Notice PRESIDIO GORDENS ATTN XXXXX XXXXX [EOD 03/23/01] [SBM]
03/20/01 6003 NOTICE of Transfer of Claim Other Than for Security and Waiver of
Notice XXXX-XXX MEATS INC ATTN XXX XXXX [EOD 03/23/01] [SBM]
03/20/01 6004 NOTICE of Transfer of Claim Other Than for Security and Waiver of
Notice ROTO ROOTER PLUMBING ATTN: XXXX XXXXXX [EOD 03/23/01] [SBM]
03/20/01 6005 NOTICE of Transfer of Claim Other Than for Security and Waiver of
Notice MAYFAIR DIAGNOSTIC LAB ATTN XXXXXXX J LAW [EOD 03/23/01] [SBM]
03/20/01 6006 NOTICE of Transfer of Claim Other Than for Security and Waiver of
Notice THE EMPLOYMENT TIMES ATTN XXXX GRAIGS [EOD 03/23/01] [SBM]
03/20/01 6007 NOTICE of Transfer of Claim Other Than for Security and Waiver of
Notice RESTAURANT APPLIANCE SERVICE [EOD 03/23/01] [SBM]
4
Filing Date No. Entry
----------------------------------------------------------------------------------------------------------------
03/20/01 6008 NOTICE of Transfer of Claim Other Than for Security and Waiver of
Notice BIO-TECH SYSTEMS ATTN: XXXXXX X XXXXXX [EOD 03/23/01] [SBM]
03/20/01 6009 NOTICE of Transfer of Claim Other Than for Security and Waiver of
Notice PM REFUSE REMOVAL SERV INC ATTN XXXXXX XXXXXXX [EOD 03/23/01]
[SBM]
03/20/01 6010 NOTICE of Transfer of Claim Other Than for Security and Waiver of
Notice GRAINGER ATTN H. F. HAEGERSCH [EOD 03/23/01] [SBM]
03/20/01 6011 NOTICE of Transfer of Claim Other Than for Security and Waiver of
Notice RMS CALIBRATION ATTN XXXX X. XXXXXXXX [EOD 03/23/01] [SBM]
03/20/01 6012 NOTICE of Transfer of Claim Other Than for Security and Waiver of
Notice HARKERS WHOLESALE MEAT ATTN: XXXXX X XXXX [EOD 03/23/01] [SBM]
03/20/01 6013 NOTICE of Transfer of Claim Other Than for Security and Waiver of
Notice SUPPLEMENTAL HEALTH CARE SERV ATTN: XXXXXX XXXXX [EOD 03/23/01]
[SBM]
03/20/01 6014 NOTICE of Transfer of Claim Other Than for Security and Waiver of
Notice ARTHREX [EOD 03/23/01] [SBM]
93/19/01 6015 NOTICE of Transfer of Claim Other Than for Security and Waiver of
Notice BEST CHOICE ATTN XXXXX X XXXX [EOD 03/23/013] [SBM]
03/19/01 6016 NOTICE of Transfer of Claim Other Than for Security and Waiver of
Notice XXXXX XXXX 3 VILLA JARDIN [EOD 03/23/01] [SBM]
03/19/01 6017 NOTICE of Transfer of Claim Other Than for Security and Waiver of
Notice GRUNAU COMPANY INC. ATTN: XXXXXXXXX X. XXXXXX [EOD 03/23/01]
[SBM]
03/19/01 6018 NOTICE of Transfer of Claim Other Than for Security and Waiver of
Notice XXXXX ELECTRIC [EOD 03/23/01] [SBM]
03/19/01 6019 NOTICE of Transfer of Claim Other Than for Security and Waiver of
Notice CONCORD EXTENDED CARE [EOD 03/23/01] [SBM]
03/l9/01 6020 NOTICE of Transfer of Claim Other Than for Security and Waiver of
Notice THE VETERAN SERVER ATTN XXX XXXXX [EOD 03/23/01] [SBM]
03/l9/01 6021 NOTICE of Transfer of Claim Other Than for Security and Waiver of
Notice Wise Uniforms & Equipment ATTN: XXXXX XXXX [EOD 03/23/01]
[SBM]
5
Filing Date No. Entry
----------------------------------------------------------------------------------------------------------------
03/19/01 6022 NOTICE of Transfer of Claim Other Than for Security and Waiver of
Notice DUPONT FLOORING SYSTEMS ATTN: XXXX XXXXXXXXX [EOD 03/23/01]
[SBM]
03/19/0l 6023 NOTICE of Transfer of Claim Other Than for Security and Waiver of
Notice COMPLETE FLOORING ATTN XXXXX XXXXXX [EOD 03/23/01] [SPM]
03/23/0l 6023A THE ABOVE TRANSFERS OF CLAIM WERE FILED By Madison Creditors Liquidity
Investors 202, LLC (TRANSFEREE) 5988 thru 6023 [EOD 03/23/01] [JW]
03/13/01 6024 ORDER Signed and Located in Original Document Vacating in Part the
Order Reducing or Disallowing Certain Claims Re: Item # 5706. [EOD
03/26/01] [JW] & Re: Item # 5226. [EOD 03/26/01] [JW]
03/19/01 6025 ORDER Signed and Located in Original Document (Shortening Notice) Re:
Item # 5963. [EOD 03/26/01] [JW]
03/20/01 6026 Line Withdrawing Proof of Claim # 5127 (Filed by Xxxxxxx Xxxxx Xxxxx,
Atty./AJILON SERVICES, INC.) [EOD 03/26/01] [JW] CERTIFICATE of Service
[EOD 03/26/01] [JW]
03/20/01 6027 CERTIFICATION of No Objection (Filed by Xxxxxxx X. Xxxxxxxxx,
Atty./DEBTORS.) Re: Item # 5792.[EOD 03/26/01] [JW]
03/20/01 6028 STIPULATION AND ORDER Settling Fifth Omnibus Objection to Claims
w/Respect to First Colony Levee Improvement District, First Colony
Municipal Utility District #9 & The City of Missouri City (Filed by
Xxxx X. Xxxxxxxx, Atty./DEBTORS & Xxxx X. Xxxxxx, Atty./FIRST COLONY
LEVEE IMPROVEMENT DISTRICT, ET AL.) Re: Item # 3094. [Disposed] [EOD
03/26/01] [JW]
CERTIFICATION of Xxxxxxx X. Xxxxxxxxx, Esq. [EOD 03/26/01] [JW]
CERTIFICATE of Service [EOD 03/26/01] [JW]
03/20/01 6029 STIPULATION AND ORDER Settling Fifth Omnibus Objection to Claims
w/Respect to Manatee County Tax Collector (Filed by Xxxxxxx X.
Xxxxxxxxx, Esq., Atty./DEBTORS & Xxx Xxxxxx, Jr., Atty./MANATEE COUNTY
TAX COLLECTOR.) Re: Item # 3094. [Disposed] [EOD 03/26/01] [JW]
CERTIFICATION of Xxxxxxx X. Xxxxxxxxx, Esq. [EOD Oat 03/26/01] [JW]
CERTIFICATE of Service [EOD 03/26/01] [JW]
03/20/01 6030 CERTIFICATION of Xxxxxxx X. Xxxxxxxxx, Esq. Regarding Order Further
Extending Time Debtors' Must Assume/Reject Unexpired Leases Re: Item #
5785. [Disposed] [EOD 03/26/01] [JW]
6
Filing Date No. Entry
----------------------------------------------------------------------------------------------------------------
03/21/01 6031 NOTICE of Appearance and Request for Service of Notices and Documents
(Filed by Xxxxx X. Xxxxxxxx, Atty./XXXXX X. XXXXXXXX, n/k/a Xxxxx X.
Xxxxxxx.) [EOD 03/26/01] [JW]
CERTIFICATE of Service [EOD 03/26/01] [JW]
03/21/01 6031A OBJECTION to Eighth Omnibus Objection to Claims (Filed by Xxxxx X.
Xxxxxxxx, Atty./XXXXX X. XXXXXXXX, n/k/a Xxxxx X. Xxxxxxx.) Re: Item #
4989. [EOD 03/26/01] [JW]
CERTIFICATE of Service [EOD 03/26/01] [JW]
03/21/01 6032 MOTION for Order Vacating in Part Order Reducing or Disallowing Certain
Claims (Omnibus Objection # 9) (Filed by Xxxxxxx X. Xxxxxxxxx,
Atty./DEBTORS.) Re: Item # 5924. [EOD 03/26/01] [JW]
NOTICE of Motion (Hearing only if objections filed by 4/9/01 @ 4:00PM)
CEOD 03/26/01] [JW]
CERTIFICATE of Service [EOD 03/26/01] [JW]
03/21/01 6033 CERTIFICATION of No Objection (Filed by Xxxxxxx X. Xxxxxxxxx,
Atty./DEBTORS.) Re: Item # 5797. [EOD 03/26/01] [JW]
03/21/01 6034 STIPULATION AND ORDER Regarding Claims of Xxxxx Environmental & Energy
Services Company (Filed by Xxxxxxx X. Xxxxxxxxx, Atty./DEBTORS &
Xxxxxxxxxxx Xxxxxxxxx, Atty./XXXXX ENVIRONMENTAL ENERGY SERVICES CO.,
INC.) [Disposed] [EOD 03/26/01] [JW]
CERTIFICATION of Xxxxxxx X. Xxxxxxxxx, Esq. [EOD 03/26/01] [JW]
CERTIFICATE of Service [EOD 03/26/01] [JW]
03/21/01 6035 STIPULATION AND ORDER Regarding Extension of Discovery Period (Filed by
Xxxxxxxxxxx X. Xxxxxx, Atty./IRS & Xxxxxxx X. Xxxxxxxxx,
Atty./DEBTORS.) Re: Item # 3094. [Disposed] [EOD 03/26/01] [JW]
CERTIFICATION of Xxxxxxx X. Xxxxxxxxx, Esq. [EOD 03/26/01] [JW]
CERTIFICATE of Service [EOD 03/26/01] [JW]
03/21/01 6036 NOTICE of Service Re: Item # 5967. [EOD 03/26/01] [JW]
& Re: Item # 5968. [EOD 03/26/01] [JW]
& Re: Item # 5960. [EOD 03/26/01] [JW]
& Re: Item #s 5970, 5971 & 5972 [EOD 03/26/01] [JW]
7
Filing Date No. Entry
----------------------------------------------------------------------------------------------------------------
03/22/01 6037 POST-PETITION Claim for Damages for Tortious Violation of Americans
w/Disabilities Act of 1990 (Filed by Xxxxxxx X. Xxxxx, Atty./XXXXXXXX
XXXXXXXX.) [EOD 03/26/01] [JW]
DECLARATION of Service [EOD 03/26/01] [JW]
03/22/01 6038 APPLICATION for Compensation and for Reimbursement of Expenses (Xxxx
Xxxxx LLP) (Filed by Jan A. T. van Amerongen, Jr., Atty./DEBTORS.)
SIXTEENTH INTERIM 1/1/01 thru 1/31/01 [EOD 03/26/01] [JW]
NOTICE of Application (Hearing only if objections filed by 4/11/01 @
4:00PM) [EOD 03/26/01] [JW]
CERTIFICATE of Service [EOD 03/26/01] [JW]
03/22/01 6039 APPLICATION for Compensation and for Reimbursement of Expenses (Mintz,
Levin, Cohn, Ferris, Glovsky & Popeo, P.C.) (Filed by Xxxxxxx X. Xxxxx,
Atty./DEBTORS.) TWELFTH 12/1/00 thru 12/31/00 [EOD 03/26/01] [JW]
NOTICE of Application (Hearing only if objections filed by 4/12/01 @
4:00PM) [EOD 03/26/01] [JW]
CERTIFICATE of Service [EOD 03/26/01] [JW]
03/22/01 6040 APPLICATION for Compensation and for Reimbursement of Expenses (Mintz,
Levin, Cohn, Ferris, Glovsky & Popeo, P.C.) (Filed by Xxxxxxx X. Xxxxx,
Atty./DEBTORS.) THIRTEENTH 1/1/01 thru 1/31/01 [EOD 03/26/01] [JW]
NOTICE of Application (Hearing only if objections filed by 4/12/01 @
4:00PM) [EOD 03/26/01] [JW]
CERTIFICATE of Service [EOD 03/26/01] [JW]
03/22/01 6041 OBJECTION to Motion to File Claims Beyond Bar Date (Filed by Xxxxxxx X.
Xxxxxx, Atty./DEBTORS.) Re: Item # 4933. [EOD 03/26/01] [JW]
CERTIFICATE of Service [EOD 03/26/01] [JW]
P3/22/01 6042 DECLARATION of Xxxxxx X. XxXxxxxx, Director & Corporate Counsel of
Liability Claims for Vencor, Inc. In Support of Debtors' Objection to
Motion to File Claims Beyond Bar Date Re: Item # 6041. [EOD 03/26/01]
[JW]
& Re: Item # 4933. [EOD 03/26/01] [JW]
CERTIFICATE of Service [EOD 03/26/01] [JW]
8
Filing Date No. Entry
----------------------------------------------------------------------------------------------------------------
93/22/01 6043 DECLARATION of Xxxxxx X. XxXxxxxx, Director & Corporate Counsel of
Liability Claims for Vencor, Inc. In Support of Debtors' objection to
File Proof of Claim Beyond Bar Date Re: Item # 6041. [EOD 03/26/01] [JW]
& Re: Item # 4933. [EOD 03/26/01] [JW] 3/27
03/23/01 6044 WITHDRAWAL of Appearance & Removal from 2002 Service List (Filed by
Xxxxxxxx X. Xxxxxxxxx, Atty./XXXXXXXX X. XXXXXXXX.) Re: Item # 639.
[Eon 03/26/01] [JW]
CERTIFICATE of Service [EOD 03/26/01] [JW]
03/23/01 6045 APPLICATION for Compensation and for Reimbursement of Expenses (Cleary,
Gottlieb, Xxxxx & Xxxxxxxx) (Filed by Xxxxxxx X. Xxxxxxxxx,
Atty./DEBTORS.) FIFTEENTH INTERIM 12/1/00 thru 12/31/00 [EOD 03/26/01]
[JW]
03/23/01 6046 NOTICE of Application (Hearing only if objections filed by 4/12/01 @
4:00PM) Re: Item # 6045. [EOD 03/26/01] [JW]
CERTIFICATE of Service [EOD 03/26/01] [JW]
03/23/01 6047 AFFIDAVIT Under 11 U.S.C. (S) 327(e) (Filed by Xxxxx X. Xxxxx, Esq.)
[EOD 03/26/01] [JW]
03/23/01 6048 AFFIDAVIT Under 11 U.S.C. (S) 327(e) (Filed by Xxxxx X. Xxxxxxx, Esq.)
[EOD 03/26/01] [JW]
03/23/01 6049 MOTION for Relief from Stay (Filed by Xxxxx X. Xxxxxx, Atty./XXXXX
XXXXX PRIDE.) [EOD 03/26/01] [JW]
NOTICE of Motion and Hearing on 04/12/01 at 02:00 P.M. at 000 Xxxxxx
Xxxxxx, 0xx Xxxxx, Xxxxxxxxx #0, Xxxxxxxxxx, XX 00000 [EOD 03/26/01]
[JW]
CERTIFICATE of Service [EOD 03/26/01] [JW]
03/23/01 6050 RESPONSE to Motion to Reduce or Disallow Claim (Filed by Xxxx X.
Xxxxxxx, Treasurer/Grant County.) [EOD 03/27/01] [JW]
03/26/01 6051 LETTER In Response to Notice of Objection to Claims (Filed by Xxxxxxx
X. Xxxxxxxxxxx, Pres./FACTORY SERVICE AGENCY INC.) [EOD 03/27/01] [JW]
03/26/01 6052 RESPONSE to Reclassifying Claim as Amended Claim Disallowing any Relief
(Filed by Xxxxxx Xxxx/SUPERIOR BIOMEDICAL SERVICE, INC.) [EOD 03/27/01]
[JW]
03/26/01 6053 AFFIDAVIT Under 11 U.S.C. (S) 327(e) (Filed by Xxxxxx X. Xxxxxxxx,
Esq.) [EOD 03/27/01] [JW]
03/26/01 6054 AFFIDAVIT Under 11 U.S.C. (S) 327(e) (Filed by Xxxxx Xxxxxx, Esq.) [EOD
03/27/01] [JW]
9
Filing Date No. Entry
----------------------------------------------------------------------------------------------------------------
03/26/01 6055 TRANSCRIPT of Hearing 3/15/01 [EOD 03/27/01] [JW]
03/26/01 6056 NOTICE of Service Re: Item # 5830. [EOD 03/27/01] [JW]
03/26/01 6057 NOTICE of Service Re: Item # 5950. [EOD 03/27/01] [JW]
03/26/01 6058 CERTIFICATION of No Objection (Filed by Xxxxx X. Xxxxxx, Atty.
/OFFICIAL COMMITTEE/UNSECURED CREDITORS.) Re: Item # 5898. [EOD
03/27/01] [JW]
03/26/01 6059 AFFIDAVIT Under 11 U.S.C. (S) 327(e) (Filed by Xxxxxx X. Xxxxx, Esq.)
[EOD 03/27/01] [JW]
03/26/01 6060 STIPULATION AND ORDER Settling Fifth Omnibus Objection to Claims
w/Respect to Canyon County Treasurer (Filed by Xxxxxx Xxxxx,
Treasurer/CANYON COUNTY & Xxxxxxx X. Xxxxxxxxx, Atty./DEBTORS.) Re:
Item # 3094. [Disposed] [EOD 03/27/01] [JW]
CERTIFICATE of Service [EOD 03/27/01] [JW]
03/27/01 6061 NOTICE of Withdrawal of Transfer of Claim (B G Chemicals, Inc.) (Filed
by Xxxxxx X. Xxxxxxx/DEBT ACQUISITION COMPANY OF AMERICA V, LLC.) Re:
Item # 4618. [EOD 03/27/01] [JW]
03/27/01 6062 WITHDRAWAL of Proof of Claim #8497 (Filed by Xxxxxx X. Xxxxxx,
Atty./ADA COUNTY TREASURER.) [EOD 03/27/01] [JW]
CERTIFICATE of Service [EOD 03/27/01] [JW]
03/27/01 6063 WITHDRAWAL of Administrative Expense Claim Dated 1/12/01 ($1,996.88)
(Filed by Xxx Xxxxxxxxx, Revenue Agent/WISCONSIN DEPT./REVENUE.) [EOD
03/29/01] [JW]
03/27/01 6064 CERTIFICATE of Service Re: Item # 6045. [EOD 03/29/01] [JW]
03/27/01 6065 STIPULATION AND ORDER Settling Fifth Omnibus Objection to Claims
w/Respect to Madison County Tax Collector (Filed by Xxxx X. Purbach,
Atty./MADISON COUNTY TAX COLLECTOR & Xxxxxxx X. Xxxxxxxxx,
Atty./DEBTORS.) Re: Item # 3094. [Disposed] [EOD 03/29/01] [JW]
CERTIFICATION of Xxxxxxx X. Xxxxxxxxx, Atty./DEBTORS.) [EOD 03/29/01]
[JW]
10
Filing Date No. Entry
----------------------------------------------------------------------------------------------------------------
03/27/01 6066 CERTIFICATION of Counsel w/Respect to Amended Order Approving Entry
Into Contract for Transfer of Operations of Facility Known as MONTVUJE
& Authorizing Assumption & Assignment of Related Executory Contracts
(Filed by Xxxxxxx X. Xxxxxxxxx, Atty./DEBTORS.) Re: Item # 5968.
[Disposed] [EOD 03/29/01] [JW]
& Re: Item # 5782. [EOD 03/29/01] [JW]
CERTIFICATE of Service [EOD 03/29/01] [JW]
/27/oh 6067 COUNSEL'S Agenda with Matters Scheduled on 03/30/01 at 09:30 A.M. at
000 Xxxxxx Xxxxxx, 0xx Xxxxx, Xxxxxxxxx #0, Xxxxxxxxxx, XX 00000 [EOD
03/29/01] [JW]
8/01 6068 NOTICE of Withdrawal of Appearance (Filed by Xxxxxxx X. Xxxx,
Atty./NATIONAL HEALTHCARE INVESTORS, INC.) Re: Item # 904. [EOD
03/29/01] [JW]
13/28/01 6069 COUNSEL'S Agenda with Matters Scheduled (AMENDED) on 03/30/01 at 09:30
A.M. at 000 Xxxxxx Xxxxxx, 0/xx/ Xxxxx, Xxxxxxxxx #0, Xxxxxxxxxx, XX
00000 Re: Item # 5057. [EOD 04/02/01] [JW]
3/29/01 6070 STIPULATION AND ORDER Settling Second Omnibus Objection to Claims
w/Respect to Travelers Indemnity Company (Filed by Xxxx X. Xxxxxx, III,
Atty./TRAVELERS INDEMNITY COMPANY & Xxxxxxx X. Xxxxxxxxx,
Atty./DEBTORS.) Re: Item # 1503. [Disposed] [EOD 04/02/01] [JW]
CERTIFICATION of Xxxxxxx X. Xxxxxxxxx, Esq. [EOD 04/02/01] [JW]
CERTIFICATE of Service [EOD 04/02/01] [JW]
03/29/0l 6071 APPLICATION for Compensation and for Reimbursement of Expenses (Morris,
Nichols, Arsht & Xxxxxxx) (Filed by Xxxxxxx X. Xxxxxxxxx,
Atty./DEBTORS.) SIXTEENTH INTERIM 2/1/01 thru 2/18/01 [EOD 04/02/01]
[JW]
NOTICE of Application (Hearing only if objections filed by 4/19/01 @
4:00PM) [EOD 04/02/01] [JW]
CERTIFICATE of Service [EOD 04/02/01] [JW]
03/30/01 6072 RESPONSE to Tenth Omnibus Objection to Claims #8590, 8591, 03142 & 7113
(Filed by Xxxx X. Xxxxxxxx, Atty./MISSOURI DEPT./REVENUE.) Re: Item #
5974. [EOD 04/02/01] [JW]
CERTIFICATE of Service [EOD 04/02/01] [JW]
11
Filing Date No. Entry
----------------------------------------------------------------------------------------------------------------
03/30/01 6073 OMNIBUS Objection (ELEVENTH) to Claims (Filed by Xxxx X. Xxxxxxxx,
Atty./DEBTORS.) [EOD 04/02/01] [JW]
NOTICE of Motion and Hearing (Hearing only if objections filed by
4/16/01 @ 4:00PM) on 05/09/01 at 02:00 P.M. at 000 Xxxxxx Xxxxxx, 0xx
Xxxxx, Xxxxxxxxx #0, Xxxxxxxxxx, XX 00000 [EOD 04/02/01] [JW]
CERTIFICATE of Service [EOD 04/02/01] [JW]
03/30/01 6074 AMENDMENT (FIFTH) & Supplement to Schedule F (Filed by Xxxxxxx X.
Xxxxxx, Atty./DEBTORS.) [EOD 04/02/01] [JW]
NOTICE of Filing [EOD 04/02/01] [JW]
CERTIFICATE of Service [EOD 04/02/01] [JW]
03/27/01 6075 RESPONSE to Tenth Omnibus Objection to Claims (Filed by Xxx Xxxxxxxxx,
Revenue Agent/STATE OF WISCONSIN, DEPT./REVENUE.) Re: Item # 5974.[EOD
04/02/01] [JW]
03/26/01 6076 ORDER Signed and Located in Original Document Enlarging Time Within
Which to File Notices of Removal Re: Item # 5797. [EOD 04/04/01] [JW]
03/26/01 6077 ORDER Signed and Located in Original Document Re: Item # 6028. [EOD
04/04/01] [JW]
03/26/01 6078 ORDER Signed and Located in Original Document Re: Item # 6029. [POD
04/04/01] [JW]
03/26/01 6079 ORDER Signed and Located in Original Document Extending Time Which
Debtors Must Assume/Reject Unexpired Leases Re: Item # 6030. [EOD
04/04/01] [JW]
03/26/01 6080 ORDER Signed and Located in Original Document Re: Item # 6034. [EOD
04/04/01] [JW]
03/26/01 6081 ORDER Signed and Located in Original Document Regarding Extension of
Discovery Period Re: Item # 6035. [EOD 04/04/01] [JW]
03/28/01 6082 ORDER Signed and Located in Original Document Re: Item # 6060. [EOD
04/04/01] [JW]
03/29/01 6083 ORDER Signed and Located in Original Document Re: Item # 6065. [EOD
04/04/01] [JW]
12
Filing Date No. Entry
------------------------------------------------------------------------------------------------
03/29/01 6084 ORDER Signed and Located in Original Document (AMENDED) Approving Entry
Into Contract for Transfer of Operations of Facility Known as Montvue &
Authorizing Assumption & Assignment of Related Executory Contracts Re:
Item # 6066. [EOD 04/04/01] [JW]
& Re: Item # 5968. [EOD 04/04/01] [JW]
& Re: Item # 5782. [EOD 04/04/01] [JW]
04/02/01 6085 OBJECTION to Tenth Omnibus Objection to Claim (Filed by Xxxxx X.
Xxxxxxxxxx, Atty./LARAMIE COUNTY.) Re: Item # 5974. [EOD 04/04/01] [JW]
CERTIFICATE of Service [EOD 04/04/01] [JW]
04/02/01 6086 RESPONSE to Objection to Claim (Filed by Xxxxxx Xxxxx,
V.Pres./SPECIALIZED IMAGING, INC.) [EOD 04/04/01] [JW]
04/02/01 6087 WITHDRAWAL & Entry of Appearance (Filed by Xxxxx X. Xxxxxxxxx, Esq. &
Xxxxx X. Wholly, Atty./STATE OF MAINE.) [EOD 04/04/01] [JW]
04/02/01 6088 AFFIDAVIT Under 11 U.S.C. (S) 327(e) (Filed by Xxxxx 3. Xxxxxxxxxx,
Esq.) [POD 04/04/01] [JW]
04/02/01 6089 RESPONSE to Tenth Omnibus Objection to Claim 8574 (Filed by Xxxxxx X.
Xxxxxxxx, Atty./STATE OF MICHIGAN.) Re: Item # 5974. [EOD 04/04/01] [JW]
PROOF of Service [EOD 04/04/01] [JW]
04/02/01 6090 APPLICATION for Compensation and for Reimbursement of Expenses (KPMG
LLP) (Filed by Xxxxx Xxxxxxx, Partner/TAX CONSULTANTS/DEBTORS.)
TWELFTH INTERIM 11/1/00 thru 11/30/00 [EOD 04/04/01] [JW]
NOTICE of Application (Hearing only if objections filed by 4/22/01 @
4:00PM) [EOD 04/04/01] [JW]
CERTIFICATE of Service [EOD 04/04/01] [JW]
04/02/01 6091 APPLICATION for Compensation and for Reimbursement of Expenses (KPMG
LLP)( (Filed by Xxxxx Xxxxxxx, Partner/TAX CONSULTANTS/DEBTORS.)
THIRTEENTH INTERIM 12/1/00 thru 12/31/00 [EOD 04/04/01] [JW]
NOTICE of Application (Hearing only if objections filed by 4/22/01 @
4:00PM) [EOD 04/04/01] [JW]
CERTIFICATE of Service [EOD 04/04/01] [JW]
13
Filing Date No. Entry
------------------------------------------------------------------------------------------------
04/02/01 6092 APPLICATION for Compensation and for Reimbursement of Expenses (KPMG
LLP)( (Filed by Xxxxx Xxxxxxx, Partner/TAX CONSULTANTS/DEBTORS.)
FOURTEENTH INTERIM 1/1/01 thru 1/31/01 [EOD 04/04/01] [JW]
NOTICE of Application (Hearing only if objections filed by 4/22/01 @
4:00PM) [EOD 04/04/01] [JW]
CERTIFICATE of Service [EOD 04/04/01] [JW]
04/02/01 6093 APPLICATION for Compensation and for Reimbursement of Expenses (KPMG
LLP)( (Filed by Xxxxx Xxxxxxx, Partner/TAX CONSULTANTS/DEBTORS.)
FIFTEENTH INTERIM 2/1/01 thru 2/28/01 [EOD 04/04/01] [JW]
NOTICE of Application (Hearing only if objections filed by 4/22/01 @
4:00PM) [EOD 04/04/01] [JW]
CERTIFICATE of Service [EOD 04/04/01] [JW]
03/27/01 6094 STIPULATION AND ORDER Settling Seventh Omnibus Objection to Claims
w/Respect to Hartford Specialty Co (Filed by Xxxxxxx X. Xxxxxx,
Atty./HARTFORD SPECIALTY CO. & Xxxxxxx X. Xxxxxxxxx, Atty./DEBTORS.)
Re: Item # 4579.[EOD 04/04/01] [JW]
CERTIFICATION of Xxxxxxx X. Xxxxxxxxx, Esq. [EOD 04/04/01] [JW]
04/03/01 6095 SUPPLEMENTAL Response to Motion to Temporary Allowance of Claim & In
Support of Ninth Omnibus Objection to Claim (Filed by Xxxxxxx X.
Xxxxxxxxx, Atty./DEBTORS.) Re: Item # 5793. [Disposed] [EOD
04/04/01] [JW]
& Re: Item # 5705. [EOD 04/04/01] [JW]
& Re: Item # 4994. [EOD 04/04/01] [JW]
CERTIFICATE of Service [EOD 04/04/01] [JW]
04/03/01 6096 AFFIDAVIT Under 11 U.S.C. (S) 327(e) (Filed by Xxxxx X. Xxxxxxxx,
Esq.) [EOD 04/04/01] [JW]
04/03/01 6097 AFFIDAVIT Under 11 U.S.C. (S) 327(e) (Filed by Xxxxx X. Xxxxxx, Esq.)
[EOD 04/04/01] [JW]
03/30/01 6098 HEARING Adjourned (See: Item # 6069) on 04/12/01 at 02:00 P.M. at
000 Xxxxxx Xxxxxx, 0/xx/ Xxxxx, Xxxxxxxxx #0, Xxxxxxxxxx, XX 00000 Re:
Item # 5551. [EOD 04/09/01] [JW]
04/03/01 6099 MONTHLY Reporting Requirements (Dec./00) [EOD 04/09/01] [JW]
CERTIFICATE of Service [EOD 04/09/01] [JW]
14
Filing Date No. Entry
-------------------------------------------------------------------------------------------------
04/03/01 6100 MONTHLY Reporting Requirements (Jan./01) [EOD 04/09/01] [JW]
CERTIFICATE of Service [EOD 04/09/01] [JW]
04/03/01 6101 ORDER Signed and Located in Original Document Re: Item # 6070. [EOD
04/09/01] [JW]
04/04/01 6102 RESPONSE to Tenth Omnibus Objection to Claim #'s 5932 & 5934 (Filed by
Xxxxx X. Xxxxxxxxx, Atty./HEALTH CARE REIT, INC.) Re: Item # 5974.
[EOD 04/09/01] [JW]
CERTIFICATE of Service [EOD 04/09/01] [JW]
04/04/01 6103 RESPONSE to Omnibus Objection to Claim # 2358 (Filed by Xxxx X. Xxxxx,
Atty./XXXXXXX XXXXXX, d/b/a Xxxxxx Commercial Refrigeration.) Re:
Item # 5974. [EOD 04/09/01] [JW]
CERTIFICATE of Service [EOD 04/09/01] [JW]
04/04/01 6104 NOTICE of Service Re: Item # 6076. [EOD 04/09/01] [JW]
04/04/01 6105 RESPONSE to Tenth Omnibus Objection to Claims (Filed by Xxxxxxx X.
Xxxxxx, Atty./HEALTH CARE PROPERTY INVESTORS, INC.) Re: Item # 5974.
[EOD 04/09/01] [JW]
CERTIFICATE of Service [EOD 04/09/01] [JW]
04/04/01 6106 RESPONSE to Tenth Omnibus Objection to Claims (Filed by Xxxxxxx X.
Xxxxxx, Atty./OMNICRE PHARMACY OF MASSACHUSETTS LLC.) Re: Item #
5974. [EOD 04/09/01] [JW]
CERTIFICATE of Service [EOD 04/09/01] [JW]
04/05/01 6107 RESPONSE in OPPOSITION to Tenth Omnibus Objection to Claims (Filed by
R. Xxxx Xxxx, Atty./XXXXXXX ELECTRIC, INC. OF FLORIDA.) Re: Item #
5974. [EOD 04/09/01] [JW]
CERTIFICATE of Service [EOD 04/09/01] [JW]
04/05/01 6108 RESPONSE in Protest to Disallowance of Portion of Claim (Filed by
Xxxxxx X. Xxxxxx/XXXXXX & XXXXXXXX LLP) Re: Item # 5974. [EOD
04/09/01] [JW]
04/05/01 6109 APPLICATION for Compensation and for Reimbursement of Expenses
(Cleary, Gottlieb, Xxxxx & Xxxxxxxx) (Filed by Xxxxxxx X. Xxxxxxxxx,
Atty./DEBTORS.) SIXTEENTH 1/1/01 thru 1/31/01 [EOD 04/09/01] [JW]
NOTICE of Application (Hearing only if objections filed by 4/25/01 @
4:00PM) [EOD 04/09/01] [JW]
04/05/01 6110 AFFIDAVIT of Mailing w/Notice of Entry of Order Confirming Plan [EOD
04/09/01] [JW]
15
Filing Date No. Entry
-------------------------------------------------------------------------------------------------
04/05/01 6111 AFFIDAVIT Under 11 U.S.C. (S) 327(e) (Filed by Xxxxxxxxx X. Xxxxxxx,
Esq.) [EOD 04/09/01] [JW]
04/05/01 6112 RESPONSE to Tenth Omnibus Objection to Claim (Filed by Xxxxxxx X.
Xxxxxx, Atty./PROGRESS LEASING COMPANY.) Re: Item # 5974. [EOD
04/09/01] [JW]
CERTIFICATE of Service [EOD 04/09/01] [JW]
04/05/01 6113 RESPONSE to Objection to Claim # 8352 (Filed by Xxxx X. Xxxxxx,
Atty./STATE OF CONNECTICUT, DEPT./REVENUE.) [EOD 04/09/01] [JW]
CERTIFICATE of Service [EOD 04/09/01] [JW]
04/05/01 6114 OBJECTION to Motion for Relief from Stay (Filed by Xxxxxxx X.
Xxxxxxxxx, Atty./DEBTORS.) Re: Item # 6049. [EOD 04/09/01] [JW]
CERTIFICATE of Service [EOD 04/09/01] [JW]
04/05/01 6115 RESPONSE to Tenth Omnibus Objection to Claim # 5637 (Filed by Xxxxx X.
Xxxxxx, Atty./XXXXXXX X. XXXXXXXX, ESQ.) Re: Item # 5974. [EOD
04/09/01] [JW]
CERTIFICATE of Service [EOD 04/09/01] [JW]
04/05/01 6116 THE FOLLOWING TRANSFERS OF CLAIM WERE Filed by Madison Creditor
Liquidity Investors 202, LLC (Transferee) [EOD 04/09/01] [JW]
04/05/01 6117 ACSYS [EOD 04/09/01] [JW]
04/05/01 6118 Accounting Solutions [EOD 04/09/01] [JW]
04/05/01 6119 American Medical Service Co. [EOD 04/09/01] [JW]
04/05/01 6120 Audio/Fireex Inc.) [EOD 04/09/01] [JW]
04/05/01 6121 AWT Environmental [EOD 04/09/01] [JW]
04/05/01 6122 Bethesda Mem Hosp [EOD 04/09/01] [JW]
04/05/01 6123 Coastal Supply [EOD 04/09/01] [JW]
04/05/01 6124 Corporate Search [EOD 04/09/01] [JW]
04/05/01 6125 D&B Tree [EOD 04/09/01] [JW]
04/05/01 6126 Xxxxx Xxxx Xxxxxxxxxxx [EOD 04/09/01] [JW]
04/05/01 6127 Delta Medical [EOD 04/09/01] [JW]
04/05/01 6128 Greenwood Landscape [EOD 04/09/01] [JW]
04/05/01 6129 Xxxxxx Machinery [EOD 04/09/01] [JW]
04/05/01 6130 Xxxxxxxxx Fruit & Produce Co. Inc. [EOD 04/09/01] [JW]
16
Filing Date No. Entry
-------------------------------------------------------------------------------------------------
04/05/01 6131 HISEC, Inc. [EOD 04/09/01] [JW]
04/05/01 6132 Immucor [EOD 04/09/01] [JW]
04/05/01 6133 Xx. Xxxxxx Xxxxxx DDS [EOD 04/09/01] [JW]
04/05/01 0000 X.X. Xxxxx, Xx. [EOD 04/09/01] [JW]
04/05/01 6135 Portable XRAY [EOD 04/09/01] [JW]
04/05/01 6136 Printing & Promotion Plus [EOD 04/09/01] [JW]
04/05/01 6137 Xxxxxxx Heating Air Condition Refrigeration [EOD 04/09/01] [JW]
04/05/01 6138 Rentokil [EOD 04/09/01] [JW]
04/05/01 0000 Xxxxx Xxxx Xxxxxxxx Xx Inc [EOD 04/09/01] [JW]
04/05/01 6140 Some Things Fishy [EOD 04/09/01] [JW]
04/05/01 6141 The Elkhart Truth [EOD 04/09/01] [JW]
04/05/01 6142 The Republic [EOD 04/09/01] [JW]
04/05/01 6143 Training Resources 2000 Inc [EOD 04/09/01] [JW]0
04/05/01 6144 Vision Medical Imaging LLC [EOD 04/09/01] [JW]
04/05/01 6145 Xxxxxxx Warehouse Inc [EOD 04/09/01] [JW]
04/06/01 6146 WITHDRAWAL of Claim for WIT filed 2/2/01 ($544.00) (Filed by Xxxxxx
X. Xxxxxxxx, ILLINOIS DEPT./REVENUE.) [EOD 04/09/01] [JW]
04/06/01 6147 AFFIDAVIT of Mailing w/NOTICE of Fifth Amendment to Schedules & Bar
Date for Filing Proofs of Claim [EOD 04/09/01] [JW]
04/06/01 6148 NOTICE of Service Re: Item # 6073. [EOD 04/09/01] [JW]
04/06/01 6149 OBJECTION to Reduce Claim (Filed by Xxxxx Xxxxxx/XXXXXX XXXXX FARM.)
[EOD 04/09/01] [JW]
04/06/01 6150 RESPONSE to Objection to Claim (Filed by Xxxx X. Xxxxxxxxx, Managing
Member/PARTY FIXINS, LLC.) Re: Item # 6073. [EOD 04/09/01] [JW]
03/30/01 6151 CHANGE of Address (Filed by Xxxxx Xxxxxx, Atty./ESTATE/XXXXXXX X.
XXXXXX.) [EOD 04/10/01] [JW]
04/06/01 6152 RESPONSE to Tenth Omnibus Objection to Claims (Filed by Xxxxx Xxxxx
Xxxxxx, Revenue Officer II/KING COUNTY TREASURY DIVISION.) Re: Item #
5974. [EOD 04/11/01] [JW]
04/06/01 6153 DECLARATION of Xxxxx Xxxxx Xxxxxx, Revenue Officer II Re: Item #
6152. [EOD 04/11/01] [JW]
17
Filing Date No. Entry
-------------------------------------------------------------------------------------------------
04/06/01 6154 RESPONSE to Tenth Omnibus Objection to Claims (Filed by Xxxxx X.
Xxxxxxx, Atty./TAX AUTHORITIES) Re: Item # 5974. [EOD 04/11/01] [JW]
CERTIFICATE of Service [EOD 04/11/01] [JW]
04/06/01 6155 RESPONSE to Tenth Omnibus Objection to Claims (Filed by Xxxxxx X.
Xxxxxxx, Bankruptcy Mgr./LEASE CORPORATION OF AMERICA.) Re: Item #
5974. [EOD 04/11/01] [JW]
CERTIFICATE of Service [EOD 04/11/01] [JW]
04/09/01 6156 APPLICATION for Compensation and for Reimbursement of Expenses (Xxxx
Xxxxx LLP) (Filed by Jan A.T. van Amerongen, Jr., Atty./DEBTORS.)
SEVENTEENTH INTERIM 2/1/01 thru 2/28/01 [EOD 04/11/01] [JW]
CERTIFICATE of Service [EOD 04/11/01] [JW]
04/09/01 6157 RESPONSE to Eleventh Omnibus Objection to Claims (Filed by Xxxx X.
Xxxxxxxx, Pres./XXXXXXXX ALLIED STORAGE CO., INC.) Re: Item # 6073.
[EOD 04/11/01] [JW]
04/09/01 6158 RESPONSE to Eleventh Omnibus Objection to Claims (Filed by Xxxx
Xxxxxxxx, Claimant.) Re: Item # 6073. [EOD 04/11/01] [JW]
04/09/01 6159 OBJECTION to Motion for Relief from Stay (Filed by Xxxxxxx X.
Xxxxxxxxx, Atty./DEBTORS.) Re: Item # 5526. [EOD 04/11/01] [JW]
CERTIFICATE of Service [EOD 04/11/01] [JW]
04/10/01 6160 COUNSEL'S Agenda with Matters Scheduled on 04/12/01 at 02:00 P.M. at
000 Xxxxxx Xxxxxx, 0/xx/ Xxxxx, Xxxxxxxxx #0, Xxxxxxxxxx, XX 00000 [EOD
04/11/01] [JW]
04/10/01 6161 AFFIDAVIT Under 11 U.S.C. (S) 327(e) (Filed by Xxxx X. Xxxxxxxx, Esq.)
[EOD 04/11/01] [JW]
04/10/01 6162 APPLICATION for Compensation and for Reimbursement of Expenses
(Pricewaterhousecoopers LLP) (Filed by Xxxxxx Xxxx, Accounting
Advisors, Auditors & Consultants/DEBTORS.) FIFTEENTH INTERIM 12/1/00
thru 12/31/00 [EOD 04/11/01] [JW]
NOTICE of Application (Hearing only if objections filed by 4/30/01 @
4:00PM) [EOD 04/11/01] [JW]
CERTIFICATE of Service [EOD 04/11/01] [JW]
18
Filing Date No. Entry
-------------------------------------------------------------------------------------------------
04/10/01 6163 APPLICATION for Compensation and for Reimbursement of Expenses
(Pricewaterhousecoopers LLP) (Filed by Xxxxxx Xxxx, Accounting
Advisor, Auditors & Consultants/DEBTORS.) SIXTEENTH INTERIM 1/1/01
thru 1/31/01 [EOD 04/11/01] [JW]
NOTICE of Application (Hearing only if objections filed by 4/30/01 @
4:00PM) [EOD 04/11/01] [JW]
CERTIFICATE of Service [EOD 04/11/01] [JW]
04/10/01 6164 THE FOLLOWING TRANSFERS OF CLAIM WERE Filed by Madison Creditor
Liquidity Investors 202, LLC [EOD 04/11/01] [JW]
04/10/01 6165 Affordable Medical Transport [EOD 04/11/01] [JW]
04/10/01 6166 Coastal Training Tech [EOD 04/11/01] [JW]
04/10/01 6167 Enable Industries [EOD 04/11/01] [JW]
04/10/01 6168 Future Tech [EOD 04/11/01] [JW]
04/10/01 6169 Xxxxxxxx X. Xxxxx [EOD 04/11/01] [JW]
04/10/01 6170 Midcity Supply Co Inc. [EOD 04/11/01] [JW]
04/10/01 6171 Printing Inc. [EOD 04/11/01] [JW]
04/10/01 6172 The Binding Site [EOD 04/11/01] [JW]
04/10/01 6173 The Unisource Corp [EOD 04/11/01] [JW]
04/10/01 6174 RESPONSE to Objection to Claim (Filed by Xxx Xxxxxxxx, Claimant.) [EOD
04/11/01] [JW]
04/10/01 6175 MOTION to Amend Proofs of Claim for Creditors, American Exchange Life
Insurance Company, et al (Filed by Xxxx X. Xxxxxxxx, Atty./AMERICAN
EXCHANGE LIFE INSURANCE COMPANY, ET AL.) [EOD 04/11/01] [JW]
CERTIFICATE of Service [EOD 04/11/01] [JW]
04/10/01 6176 STIPULATION AND ORDER Settling Fifth Omnibus Objection to Claims
w/Respect to Pima County, Arizona (Filed by Xxxxxx X. North,
Atty./PIMA COUNTY, ARIZONA & Xxxxxxx X. Xxxxxxxxx, Atty./DEBTORS.) Re:
Item # 3094. [Disposed] [EOD 04/11/01] [JW]
CERTIFICATION of Xxxxxxx X. Xxxxxxxxx, Esq. [EOD 04/11/01] [JW]
CERTIFICATE of Service [EOD 04/11/01] [JW]
04/10/01 6177 RESPONSE to Eleventh Omnibus Objection to Claims (Filed by Xxx
Xxxxxxxxx, Revenue Agent/STATE OF WISCONSIN, DEPT./REVENUE.) Re: Item
# 6073. [EOD 04/11/01] [JW]
19
Filing Date No. Entry
------------------------------------------------------------------------------------------------
04/10/01 6178 CERTIFICATE of Service Re: Item # 6109. [EOD 04/11/01] [JW]
04/09/01 6179 RESPONSE to Omnibus Objection to Claims (Filed by Xxxxxx X. Xxxxxxx
(Xxxx Xxxx, Entertainer).) [EOD 04/11/01] [JW]
04/06/01 6180 OBJECTION to Objection to Priority Claims (Filed by Xxxxxxxxx Xxxxxxx,
Claimant.) [EOD 04/13/01] [JW]
04/09/01 6181 RESPONSE to Eleventh Omnibus Objection to Claims (Filed by Xxxx X.
Xxxxxxxx, Atty./MISSOURI DEPT./REVENUE.) Re: Item # 6073. [EOD
04/13/01] [JW]
CERTIFICATE of Service [EOD 04/13/01] [JW]
04/09/01 6182 MOTION for Admission Pro Hac Vice (Filed by Xxxx X. Xxxxxxxx,
Atty./MISSOURI DEPT./REVENUE.) [Disposed] [EOD 04/13/01] [JW]
CERTIFICATE of Service [EOD 04/13/01] [JW]
04/09/01 6183 REQUEST for Telephone Hearing (Filed by Xxxx X. Xxxxxxxx,
Atty./MISSOURI DEPT./REVENUE.) [EOD 04/13/01] [JW]
CERTIFICATE of Service [EOD 04/13/01] [JW]
04/11/01 6184 MONTHLY Reporting Requirements (Feb./01) [EOD 04/13/01] [JW]
CERTIFICATE of Service [EOD 04/13/01] [JW]
04/11/01 6185 APPLICATION for Compensation and for Reimbursement of Expenses
(Manatt, Xxxxxx & Xxxxxxxx, LLP) (Filed by Xxxx Xxxxxx,
Atty./DEBTORS.) FIFTH INTERIM 1/1/01 thru 1/31/01 [EOD 04/13/01] [JW]
04/11/01 6186 SUMMARY Sheet-Part 1 Re: Item # 6185. [EOD 04/13/01] [JW]
CERTIFICATE of Service [EOD 04/13/01] [JW]
04/11/01 6187 RESPONSE to Objection to Claim #3521 (Filed by Xxxxxx X. Xxxxxxxx,
Claimant.) [EOD 04/13/01] [JW]
04/11/01 6188 NOTICE of Application (Hearing only if objections filed by 5/2/01 @
4:00 PM) Re: Item # 6156. [EOD 04/13/01] [JW]
CERTIFICATE of Service [EOD 04/13/01] [JW]
04/11/01 6189 CERTIFICATION of Counsel Regarding Omnibus Hearing Dates (Filed by
Xxxxxxx X. Xxxxxxxxx, Atty./DEBTORS.) [Disposed] [EOD 04/13/01] [JW]
04/12/01 6190 RESPONSE to Objection to Claim #3401 (Filed by Xxxxxx X. Xxxx,
Atty./XXXXXXXXX XXXXXXX XXXXXXX.) [EOD 04/13/01] [JW]
04/12/01 6191 LETTER Requesting Removal from Mailing List (Filed by Xxxxx Xxxxxxx,
Office Mgr./XXXXXX'X XXXXX MANOR.) [EOD 04/13/01] [JW]
20
Filing Date No. Entry
------------------------------------------------------------------------------------------------
04/12/01 6192 MOTION for Relief from Stay (Filed by Xxxx X. Xxxxxx, Xx., Atty./XXXX
XXX XXXXXXXX.) [EOD 04/13/01] [JW]
04/12/01 6193 CERTIFICATION of No Objection (Filed by Jan A.T. van Amerongen, Jr.,
Atty./DEBTORS.) Re: Item # 6038. [EOD 04/13/01] [JW]
CERTIFICATE of Service [EOD 4/13/01] [JW]
04/12/01 6194 RESPONSE to Eleventh Omnibus Objection to Claims (Filed by Xxxxxx X.
Xxxxxxxx, Atty./STATE OF MICHIGAN.) Re: Item # 6073. [EOD 4/13/01] [JW]
PROOF of Service [EOD 04/13/01] [JW]
04/12/01 6195 MEMORANDUM in OPPOSITION to Eleventh Omnibus Objection to Claims (Filed
by Xxxxxxxx X. Xxxxxx, Atty./OHIO DEPT./JOB & FAMILY SERVICES.) Re:
Item # 6073. [EOD 04/13/01] [JW]
CERTIFICATION of Counsel [EOD 04/13/01] [JW]
CERTIFICATE OF SERVICE [EOD 04/13/01] [JW]
04/12/01 6196 RESPONSE to Objection to Claim #4302 (Filed by Xxxxxx X. Xxxxxxx,
Atty./LEXINGTON-FAYETTE URBAN COUNTY GOVERNMENT.) [EOD 04/13/01] [JW]
CERTIFICATE of Service [EOD 04/13/01] [JW]
04/11/01 6197 ORDER signed and Located in Original Document Re: Item # 6176. [EOD
04/16/01] [JW]
04/13/01 6198 OBJECTION to Objection to Proof of Claim & Request for Hearing (Filed
by Xxxxx X. Xxxxxx, Atty./XXXXX X. XXXXXX.) [EOD 04/16/01] [[JW]
CERTIFICATE of Service [EOD 04/16/01] [JW]
04/13/01 6199 OPPOSITION to Eleventh Omnibus Objection to Claim # 2972 w/Request for
Production of Documents & Interrogatories (Filed by Xxxxxxxx X. Xxxxx,
Atty./MEDIC COACH SERVICES.) Re: Item # 6073. [EOD 04/16/01] [JW]
CERTIFICATE of Mailing [EOD 04/16/01] [JW]
04/12/01 6200 HEARING held 4/12/01 (See: Item # 6160) [EOD 04/04/17/01/01] [JW]
04/12/01 6201 STIPULATION AND ORDER Modifying Stay (Bench Filed by Xxxxx X. Xxxxxx,
Atty./COMMONWEALTH EDISON COMPANY & Xxxxxxx X. Xxxxxxxxx,
Atty./DEBTORS.) Re: Item # 5526. [Disposed] [EOD 04/17/01] [JW]
ORDER Signed In Court Re: Item # 6201. [EOD 04/17/01] [JW]
21
Filing Date No. Entry
------------------------------------------------------------------------------------------------
04/12/01 6202 ORDER Signed In Court and Located In Original Document (SUPPLEMENTAL)
Disallowing Certain Claim & Designating Surviving Claim & Denying
Motion for Temporary Allowance Re: Item # 6095. [EOD 04/17/01] [JW]
04/13/01 6203 RESPONSE to Eleventh Omnibus Objection to Claims (Filed by Xxxxx X.
Xxxxxxx, Atty./TAX AUTHORITIES.) Re: Item # 6073. [EOD 04/17/01] [JW]
04/13/01 6204 NOTICE of Withdrawal of Transfer of Claim (Pentax Precision Instrument)
(Filed by Xxxxx Xxxxxxxx/MADISON CREDITOR LIQUIDITY INVESTORS 202, LLC)
Re: Item # 4919. [EOD 04/17/01] [JW]
04/13/01 6205 OBJECTION to Omnibus Objection to Claim (Filed by Xxxxxxx & Xxxxxxxx
Xxxxxxx, Claimants.) [EOD 04/17/01] [JW]
04/13/01 6206 RESPONSE to Eleventh Omnibus Objection to Claim (Filed by Xxxx Xxxxxx,
Atty./IOWA DEPT./REVENUE & FINANCE.) Re: Item # 6073. [EOD 04/17/01]
[JW]
CERTIFICATE of Service [EOD 04/17/01] [JW]
04/16/01 6207 OBJECTION to Objection to Priority Claim #5222 (Filed by Xxxxxx X.
Xxxxxx, Claimant.) [EOD 04/17/01] [JW]
04/16/01 6208 RESPONSE to Eleventh Omnibus Objection to Claims (Filed by Xxxx X.
Xxxx, Atty./XXXXXX & XXXXXX L.L.P.) Re: Item # 6073. [EOD 04/17/01]
[JW]
CERTIFICATE of Service [EOD 04/17/01] [JW]
04/16/01 6209 RESPONSE to Eleventh Omnibus Objection to Claims (Filed by Xxxx X.
Xxxxxxx, Xx. & Xxxxxxx X. Xxxxx, Atty./STATE OF GEORGIA,
DEPT./COMMUNITY HEALTH) Re: Item # 6073. [EOD 04/17/01] [JW]
CERTIFICATE of Service [EOD 04/17/01] [JW]
04/16/01 6210 RESPONSE to Eleventh Omnibus Objection to Claim # 6909. (Filed by
Xxxxxxx X. Xxxxxx, Atty./NATIONAL LABOR RELATIONS BOARD.) Re: Item #
6073. [EOD 04/17/01] [JW]
CERTIFICATE of Service [EOD 04/17/01] [JW]
04/16/01 6211 NOTICE of Withdrawal of Transfer of Claim (Prairie Farms Dairy Inc.)
(Filed by Xxxxx Xxxxxxxx/MADISON CREDITOR LIQUIDITY INVESTORS 202,
LLC.) Re: Item # 3768. [EOD 04/17/01] [JW]
04/16/01 6212 WITHDRAWAL of Transfer of Claim (Dairy King Milk Farms) (Filed by X.
Xxxxx, Mgr./NEXT FACTORS, INC.) Re: Item # 4546. [EOD 04/17/01] [JW]
22
Filing Date No. Entry
---------------------------------------------------------------------------------------------------------
04/16/01 6213 RESPONSE to Objection to Claim # 17 (Filed by Xxxx Xxxxxx,
Atty./MANATT, PHELP & XXXXXXXX, LLP) [EOD 04/17/01] [JW]
CERTIFICATE of Service [EOD 04/17/01] [JW]
04/16/01 6214 OBJECTION to Reduced Claim Amount (Filed by Xxxxxxx X. Xxxx,
Pres./BURLINGTON BUILDERS & CO.) [EOD 04/17/01] [JW]
04/16/01 6215 RESPONSE to Eleventh Omnibus Objection to Claim #4540 (Filed by Xxxx
Xxxxxxx Xxxxxxxx, Xx., Power/Atty./XXXXXX X. XXXXXXXX.) Re: Item #
6073. [EOD 04/17/01] [JW]
04/16/01 6216 NOTICE of Service Regarding Request for Production of Documents
Directed to Debtors. [EOD 04/17/01] [JW]
04/17/01 6217 APPLICATION for Compensation and for Reimbursement of Expenses (Mintz,
Levin, Cohn, Ferris, Glovsky & Popeo, P.C.) (Filed by Xxxxxxx X.
Xxxxx, Atty./DEBTORS.) FOURTEENTH 2/1/01 thru 2/28/01 [EOD 04/17/01]
[JW]
NOTICE of Application (Hearing only if objections filed by 5/7/01 @
4:00PM) [EOD 04/17/01] [JW]
04/17/01 6218 AFFIDAVIT Under 11 U.S.C. (S) 327(e) (Filed by Xxxxx X. Xxxxxxxx, Xx.,
Esq.) [EOD 04/17/01] [JW]
04/17/01 6219 ORDER Signed and Located in Original Document Re: Item # 6182. [EOD
4/20/01] [JW]
04/17/01 6220 ORDER Signed and Located in Original Document Scheduling Omnibus
Hearing Dates Re: Item # 6189 [EOD 04/20/01] [JW]
04/17/01 6331 RESPONSE to Eleventh Omnibus Objection to Claims (Filed by Xxxx X.
Xxxxxxx, Atty./CYPRESS-FAIRBANKS INDEPENDENT SCHOOL DISTRICT.) Re:
Item # 6073. [EOD 04/20/01] [JW]
CERTIFICATE of Service [EOD 04/20/01] [JW]
04/17/01 6222 RESPONSE to Eleventh Omnibus Objection to Claims (Filed by Xxxx X.
Xxxxxxx, Atty./FORT BEND COUNTY.) Re: Item # 6073. [EOD 04/20/01] [JW]
CERTIFICATE of Service [EOD 04/20/01] [JW]
04/17/01 6223 RESPONSE to Eleventh Omnibus Objection to Claims (Filed by Xxxx X.
Xxxxxxx, Atty./FORT BEND INDEPENDENT SCHOOL DISTRICT.) Re: Item #
6073. [EOD 04/20/01] [JW]
CERTIFICATE of Service [EOD 04/20/01] [JW]
04/17/01 6224 RESPONSE to Eleventh Omnibus Objection to Claims (Filed by Xxxx X.
Xxxxxxx, Atty./XXXXXX COUNTY/CITY OF HOUSTON.) Re: Item # 6073. [EOD
04/20/01] [JW]
CERTIFICATE of Service [EOD 04/20/01] [JW]
23
Filing Date No. Entry
------------------------------------------------------------------------------------------------
04/17/01 6225 CERTIFICATION of No Objection (Filed by Xxxxxxx X. Xxxxxxxxx,
Atty./DEBTORS.) Re: Item # 6039. [EOD 04/20/01] [JW]
04/17/01 6226 CERTIFICATION of No Objection (Filed by Xxxxxxx X. Xxxxxxxxx,
Atty./DEBTORS.) Re: Item # 6040. [EOD 04/20/01] [JW]
04/17/01 6227 STIPULATION AND ORDER (AMENDED) Modifying Stay as of 5/8/01 (Filed by
Xxx Xxxxxx Xxxxxxxxx, Atty./XXXXX AU & Xxxxxxx X. Xxxxxxxxx,
Atty./DEBTORS.) Re: Item # 3367. [EOD 04/20/01] [JW]
CERTIFICATION of Xxxxxxx X. Xxxxxxxxx, Esq. [EOD 04/20/01] [JW]
CERTIFICATE of Service [EOD 04/20/01] [JW]
04/17/01 6228 STIPULATION AND ORDER Settling Second Omnibus Objection to Claims
w/Respect to IMBS, INC. (Filed by Xxxxxxx Xxxxxxx, Atty./IMBS, Inc. &
Xxxxxxx X. Xxxxxxxxx, Atty./DEBTORS.) Re: Item #1503. [EOD 04/20/01]
[JW]
CERTIFICATION of Xxxxxxx X. Xxxxxxxxx, Esq. [EOD 04/20/01] [JW]
CERTIFICATE of Service [EOD 04/20/01] [JW]
04/18/01 6229 OBJECTION to Transfer of Claim (Filed by Xxxxx X. Xxxxxxx,
Pres./Owner/BELTONE.) Re: Item # 48650. [EOD 04/20/01] [JW]
04/19/01 6230 AFFIDAVIT Under 11 U.S.C. (S) 327(e) (Filed by Xxxxxx X. XxXxxxxx,
Esq.) [EOD 04/20/01] [JW]
CERTIFICATE of Service [EOD 04/20/01] [JW]
04/17/01 6231 RESPONSE to Objection to Claim #966 w/Correct Name & Address (Filed by
Xxx Story/STORY ELECTRICAL SERVICE, INC.) [EOD 04/20/01] [JW]
01/29/01 6232 OBJECTION to Transfer of Claim (Jefferson Farmers Co-op) (Filed by
Xxxx Xxxxxx, Mgr./XXXXXXXXX FARMERS COOPERATIVE.) Re: Item # 3761.
[EOD 04/23/01] [JW]
04/20/01 6233 RESPONSE to Eleventh Omnibus Objection to Claims (Filed by Xxxxx X.
Xxxxx, Atty./SECRETARY DEPT./REVENUE, STATE OF LOUSIANA.) Re: Item #
6073. [EOD 04/23/01] [JW]
CERTIFICATE of Service [EOD 04/23/01] [JW]
04/20/01 6234 RESPONSE 2 Objection to Eleventh Omnibus Objection to Claims (Filed by
Quentillai X. Xxxx, Credit Mgr./THE XXXXXXX COMPANY, INC.) Re: Item #
6073. [EOD 04/23/01] [JW]
04/20/01 6235 NOTICE of Hearing on Motion to Amend Claims on 06/06/01 at 02:30 P.M.
at 000 Xxxxxx Xxxxxx, 0xx Xxxxx, Xxxxxxxxx #0, Xxxxxxxxxx, XX 00000
Re: Item # 6175 [EOD 04/23/01] [JW]
CERTIFICATE of Service [EOD 04/23/01] [JW]
24
Filing Date No. Entry
---------------------------------------------------------------------------------------------
04/20/01 6236 COUNSEL'S Agenda with Matters Scheduled on 04/25/01 at 02:00 P.M. at
000 Xxxxxx Xxxxxx, 0xx Xxxxx, Xxxxxxxxx #0, Xxxxxxxxxx, XX 00000 [EOD
04/23/01] [JW]
----------
DOCKET END
----------
25
EXHIBIT I
[Letterhead of Local Counsel]
April 20, 2001
Xxxxxx Guaranty Trust Company
of New York, as Collateral Agent
00 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Ladies and Gentlemen:
We have acted as special [State] counsel to Vencor, Inc.("Vencor") and
Vencor Operating, Inc. ("Vencor Operating"; together with Vencor, the "Vencor
Companies" and each, a "Vencor Company") in connection with the delivery of the
mortgage[s], deed[s] of trust or deed[s] to secure debt described on Exhibit A
---------
hereto (the "Mortgage[s]"). Unless otherwise defined herein, terms are used
herein as defined in the Mortgage[s].
In connection with this opinion, we have examined, with respect to each
of the properties listed on Exhibit A hereto (each, a "Property"), drafts of the
---------
Amended and Restated Memorand[um][a] of Lease listed on Exhibit A hereto (each,
---------
a "Memorandum of Lease"), if any, the Mortgage[s], the financing statements
listed on Exhibit A hereto (the "Financing Statements") and such other
---------
documents, corporate records, certificates of public officials and other
instruments, and have conducted such other investigations of fact and law, as we
have deemed necessary or advisable for purposes of this opinion.
In rendering this opinion, we have assumed that:
(i) Each Vencor Company is a corporation duly organized, validly
existing and in good standing under the laws of its jurisdiction of
incorporation, has been duly qualified as a foreign corporation for the
transaction of business and has all requisite corporate power and all
material governmental licenses, authorizations, consents and approvals
necessary to own and operate the Mortgaged [Trust] Property.
(ii) The execution, delivery and performance by each Vencor
Company of the Mortgage[s] and the execution, delivery and performance
by such Vencor Company of each of the other Financing Documents to
which it is a party (i) are within its corporate powers, (ii) have been
duly authorized by all necessary corporate action, (iii) do not require
any authorization, approval or consent of, or filings or registrations
with, any governmental or regulatory authority or agency outside of the
State of __________, except for authorizations, consents, approvals
that have already been obtained or filings that have already been made
and that remain in effect, (iv) do not contravene any provision of its
certificate of incorporation or by-laws, and (v) do not contravene or
constitute a breach of or default under any applicable provision of the
laws of any jurisdiction other than the State of ___________ or any
applicable regulation thereunder or under any agreement, judgment,
injunction, order, decree or other instrument binding upon it.
(iii) The Mortgage[s] have been duly executed and delivered by
each Vencor Company.
(iv) The Financing Documents other than the Mortgage[s]
constitute legal, valid and binding obligations of each Vencor Company
under the laws of the State of New York.
(v) Each Vencor Company owns the Mortgaged [Trust] Property
covered by the Mortgage[s] to which such Vencor Company is a party.
Upon the basis of the foregoing, we are of the opinion that, under
applicable law in effect on the date of this opinion:
Based upon the foregoing, it is our opinion that:
1. The forms of the Memorandum of Lease and Mortgage[s] are in
proper form for recordation with the [Recorder's Office] of each county in
which a Property is located in the State of [State]. The Memorand[um][a] of
Lease include all of the information required to be included under the law of
the [State] [Commonwealth] of [State] necessary to publish notice of the
leasehold interest in the relevant property created by the applicable Master
Lease Agreement. The recording of each Memorand[um][a] of Lease in the office
designated in Exhibit A hereto is the only filing, recording or registration
---------
necessary to publish notice of the leasehold interest in the relevant Property
created by the applicable Master Lease Agreement.
2
2. The Mortgage[s] constitute legal, valid and binding obligations
of each Vencor Company that is a party thereto, enforceable in accordance with
their respective terms.
3. No authorizations, approvals or consents of, or filings or
registrations with, any governmental or regulatory authority or agency of or in
the State of [State] are necessary for the execution, delivery or performance by
each Vencor Company of either the Memorand[um][a] of Lease or the Mortgage[s],
to which such Vencor Company is a party except for authorizations, consents,
approvals that have already been obtained or filings that have already been made
and that remain in effect or the recordings and/or filings described on Exhibit
-------
A.
-
4. Each Mortgage creates a valid mortgage or deed of trust or deed
to secure debt lien on the relevant Vencor Company's interest in and to the
Mortgaged [Trust] Property described therein as constitutes real property under
the law of the State of [State] and a valid security interest in such of the
other Mortgaged [Trust] Property described therein (the "UCC Property") as is
subject to the provisions of Article 9 of the Uniform Commercial Code as in
effect in the State of _______________ (the "UCC"), in each case in favor of the
Agent for the ratable benefit of the Secured Parties and securing the Secured
Obligations. The recording of the Mortgage[s] in the office designated on
Exhibit A hereto and the filing of the Financing Statements in the offices
designated in Exhibit A hereto are the only filings, recordings and
registrations necessary to perfect, publish notice of and preserve the lien of
and security interest in the Mortgaged [Trust] Property created by the
Mortgage[s] and the UCC Property created by the Mortgage[s] and the Financing
Statements, except that (i) continuation statements relating to the Financing
Statements must be filed within _____________ [state time period], and (ii)
additional filings may be necessary with respect to the UCC Property if the
Company changes its name, identity or corporate structure or the jurisdiction in
which its places of business in the State of ___________ or the UCC Property are
located.
The foregoing opinion is subject to the following qualifications:
(vi) The enforceability of the Mortgage[s] may be limited by
bankruptcy, insolvency, fraudulent conveyance or other similar laws affecting
creditors' rights generally and by general equitable principles.
(vii) We note the possible unenforceability in whole or in part of
certain remedial provisions of the Mortgage[s], although the inclusion of such
provisions does not render any Liens purported to be granted or created thereby
invalid, and the Mortgage[s] contain, in our judgment, adequate remedial
3
provisions for the practical realization of the principal rights and benefits
intended to be afforded thereby.
(viii) The provisions of the Mortgage[s] that permit the secured
party thereunder to take actions or make determinations may be subject to
requirements that such actions or determinations be reasonable and taken in good
faith.
(ix) We express no opinion as to any regulatory scheme applicable
to, or any license or permit required in connection with, the business conducted
by any Vencor Company.
(x) We express no opinion as the right, title or interest of any
Vencor Company in or to any collateral or the value given therefor, and assume
that value is given.
We are admitted to practice in the State of [State]. We express no
opinion as to matters under or involving the laws of any jurisdiction other than
the laws of the State of [State].
This opinion may be relied upon by each of you, by your respective
successors and assigns, by the holders from time to time of the indebtedness
secured by the Mortgage[s].
Very truly yours,
4
EXHIBIT J
ATTACHMENT I
FORM OF
SUBORDINATION PROVISIONS
Description of [promissory note][Guarantee] to which this Attachment I is
affixed:
________________________________________________________________________
________________________________________________________________________
Reference is made to the [promissory note][Guarantee] described above (the
"Subordinated [Note][Guarantee]") to which this Attachment I is affixed made by
Vencor, Inc. (to be renamed Kindred Healthcare, Inc.) (the
"[Issuer][Guarantor]") in favor of [ ] (the "Subordinated Lender"). Capitalized
terms used herein and not otherwise defined herein shall have the meanings
assigned to such terms in the Credit Agreement dated as of April 20, 2001 ("the
Credit Agreement") and entered into by and among Vencor Operating, Inc. (to be
renamed Kindred Healthcare Operating, Inc.) (the "Borrower"), the
[Issuer][Guarantor], the Lenders, Swingline Bank and LC Issuing Banks party
thereto, Xxxxxx Guaranty Trust Company of New York as Collateral Agent and
Administrative Agent, and General Electric Capital Corporation, as Documentation
Agent and Collateral Monitoring Agent. References herein to the "Lenders"
includes Lenders under the Credit Agreement (the "Senior Lenders") and lenders
under the Senior Secured Credit Agreement (the "Second Priority Lenders").
References herein to "Senior Debt" means all Debt or obligations (whether in
existence on the Closing Date or arising afterwards, absolute or contingent,
direct or indirect) for or in respect of principal (when due, upon acceleration,
upon redemption, upon mandatory repayment or repurchase pursuant to a mandatory
offer to purchase, or otherwise), premium, interest, penalties, fees,
indemnification, reimbursement and other amounts payable and liabilities with
respect to Debt or amounts owing under the Credit Agreement, the Designated
Interest Rate Agreements and the Senior Secured Credit Agreement, including all
interest accrued or accruing after the commencement of any bankruptcy,
insolvency or reorganization or similar case or proceeding at the contract rate
(including, without limitation, any contract rate applicable upon default)
specified in the relevant documentation, whether or not the claim for such
interest is allowed as a claim in such case or proceeding.
References to the "Controlling Agent" means, so long as any Senior Debt arising
under the Credit Agreement remains outstanding, the Administrative Agent and, at
any time thereafter, the administrative agent under the Senior Secured Credit
Agreement (the "Second Priority Administrative Agent"). References to the
"Subordinated Lender" shall include each subsequent holder of the
Subordinated [Note][Guarantee], each of whom agrees to the provisions hereof by
its acceptance of the Subordinated [Note][Guarantee].
Pursuant to the requirements of the Credit Agreement and the Senior Secured
Credit Agreement, the [Issuer][Guarantor] has unconditionally guaranteed all
Senior Debt arising under the Credit Agreement, the Designated Interest Rate
Agreements and the Senior Secured Credit Agreement pursuant to the Senior
Guarantees referred to below. The Senior Lenders have agreed to make loans to
the Borrower and the LC Issuing Banks referred to in the Credit Agreement have
agreed to issue letters of credit for the account of, among others, the
Borrower, upon the terms and subject to the conditions specified in the Credit
Agreement, and the Second Priority Lenders have agreed to accept notes under the
Senior Secured Credit Agreement in partial satisfaction of their Senior Debt
Claims (as defined therein), which in each case include the requirement that the
[Issuer's][Guarantor's] obligations under the Subordinated [Note][Guarantee] be
subordinated to its obligations under such Senior Guarantees as provided herein.
The Subordinated Lender has extended credit to [the Issuer pursuant to, and upon
the terms specified in, the Subordinated Note][a Vencor Unrestricted Subsidiary,
which extension of credit is Guaranteed by the Guarantor pursuant to, and upon
the terms specified in, the Subordinated Guarantee] (all obligations of the
[Issuer][Guarantor] in respect of the Subordinated [Note][Guarantee], the
"Subordinated Obligations"). The Subordinated Lender by its execution of this
Attachment I agrees (for itself and its successors and assigns) to subordinate
its rights under the Subordinated Obligations to the rights of the Lenders under
the Senior Guarantees.
Therefore, in consideration of these premises, the [Issuer][Guarantor] and
the Subordinated Lender agree that the terms of the Subordinated
[Note][Guarantee] are hereby amended to incorporate the subordination provisions
that follow:
1. Agreement to Subordinate. The Subordinated Lender hereby agrees that
[the Debt evidenced by the Subordinated Notes][the obligations of the Guarantor
evidenced by the Subordinated Guarantee] shall be subordinated and junior in
right of payment, to the extent and in the manner provided in this Attachment I,
to the prior payment by the Guarantor of its obligations (the "Senior Guarantee
Obligations") under the Vencor Guaranty Agreement and the Vencor Guaranty
Agreement (as defined in the Senior Secured Credit Agreement)
2
(together, the "Senior Guarantees"). The subordination provisions in this
Attachment I are for the benefit of and enforceable by holders of Senior Debt or
their representatives.
2. (a) The [Issuer][Guarantor] shall not make any payment of any
Subordinated Obligations or any claim for rescission or damages in respect
thereof and shall not repay, repurchase, redeem or otherwise retire any
Subordinated Obligations (collectively, "pay the Subordinated Obligations") if
at any time any Senior Debt has not been paid when due, whether at maturity,
upon redemption or mandatory repurchase, acceleration, or otherwise, and the
default has not been cured or waived.
(b) During the continuance of any default (other than a default of
the type described in clause (a)) with respect to any Senior Debt pursuant
to which the maturity thereof may be accelerated immediately without
further notice (except any notice that may be required to effect
acceleration) or upon the expiration of a grace period, the
[Issuer][Guarantor] may not make any payment of any Subordinated
Obligations for a period (a "Payment Blockage Period"):
(i) commencing upon the receipt by the [Issuer][Guarantor] of
written notice of default from any representative of holders of Senior
Debt specifying an election to effect a Payment Blockage Period (a
"Blockage Notice") and
(ii) ending 360 days thereafter (or earlier if the Payment
Blockage Period is terminated (A) by written notice to the
[Issuer][Guarantor] from such representative, (B) by repayment in full
of such Senior Debt or (C) because the default giving rise to the
Blockage Notice is no longer continuing).
Subject to clause (a) and the preceding paragraph, unless the holders of
such Senior Debt have accelerated the maturity of such Senior Debt, the
[Issuer][Guarantor] may resume payments on the Subordinated Obligations
after the Payment Blockage Period.
(c) Not more than one Blockage Notice may be given in any consecutive
545-day period, irrespective of the number of defaults with respect to
Senior Debt during such period. No default which existed or was continuing
on the date of the commencement of any Payment Blockage Period with respect
to the Senior Debt whose holders initiated the Payment Blockage Period may
be made the basis of the commencement of a subsequent Payment Blockage
Period by the holders of such Senior Debt, whether or not within a period
of 545 consecutive
3
days, unless the default has been cured or waived for a period of not less
than 90 consecutive days.
(d) The Subordinated Lender shall promptly notify the Administrative
Agent and the Second Priority Administrative Agent of any default under the
Subordinated [Note][Guarantee].
3. Liquidation, Dissolution, Bankruptcy. Upon any payment or distribution
of the assets of the [Issuer][Guarantor] to creditors upon a total or partial
liquidation or a total or partial dissolution of the [Issuer][Guarantor] or in a
bankruptcy, reorganization, insolvency, receivership or similar proceeding
relating to the [Issuer][Guarantor] or its property:
(a) holders of Senior Debt are entitled to receive payment in full in
cash of all amounts then due in respect of Senior Guarantee Obligations,
including all interest accrued or accruing on Senior Debt after the
commencement of any bankruptcy, insolvency or reorganization or similar
case or proceeding in respect of the Borrower or the [Issuer][Guarantor] at
the contract rate (including, without limitation, any contract rate
applicable upon default) specified in the relevant documentation, whether
or not the claim for the interest is allowed as a claim in the case or
proceeding with respect to the Senior Debt (only such payment constituting
"payment in full") before the Subordinated Lender will be entitled to
receive any payment on account of the Subordinated Obligations; and
(b) until the Senior Debt is paid in full, any payment or
distribution to which the Subordinated Lender would be entitled but for
these subordination provisions shall instead be made to holders of Senior
Debt or their representatives as their interests may appear.
4. Forbearance. (a) The Subordinated Lender agrees not to ask, demand,
xxx for or take or receive from the [Issuer][Guarantor] in cash or other
property or by setoff, purchase or redemption (including, without limitation,
from or by way of collateral), payment of all or any part of the Subordinated
Obligations and agrees that in connection with any proceeding involving the
Borrower or the [Issuer][Guarantor] under any Federal or state bankruptcy,
insolvency, receivership or similar law (i) the Controlling Agent is irrevocably
authorized and empowered (in its own name or in the name of the Subordinated
Lender or otherwise), but shall have no obligation, to demand, xxx for, collect
and receive every payment or distribution referred to in the preceding sentence
and give acquittance therefor and to file claims and proofs of claim after the
Subordinated Lender has failed to make claims or proofs of claims in form and
substance reasonably satisfactory to the Controlling Agent prior to the date
which is 30 days before the relevant bar date, as the Controlling Agent may deem
4
necessary or advisable for the exercise or enforcement of any of the rights or
interests of the Lenders and (ii) the Subordinated Lender shall duly and
promptly take such action as the Controlling Agent may request to (A) collect
amounts in respect of the Subordinated Obligations for the account of the
Lenders and to file appropriate claims or proofs of claim in respect of the
Subordinated Obligations, (B) execute and deliver to the Controlling Agent such
irrevocable powers of attorney, assignments or other instruments as the
Controlling Agent may request in order to enable the Controlling Agent to
enforce any and all claims with respect to, and any security and other Liens
securing payment of, the Subordinated Obligations and (C) collect and receive
any and all payments or distributions which may be payable or deliverable upon
or with respect to the Subordinated Obligations. A copy of these subordination
provisions may be filed with any court as evidence of the Controlling Agent's
power and authority hereunder.
(b) Without the prior written consent of the Controlling Agent, the
[Issuer][Guarantor] will not give, or permit to be given, and the
Subordinated Lender will not receive, accept or demand, (i) any security of
any nature whatsoever for any Subordinated Obligations on any property or
assets, whether now existing or hereafter acquired, of the
[Issuer][Guarantor] or any Affiliate of the [Issuer][Guarantor] (other than
a Vencor Unrestricted Subsidiary) or (ii) any Guarantee (other than the
Subordinated Guarantee), of any nature whatsoever, by the
[Issuer][Guarantor] or any Affiliate of the [Issuer][Guarantor] (other than
by a Vencor Unrestricted Subsidiary), of any Subordinated Obligations.
(c) The Subordinated Lender waives the right to compel that the
Collateral or any other property of the [Issuer][Guarantor] or the property
of any Guarantor or any other Person be applied in any particular order to
discharge the Senior Debt. The Subordinated Lender expressly waives the
right to require the Lenders to proceed against the [Issuer][Guarantor],
the Collateral or any Guarantor or any other Person, or to pursue any other
remedy in any Lender's power which the Subordinated Lender cannot pursue
and which would lighten the Subordinated Lender's burden, notwithstanding
that the failure of any Lender to do so may thereby prejudice the
Subordinated Lender. The Subordinated Lender agrees that it shall not be
discharged, exonerated or have its obligations hereunder to the Lenders
reduced by any Lender's delay in proceeding against or enforcing any remedy
against the [Issuer][Guarantor], the Collateral or any Guarantor or any
other Person; by any Lender releasing the [Issuer][Guarantor], the
Collateral or any Guarantor or any other Person from all or any part of the
Senior Debt; or by the discharge of the [Issuer][Guarantor], the Collateral
or any Guarantor or any other Person by operation of law or otherwise, with
or without the intervention or omission
5
of a Lender. Any Lender's vote to accept or reject any plan of
reorganization relating to the [Issuer][Guarantor], the Collateral, or any
Guarantor or any other Person, or any Lender's receipt on account of all or
part of the Senior Debt of any cash, property, or securities distributed in
any bankruptcy, reorganization, or insolvency case, shall not discharge,
exonerate, or reduce the obligations of the Subordinated Lender hereunder
to the Lenders.
(d) The Subordinated Lender waives all rights and defenses arising
out of an election of remedies by any Lenders, even though that election of
remedies, including without limitation any nonjudicial foreclosure with
respect to security for the Senior Debt, has impaired the value of the
Subordinated Lender's rights of subrogation, reimbursement, or contribution
against the [Issuer][Guarantor] or any Guarantor or any other Person. The
Subordinated Lender expressly waives any rights or defenses it may have by
reason of protection afforded to the [Issuer][Guarantor] or any Guarantor
or any other Person with respect to the Senior Debt pursuant to any anti-
deficiency laws or other laws of similar import which limit or discharge
the principal debtor's indebtedness upon judicial or nonjudicial
foreclosure of real property or personal property Collateral for the Senior
Debt.
(e) The Subordinated Lender agrees that, without the necessity of any
reservation of rights against it, and without notice to or further assent
by it, any demand for payment of any Senior Debt made by a Lender may be
rescinded in whole or in part by the Lender, and any Senior Debt may be
continued, and the Senior Debt, or the liability of the Borrower, the
[Issuer][Guarantor] or any other Guarantor or any other party upon or for
any part thereof, or any Collateral or Guarantee therefor or right of
offset with respect thereto, may, from time to time, in whole or in part,
be renewed, extended, modified, accelerated, compromised, waived,
surrendered, by the Lenders, in each case without notice to or further
assent by the Subordinated Lender, which will remain bound under these
subordination provisions and without impairing, abridging, releasing or
affecting the subordination provided for herein.
5. When distribution must be paid over. If a payment or other
distribution is made on account of the Subordinated Obligations to the
Subordinated Lender that because of these subordination provisions should not
have been made to it, the Subordinated Lender shall hold it in trust for holders
of Senior Debt or their representatives and pay it over to them as their
interests may appear.
6
6. Subrogation. A distribution made under these subordination provisions
to holders of Senior Debt which otherwise would have been made to the
Subordinated Lender is not, as between the [Issuer][Guarantor] and the
Subordinated Lender, a payment by the [Issuer][Guarantor] on its Senior
Guarantee Obligations. After all Senior Guarantee Obligations are paid in full
the Subordinated Lender will be subrogated to the rights of holders of Senior
Debt to receive payments in respect of Senior Guarantee Obligations, which, to
the extent received by the Subordinated Lender, do not constitute, as between
the [Issuer][Guarantor] and the Subordinated Lender, payments by the
[Issuer][Guarantor] on any Subordinated Obligation.
7. Relative Rights; Subordination Not to Prevent Events of Default or
Limit Right to Accelerate. These subordination provisions define the relative
rights of the Subordinated Lender and holders of Senior Debt and do not impair,
as between the [Issuer][Guarantor] and the Subordinated Lender, the obligation
of [Issuer][Guarantor], which is absolute and unconditional, to pay to the
Subordinated Lender the Subordinated Obligations in accordance with their terms.
The failure to make a payment pursuant to the Subordinated Obligations does not
prevent the occurrence of a default, nor do these subordination provisions have
any effect on the right of the Subordinated Lender to exercise its remedies upon
a default, subject to the rights of holders of Senior Debt, if any, to receive
distributions otherwise payable to the Subordinated Lender under this Attachment
I.
8. Subordination May Not Be Impaired by the [Issuer][Guarantor]. No right
of any holder of Senior Debt to enforce the subordination as provided herein
will be impaired by any act or failure to act by the [Issuer][Guarantor] or by
its failure to comply with these provisions.
9. Distributions and Notices to, and Notices and Consents by,
Representatives of Holders of Senior Debt. Whenever a distribution is to be made
or a notice given to holders of Senior Debt, the distribution may be made and
the notice given to the Controlling Agent, with a copy of any such notice to the
Administrative Agent or the Second Priority Administrative Agent if it is not
the same person as the Controlling Agent. Notices or consents under this
Agreement from holders of Senior Debt under the Credit Agreement may be given
only by the Administrative Agent and from holders of Senior Debt under the
Senior Secured Credit Agreement may be given only by the Second Priority
Administrative Agent. If conflicting notices, instructions, requests, consents
or other communications are received from the Administrative Agent and the
Second Priority Administrative Agent, the notice, instruction, request or
consent or other communication from the Administrative Agent shall prevail.
7
10. Reliance by Holders of Senior Debt on Subordination Provisions; No
Waiver. (a) Each Subordinated Lender by accepting the Subordinated
[Note][Guarantee] acknowledges and agrees that these subordination provisions
are, and are intended to be, an inducement and a consideration to each holder of
Senior Debt, whether created or acquired before or after the issuance of the
Subordinated [Note][Guarantee], to acquire or to hold such Senior Debt, and each
holder of Senior Debt will be deemed conclusively to have relied on these
subordination provisions in acquiring and holding such Senior Debt.
(b) The holders of Senior Debt may, at any time and from time to
time, without the consent of or notice to the Subordinated Lender, without
incurring any liability or responsibility to the Subordinated Lender, and
without impairing the rights of holders of Senior Debt under these
subordination provisions, do any of the following:
(i) change the manner, place or terms of payment or extend the
time of payment of, or renew or alter, Senior Debt or the Senior
Guarantee Obligations or any instrument evidencing the same or any
agreement under which Senior Debt or the Senior Guarantee Obligations
is outstanding or secured;
(ii) sell, exchange, release or otherwise deal with any property
pledged, mortgaged or otherwise securing Senior Debt or the Senior
Guarantee Obligations;
(iii) release any Person liable in any manner for the payment of
Senior Debt or the Senior Guarantee Obligations; or
(iv) exercise or refrain from exercising any rights against the
[Issuer][Guarantor] and any other Person.
11. Waiver of Claims. (a) To the maximum extent permitted by law, the
Subordinated Lender waives any claim it might have against any Lender with
respect to, or arising out of, any action or failure to act or any error of
judgment, negligence, or mistake or oversight whatsoever on the part of any
Lender or its directors, officers, employees or agents (including, without
limitation, the Collateral Agent, the Administrative Agent, the Senior Secured
Administrative Agent and the Senior Secured Collateral Agent) with respect to
any exercise of rights or remedies under the loan documents relating to the
Senior Debt or any transaction relating to the Collateral. Neither the Lenders
nor any of their respective directors, officers, employees or agents shall be
liable for failure to demand, collect or realize upon any of the Collateral or
any Guarantee or for any delay in doing so or shall be under any obligation to
sell or otherwise dispose of
8
any Collateral upon the request of the Borrower, the [Issuer][Guarantor], or any
of the Subsidiaries or the Subordinated Lender or any other Person or to take
any other action whatsoever with regard to the Collateral or any part thereof or
any Guarantee.
(b) The Subordinated Lender, for itself and on behalf of its
successors and assigns, hereby waives any and all now existing or hereafter
arising rights it may have to require the Lenders to marshal assets for the
benefit of the Subordinated Lender, or to otherwise direct the timing,
order or manner of any sale, collection or other enforcement of Collateral
or enforcement of loan documents relating to the Senior Debt or the Senior
Guarantee Obligations. The Lenders are under no duty or obligation, and the
Subordinated Lender hereby waives any right it may have to compel the
Lenders, to pursue any Guarantor or other Person who may be liable for the
Senior Debt, or to enforce any Lien or Security Interest in any Collateral.
(c) The Subordinated Lender hereby waives and releases all rights
which a guarantor or surety with respect to the Senior Debt could exercise.
(d) The Subordinated Lender hereby waives any duty on the part of the
Lenders to disclose to the Subordinated Lender any fact known or hereafter
known by the Lenders relating to the operation or financial condition of
the Borrower, the [Issuer][Guarantor] or any Guarantor, or their respective
businesses. The Subordinated Lender accepts the Subordinated
[Note][Guarantee] based solely upon its independent knowledge of the
Borrower's, the [Issuer's][Guarantor's] and the Subsidiaries' financial
condition and business and the Subordinated Lender assumes responsibility
for obtaining any further or future information with respect to the
Borrower, the [Issuer][Guarantor] and the Subsidiaries or their financial
condition or business.
12. Further Assurances. The Subordinated Lender and the
[Issuer][Guarantor] at their own expense and at any time from time to time, upon
the written request of the Controlling Agent will promptly and duly execute and
deliver such further instruments and documents and take such further actions as
the Controlling Agent may reasonably request for the purposes of obtaining or
preserving the full benefits of these subordination provisions and of the rights
and powers herein granted.
9
13. Powers Coupled with an Interest. All powers, authorizations and
agencies contained in these subordination provisions are coupled with an
interest and are irrevocable until the Senior Debt is paid in full.
14. Notices. All notices, requests and demands to or upon any party hereto
shall be in writing and shall be given in the manner provided in Section 11.01
of the Credit Agreement or Section 12.01 of the Senior Secured Credit Agreement.
The notice information address for the Subordinated Lender is:
___________________________________________
___________________________________________
___________________________________________
; and the notice information address for the [Issuer][Guarantor] is:
___________________________________________
___________________________________________
___________________________________________.
15. Severability. Any provision of this Attachment I which is prohibited
or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
16. Amendments in Writing; No Waiver; Cumulative Remedies. (a) None of the
terms or provisions of these subordination provisions may be waived, amended,
supplemented or otherwise modified except by a written instrument executed by
the Controlling Agent, the [Issuer][Guarantor] and the Subordinated Lender;
provided that any provision of these subordination provisions may be waived by
the Lenders in a letter or agreement executed by each Lender or by facsimile
transmission from each Lender.
(b) No failure to exercise, nor any delay in exercising, on the part
of the Lenders, any right, power or privilege hereunder shall operate as a
waiver thereof. No single or partial exercise of any right, power or
privilege hereunder shall preclude any other or further exercise thereof or
the exercise of any other right, power or privilege.
10
(c) The rights and remedies herein provided are cumulative, may be
exercised singly or concurrently and are not exclusive of any other rights
or remedies provided by law.
17. Section Headings. The section headings used in these subordination
provisions are for convenience of reference only and are not to affect the
construction hereof or be taken into consideration in the interpretation hereof.
18. Waiver of Jury Trial. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES
ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR
RELATING TO THE SUBORDINATED [NOTE][GUARANTEE] OR THIS ATTACHMENT I. EACH PARTY
HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER
PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT,
IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B)
ACKNOWLEDGES THAT IT UNDERSTANDS AND HAS SPECIFICALLY AGREED TO THE WAIVERS AND
CERTIFICATIONS IN THIS SECTION 18.
19. Jurisdiction; Consent to Service of Process. THE SUBORDINATED
[NOTE][GUARANTEE] AND THIS ATTACHMENT I AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES THEREUNDER AND HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED
AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK
(INCLUDING SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW
YORK), WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES. SUBJECT TO THE
JURISDICTION OF THE COURT, EACH PARTY HERETO HEREBY SUBMITS TO THE NONEXCLUSIVE
JURISDICTION OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF
NEW YORK AND OF ANY NEW YORK STATE COURT SITTING IN NEW YORK CITY FOR PURPOSES
OF ALL LEGAL PROCEEDINGS ARISING OUT OF OR RELATING TO THIS ATTACHMENT I. EACH
PARTY HERETO IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY
OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY
SUCH PROCEEDING BROUGHT IN SUCH A COURT AND ANY CLAIM THAT ANY SUCH PROCEEDING
BROUGHT IN SUCH A COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
11
IN WITNESS WHEREOF, the undersigned have executed this Attachment I as of
this ___ day of ______, 200_.
By: [SUBORDINATED LENDER]
By: ____________________________________
Name:
Title:
By: VENCOR, INC.
(to be renamed Kindred Healthcare, Inc.)
By: ________________________________
Name:
Title:
12
EXHIBIT K
ASSIGNMENT AGREEMENT
This ASSIGNMENT AGREEMENT (this "Agreement") is entered into by and
between the parties designated as Assignor ("Assignor") and Assignee
("Assignee") above the signatures of such parties on the Schedule of Terms
attached hereto and hereby made an integral part hereof (the "Schedule of
Terms") and relates to that certain Credit Agreement described in the Schedule
of Terms (said Credit Agreement, as amended, supplemented or otherwise modified
to the date hereof and as it may hereafter be amended, supplemented or otherwise
modified from time to time, being the "Credit Agreement", the terms defined
therein and not otherwise defined herein being used herein as therein defined).
IN CONSIDERATION of the agreements, provisions and covenants herein
contained, the parties hereto hereby agree as follows:
SECTION 1. Assignment and Assumption.
-------------------------
(a) Effective upon the Settlement Date specified in Item 4 of the
Schedule of Terms (the "Settlement Date"), Assignor hereby sells and assigns to
Assignee, without recourse, representation or warranty (except as expressly set
forth herein), and Assignee hereby purchases and assumes from Assignor, that
percentage interest in all of Assignor's rights and obligations as a Lender
arising under the Credit Agreement and the other Financing Documents with
respect to Assignor's Commitment and outstanding Loans, if any, which
represents, as of the Settlement Date, the percentage interest specified in Item
3 of the Schedule of Terms of all rights and obligations of Lenders arising
under the Credit Agreement and the other Financing Documents with respect to the
Commitments and any outstanding Loans (the "Assigned Share"). Without limiting
the generality of the foregoing, the parties hereto hereby expressly acknowledge
and agree that any assignment of all or any portion of Assignor's rights and
obligations relating to Assignor's Commitments shall include (i) in the event
Assignor is an LC Issuing Bank with respect to any outstanding Letters of Credit
(any such Letters of Credit being "Assignor Letters of Credit") the sale to
Assignee of a participation in the Assignor Letters of Credit and any drawings
thereunder as contemplated by subsection 2.07(a) of the Credit Agreement, (ii)
the sale to Assignee of a ratable portion of any participations previously
purchased by Assignor pursuant to said subsection 2.07(a) with respect to any
Letters of Credit other than the Assignor Letters of Credit and (iii) the sale
to Assignee of a ratable portion of any payment to be made to the Swingline
Bank, and of any participations previously purchased, by Assignor pursuant to
Section 2.08(i) of the Credit Agreement.
(b) In consideration of the assignment described above, Assignee hereby
agrees to pay to Assignor, on the Settlement Date, the principal amount of any
outstanding Loans included within the Assigned Share, such payment to be made by
wire transfer of immediately available funds in accordance with the applicable
payment instructions set forth in Item 5 of the Schedule of Terms.
(c) Assignor hereby represents and warrants that Item 3 of the Schedule
of Terms correctly sets forth the amount of the Commitment and the Percentage of
Assignee after giving effect to the assignment and assumption described above.
(d) Assignor and Assignee hereby agree that, upon giving effect to the
assignment and assumption described above, (i) Assignee shall be a party to the
Credit Agreement and shall have all of the rights and obligations under the
Financing Documents, and shall be deemed to have made all of the covenants and
agreements contained in the Financing Documents, arising out of or otherwise
related to the Assigned Share and (ii) Assignor shall be absolutely released
from any of such obligations, covenants and agreements assumed or made by
Assignee in respect of the Assigned Share. Assignee hereby acknowledges and
agrees that the agreement set forth in this Section 1(d) is expressly made for
the benefit of the Borrower, Vencor, the Administrative Agent, the Assignor, the
Lenders, the Swingline Bank and the LC Issuing Banks and their respective
successors and permitted assigns.
(e) Assignor and Assignee hereby acknowledge and confirm their
understanding and intent that (i) this Agreement shall effect the assignment by
Assignor and the assumption by Assignee of Assignor's rights and obligations
with respect to the Assigned Share, (ii) any other assignments by Assignor of a
portion of its rights and obligations with respect to the Commitments and any
outstanding Loans shall have no effect on the Commitments and the Percentage of
Assignee set forth in Item 3 of the Schedule of Terms or on the interest of
Assignee in any outstanding Loans corresponding thereto, and (iii) from and
after the Settlement Date, the Administrative Agent shall make all payments
under the Credit Agreement in respect of the Assigned Share (including without
limitation all payments of principal and accrued but unpaid interest, commitment
fees and letter of credit fees with respect thereto) (A) in the case of any such
interest and fees that shall have accrued prior to the Settlement Date, to
Assignor, and (B) in all other cases, to Assignee; provided that Assignor and
Assignee shall make payments directly to each other to the extent necessary to
effect any appropriate adjustments in any amounts distributed to Assignor and/or
Assignee by the Administrative Agent under the Financing Documents in respect of
the Assigned Share in the event that, for any reason whatsoever, the payment of
consideration contemplated by Section 1(b) occurs on a date other than the
Settlement Date.
2
SECTION 2. Certain Representations, Warranties and Agreements.
--------------------------------------------------
(a) Assignor represents and warrants that it is the legal and
beneficial owner of the Assigned Share, free and clear of any adverse claim.
(b) Assignor shall not be responsible to Assignee for the execution,
effectiveness, genuineness, validity, enforceability, collectibility or
sufficiency of any of the Financing Documents or for any representations,
warranties, recitals or statements made therein or made in any written or oral
statements or in any financial or other statements, instruments, reports or
certificates or any other documents furnished or made by Assignor to Assignee or
by or on behalf of the Borrower or any of the Guarantors to Assignor or Assignee
in connection with the Financing Documents and the transactions contemplated
thereby or for the financial condition or business affairs of the Borrower or
any other Person liable for the payments of any Obligations, nor shall Assignor
be required to ascertain or inquire as to the performance or observance of any
of the terms, conditions, provisions, covenants or agreement contained in any of
the Financing Documents or as to the use of the proceeds of the Loans, Swingline
Loans, or the use of the Letters of Credit or as to the existence or possible
existence of any Event of Default or Default.
(c) Assignee represents and warrants that it is an Eligible Assignee;
that it has experience and expertise in the making of loans such as the Loans;
that it has acquired the Assigned Share for its own account and not with any
present intention of selling all or any portion of such interest; and that it
has received, reviewed and approved a copy of the Credit Agreement (including
all Exhibits and Schedules thereto).
(d) Assignee represents and warrants that it has received from Assignor
such financial information regarding the Borrower and the Guarantors as is
available to Assignor and as Assignee has requested, that it has made its own
independent investigation of the financial condition and affairs of the Borrower
and the Guarantors in connection with the assignment evidenced by this
Agreement, and that it has made and shall continue to make its own appraisal of
the creditworthiness of the Borrower and the Guarantors. Assignor shall have no
duty or responsibility, either initially or on a continuing basis, to make any
such investigation or any such appraisal on behalf of Assignee or to provide
Assignee with any other credit or other information with respect thereto,
whether coming into its possession before the making of the initial Loans or at
any time or times thereafter, and Assignor shall not have any responsibility
with respect to the accuracy of or the completeness of any information provided
to Assignee.
3
(e) Each party to this Agreement represents and warrants to the other
party hereto that it has full power and authority to enter into this Agreement
and to perform its obligations hereunder in accordance with the provisions
hereof, that this Agreement has been duly authorized, executed and delivered by
such party and that this Agreement constitutes a legal, valid and binding
obligation of such party, enforceable against such party in accordance with its
terms, except as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting
creditors' rights generally and by general principles of equity.
SECTION 3. Miscellaneous.
-------------
(a) Each of Assignor and Assignee hereby agrees from time to time, upon
request of the other such party hereto, to take such additional actions and to
execute and deliver such additional documents and instruments as such other
party may reasonably request to effect the transactions contemplated by, and to
carry out the intent of, this Agreement.
(b) Neither this Agreement nor any term hereof may be changed, waived,
discharged or terminated, except by an instrument in writing signed by the party
(including, if applicable, any party required to evidence its consent to or
acceptance of this Agreement) against whom enforcement of such change, waiver,
discharge or termination is sought.
(c) Unless otherwise specifically provided herein, any notice or other
communication herein required or permitted to be given shall be in writing and
may be personally served, telexed or sent by telefacsimile or United States mail
or courier service and shall be deemed to have been given when delivered in
person or by courier service, upon receipt of telefacsimile or telex, or three
Business Days after depositing it in the United States mail with postage prepaid
and properly addressed. For the purposes hereof, the notice address of each of
Assignor and Assignee shall be as set forth on the Schedule of Terms or, as to
either such party, such other address as shall be designated by such party in a
written notice delivered to the other such party. In addition, the notice
address of Assignee set forth on the Schedule of Terms shall serve as the
initial notice address of Assignee for purposes of Section 11.01 of the Credit
Agreement.
(d) In case any provision in or obligation under this Agreement 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.
4
(e) THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED
BY THE INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING SECTION 5-1401 OF THE
GENERAL OBLIGATIONS LAWS OF THE STATE OF NEW YORK), WITHOUT REGARD TO CONFLICTS
OF LAWS PRINCIPLES, EXCEPT AS OTHERWISE REQUIRED BY MANDATORY PROVISIONS OF LAW
AND EXCEPT TO THE EXTENT THAT REMEDIES PROVIDED BY THE LAWS OF ANY JURISDICTION
OTHER THAN THE STATE OF NEW YORK ARE GOVERNED BY THE LAWS OF SUCH JURISDICTION.
(f) This Agreement shall be binding upon, and shall inure to the
benefit of, the parties hereto and their respective successors and assigns.
(g) This Agreement may be executed in one or more counterparts and by
different parties hereto in separate counterparts, each of such when so executed
and delivered shall be deemed an original, but all such counterparts together
shall constitute but one and the same instrument; signature pages may be
detached from multiple separate counterparts and attached to a single
counterpart so that all signature pages are physically attached to the same
document.
(h) This Agreement shall become effective upon the date (the "Effective
Date") upon which all of the following conditions are satisfied: (i) the
execution of a counterpart hereof by each of Assignor and Assignee, (ii) the
receipt by Administrative Agent of the processing and recordation fee referred
to in subsection 11.06(c) of the Credit Agreement, (iii) in the event Assignee
is organized under the laws of a jurisdiction outside the United States, the
delivery by Assignee to Administrative Agent of such forms, certificates or
other evidence with respect to United States federal income tax withholding
matters as Assignee may be required to deliver to Administrative Agent pursuant
to said subsection 11.06(c), (iv) the execution of a counterpart hereof by, to
the extent required, each LC Issuing Bank and the Swingline Bank as evidence of
its consent hereto, and by the Administrative Agent as evidence of its consent
to and acceptance hereof, (v) the receipt by Administrative Agent of originals
or telefacsimiles of the counterparts described above and authorization of
delivery thereof, and (vi) the recordation by Administrative Agent in the
Register of the pertinent information regarding the assignment effected hereby
in accordance with subsection 11.06(c) of the Credit Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered by their respective officers
thereunto duly authorized, such execution being made as of the Effective Date in
the applicable spaces provided on the Schedule of Terms.
5
SCHEDULE OF TERMS
1. Borrower: Vencor Operating, Inc. (to be renamed Kindred Healthcare
--------
Operating, Inc.) (the "Borrower").
2. Name and Date of Credit Agreement: $120,000,000 Credit Agreement dated as
---------------------------------
of April 20, 2001 by and among the Borrower, Vencor, Inc. (to be renamed
Kindred Healthcare, Inc.) ("Vencor"), the Lenders, the Swingline Bank and
the LC Issuing Banks party thereto, Xxxxxx Guaranty Trust Company of New
York, as Collateral Agent and Administrative Agent, and General Electric
Capital Corporation, as Documentation Agent and Collateral Monitoring
Agent.
3. Amounts:
-------
(a) Aggregate Commitment of all
Lenders: $_____
(b) Assigned Share/Percentage: _____%
(c) Amount of Assigned Share of
Commitments $_____
4. Settlement Date: __________, ____
---------------
5. Payment Instructions:
--------------------
ASSIGNOR: ASSIGNEE:
_____________________ ______________________
_____________________ ______________________
_____________________ ______________________
Attention:___________ Attention:____________
Reference:___________ Reference:____________
6. Notice Addresses:
----------------
ASSIGNOR: ASSIGNEE:
_____________________ ______________________
_____________________ ______________________
_____________________ ______________________
_____________________ ______________________
7. Signatures:
----------
[NAME OF ASSIGNOR], [NAME OF ASSIGNEE],
as Assignor as Assignee
By:_________________ By:_____________________
Title:______________ Title:__________________
[Consented to and accepted in accordance with
subsection 11.06(c) of the Credit Agreement
XXXXXX GUARANTY TRUST
COMPANY OF NEW YORK,
as Administrative Agent and Swingline Bank
By:_____________________
Title:__________________]
[Consented to in accordance with
subsection 12.06(c) of the Credit Agreement
[LC ISSUING BANKS]]
EXHIBIT L
KINDRED HEALTHCARE OPERATING, INC.
Borrowing Base Certificate
Pursuant to the $120,000,000 Credit Agreement dated as of April 20, 2001, among
the undersigned as Borrower, Vencor, Inc. (to be renamed Kindred Healthcare,
Inc.), the other persons designated therein as Lenders party thereto, the
SWINGLINE BANK party thereto, the LC ISSUING BANK party thereto, XXXXXX GUARANTY
TRUST COMPANY OF NEW YORK, as Administrative Agent and Collateral Agent and
GENERAL ELECTRIC CAPITAL CORPORATION as Documentation Agent and Collateral
Monitoring Agent (as amended, restated, supplemented or otherwise modified from
time to time, the "Credit Agreement"), the undersigned certifies that as of the
close of business on the dates set forth in the calculations below, the
Borrowing Base is computed as set forth below.
The undersigned represents and warrants that this Borrowing Base Certificate and
the information contained herein is true and correct in all material respects
regarding the status of Eligible Accounts as of the close of business on the
dates set forth in the calculations below, and that the amounts reflected herein
are in compliance with the provisions of the Credit Agreement. Capitalized
terms used herein and not otherwise defined herein shall have the meanings
specified in the Credit Agreement.
1. Health Services Division/1/ Accounts $
Receivable Balance (As of __/__/01)
Less: Ineligible category: over 120 days $
----
Ineligible category: private pay * 120 days
Ineligible category #3
Ineligible category #4
Ineligible category #5
Other: other contractual allowances
Other: ___________
Total Ineligible A/R $
2. Eligible Health Services Division Accounts Receivable $
3. Hospital Division/2/ Accounts Receivable
Balance (As of __/__/01) $
Less: Ineligible category: over 120 days $
----
Ineligible category: private pay * 120 days
Ineligible category #3
Ineligible category #4
Ineligible category #5
Other: contractuals
Other: other contractual allowances ___________
Total Ineligible A/R $
_________________
/1/ Excluding Accounts arising from (i) rehabilitation therapy business, (ii)
SleepCor business divisions, including sleep diagnostic services and related MPI
and cardiovascular operations, (iii) Enteral services, (iv) business operations
or divisions which have been discontinued and (v) Pharmacy.
/2/ Excluding Accounts arising from (i) rehabilitation therapy business, (ii)
SleepCor business divisions, including sleep diagnostic services and related MPI
and cardiovascular operations, (iii) Enteral services or (iv) business
operations or divisions which have been discontinued and (v) Pharmacy.
* Less than.
4. Eligible Hospital Division Accounts Receivable $
5. Pharmacy Accounts
Receivable Balance/3/ As of __/__/01) $
Less: Ineligible category: over 120 days $
-----
Ineligible category #2
Ineligible category #3
Ineligible category #4
Ineligible category #5
Other:
Other: -----------
Total Ineligible A/R $
6. Eligible Pharmacy Accounts Receivable $
7. Rehabilitation Accounts
Receivable Balance (As of __/__/01) $
Less: Ineligible category: over 120 days $
-----
Ineligible category #2
Ineligible category #3
Ineligible category #4
Ineligible category #5
Other:
Other: -----------
Total Ineligible A/R $
8. Eligible Rehabilitation Accounts Receivable $
9. The sum of Line 2 above, plus Line 4 above, plus Line 6
above multiplied by the applicable Accounts
Receivable Advance Rate/4/ $
10. Line 8 above multiplied by the applicable
Rehabilitation Accounts Receivable
Advance Rate/5/ $
11. The sum of Line 9 plus Line 10 above $
________________
/3/ Based on aging for the month before the most recent Fiscal Quarter end.
/4/ 80% on the Closing Date, subject to adjustment as provided in the Credit
Agreement.
/5/ 25% on the Closing Date, subject to adjustment as provided in the Credit
Agreement.
12. Established Reserves
Cost Report Liability Reserve $
PIP Limitation Reserve
PIP Reserve
Interest Rate Agreement Reserve
Total Established Reserves $ -
13. Borrowing base Availability/6/
(Line 11 above less Line 12 above) $
Date:
KINDRED HEALTHCARE OPERATING, INC.
_____________________________
Name:________________________
Duly Authorized Signatory
_______________
/6/ Subject to reduction based upon other reserves established in accordance
with the Credit Agreement.
EXHIBIT M
PREPAYMENT NOTICE/1/
-----------------
TO: Xxxxxx Guaranty Trust Company of New York, as Administrative Agent
RE: Credit Agreement dated as of April 20, 2001 (the "Credit Agreement")
among Vencor Operating, Inc. (to be renamed Kindred Healthcare
Operating, Inc.), Vencor, Inc. (to be renamed Kindred Healthcare,
Inc.), the Lenders, Swingline Bank and LC Issuing Banks party thereto,
Xxxxxx Guaranty Trust Company of New York, as Administrative Agent and
Collateral Agent, and General Electric Capital Corporation, as
Documentation Agent and Collateral Monitoring Agent
Pursuant to Section [2.11(e)] [2.12] of the Credit Agreement, we hereby
give notice of the following prepayment:
Date of Prepayment: ___________________________
Principal Amount
to be Repaid: ___________________________
Interest Type of Loans: Base Rate/Euro-Dollar
--------------------
Date Current Interest Period
Began: (unless Base Rate) ___________________________
Date Current Interest Period
Ends: (unless Base Rate) ___________________________
________________________
/1/ If two or more Groups of Loans (or portions thereof) are to be prepaid
on the same day, a separate Prepayment Notice should be given for each such
Group.
Terms used herein have the meanings assigned to them in the Credit
Agreement.
Date: VENCOR OPERATING, INC.
(to be renamed Kindred Healthcare
Operating, Inc.)
By: ______________________________
Name:
Title:
2
EXHIBIT N
NOTICE OF BORROWING
-------------------
TO: Xxxxxx Guaranty Trust Company of New York, as Administrative Agent
RE: Credit Agreement dated as of April 20, 2001 (the "Credit Agreement") among
Vencor Operating, Inc. (to be renamed Kindred Healthcare Operating, Inc.),
Vencor, Inc. (to be renamed Kindred Healthcare, Inc.), the Lenders,
Swingline Bank and LC Issuing Banks party thereto, Xxxxxx Guaranty Trust
Company of New York, as Administrative Agent and Collateral Agent, and
General Electric Capital Corporation, as Documentation Agent and Collateral
Monitoring Agent
Pursuant to Section 2.02(a) of the Credit Agreement, we hereby give notice
requesting the following Borrowing:
Date of Borrowing: _____________________________
Principal Amount: _____________________________
Initial Interest Type: Base Rate/Euro-Dollar
---------------------
Initial Interest Period:
(unless Base Rate) __________________________________________
The undersigned hereby certifies that the following statements will be true
as of the date of the Borrowing requested above:
(i) no Default has occurred or is continuing, or would result from such
Borrowing or from the application of the proceeds therefrom; and
(ii) the representations and warranties made by the Borrower and each
Guarantor in or pursuant to each Financing Document to which it is a party are
true, before and after giving effect to the Borrowing requested above and the
application of the proceeds therefrom, as though made on and as of such date;
provided that those representations and warranties that speak only of a specific
date are true as of such specific date.
Terms used herein have the meanings assigned to them in the Credit
Agreement.
Date: VENCOR OPERATING, INC.
(to be renamed Kindred Healthcare
Operating, Inc.)
By:_________________________________
Name:
Title:
2
EXHIBIT O
NOTICE OF SWINGLINE BORROWING
To: XXXXXX GUARANTY TRUST COMPANY OF NEW YORK, as Swingline Bank
Re: Credit Agreement dated as of April 20, 2001 (the "Credit Agreement")
among Vencor Operating, Inc. (to be renamed Kindred Healthcare
Operating, Inc.), Vencor, Inc. (to be renamed Kindred Healthcare,
Inc.), the Lenders, Swingline Bank and LC Issuing Banks party thereto,
Xxxxxx Guaranty Trust Company of New York, as Administrative Agent and
Collateral Agent, and General Electric Capital Corporation, as
Documentation Agent and Collateral Monitoring Agent
Pursuant to Section 2.08(b) of the Credit Agreement, we hereby give
notice requesting the following Swingline Borrowing:
Date of Borrowing: ___________________
Principal Amount: ___________________
The undersigned hereby certifies that the following statements will be
true as of the date of the Swingline Borrowing requested above:
(i) no Default has occurred or is continuing, or would result from
such Swingline Borrowing or from the application of the proceeds therefrom; and
(ii) the representations and warranties made by the Borrower and each
Guarantor in or pursuant to each Financing Document to which it is a party are
true, before and after giving effect to the Swingline Borrowing requested above
and the application of the proceeds therefrom, as though made on and as of such
date; provided that those representations and warranties that speak only of a
specific date are true as of such specific date.
Terms used herein have the meanings assigned to them in the Credit
Agreement.
Date: VENCOR OPERATING, INC.
(to be renamed Kindred Healthcare
Operating, Inc.)
By:___________________________
Name:
Title:
EXHIBIT P
NOTICE OF INTEREST RATE ELECTION
--------------------------------
TO: Xxxxxx Guaranty Trust Company of New York, as Administrative Agent
RE: Credit Agreement dated as of April 20, 2001 (the "Credit Agreement") among
Vencor Operating, Inc. (to be renamed Kindred Healthcare Operating, Inc.),
Vencor, Inc. (to be renamed Kindred Healthcare, Inc.), the Lenders,
Swingline Bank and LC Issuing Banks party thereto, Xxxxxx Guaranty Trust
Company of New York, as Administrative Agent and Collateral Agent, and
General Electric Capital Corporation, as Documentation Agent and Collateral
Monitoring Agent
We hereby give notice requesting the following interest rate election:
Name of Borrower: ___________________________
Date of Interest Rate Change: ___________________________
Prinicpal Amount: ___________________________
Group of Loans: ___________________________
Interest Type of Loans: ___________________________
Interest Period [if applicable]: ___________________________
Maturity Date ___________________________
Terms used herein have the same meanings assigned to them in the Credit
Agreement
Date: ________________ VENCOR OPERATING, INC.
(to be renamed Kindred Healthcare
Operating, Inc.)
By:___________________________
Name:
Title:
