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AMENDMENT NO. 1 TO CREDIT AGREEMENT
AMENDMENT dated as of April 22, 1997 to the Credit Agreement dated as
of March 17, 1997, as amended as of March 31, 1997 (the "CREDIT AGREEMENT")
among Vencor, Inc. ("VENCOR"), the BANKS, SWINGLINE BANK, LC ISSUING BANKS,
MANAGING AGENTS and CO-AGENTS party thereto, XXXXXX GUARANTY TRUST COMPANY OF
NEW YORK, as Documentation Agent (the "DOCUMENTATION AGENT") and Collateral
Agent, and NATIONSBANK, N.A. as Administrative Agent.
W I T N E S S E T H :
WHEREAS, Vencor desires (i) to amend the existing Subsidiary Guaranty
Agreements and the form of any future Subsidiary Guaranty Agreements to include
a guarantee of Vencor's obligations under designated interest rate swap
agreements or interest rate cap and floor agreements and (ii) to add a covenant
to the Credit Agreement restricting the aggregate notional principal amount of
the agreements so designated; and
WHEREAS, Vencor desires (i) to guarantee TheraTx' outstanding 8%
Convertible Subordinated Notes due 2002 pursuant to a guarantee that will be
subordinated to all present and future indebtedness of Vencor except trade debt
and (ii) to be permitted to guarantee other pre-existing Debt in connection with
any future acquisition of one or more health care facilities or other
businesses;
NOW, THEREFORE, the parties hereto agree as follows:
SECTION 1. Defined Terms; References. Unless otherwise specifically
defined herein, each term used herein which is defined in the Credit Agreement
has the meaning assigned to such term in the Credit Agreement. Each reference to
"hereof", "hereunder", "herein" and "hereby" and each other similar reference
and each reference to "this Agreement" and each other similar reference
contained in the Credit Agreement shall, after this Amendment becomes effective,
refer to the Credit Agreement as amended hereby.
SECTION 2. Definitions. (a) Section 1.01 of the Credit Agreement is
amended by adding the following new definition in the appropriate alphabetical
order:
"DESIGNATED INTEREST RATE AGREEMENT" means the interest rate
swap agreements listed on Annex B to the Security Agreement and any
other interest rate swap agreement or any interest rate cap and floor
agreement designated by Vencor, in a notice to the Documentation Agent
and the Administrative Agent, as a Designated Interest Rate Agreement
for purposes of the Subsidiary Guaranty Agreements.
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(b) The definition of "SUBSIDIARY GUARANTY" in Section 1.01 of the
Credit Agreement is amended to read as follows:
"SUBSIDIARY GUARANTY" means a guaranty by a Subsidiary
Guarantor that Vencor will perform its obligations under this Agreement
and any Designated Interest Rate Agreement, such guaranty to be set
forth in a Subsidiary Guaranty Agreement.
SECTION 3. Form of Subsidiary Guaranty Agreement. (a) The form of
Subsidiary Guaranty Agreement set forth in Exhibit O to the Credit Agreement is
amended by adding the following new definition to Section 1 thereof in the
appropriate alphabetical order:
"DESIGNATED INTEREST RATE AGREEMENT" means the interest rate
swap agreements listed on Annex B to the Security Agreement and any
other interest rate swap agreement or any interest rate cap and floor
agreement designated by Vencor, in a notice to the Documentation Agent
and the Administrative Agent, as a Designated Interest Rate Agreement
for purposes of this Guaranty.
(b) Section 3 of said form of Subsidiary Guaranty Agreement is amended
by adding, immediately after the words "guarantees the full and punctual payment
of all present and future indebtedness and other obligations of Vencor evidenced
by or arising under any Financing Document", the words "or any Designated
Interest Rate Agreement".
SECTION 4. Amendment of Existing Subsidiary Guaranty Agreements. The
parties hereto agree that each of the Subsidiary Guaranty Agreements outstanding
on the date hereof shall be amended to be substantially in the form of Exhibit O
to the Credit Agreement as amended by Section 3 above or shall be replaced by a
new Subsidiary Guaranty Agreement in such form.
SECTION 5. Limitation on Designated Interest Rate Agreements. Article 5
of the Credit Agreement is amended by adding the following new Section 5.25 at
the end thereof:
SECTION 5.25. Limitation of Designated Interest Rate
Agreements. Vencor will not designate any interest rate swap agreement
or any interest rate cap and floor agreement as a Secured Obligation
for purposes of the Security Agreement or as a Designated Interest Rate
Agreement for purposes of the Subsidiary 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 $1,000,000,000.
SECTION 6. Guarantees by Vencor of Debt of Acquired Businesses. Clause
(g) of Section 5.07 of the Credit Agreement is amended to read as follows:
(g) Debt assumed by Vencor after the Initial Closing Date or
Guaranteed by Vencor after the Initial Closing Date (including any such
Guarantee of TheraTx' 8%
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Convertible Subordinated Notes due 2002) in connection with the
acquisition of one or more health care facilities or other businesses;
provided in each case that (i) such Debt was outstanding before such
facility or other business was acquired and was not incurred in
contemplation of such acquisition and (ii) any such Guarantee by Vencor
of subordinated debt shall be subordinated to Vencor's obligations
under this Agreement and any Designated Interest Rate Agreements by
subordination provisions reasonably satisfactory to the Documentation
Agent;
SECTION 7. Defaults. Section 6.01(b) of the Credit Agreement is amended
to read as follows:
(b) Vencor shall fail to observe or perform any
covenant contained in Section 5.01(e), Section 5.01(f),
Sections 5.07 through 5.23, inclusive, or Section 5.25; or
SECTION 8. Representations of Vencor. Vencor represents and warrants
that (i) each of the representations and warranties made by Vencor or any of its
Subsidiaries in or pursuant to any Financing Document to which it is a party are
true on and as of the date hereof and (ii) no Default has occurred and is
continuing on the date hereof.
SECTION 9. Governing Law. This Amendment shall be governed by and
construed in accordance with the laws of the State of New York.
SECTION 10. Counterparts. This Amendment may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
SECTION 11. Effectiveness. This Amendment shall become effective as of
the date hereof when the Documentation Agent shall have received from each of
Vencor and the Required Banks a counterpart hereof signed by such party or
facsimile or other written confirmation (in form satisfactory to the
Documentation Agent) that such party has signed a counterpart hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed as of the date first above written.
VENCOR, INC.
By:__________________________________
Name:
Title:
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XXXXXX GUARANTY TRUST
COMPANY OF NEW YORK
By:_________________________________
Name:
Title:
NATIONSBANK, N.A.
By:_________________________________
Name:
Title:
THE CHASE MANHATTAN BANK
By:_________________________________
Name:
Title:
PNC BANK, KENTUCKY, INC
By:_________________________________
Name:
Title:
BANK OF AMERICA NT & SA
By:_________________________________
Name:
Title:
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XXX XXXX XX XXX XXXX
By:_________________________________
Name:
Title:
THE BANK OF NOVA SCOTIA
By:_________________________________
Name:
Title:
CREDIT LYONNAIS NEW YORK BRANCH
By:_________________________________
Name:
Title:
CREDIT SUISSE FIRST BOSTON
By:_________________________________
Name:
Title:
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DEUTSCHE BANK AG NEW YORK
AND/OR CAYMAN ISLAND BRANCHES
By:_________________________________
Name:
Title:
By:_________________________________
Name:
Title:
FLEET NATIONAL BANK
By:_________________________________
Name:
Title:
MELLON BANK, N.A.
By:_________________________________
Name:
Title:
TORONTO DOMINION (TEXAS), INC.
By:_________________________________
Name:
Title:
WACHOVIA BANK OF GEORGIA, N.A.
By:_________________________________
Name:
Title:
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ABN AMRO BANK N.V.
By:_________________________________
Name:
Title:
By:_________________________________
Name:
Title:
BANK OF MONTREAL
By:_________________________________
Name:
Title:
BANK ONE, KENTUCKY, NA
By:_________________________________
Name:
Title:
COMERICA BANK
By:_________________________________
Name:
Title:
CORESTATES BANK, N.A.
By:_________________________________
Name:
Title:
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THE FUJI BANK, LIMITED
By:_________________________________
Name:
Title:
THE INDUSTRIAL BANK OF JAPAN
TRUST COMPANY
By:_________________________________
Name:
Title:
NATIONAL CITY BANK OF KENTUCKY
By:_________________________________
Name:
Title:
NBD BANK, N.A.
By:_________________________________
Name:
Title:
LTCB TRUST COMPANY
By:_________________________________
Name:
Title:
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XXXXX XXXX XX XXXXXXXXXX, N.A.
By:_________________________________
Name:
Title:
U.S. BANK OF WASHINGTON, N.A.
By:_________________________________
Name:
Title:
AMSOUTH BANK OF ALABAMA
By:_________________________________
Name:
Title:
FIRST UNION NATIONAL BANK OF
NORTH CAROLINA
By:_________________________________
Name:
Title:
KREDIETBANK N.V.
By:_________________________________
Name:
Title:
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SOCIETE GENERALE, CHICAGO
BRANCH
By:_________________________________
Name:
Title:
FIRST AMERICAN NATIONAL BANK
By:_________________________________
Name:
Title:
By:_________________________________
Name:
Title:
BANK OF LOUISVILLE
By:_________________________________
Name:
Title:
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