AMENDMENT NO. 1
EXHIBIT 10.4
AMENDMENT XX. 0
XXXXXXXXX Xx. 0 (this "Amendment") dated as of November 28, 2001, under
the $300,000,000 Credit Agreement dated as of April 20, 2001 (the "Credit
Agreement") among KINDRED HEALTHCARE OPERATING, INC. (formerly named Vencor
Operating, Inc.) (the "Borrower"), KINDRED HEALTHCARE, INC. (formerly named
Vencor, Inc.) ("Kindred"), the LENDERS party thereto and JPMORGAN CHASE BANK
(formerly named Xxxxxx Guaranty Trust Company of New York), as Administrative
Agent and Collateral Agent.
W I T N E S S E T H:
WHEREAS, Kindred and the Borrower have requested the Required Lenders
(such term and other capitalized terms used in this Amendment without definition
having the meanings set forth in the Credit Agreement) to extend the various
time periods set forth in the Encumbrance Letter to February 28, 2002 (the
"Encumbrance Letter Waiver"); and
WHEREAS, the parties hereto desire to amend the Credit Agreement to
provide that compliance by Kindred and the Borrower with the provisions of the
Encumbrance Letter shall be sufficient to satisfy the requirements of Section
5.12(d) of the Credit Agreement;
NOW, THEREFORE, the parties hereto agree as follows:
SECTION 1. Encumbrance Letter. (a) (i) The undersigned Lenders hereby
(A) grant the Encumbrance Letter Waiver and (B) authorize the Collateral Agent,
in its sole discretion and from time to time, as contemplated by the Encumbrance
Letter, to waive compliance with the requirement that Kindred or the Borrower
remove or contest certain of the Liens or other defects listed in the schedule
attached to the Encumbrance Letter.
(ii) The undersigned Lenders confirm and agree, without limiting the
generality of Section 9.05 of the Credit Agreement, that in the absence of gross
negligence or willful misconduct, the Collateral Agent shall not be liable to
any Lender on account of granting any such waiver and any consequences thereof.
(b) Clause (g) of the definition of "Permitted Encumbrances" is hereby
amended by deleting the word "removed" and replacing in substitution therefor
the words "removed, insured over by First American Title Insurance Company,
waived"
(c) Section 5.12(d) of the Credit Agreement is hereby amended to read
as follows:
"Vencor shall comply with the provisions of the Encumbrance Letter, as
such provisions may be amended or waived from time to time."
Section 2. Representations Correct; No Default. Kindred and the
Borrower each represents and warrants that (i) the representations and
warranties contained in the Financing Documents are true as though made on and
as of the date hereof and will be true on and as of the Amendment Effective Date
(as defined below) as though made on and as of such date and (ii) no Default has
occurred and is continuing on the date hereof and no Default will occur or be
continuing on the Amendment Effective Date.
Section 3. Counterparts; Effectiveness. (a) This Amendment may be
signed in any number of counterparts, each of which shall be an original, with
the same effect as if the signatures thereto and hereto were upon the same
instrument.
(b) This Amendment shall become effective as of the date hereof on the
date (the "Amendment Effective Date") when the Administrative Agent shall have
received duly executed counterparts hereof signed by Kindred, the Borrower and
the Required Lenders (or, in the case of any Lender as to which an executed
counterpart shall not have been received, the Administrative Agent shall have
received telegraphic, telex or other written confirmation from such party of
execution of a counterpart hereof by such Lender).
(c) No later than the first Business Day after the Fee Determination
Date (as defined below), the Borrower shall pay the Administrative Agent, in
immediately available funds for the account of each Lender that has evidenced
its agreement hereto as provided in Section 3(b) by 5:00 P.M. (New York City
time) on the later of (i) November 29, 2001 and (ii) the date the Administrative
Agent issues a notice to the Lenders saying this Amendment has become effective
(such later date, the "Fee Determination Date"), an amendment fee in an amount
equal to 0.05% of the aggregate outstanding principal amount of such Lender's
Loans (as outstanding on the opening of business on the date of this Amendment).
(d) Except as expressly set forth herein, the waivers and amendments
contained herein shall not constitute a waiver or amendment of any term or
condition of the Credit Agreement or any other Financing Document, and all such
terms and conditions shall remain in full force and effect and are hereby
ratified and confirmed in all respects.
Section 4. Governing Law. THIS AMENDMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
2
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed by their respective authorized officers as of the day and year
first above written.
KINDRED HEALTHCARE OPERATING, INC.
By:/s/ Xxxxxxx X. Xxxxxxxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxxxxxxx
Title: Senior Vice President and
Chief Financial Officer
KINDRED HEALTHCARE, INC.
By:/s/ Xxxxxxx X. Xxxxxxxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxxxxxxx
Title: Senior Vice President and
Chief Financial Officer
3
CREDIT LYONNAIS NEW YORK
BRANCH
By: /s/ Xxxx-Xxxxxxx Van Essche
----------------------------------
Name: Xxxx-Xxxxxxx Van Essche
Title: Vice President
4
BANKERS TRUST COMPANY
By: /s/ Xxxxx X. Xxxxxx
-------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
5
XXX XXXXXX
PRIME RATE INCOME TRUST
By: Xxx Xxxxxx Investment Advisory Corp.
By: /s/ Xxxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Executive Director
6
BEAR XXXXXXX & CO., INC.
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Senior Managing Director
7
XXXXXXX, SACHS CREDIT
PARTNERS L.P.
By: /s/ Xxxxxx X. Xxxxxxx
-------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Authorized Signatory
8
JPMORGAN CHASE BANK
By: /s/ Houston X. Xxxxxxxx
----------------------------
Name: Houston X. Xxxxxxxx
Title: Managing Director
9
XXX XXXXXX
SENIOR INCOME TRUST
By: Xxx Xxxxxx Investment Advisory Corp.
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Executive Director
10
XXX XXXXXX
SENIOR FLOATING RATE FUND
By: Xxx Xxxxxx Investment Advisory Corp.
By: /s/ Xxxxxx X. Xxxxxx
-------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Executive Director
11
SILVER OAK CAPITAL LLC
By: /s/ Xxxxxxx X. Xxxxxxx
-------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Authorized Signatory
12
X. XXXX PRICE RECOVERY FUND II, L.P.
By: /s/ Xxx X. Xxxxxx
-------------------------------
Name: Xxx X. Xxxxxx
Title: Managing Director
13
PENSLER CAPITAL CORPORATION
By: /s/ Xxxxxxx Xxxxxxx
----------------------
Name: Xxxxxxx Xxxxxxx
Title: President
00
XXXXXX XXXX XXXX XXXXX
XXXXXXXXXXXXX I, LP
By: /s/ Xxxxxx Xxxxxxx
----------------------
Name: Xxxxxx Xxxxxxx
Title: Partner
15
GOLDEN TREE HIGH YIELD MASTER
FUND, LTD
By: /s/ Xxxxxx Xxxxxxx
------------------------
Name: Xxxxxx Xxxxxxx
Title: Partner
16
CONTINENTAL CASUALTY COMPANY
By: /s/ Xxxxxxx X. Dubbarke
-------------------------
Name: Xxxxxxx X. Dubbarke
Title: Vice President
17
PRESIDENT & FELLOWS HARVARD
COLLEGE
By: /s/ Xxxxxxx X. Xxxxxxxx
----------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title:
18
REGIMENT CAPITAL, LTD.
By: /s/ Xxxxxxx X. Xxxxxxxx
--------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title:
19
XXXXX FARGO BANK
By: /s/ Xxxx Xxxxxxx
---------------------------
Name: Xxxx Xxxxxxx
Title: Corporate Trust Officer
20
CERBERUS PARTNER, L.P.
By: Cerberus Associates, LLC, General Partner
By: /s/ Xxxx X. Neporent
-------------------------
Name: Xxxx X. Neporent
Title: Managing Director
21
LCMI I LIMITED PARTNERSHIP
By: /s/ Xxxx X. Xxxxxxxxxx
----------------------
Name: Lyon Capital Management LLC
Xxxx X. Xxxxxxxxxx
Title: Senior Portfolio Manager
00
XXXXXXXXXX XXXXXXX XXX, LIMITED
By: Xxxxxx, Xxxxxx & Co., L.P.,
as Collateral Manager
By: /s/ Xxxx X. Xxxxxx
-------------------------
Name: Xxxx X. Xxxxxx
Title: Managing Director
23
XXXXXXXXXXX SENIOR FLOATING
RATE FUND
By: /s/ Xxxx Xxxxxxx
--------------------
Name: Xxxx Xxxxxxx
Title: Manager
24
NORTHWOODS CAPITAL II, LIMITED
By: Xxxxxx, Xxxxxx & Co., L.P.
As Collateral Manager
By: /s/ Xxxx X. Xxxxxx
-------------------------
Name: Xxxx X. Xxxxxx
Title: Managing Director
25
NORTHWOODS CAPITAL, LIMITED
By: Xxxxxx, Xxxxxx & Co., L.P.,
as Collateral Manager
By: /s/ Xxxx X. Xxxxxx
-------------------------
Name: Xxxx X. Xxxxxx
Title: Managing Director
26
AG CAPITAL FUNDING PARTNERS,
L.P.
By: _______________________________
Name:
Title:
27
XXXXXXXX MASTER FUND LTD.
By: _____________________________
Name:
Title:
28
SUNAMERICA CORPORATION
By: __________________________
Name:
Title:
29
THOROUGHBRED LTD PARTNERSHIP I
By: ________________________________
Name:
Title:
30
LIPIZZANER LDC
By: _______________________
Name:
Title:
31
PALOMINO FUND LTD.
By: ______________________
Name:
Title:
32
APPALOOSA INVESTMENT LIMITED
PARTNERSHIP I
By: ________________________
Name:
Title:
33
SPS HIGH YIELD LOAN TRADING
By: _______________________
Name:
Title:
34
