AMENDMENT NUMBER 7 TO THE SECOND STANDSTILL AGREEMENT
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DATED APRIL 12, 1999 AND
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AMENDMENT NUMBER 6 TO THE TOLLING AGREEMENT
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DATED APRIL 12, 1999
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These Amendments dated as of September 3, 1999 are made and entered
into among Vencor, Inc., a corporation organized under the laws of Delaware, for
and on behalf of itself and its various subsidiaries and affiliates, including,
without limitation, Vencor Operating, Inc., and for and on behalf of any of
their respective successors including, without limitation, any debtor or
debtor-in-possession in a bankruptcy case commenced under Title 11 of the United
States Bankruptcy Code (the "Bankruptcy Code") or any trustee appointed in any
such case (collectively, "Vencor"); and Ventas, Inc., a corporation organized
under the laws of Delaware, for and on behalf of itself and its various
subsidiaries and affiliates, including, without limitation, Ventas Realty,
Limited Partnership, and for and on behalf of any of their respective successors
including, without limitation, any debtor or debtor-in-possession in a
bankruptcy case commenced under the Bankruptcy Code or any trustee appointed in
any such case (collectively, "Ventas").
Xxxxxx Guaranty Trust Company of New York (the "Collateral Agent") is a
signatory hereto for the sole purpose of providing the confirmations and
agreements referred to in paragraph 1 hereof.
WHEREAS, Vencor and Ventas are in the process of attempting to resolve
any and all existing and potential claims that Vencor has asserted or might in
the future assert against Ventas (the "Vencor Claims"), the validity of which
Ventas has disputed, and any and all existing and potential claims that Ventas
has asserted or might in the future assert against Vencor (the "Ventas Claims"),
the validity of which Vencor has disputed (the Vencor Claims and the Ventas
Claims are collectively referred to herein as the "Claims");
WHEREAS, to that end Vencor and Ventas are parties to that certain
Second Standstill Agreement dated April 12, 1999 (as modified and amended to
date, the "Second Standstill Agreement") and that certain Tolling Agreement
dated April 12, 1999 (as modified and amended to date, the "Tolling Agreement");
WHEREAS, on Thursday, August 5, 1999, by agreement of the parties,
Ventas was deemed to have delivered five notices of non-payment of rent (the
"August Non-Payment
Notices") pursuant to paragraph 16.1(b) of the agreements referenced in the
first paragraph of each of the August Non-Payment Notices, such agreements being
collectively defined in the Second Standstill Agreement as the Five Leases;
WHEREAS, the parties hereto wish to extend the cure period
referred to in Section 16.1 of the Five Leases with respect to the August
Non-Payment Notices, to extend certain other deadlines, to specify the cure
period referred to in the September Non-Payment Notices (as defined below), and
to agree to certain other matters to permit continued discussions concerning a
consensual resolution of their differences, subject to the conditions set forth
below;
NOW, THEREFORE, in consideration of the premises and other good cause
and adequate consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
Extension of the Second Standstill Period and the Cure Period in the Five Leases
1. The fifth numbered paragraph of the Second Standstill Agreement
shall be deleted and replaced with the following paragraph:
(a) Other than (i) Ventas' delivery on Friday May 7, 1999, after 5:00 p.m.,
by letters of T. Xxxxxxx Xxxxx, Vice President and General Counsel of
Ventas, of five notices of non-payment of rent (the "May Non-Payment
Notices") (which are now moot as a result of Vencor's payment of Rent
for the month of May 1999, in the manner agreed to by the parties);
(ii) the deemed delivery by Ventas of notices of non-payment of rent as
a result of Vencor's non-payment or late payment of rent under the Five
Leases for the month of June 1999 (the "June Non-Payment Notices")
(which are now moot as a result of Vencor's payment of Rent for the
month of June 1999, in the manner agreed to by the parties); (iii) the
deemed delivery by Ventas of notices of non-payment of rent as a result
of Vencor's non-payment or late payment of rent under the Five Leases
for the month of July 1999 (the "July Non-Payment Notices") (which are
now moot as a result of Vencor's payment of Rent for the month of July
1999, in the manner agreed to by the parties); (iv) the deemed delivery
by Ventas of similar notices of non-payment of rent as a result of
Vencor's non-payment or late payment of rent under the Five Leases for
the month of August 1999 (the "August Non-Payment Notices"); and (v)
the deemed delivery by Ventas of similar notices of non-payment of rent
as a result of Vencor's non-payment or late payment of rent under the
Five Leases for the month of September 1999 (the "September Non-Payment
Notices"); during the period from the date of the Second Standstill
Agreement, April 12, 1999, through and including the earlier
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of (A) the commencement by or against Vencor, as debtor, of a voluntary
or involuntary bankruptcy case under Title 11 of the United States
Code, or (B) 5:00 p.m. Eastern Daylight Savings Time on September 9,
1999 (such period being referred to herein as the "Second Standstill
Period"), neither Vencor nor Ventas will file, commence, serve, or
otherwise initiate any civil action, arbitration proceeding, or other
similar action, litigation, case, or proceeding of any kind, character,
or nature whatsoever (an "Action") against the other or any third
party, including, without limitation, any of Vencor's or Ventas'
current or former officers, directors, or employees, arising from or
relating to the Reorganization Agreement, any Ancillary Agreement, or
any of the Five Leases, or with respect to the various disputes
identified in Vencor's March 18, 1999 letter; nor shall Ventas exercise
any rights or remedies it may have against Vencor under any of the Five
Leases (including the giving of notices of termination pursuant to
Section 16.1 of the Five Leases or any of them) based on Vencor's late
payment of the Rent (as that term is defined in the Five Leases) due
under the Five Leases, or based on any default arising from or related
to the disclosures made by Vencor to Ventas commencing on or about
March 30 and March 31, 1999 and continuing to the date hereof.
(b) [intentionally left blank]
(c) If Vencor or the Leasehold Mortgagee (as defined in the Five Leases)
pays the Rent for the month of August 1999 prior to 5:00 p.m. Eastern
Daylight Savings Time on September 14, 1999, then such payment shall be
deemed to be a timely cure, within the meaning of Section 16.1 of the
Five Leases and the August Non-Payment Notices, and that, in such
event, no Event of Default (as that term is used in the August
Non-Payment Notices and defined in the Five Leases) shall have occurred
with respect to the late payment or non-payment of Rent for the month
of August 1999. Notwithstanding anything to the contrary contained
herein, Ventas shall not send a notice of termination pursuant to
paragraph 16.1 of the Five Leases, or any of them, based upon Vencor's
non-payment or late payment of Rent for the month of August 1999 so
long as Vencor or the Leasehold Mortgagee has a right to cure or has
cured such non-payment or late payment of Rent for the month of August
1999. This subparagraph 5(c) shall only apply to the August Non-Payment
Notices and to the non-payment or late payment of the August 1999 Rent
under the Five Leases.
(d) The Collateral Agent hereby confirms to Ventas and Vencor that it is
the collateral agent for the Leasehold Mortgagee and that it is
authorized to make the confirmations and agreements contained herein.
Ventas, Vencor, and the Collateral Agent (for and on behalf of the
Leasehold Mortgagee) confirm and agree that the period of time within
which Vencor or the Leasehold Mortgagee is entitled to cure the failure
of Vencor to pay Rent for the month of August 1999 under this agreement
and the Five Leases in order to prevent a termination of the Five
Leases will expire at 5:00 p.m. Eastern Daylight Savings Time on
September 14, 1999.
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(e) Ventas, Vencor and the Collateral Agent hereby agree that (i) the June
Non-Payment Notices, copies of which are attached hereto as Exhibits A
through E, are hereby deemed for all purposes to have been given by
Ventas and received by Vencor and the Collateral Agent as of June 6,
1999 without need for any further act or delivery by Ventas, (ii) the
July Non-Payment Notices, copies of which are attached hereto as
Exhibits F through J, are hereby deemed for all purposes to have been
given by Ventas and received by Vencor and the Collateral Agent on and
as of July 6, 1999, (iii) the August Non-Payment Notices, copies of
which are attached hereto as Exhibits K through O, are hereby deemed
for all purposes to have been given by Ventas and received by Vencor
and the Collateral Agent on and as of August 5, 1999, and (iv) the
September Non-Payment Notices, which will be provided by Ventas and be
substantially in the form of the August Non-Payment Notices, are to be
attached hereto as Exhibits P through T, are hereby deemed for all
purposes to have been given by Ventas and received by Vencor and the
Collateral Agent on and as of September 3, 1999, without need for any
further act or delivery by Ventas (except for delivery of Exhibits P
through T).
(f) Ventas further agrees that if Vencor or the Leasehold Mortgagee pays
the Rent for the month of September 1999 on or before September 14,
1999, at 5:00 p.m. Eastern Daylight Savings Time, then such payment
shall be deemed to be a timely cure, within the meaning of Section 16.1
of the Five Leases and the September Non-Payment Notices, and that, in
such event, no Event of Default (as that term is used in the September
Non-Payment Notices and defined in the Five Leases) shall have occurred
with respect to the late payment or non-payment of Rent for the month
of September 1999. Notwithstanding anything to the contrary contained
herein, Ventas shall not send a notice of termination pursuant to
paragraph 16.1 of the Five Leases, or any of them, based upon Vencor's
non-payment or late payment of Rent for the month of September 1999 so
long as Vencor or the Leasehold Mortgagee has a right to cure or has
cured such non-payment or late payment of Rent for the month of
September 1999. This subparagraph 5(f) shall only apply to the
September Non-Payment Notices and to the non-payment or late payment of
the September 1999 Rent under the Five Leases.
(g) Ventas, Vencor, and the Collateral Agent (for and on behalf of the
Leasehold Mortgagee) confirm and agree that the period of time by which
Vencor or the Leasehold Mortgagee is entitled to cure the failure of
Vencor to pay Rent for the month of September 1999 under this Amendment
and the Five Leases in order to prevent a termination of the Five
Leases will expire at 5:00 p.m. Eastern Daylight Savings Time on
September 14, 1999.
Amendment to Tolling Agreement
2. The first numbered paragraph of the Tolling Agreement shall be deleted
and replaced with the following paragraph:
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Any Vencor Claim, including, without limitation, those arising or
available under the Bankruptcy Avoidance Provisions (defined below)
that Vencor could otherwise assert against Ventas if Vencor were a
debtor in a case under the Bankruptcy Code commenced on April 12, 1999,
and whether arising under the Bankruptcy Code or under other applicable
federal or state law, shall not be prejudiced, impaired, or waived by
Vencor's failure to commence such a bankruptcy case, and any and all
statutes of limitations, repose, or other legal or equitable
constraints on the time by which such a bankruptcy case or pleading
initiating any Vencor Claim (including, without limitation, a cause of
action under ss. 548 of the Bankruptcy Code) shall be tolled during the
period of time from April 12, 1999 to and including the earlier of (i)
5:00 p.m. Eastern Daylight Savings Time on September 9, 1999, or (ii)
the earlier time and date on which the Second Standstill Period (as
defined in the Second Standstill Agreement) shall automatically
terminate as a result of Vencor's nonpayment or late payment of rent or
failure to deliver certain reports (as provided for in paragraph 5 of
the Second Standstill Agreement, the provisions of which are hereby
incorporated by reference) (the "Tolling Period"). For all purposes
herein, both the first and last day of the Tolling Period shall be
deemed to be contained in the Tolling Period.
[Remainder of Page Intentionally Left Blank].
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Counterparts
3. These Amendments may be executed in one or more counterparts and by
facsimile, each of which counterparts shall be deemed an original hereof, but
all of which together shall constitute one agreement.
Choice of Law
4. These Amendments adopt the ninth numbered paragraph of the Second
Standstill Agreement as the choice of law provision for these Amendments.
CONFIRMED AND AGREED TO AS OF THE DATE FIRST ABOVE WRITTEN BY:
VENCOR, INC. VENTAS, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxxxx By: /s/ T. Xxxxxxx Xxxxx
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Name: Xxxxxxx X. Xxxxxxxxxxx Name: T. Xxxxxxx Xxxxx
Title: Senior Vice President and Title: Vice President
Chief Financial Officer
XXXXXX GUARANTY TRUST COMPANY
OF NEW YORK, as Collateral Agent for the
Leasehold Mortgagee
By: /s/ Unn Xxxxxxx
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Name: Unn Xxxxxxx
Title: Vice President
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