ESCROW AGREEMENT
ESCROW AGREEMENT dated as of ___________, 1995 between Xxxxx
Healthcare Corporation, a Nevada corporation (the "Company"), and The Bank of
New York, as Escrow Agent (the "Escrow Agent").
WHEREAS the Company has executed and delivered an Indenture (the
"Indenture") dated as of ___________, 1995, to The Bank of New York, trustee
(such trustee or such trustee's successor as such, the "Trustee");
WHEREAS under and pursuant to the Indenture the Company may issue up
to _______________ principal amount of its ____% Exchangeable Subordinated Notes
Due 2007 (the "Notes");
WHEREAS, pursuant and subject to the terms of the Notes and the
Indenture, the Notes are exchangeable at the option of the holder thereof for
shares of common stock, $.25 par value, of Vencor, Inc. ("Vencor Common Stock")
(or such other securities, property or cash as may be deliverable upon exchange
pursuant to the Indenture) at any time or from time to time on or after
September 28, 1997, and prior to maturity of the Notes, unless previously
redeemed, at the exchange rate (the "Exchange Rate") of ______ shares of Vencor
Common Stock per $1,000 principal amount of Notes, subject to adjustment as
provided in the Indenture and subject to the Company's right to pay cash equal
to the Market Price of the shares of Vencor Common Stock for which such Notes
are exchangeable in lieu of delivery of such shares. The Notes will be
exchangeable prior to September 28, 1997 only in the event of a merger,
consolidation or liquidation of Vencor, Inc. pursuant to which all shares of
Vencor Common Stock held by the Escrow Agent are converted into or exchanged for
cash or other securities registered under the Securities Act; and
WHEREAS, pursuant to the Indenture the Company is obligated to
deposit with the Escrow Agent certificates representing up to 8,301,067 shares
of Vencor Common Stock (the "Vencor Common Shares");
NOW, THEREFORE, in consideration of the mutual covenants herein
contained and in order to set forth the terms upon which the Vencor Common
Shares deposited with the Escrow Agent by the Company for delivery upon exchange
of the Notes and all other property held by the Escrow Agent hereunder shall be
held and dealt with by the Escrow Agent and its successors as such, the Company
and the Escrow Agent hereby agree as follows:
SECTION 1(a). Deposit
The Company, simultaneously with the execution and delivery of this
Agreement, is delivering to the Escrow Agent, irrevocably except as provided in
Section 7 hereof, to be held by the Escrow Agent hereunder a certificate or
certificates, registered in the name of the Escrow Agent or its agent or
nominee, representing 8,301,067 shares of Vencor Common Stock. The Company
represents and warrants that it has good and lawful title to such shares, that
such shares are fully paid and non-assessable, and that such shares are
delivered free and clear of any liens, claims, charges and encumbrances. The
Escrow Agent hereby acknowledges receipt of such certificate or certificates for
8,301,067 shares of Vencor Common Stock.
The Company and any Permitted Transferee (as defined in Section
1(b)) and the Escrow Agent recognize that the holders of the Notes have an
interest in the powers conferred on the Escrow Agent under this Agreement, and,
except as provided in Section 8 hereof, such powers may not be revoked or
modified without the consent of the holders of at least two-thirds in principal
amount of the Notes at the time outstanding; PROVIDED that no revocation or
modification shall change the right to exchange any Notes for Vencor Common
Shares and other Escrowed Property (as defined below) at the Exchange Rate and
upon the terms set forth in Article 11 of the Indenture or reduce the aforesaid
percentage of Notes the holders of which are required to consent to any
revocation or modification, without the consent of all the holders of all Notes
then outstanding.
The Vencor Common Shares received by the Escrow Agent and retained
for the benefit of the holders from time to time of the Notes, together with
such additional shares of Vencor Common Stock and such other securities, cash
and other property as may be received and retained by the Escrow Agent in
accordance with this Agreement, are herein sometimes referred to as the
"Escrowed Property". Subject to the provisions of Section 9(c) hereof, the
Escrow Agent shall cause any cash dividends on Escrowed Property and any
payments with respect to United States federal, state and local income tax which
the Company or any Permitted Transferee, is entitled to receive under Sections
11.05 or 11.13, respectively, of the Indenture to be paid to the Company or such
Permitted Transferee, as the case may be.
SECTION 1(b). Sale and Transfer
The Company may at any time and from time to time in its sole
discretion, sell or transfer all or any part of its right, title and interest in
the Vencor Common Shares to any
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wholly-owned subsidiary of the Company or any partnership all of the general
partners and limited partners of which are wholly-owned subsidiaries of the
Company (any of the foregoing are hereinafter referred to as a "Permitted
Transferee"); PROVIDED that (i) such Vencor Common Shares so sold or
transferred shall remain subject to the terms and conditions of this Agreement
and the Indenture; (2) any such Permitted Transferee must expressly agree in
writing to become bound by the terms and conditions of this Agreement as such
Agreement may be amended from time to time as though such Permitted Transferee
were a party hereto; (3) the Company shall notify the Escrow Agent in writing at
the time of any such sale or transfer as to the number of Vencor Common Shares
so transferred to such Permitted Transferee; and (4) such sale or transfer shall
be in compliance with federal and all applicable state and foreign securities
laws. Notwithstanding any such sale or transfer, except as otherwise provided
herein, the Company shall remain liable to perform all of its duties and
obligations hereunder.
SECTION 2. Covenant by Escrow Agent
The Escrow Agent shall hold the Vencor Common Shares and all other
Escrowed Property received by it pursuant to this Agreement for the purposes and
upon the terms and conditions set forth in the Indenture and this Agreement.
SECTION 3. Notification of Adjustment of Exchange Rate; Exchange of Notes
The Company will notify the Escrow Agent in writing forthwith upon
any adjustment of the Exchange Rate, and will, upon request, notify the Escrow
Agent in writing of the Market Price of the Vencor Common Shares (or per unit of
any other property which is part of the Escrowed Property) as of any relevant
date for the purpose of computing cash adjustments in respect of fractional
interests. The Escrow Agent shall be under no duty or responsibility with
respect to any such notice except to exhibit such notice from time to time to
any holder of Notes requesting inspection thereof.
Upon surrender to the Escrow Agent of any Note (or a principal
portion thereof which is an integral multiple of $1,000) for exchange in
accordance with the terms thereof and of the Indenture, the Escrow Agent shall
promptly (i) cause to be delivered, to or on the order of the person for whose
account such Note (or portion) was so surrendered for exchange, a certificate or
certificates representing the number of full shares of Vencor Common Shares or
other securities, together with
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payment of any cash adjustment in respect of any fractional interest in shares
or other securities, and such additional cash or other property, which the
holder or holders of such Note (or portion thereof) shall be entitled to receive
in accordance with the terms hereof and thereof, (ii) deliver to the Trustee the
Note so exchanged, and (iii) if only a portion of said Note is exchanged, obtain
from the Trustee and deliver to or on the order of the person for whose account
the Note was surrendered for exchange a new Note or Notes for the principal
amount thereof not exchanged; PROVIDED that if the Company elects to make a
cash payment in lieu of exchange of Vencor Common Shares pursuant to Section
11.14 of the Indenture and if sufficient funds are first deposited with the
Escrow Agent by the Company, the Escrow Agent shall pay to the holder of the
Notes so surrendered an amount in cash equal to the value of Vencor Common
Shares for which such Notes are exchangeable (based on the Market Price on the
date of receipt by the Escrow Agent of the notice of exchange delivered by the
holder of Notes pursuant to Section 11.02 of the Indenture).
In any case in which Section 11.04 of the Indenture shall require
that an adjustment of the Exchange Rate be made immediately following a record
date, the Escrow Agent may defer delivering to the holder of any Note
surrendered for exchange after such record date the additional securities and
other property deliverable upon such exchange as a result of such adjustment
until such additional securities and other property have been delivered to the
Escrow Agent; and, in lieu of the additional securities and other property the
delivery of which is so deferred, the Escrow Agent shall deliver to such holder
appropriate evidence (determined in the sole discretion of the Escrow Agent) of
the right to receive such additional securities and other property.
SECTION 4. Division of Certificates; Payment of Taxes, Fees and Charges, and
Cash Adjustments; Payment of Fractional Interest
The Company and any Permitted Transferee shall make, execute and
deliver or cause to be made, executed and delivered any and all such instruments
and assurances, and take all such further action, as may be reasonably necessary
or proper to carry out the intention of or to facilitate the performance of the
terms of this Agreement or to secure the rights and remedies hereunder of the
holders of the Notes. The Company shall pay (i) any and all documentary, stamp,
transfer or similar taxes that may be payable in respect of the deposit of the
Vencor Common Shares, and the transfer or delivery of the Escrowed Property to
holders of Notes upon exchange thereof, PROVIDED that the Company
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shall not be obligated to pay any withholding taxes payable by holders of such
Notes due to the exchange thereof; (ii) any income or other taxes incurred by
the Escrow Agent in its capacity as such for any reason (except for payment or
accrual of its own fees); (iii) all reasonable, out-of-pocket fees or charges of
the Escrow Agent in connection with or arising out of this Agreement, the
Indenture or any exchange of Notes in accordance with the terms hereof and
thereof; (iv) all cash adjustments in respect of fractions of shares of Vencor
Common Stock or other fractional units of property which the holders of Notes
may be entitled to receive upon exchange thereof (after giving effect to moneys
received by the Escrow Agent from the sale of Escrowed Property for the purpose
of paying for such fractional interests); and (v) cash in an amount equal to any
losses on investments made pursuant to Section 6 of this Agreement to the extent
necessary to maintain on deposit with the Escrow Agent funds (investment
securities held pursuant to Section 6 being valued as funds at the outstanding
principal balance thereof) equal from time to time to the aggregate amount of
cash apportioned to all Vencor Common Shares at each such time deliverable upon
exchange of all Notes then outstanding. Notwithstanding the foregoing, the
Company shall not be required to pay any tax which may be payable in respect of
any transfer involved in the delivery, upon an exchange of Notes, of Escrowed
Property in a name other than that in which the Notes so exchanged were
registered, and no such transfer or delivery shall be made unless and until the
person requesting such transfer has paid to the Company or the Escrow Agent the
amount of any such tax or has established, to the satisfaction of the Company
and the Escrow Agent, that such tax has been paid.
The Escrow Agent shall be authorized to, and, at the Company's
direction, shall, sell any Vencor Common Shares or other securities which are
part of the Escrowed Property held by it in order to obtain the funds necessary,
or anticipated by it to be necessary, for payment of fractional interests with
respect to Notes delivered to it for exchange; PROVIDED that after any such
sale, the number of shares of Vencor Common Shares and any such other securities
remaining on deposit with the Escrow Agent shall be sufficient to allow the
exchange of all the then outstanding Notes for shares of Vencor Common Stock and
other Escrowed Property on the basis of the then applicable Exchange Rate. If a
sale of Vencor Common Shares to make cash payments for fractional shares is not
permitted, then the Company shall furnish additional moneys to permit such
payment in accordance with Section 11.03 of the Indenture.
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SECTION 5. Voting of Escrowed Property
The Company and any Permitted Transferee shall each have the full
and unqualified right and power to exercise any right to vote, or give consents
or take other action in respect of, its respective share of the Vencor Common
Shares or other securities which are part of the Escrowed Property, and the
Escrow Agent shall have no such rights.
The Escrow Agent or its nominee shall from time to time deliver, or
cause to be delivered, to the Company or any Permitted Transferee, as the case
may be, such proxies, duly executed and in the form required by applicable law,
as may be necessary or appropriate to permit the Company or such Permitted
Transferee, as the case may be, to vote on each matter submitted to the holders
of shares of Vencor Common Stock or other securities which are part of the
Escrowed Property.
SECTION 6. Investment of Cash
All cash received and retained by the Escrow Agent under Section
11.05 of the Indenture shall, at the direction of the Company, be invested in
securities issued or guaranteed by the United States of America or any agency or
instrumentality thereof, PROVIDED that such obligations shall mature by their
terms within 12 months following their purchase.
SECTION 7. Distribution of Escrowed Property to Company or Permitted
Transferee
Subject to the provisions of Section 9(c) hereof, the Escrow Agent
shall cause any Escrowed Property which the Company or any Permitted Transferee
is entitled to receive under Section 11.05 of the Indenture to be delivered to
the Company or such Permitted Transferee.
SECTION 8. Amendment or Modification of Agreement
The Company and the Escrow Agent may by mutual accord cure any
ambiguity or correct or supplement any provision contained herein which may be
inconsistent with any other provision contained herein or with any provision of
the Indenture. Otherwise, except with respect to an amendment which is for one
or more of the following purposes:
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(1) to evidence the succession of another corporation to the
Company and the assumption by any such successor of the covenants of the Company
herein contained;
(2) to add to the covenants of the Company, for the benefit of the
holders of the Notes, or to surrender any right or power herein conferred upon
the Company;
(3) to comply with the requirements of Section 11.10 of the
Indenture;
(4) to make any other provisions with respect to matters or
questions arising under this Agreement or the Indenture which shall not be
inconsistent with the provisions of this Agreement or the Indenture, provided
such action shall not materially adversely affect the interest of the holders of
the Notes; or
(5) to evidence the acceptance by a Permitted Transferee of its
obligations hereunder;
this Agreement may not be amended or modified at any time without the written
consent of the Escrow Agent, the written consent of the Company and the consent
of the holders of not less than two-thirds of the outstanding aggregate
principal amount of the Notes. No amendment or modification shall change the
right to exchange any Notes for Vencor Common Shares and other Escrowed Property
at the Exchange Rate and upon the terms set forth in Article 11 of the Indenture
or reduce the aforesaid percentage of Notes the holders of which are required to
consent to any amendment or modification, without the consent of all the holders
of all Notes then outstanding.
SECTION 9. Duties and Obligations of Escrow Agent
(a) The Escrow Agent shall not at any time be under any duty or
responsibility to any holder of Notes to determine whether any facts exist which
may require any adjustments of the Exchange Rate, or with respect to the nature
or extent of any such adjustment when made, or with respect to the method
employed in making such adjustment; and the Escrow Agent may conclusively rely
as to all such matters upon the notice furnished by the Company pursuant to
Section 3 hereof. The Escrow Agent shall not be accountable with respect to the
validity or value (or the kind or amount) of any Vencor Common Shares, or of any
other securities or other property, which may at any time be delivered upon the
exchange of any Note; and the Escrow Agent makes no representation with respect
thereto. The Escrow Agent shall not be responsible for any failure of the
Company or any Permitted
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Transferee to comply with any of its covenants contained in this Agreement or in
the Indenture.
(b) The Escrow Agent, either directly or through its nominee, shall
be under no duty or obligation to enforce, through the institution of legal
proceedings or otherwise, any of its rights as the record owner (either directly
or through its nominee) of the Vencor Common Shares or any other Escrowed
Property either to secure possession of any cash or other securities or other
property or otherwise to assert any rights or claims in the interest of any
holder of Notes, nor shall it be required to make independent inquiry as to any
matter but may rely upon such written notice pertaining to the Vencor Common
Shares or other securities or other property as it shall receive from the
Company, the Trustee or from the issuer of any of the securities held by it
hereunder; PROVIDED that if the Escrow Agent shall be furnished with
indemnity, in manner and form satisfactory to it, against losses or expenses
which may be sustained or incurred by it in taking such action, the Escrow Agent
shall take such action as may be specifically directed in writing by the
Company, but the Escrow Agent shall have the right to decline to follow any such
direction if it shall be advised by counsel that the actions so directed may not
be lawfully taken or if the Escrow Agent shall in good faith determine that such
action so directed would be unjustly prejudicial to the holders of Notes.
(c) The Escrow Agent shall be obligated to perform only such duties
as are herein specifically set forth. The Escrow Agent shall not be liable for
any action taken, omitted or suffered by it in good faith and believed by it to
be authorized or within the discretion or rights or powers conferred upon it by
this Agreement, and may conclusively rely and shall be protected in acting or
refraining from acting in reliance upon advice of counsel (which need not
constitute an Opinion of Counsel) or upon any certificate, request or other
document believed by it to be genuine and to have been signed or presented by
the proper party or parties; PROVIDED that the Escrow Agent shall not make any
payment or deliver any Escrowed Property to the Company or any Permitted
Transferee until delivery to the Escrow Agent of an Officer's Certificate as to
compliance with the conditions precedent provided for in Section 11.05(h) of the
Indenture. The Escrow Agent shall not be required to take any action hereunder
which, in the opinion of its counsel, will be contrary to law.
In the event the Escrow Agent is instructed by the Company to sell
any securities (including the Vencor Common Shares) that constitute Escrowed
Property, the Escrow Agent shall be entitled to an opinion of counsel (which
counsel is satisfactory to the Escrow Agent), to the effect that the
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proposed sale of securities will not violate any applicable United States
federal or state securities laws.
SECTION 10. Sales and Tenders of Escrowed Property
In the event that Article 11 of the Indenture requires or permits
the Company to direct the Escrow Agent to sell or tender its respective share of
Escrowed Property, the Escrow Agent shall sell or tender such Escrowed Property
in such manner as shall be set forth in written instructions concerning any such
sale or tender which are given by the Company by means of an Officer's
Certificate and shall remit the proceeds thereof as provided in such Officer's
Certificate. Such Officer's Certificate shall demonstrate to the reasonable
satisfaction of the Escrow Agent that such sale or tender and such disposition
of proceeds is permitted under the Indenture.
SECTION 11. Release or Sale of Excess Escrowed Property
The Company and any applicable Permitted Transferee, upon demand by
the Company, shall be entitled at any time and from time to time, out of the
Escrowed Property held by the Escrow Agent, to such kind and amount of Escrowed
Property as shall be in excess of the kind and amount of Escrowed Property which
would be required for the exchange of all Notes then outstanding for the
Escrowed Property on the basis of the then applicable Exchange Rate and other
terms and provisions of the Indenture and this Agreement, and such excess shall,
upon delivery of the certificate provided for in the next following sentence, be
released to the Company or such Permitted Transferee or sold for the account of
the Company or such Permitted Transferee upon demand by the Company. Upon
demanding any release or sale of Escrowed Property, the Company shall deliver to
the Escrow Agent an Officer's Certificate that shall (i) state the principal
amount of Notes then outstanding and the kind and amount of Escrowed Property
required for delivery to the Holders thereof upon exchange; (ii) state that the
release or sale of such kind and amount of Escrowed Property as so requested is
permitted by the provisions of this Section and the Indenture, (iii) demonstrate
to the reasonable satisfaction of the Escrow Agent that the Escrowed Property to
be released or sold would not be deliverable upon exchange of all Notes then
outstanding, and (iv) if the Company shall have directed the Escrow Agent to
sell any of such excess Escrowed Property, state that such sale is a bona fide
sale to a Person (as hereinafter defined) who is not an affiliate of the
Company. Upon receipt of such Certificate from the Company, the Escrow Agent
shall, as promptly as possible, release to the Company or such Permitted
Transferee or sell, as
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the case may be, the kind and amount of Escrowed Property requested to be
released or sold as specified in such Certificate.
The term "Person" as used herein means any individual, corporation,
partnership, joint venture, association, joint stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
SECTION 12. Cash Dividends
Promptly upon its receipt thereof, the Escrow Agent shall deliver to
the Company or any Permitted Transferee all cash dividends received with respect
to any Vencor Common Shares, to the extent that the Company or such Permitted
Transferee is entitled to receive such dividends pursuant to the terms of the
Indenture, in accordance with the terms of such Notes and of the Indenture.
SECTION 13. Merger, etc., of the Company
(a) The Company hereby covenants and agrees that, upon any
consolidation or merger, or any transfer or lease of all or substantially all of
its assets other than a consolidation or merger in which the Company is the
continuing corporation, the rights and obligations of the Company under this
Agreement shall be expressly assumed, by a supplemental agreement satisfactory
in form to the Escrow Agent, executed and delivered to the Escrow Agent by the
Person formed by such consolidation, or with or into which the Company shall
have merged or to which the assets of the Company shall have been transferred or
leased.
(b) In the case of any consolidation or merger, or any transfer or
lease of all or substantially all of the Company's assets referred to in
subsection (a) hereof, and upon the execution and delivery to the Escrow Agent
of the supplemental agreement referred to therein by the successor or acquiring
Person, such successor or acquiring Person shall succeed to the rights and
obligations of and be substituted for the Company under this Agreement, with the
same effect as if such Person had been named herein as the Company, and in the
event of any such sale or conveyance, the Company (which term shall for this
purpose mean the Person named as the "Company" in the first paragraph of this
Agreement or any successor Person which shall theretofore have become such in
the manner described in this Section) shall be discharged from all obligations
and covenants under this Agreement and may (but need not) be dissolved and
liquidated.
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SECTION 14. Reliance on Information Supplied
The Escrow Agent may rely on the contents of any Officer's
Certificate furnished hereunder and, in delivering any such certificate, the
Company may rely on information furnished to the Company by the Escrow Agent as
to the quantity and identity of Vencor Common Shares and other Escrowed Property
delivered to holders of Notes upon exchange thereof and on published information
as of the end of the preceding year (or such more recent date as of which such
information has been publicly announced by Vencor) as to matters concerning
Vencor Common Shares and Vencor. The Escrow Agent will furnish on request to
the Company such information as to the Escrow Agent's holdings and as to
Escrowed Property delivered to Holders of Notes upon exchange thereof.
SECTION 15. Expenses and Indemnification of the Escrow Agent
The Company covenants and agrees to pay to the Escrow Agent from
time to time, and the Escrow Agent shall be entitled to, reasonable
compensation, and the Company will pay or reimburse the Escrow Agent upon its
request for all reasonable, out-of-pocket expenses, disbursements and advances
incurred or made by the Escrow Agent in accordance with any of the provisions of
this Agreement (including the reasonable, out-of-pocket compensation and the
expenses and disbursements of its counsel and of all persons not regularly in
its employ) except any such expense, disbursement or advance as may arise from
its gross negligence or bad faith. The Company also covenants to indemnify the
Escrow Agent for, and to hold it harmless against, any loss, liability, claim,
cause of action or expense incurred without gross negligence or bad faith on the
part of the Escrow Agent and arising out of or in connection with its duties
under this Agreement. The Trustee and the Holders of the Notes shall not be
liable for any expenses or compensation of the Escrow Agent and no charge shall
be made for such expenses or compensation against the Escrowed Property.
SECTION 16. Resignation or Removal of the Escrow Agent
(a) The Escrow Agent may at any time resign by giving 60 days'
written notice of resignation to the Company and the Trustee. The Company may
at any time remove the Escrow Agent by giving like written notice of removal to
the Escrow Agent and the Trustee. The Holders of a majority in principal amount
of the Notes at the time outstanding may at any time remove the Escrow Agent.
If the Escrow Agent shall resign or be removed, a
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successor Escrow Agent, which in each case shall be a bank or trust company
having surplus and capital of at least $100,000,000 shall be appointed by the
Company by written instrument executed and delivered to the Escrow Agent and to
such successor Escrow Agent, a copy of which shall be delivered by the Company
to the Trustee.
(b) Any resignation or removal of the Escrow Agent and any
appointment of a successor Escrow Agent pursuant to any of the provisions of
this Agreement shall become effective upon acceptance of appointment by the
successor as provided in Section 17 hereof.
SECTION 17. Acceptance by Successor Escrow Agent
Any successor Escrow Agent appointed as provided in Section 16 of
this Agreement shall execute, acknowledge and offer to the Company and to its
predecessor Escrow Agent an instrument accepting such appointment hereunder, and
thereupon the resignation or removal of the predecessor Escrow Agent shall
become effective and such successor Escrow Agent, without any further act, deed
or conveyance shall become vested with all the right, title and interest to all
property held hereunder, and all other rights, powers, duties and obligations
hereunder, of such predecessor Escrow Agent; but nevertheless such predecessor
Escrow Agent shall forthwith deliver to such successor Escrow Agent physical
possession of the certificates evidencing the Vencor Common Shares and of all
other Escrowed Property, and such predecessor Escrow Agent shall, on the written
request of the Company or such successor Escrow Agent and upon payment of any
amounts then due it pursuant to the provisions of Section 15 hereof, execute and
deliver to such successor Escrow Agent an instrument transferring to such
successor Escrow Agent all right, title and interest hereunder in and to the
Vencor Common Shares and the other Escrowed Property, and all other rights and
powers hereunder, of such predecessor Escrow Agent.
SECTION 18. Succession by Merger, etc.
Any Person into which the Escrow Agent may be merged or converted or
with which it may be consolidated, or any Person resulting from any merger,
conversion or consolidation to which the Escrow Agent shall be a party, or any
Person succeeding to the business of the Escrow Agent, shall be the successor of
the Escrow Agent hereunder without the execution or filing of any paper or any
further act on the part of any of the parties hereto, provided that such
corporation shall be eligible under Section 16 hereof.
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SECTION 19. Termination of Agreement
This Agreement shall terminate when the rights of all holders of
Notes under the Indenture to surrender Notes for exchange pursuant to Article 11
of the Indenture shall have expired or been terminated and when all other
obligations of the Company shall have been satisfied under this Agreement, which
termination or expiration and satisfaction shall be evidenced by an Officer's
Certificate of the Company to that effect. Upon termination of this Agreement
pursuant to this Section 19, any Vencor Common Shares and any other Escrowed
Property remaining in the hands of the Escrow Agent hereunder which are not
required for the exchange of Notes previously duly surrendered and duly accepted
for the exchange shall be delivered first to the Permitted Transferee to the
extent of its interest therein, and second to the Company.
SECTION 20. Notices
Any notice or communication shall be sufficiently given if in
writing and delivered in person or mailed by first-class mail, postage prepaid,
addressed as follows:
If to the Company:
Xxxxx X. Xxxxx, Esq.
Senior Vice President,
Secretary and General Counsel
Xxxxx Healthcare Corporation
0000 Xxxxxxxx Xxxxxx
Xxxxx Xxxxxx, Xxxxxxxxxx 00000
Telephone: (000) 000-0000
If to the Escrow Agent:
The Bank of New York
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
The Company or the Escrow Agent by notice to the other may designate
additional or different addresses for subsequent notices of communications.
Any notice or communication mailed to a holder of Notes shall be
mailed by first-class mail, postage prepaid, to such holder at such holder's
address as it appears on the registration books of the Registrar for the Notes
and shall be sufficiently given to such holder if so mailed within the time
prescribed.
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Failure to mail notice or communication to a holder of Notes or any
defect in it shall not affect its sufficiency with respect to other holders of
Notes. If a notice or communication is mailed in the manner provided above, it
is duly given, whether or not the addressee receives it.
SECTION 21. Benefits of Agreement
Nothing in this Agreement or the Notes, expressed or implied, shall
give or be construed to give any person, firm or corporation, other than the
parties hereto, the holders of Notes as such and the Trustee as such holders'
representative, any legal or equitable right, remedy or claim under any
covenant, condition or provision herein contained, all the covenants, conditions
and provisions contained in this Agreement being for the sole benefit of the
parties hereto, the holders of the Notes as such and the Trustee as such
holders' representative.
SECTION 22. Headings
The headings contained in this Agreement are for convenience of
reference only and shall have no effect on the interpretation or operation of
this Agreement.
SECTION 23. Definitions
Terms defined in the Indenture and not otherwise defined herein
have, as used herein, the respective meanings provided for therein.
SECTION 24. Choice of Laws
This Agreement shall be construed in accordance with the law of the
State of New York.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed and their respective corporate seals to be affixed hereto by duly
authorized officers as of the day and year first above written.
XXXXX HEALTHCARE CORPORATION
By_______________________________
Title:
THE BANK OF NEW YORK, as Escrow
Agent
By_______________________________
Title:
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