EXHIBIT 4.3
AMENDMENT NO. 1
TO
AMENDED AND RESTATED CREDIT AGREEMENT
AMENDMENT dated as of June 24, 1997 to the Amended and Restated Credit
Agreement dated as of May 30, 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, the parties hereto desire to amend the Credit Agreement (i) to
permit Vencor to issue certain high yield debt and (ii) to give the Banks the
benefit of the financial covenants and other restrictive agreements set forth in
the indenture pursuant to which such high yield debt is issued;
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. Section 1.01 of the Credit Agreement is amended
by adding the following new definitions in the appropriate alphabetical order:
"High Yield Debt Indenture" means the Indenture pursuant to which
the Permitted High Yield Debt is issued, as such Indenture may be
amended from time to time in accordance with the terms thereof and
Section 5.29(c) hereof.
"Permitted High Yield Debt" means subordinated notes issued by
Vencor before December 31, 1997; provided that such subordinated notes
comply with the provisions of Section 5.07(e) except for requirements to
offer to purchase such subordinated notes in certain events (including,
without limitation, a "Change of Control" as defined in the High Yield
Debt Indenture), which requirements are subject to the provisions of
Section 5.29(b).
Section 3. Permission to Incur Permitted High Yield Debt. The last
proviso to Section 5.07(e) of the Credit Agreement is amended to read as
follows:
provided, further, that (A) if Vencor has an Investment Grade Rating when
such Debt is incurred or such Guarantee is entered into, the date
specified in subclauses (i) and (ii) above shall be changed from March
31, 2003 to June 30, 2002 and (B) subclause (ii) above shall not apply
to Permitted High Yield Debt.
Section 4. Amendment of Article 5. The following new Section is added
at the end of Article 5 of the Credit Agreement:
Section 5.29. Permitted High Yield Debt. (a) So long as any
Permitted High Yield Debt is outstanding, Vencor agrees to comply with
all of the financial covenants and other restrictive agreements set
forth in the High Yield Debt Indenture as if such covenants and other
restrictive agreements (and the definitions of the terms used therein)
were set forth in full herein.
(b) Vencor will not purchase or offer to purchase any Permitted
High Yield Debt pursuant to any provision of the High Yield Debt
Indenture requiring it to do so unless it shall have first (i) repaid
all the outstanding Loans, Swingline Loans and LC Reimbursement
Obligations, (ii) terminated the Commitments and (iii) cash
collateralized each outstanding Letter of Credit in a manner
satisfactory to the relevant LC Issuing Bank.
(c) Without the prior written consent of the Required Banks,
Vencor shall not modify or amend, or waive or solicit any waiver of, any
provision of the High Yield Debt Indenture in any manner that could
reasonably be expected to be adverse to the interest of the Banks under
the Financing Documents.
Section 5. Events of Default. Section 6.01(b) of the Credit Agreement
is amended to read as follows:
(b) Vencor shall (i) fail to observe or perform any of its
financial covenants and other restrictive agreements contained in the
High Yield Debt Indenture within the applicable grace period (if any)
specified therein or (ii) fail to observe or perform any covenant
contained in Section 5.01(e), Section 5.01(f), Section 5.07 through 5.28,
inclusive, Section 5.29(b) or Section 5.29(c); or
Section 6. Additional Letters of Credit. As of the Amendment Effective
Date, (i) the letters of credit listed on Schedule I hereto shall be deemed to
be issued pursuant to Section 2.08(b) of the Credit Agreement and shall be
Additional Letters of Credit thereunder and (ii) the definition of "LC Issuing
Bank" in Section 1.01 of the Credit Agreement is amended by
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replacing the reference to "Seattle First National Bank" with "Bank of America
NT & SA dba Seafirst Bank".
Section 7. Representations of Vencor. Vencor represents and warrants
that (i) the representations and warranties of Vencor set forth in Article 4
of the Credit Agreement will be true on and as of the Amendment Effective Date
and (ii) no Default will have occurred and be continuing on such date.
Section 8. Governing Law. This Amendment shall be governed by and
construed in accordance with the laws of the State of New York.
Section 9. 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 10. Effectiveness. This Amendment shall become effective on the
date (the "Amendment Effective Date") when the Documentation Agent shall have
received from each of Vencor, the Required Banks and Bank of America NT & SA,
as LC Issuing Bank, 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: /s/ Xxxxxxx X. Xxxxxxxxxx
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Title: Vice President of Finance
XXXXXX GUARANTY TRUST
COMPANY OF NEW YORK
By: /s/ Xxxxx X. Xxxxx
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Title: Vice President
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NATIONSBANK, N.A.,
as a Bank and an LC Issuing Bank
By: /s/ Xxxxxx X. Xxxxxxxx
-------------------------------------------
Title: Senior Vice President
BANK OF AMERICA NT & SA,
as a Bank and an LC Issuing Bank
By: /s/ Xxxxxx X. Xxx
-------------------------------------------
Title: Vice President
THE BANK OF NEW YORK
By: /s/ Xxxxxx X. Xxxxxxxxx
-------------------------------------------
Title: Vice President
THE CHASE MANHATTAN BANK
By: /s/ Xxxx Xxx Xxx
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Title: Vice President
PNC BANK, KENTUCKY, INC,
as a Bank and an LC Issuing Bank
By: /s/ Xxxxxxxx X. Xxxxxxxxxx
-------------------------------------------
Title: Vice Xxxxxxxxx
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XXXXXXX XXXXXXXX (XXXXX), INC.
By: /s/ Xxxx Xxxxxxx
-------------------------------------------
Title: Vice President
THE BANK OF NOVA SCOTIA
By: /s/ M.D.Xxxxx
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Title: Agent
CREDIT LYONNAIS NEW YORK BRANCH
By: /s/ Farboud Tavangar
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Title: First Vice President
CREDIT SUISSE FIRST BOSTON
By: /s/ Xxxxxx X. Xxxxxx
-------------------------------------------
Title: Vice President
By: /s/ Xxxxxx X. Xxxxxxxxxx
-------------------------------------------
Title: Associate
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DEUTSCHE BANK AG NEW YORK
AND/OR CAYMAN ISLAND BRANCHES
By:
-------------------------------------------
Name:
Title:
By:
-------------------------------------------
Name:
Title:
FLEET NATIONAL BANK
By: /s/ Xxxxxx Xxxxxxxxxxxxx
-------------------------------------------
Title: Senior Vice President
THE INDUSTRIAL BANK OF JAPAN
TRUST COMPANY
By: /s/ Takuya Honjo
-------------------------------------------
Title: Senior Vice President
WACHOVIA BANK, N.A.,
By: /s/ Xxxx Xxxx
-------------------------------------------
Title: AVP
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ABN AMRO BANK N.V.
By: /s/ Xxxxxxx X. Xxxx
-------------------------------------------
Title: Group Vice President
By: /s/ X.Xxxxxx
-------------------------------------------
Title: VP
BANK OF MONTREAL
By: /s/ Xxxxx Xxxxxxxx
-------------------------------------------
Title: Director
BANK ONE, KENTUCKY, NA
By: /s/ Xxxxxx X. Xxxxxxxx
-------------------------------------------
Title: Senior Vice President
COMERICA BANK
By:
-------------------------------------------
Name:
Title:
CORESTATES BANK, N.A.
By: /s/ Xxxxxxxxx X. Xxxxxx
-------------------------------------------
Title: Vice President
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THE FUJI BANK, LIMITED
By: /s/ Xxxxx X. Xxxxxxxx
-------------------------------------------
Title: Joint General Manager
LTCB TRUST COMPANY
By: /s/ Noborli Kubota
-------------------------------------------
Title: SVP
NATIONAL CITY BANK OF KENTUCKY,
as a Bank and an LC Issuing Bank
By: /s/ Xxxxx Xxxxx
-------------------------------------------
Title: Vice President
NBD BANK, N.A.
By: /s/ Xxxxx X. Xxxxxx
-------------------------------------------
Title: Authorized Agent
UNION BANK OF CALIFORNIA, N.A.
By: /s/ Xxxx Xxxxx
-------------------------------------------
Title: Vice President
AMSOUTH BANK OF ALABAMA
By: /s/ J. Xxx XxXxxxx
-------------------------------------------
Title: Commercial Banking Officer
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BANQUE PARIBAS
By: /s/ Xxxxxxx X. Xxxxxxxxx
-------------------------------------------
Title: Vice President
By: /s/ Xxxxx X. Xxxxxx
-------------------------------------------
Title: Group Vice President
FIRST UNION NATIONAL BANK OF
NORTH CAROLINA
By: /s/ Xxx X. Xxxx
-------------------------------------------
Title: Senior Vice President
U.S. BANK OF WASHINGTON, N.A.
By: /s/ Xxxxxx X. Xxxxxx
-------------------------------------------
Title: Vice President
CIBC, INC.
By: /s/ Xxxxxxx X. Xxxxx
-------------------------------------------
Title: Authorized Signatory
KREDIETBANK N.V.
By: /s/ Xxxxxx Xxxxxxxx
-------------------------------------------
Title: Vice President
By: /s/ Xxx X. Xxxxx
-------------------------------------------
Title: Vice President
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THE MITSUBISHI TRUST AND BANKING CORPORATION
By: /s/ Masaaki Yamorishi
-------------------------------------------
Title: Chief Manager
THE SAKURA BANK LIMITED
NEW YORK BRANCH
By: /s/ Xxxxxxxxx Xxxxxx
-------------------------------------------
Title: Vice President
SOCIETE GENERALE, CHICAGO BRANCH
By: /s/ C. Xxxxx Xxxxxxx
-------------------------------------------
Title: Assistant Treasurer
FIRST AMERICAN NATIONAL BANK
By: /s/ Xxxx X. Xxxx
-------------------------------------------
Title: AVP
BANK OF LOUISVILLE,
as a Bank and an LC Issuing Bank
By: /s/ Xxx X. Xxxxxxx, Xx.
-------------------------------------------
Title: Senior Vice President
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THE DAI-ICHI KANGYO BANK, LTD.
CHICAGO BRANCH
By: /s/ Xxxxx Xxxxxxxx
-------------------------------------------
Title: Vice President
FIFTH THIRD BANK
By: /s/ Xxxxxx X. Xxxxxxxx
-------------------------------------------
Title: Senior Vice President
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SCHEDULE I
Transitional Hospitals Corporation Letters of Credit
Expiry Estimated
LC # Date Beneficiary Account Party Relevant Facility Amount
---- ------ ----------- ------------- ----------------- ---------
208848 12/31/97 Liberty Mutual Ins. Co. Transitional Hospitals N/A $292,724.00
Corporation
213228 08/10/97 Arkansas Power & Light Co. Transitional Hospitals N/A $ 20,000.00
Corporation
213453 10/17/97 So. Western Electric Power Co. Transitional Hospitals N/A $ 25,000.00
Corporation
214487 12/31/97 Liberty Mutual Ins. Co. Transitional Hospitals N/A $105,017.00
Corporation
218924 12/31/97 Liberty Mutual Ins. Co. Transitional Hospitals N/A $176,000.00
Corporation
221019 07/28/97 Tampa Electric Co. Transitional Hospitals N/A $ 40,000.00
Corporation
3001940 10/15/98 Houston Lighting & Power THC Bay Area Inc. N/A $ 67,400.00
3001941 10/15/98 Houston Lighting & Power THC Houston Inc. N/A $ 27,000.00
