EXHIBIT 10.20
AMENDED AND RESTATED GUARANTEE REIMBURSEMENT AGREEMENT
AMENDED AND RESTATED GUARANTEE REIMBURSEMENT AGREEMENT dated as of
April 28, 1998 among VENCOR, INC., a Delaware corporation ("Vencor"), VENCOR
HEALTHCARE, INC., a Delaware corporation ("Healthcare"), and XXXXX HEALTHCARE
CORPORATION, INC., a Nevada corporation ("Tenet"). Vencor and Healthcare are
collectively referred to herein as "Guarantors," and each is sometimes referred
to herein as a Guarantor.
WHEREAS, on January 31, 1990, Tenet, then known as National Medical
Enterprises Inc., and The Hillhaven Corporation, a Nevada corporation that prior
thereto was a subsidiary of Tenet ("Hillhaven"), entered into a Guarantee
Reimbursement Agreement, dated as of the date thereof (which, together with all
amendments, is referred to herein as the "Guarantee and Reimbursement
Agreement"), in connection with the reorganization of certain of the businesses
theretofore conducted by Xxxxx'x long-term care group and the pro rata
distribution to Xxxxx'x shareholders of Hillhaven common stock;
WHEREAS, the Guarantee Reimbursement Agreement covered all debt,
lease, partnership, payment and other obligations described in Appendix A to the
Guarantee Reimbursement Agreement (said Appendix A is incorporated herein by
reference) (as such obligations, subsequent to January 31, 1990, have been
amended, modified, supplemented, expanded, terminated or reduced pursuant to the
various amendments to the Guarantee Reimbursement Agreement and/or satisfaction
of certain obligations by Vencor or its Subsidiaries, herein referred to as the
"Obligations");
WHEREAS, Hillhaven and Vencor entered into an Agreement and Plan of
Merger dated as of April 23, 1995 and as amended and restated as of July 31,
1995 (the "Merger Agreement"), providing for the merger of Hillhaven with and
into Vencor, in connection with which Vencor assumed Hillhaven's liabilities
under the Guarantee and Reimbursement Agreement;
WHEREAS, on April 27, 1998, Vencor received approval from its
stockholders of an Agreement and Plan of Reorganization (the "Agreement and Plan
of Reorganization"), pursuant to which among other things, Vencor will transfer
certain of its assets to Healthcare and will distribute to its stockholders all
of the common stock of Healthcare, and Vencor will change its name to Ventas,
Inc.; and
WHEREAS, to facilitate the transactions contemplated by the Agreement
and Plan of Reorganization and in order to reaffirm certain of Vencor's
obligations to Xxxxx under the Guarantee and Reimbursement Agreement, as assumed
by Vencor, and amend or delete certain other of Vencor's obligations thereunder,
including but not limited to the obligation to pay a guarantee fee, previously
contained in Section 2 of the Guarantee
Reimbursement Agreement, each of the Guarantors agrees to be a primary obligor
with respect to the obligations and liabilities under the Guarantee
Reimbursement Agreement;
NOW THEREFORE, for good and valuable consideration, the receipt,
sufficiency and adequacy of which is hereby acknowledged, the parties hereto
agree that the Guarantee Reimbursement Agreement shall be amended and restated
as follows:
1. Agreement to Reimburse Xxxxx for Payments of the Obligations.
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(a) Reimbursement. Guarantors agree, jointly and severally, that they shall
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reimburse Xxxxx, promptly on demand, for all Obligations paid by Xxxxx or its
subsidiaries on or after January 31, 1990 not theretofore reimbursed by
Guarantors. Payments and notices shall be made or given, as the case may be, in
accordance with the provisions of Sections 1(c), 2 and 7(b).
(b) Interest on Unpaid Reimbursements. Guarantors, jointly and severally,
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shall pay to Xxxxx interest on all payments of the Obligations by Xxxxx to the
extent that payment of such Obligations is not reimbursed by Guarantors on the
same day Xxxxx or its subsidiaries make such payments, such interest to accrue
from the date of each payment until reimbursement thereof has occurred in full,
on demand, at the maximum interest rate permitted by law. Interest payable shall
be computed on the basis of a 365 (or 366, as the case may be) day year for the
actual days elapsed.
(c) Payments. All payments due to Xxxxx hereunder shall be made in lawful
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currency of the United States in immediately available funds, by transfer, with
sufficient information to identify the source and application of funds, to such
account as Xxxxx may identify from time to time, or in such other manner or at
such other address as may be designated by Xxxxx in writing. In the event the
date specified for any payment hereunder is not a Business Day, such payment
shall be made on the next following Business Day and Interest shall be paid at
the rate provided for herein on any such payment to the Business Day on which
such payment is made.
(d) Duty to Pay Absolute. The duty of Guarantors to make any and all
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payments in the manner specified hereunder shall be joint and several,
unconditional, irrevocable and absolute, and all such payments shall be made
strictly in accordance with the terms hereof under all circumstances, including,
without limitation, the following:
(i) Any lack of validity or enforceability of the agreements pursuant
to which the Obligations were incurred, this Agreement, or any other
document, instrument or agreement relating thereto or hereto (including,
without limitation, any Assumption Agreements or any guarantees with
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respect to the Obligations) (sometimes hereinafter being referred to
collectively and severally as the "Related Documents");
(ii) Any change in the time, manner or place of payment of, or any
other term of, any or all of the Obligations;
(iii) Any release, amendment or waiver of, or any consent to or
departure from, any or all provisions of the Related Documents;
(iv) The existence of any claim, set-off, defense or other right
(including, but not limited to, right of contribution or similar right, if
any) which Guarantors may have at any time against Xxxxx, each other or any
other Person, whether in connection with a Related Document, a transaction
contemplated by a Related Document or any other transaction; and
(v) Any other circumstance which might otherwise constitute a defense
available to, or a discharge of, Guarantors, any Subsidiary or Xxxxx.
Guarantors hereby waive, to the fullest extent permitted by law, any right to
proceed or make a claim against Xxxxx arising out of Xxxxx'x payment of any
amount, whether or not any of the foregoing circumstances shall exist at any
time.
2. Notice of Certain Payment Defaults. Prepayments or Terminations of
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Assumed Leases.
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If either of Guarantors or any Subsidiary defaults in the payment of any
Obligation or prepays any Obligation, whether in whole or in part, or if any of
the Assumed Leases terminates, Guarantors shall give Xxxxx notice of such
payment default, prepayment or termination on the same day as the occurrence of
such payment default, prepayment or termination by telephonic notice confirmed
on the same day in writing or by telex or telecopy. Any confirmation in writing
provided pursuant to this Section 2 shall be provided in accordance with Section
7(b).
3. Affirmative Covenants.
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So long as Xxxxx or any subsidiary thereof remains obligated (either
directly or indirectly or as guarantor or otherwise) with respect to any
outstanding Obligations, or any amount is owing to Xxxxx hereunder, Guarantors
shall, unless otherwise consented in writing by Xxxxx:
(a) Financial Statements. Furnish to Xxxxx:
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(i) as soon as available, but in any event not later than 120 days
after the close of each fiscal year of
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each of Vencor and Healthcare, a copy of the audited consolidated balance
sheet of each of Vencor and Healthcare, and its respective Consolidated
Subsidiaries as at the end of such fiscal year, and related audited
consolidated statements of income, cash flows and changes in stockholders'
equity of each of Vencor and Healthcare and its respective Consolidated
Subsidiaries for such fiscal year, setting forth for each fiscal year
beginning with the fiscal year ending December 31, 1998, with respect to
each of such other financial statements in comparative form the
corresponding figures for the preceding fiscal year, all in reasonable
detail, prepared in accordance with GAAP applied on a basis consistently
maintained throughout the period involved and with the prior fiscal year,
except as disclosed therein, such consolidated financial statements
containing a report of Independent Certified Public Accountants (such
report not to be qualified or limited because of any restricted or limited
examination made by such accountants); and
(ii) a copy of each of the Guarantors' Quarterly Reports on Form 10-Q
at such time as it is furnished to such Guarantor's stockholders.
(b) Payment of Obligations and Liabilities. Pay and discharge, and cause
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the Subsidiaries to pay and discharge, at or before maturity, all their
respective obligations and liabilities, except (i) (other than with respect to
tax liabilities and obligations and liabilities under the Assumption Agreements,
the Assumed Leases and this Agreement, each of which shall be paid and
discharged on or before the due date thereof) where the failure to pay or
discharge, or to cause to be paid or discharged, would not in the aggregate have
material adverse effect on the business, operations, properties or financial or
other condition of Guarantors and the Subsidiaries, taken as a whole or (ii)
(other than with respect to obligations and liabilities under the Assumption
Agreements, the Assumed Leases and this Agreement, each of which shall be paid
and discharged on or before the due date thereof) where the same may be
contested in good faith, in which case Guarantors shall maintain, and cause the
Subsidiaries to maintain, in accordance with GAAP, appropriate reserves for the
accrual of any of the same.
(c) Maintenance of Properties; Insurance. Keep, and cause the Subsidiaries
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to keep, all properties useful and necessary in the business of Guarantors and
the Subsidiaries in good working order and condition, maintain, and cause the
Subsidiaries to maintain, with financially sound and reputable insurance
companies (which insurance companies may be, subject to the proviso below, part
of Guarantors' self-insurance program) insurance on all their properties in at
least such amounts and against at least such risks as are usually insured
against in the same general area and by companies engaged in the same or a
similar business and maintain professional liability and
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malpractice insurance against claims usually insured against by skilled nursing
and other long term care facilities and the personnel connected with such
facilities, provided that for professional liability and malpractice insurance
Guarantors shall not increase the deductible (or self-insured retention) to more
than $100,000 per claim, unless it is financially advantageous for Guarantors to
do so and such increase is approved in writing by Xxxxx, which approval shall
not be unreasonably withheld; and furnish to Xxxxx, upon request, full
information as to the insurance carried.
(d) Notice. Promptly give notice to Xxxxx (i) of the occurrence of any
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Default or Event of Default hereunder, (ii) of any default or event of default
under any material instrument or other agreement of either of the Guarantors or
any Subsidiary, (iii) of any litigation, proceeding, investigation or dispute
which may exist at any time between either of the Guarantors or any Subsidiary
and any governmental authority which might have a material adverse effect upon
the business, operations, assets or condition, financial or otherwise, of either
of the Guarantors and its Subsidiaries, taken as a whole, (iv) of all litigation
and proceedings affecting either of the Guarantors or any Subsidiary (A) in
which the amount involved is equal to at least 5% of Consolidated Net Worth of
such Guarantor at the time of the commencement, or at any time during the
continuance, of such litigation or proceeding and not fully covered by insurance
(other than self-insurance or insurance deductibles) or (B) in which injunctive
or similar relief is sought and which might have a material adverse effect on
such Guarantor and its Subsidiaries, taken as a whole, (v) as soon as possible
and in any event within 30 days after either Guarantor knows or has reason to
know that (A) any Reportable Event has occurred with respect to any Plan, (B) a
transaction prohibited under Section 4975 of the Code or Section 406 of ERISA
resulting in a material liability to such Guarantor, a Subsidiary or any Person
that Guarantors or a Subsidiary has an obligation to indemnify has occurred, (C)
a Plan has incurred an accumulated funding deficiency as described in Section
412 of the Code or Section 302 of ERISA, whether or not waived, (D) there has
been a failure to make contributions to a Plan which may give rise to a lien,
(E) there has been an amendment to a Plan which required the granting of a
security interest, (F) there has been a termination of a Plan or there are
proceedings which are likely to be or have been instituted to terminate a Plan
with unfunded benefit liabilities as described in Section 4001(a)(18) of ERISA
or unfunded retiree medical benefits, or (G) either of the Guarantors or a
Subsidiary (or any respective ERISA Affiliate has incurred liability under
Section 515 or Title IV of ERISA (including withdrawal liability) with respect
to a Plan, and deliver to Xxxxx a certificate of the Chief Financial Officer,
the President, an Executive Vice President or a Senior Vice President of either
of the Guarantors setting forth details as to such event and the action that
such Guarantor proposes to take with respect thereto, together with a copy of
any notices that may be required to be filed with the
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Internal Revenue Service, the PBGC or any other authority, or any notice
delivered by such authority, and (vi) immediately after the occurrence of a
material adverse change in the business, operations, assets or condition,
financial or otherwise, of either of the Guarantors and its Subsidiaries, taken
as a whole, and deliver to Xxxxx a certificate of the Chief Financial Officer,
the President, an Executive Vice President or a Senior Vice President of such
Guarantor setting forth the details of such change and what action such
Guarantor proposes to take with respect thereto. For all purposes of Section
3(a)(v), Guarantors shall be deemed to have all knowledge or knowledge of all
facts attributable to the administrator of any such Plan.
(e) Conduct of Business; Maintenance of Existence and Compliance With Law.
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Continue, and cause the Consolidated Subsidiaries of each Guarantor to continue,
to engage primarily in business of the same general type as now contemplated to
be conducted by such Guarantor and its Consolidated Subsidiaries, and preserve,
renew and keep in full force and effect their corporate existence and take all
reasonable action to maintain their rights, privileges and franchises necessary
or desirable in the normal conduct of business, provided that the foregoing
shall not be deemed to prohibit any actions expressly permitted under Section
3(e) hereof; comply, and cause each Subsidiary to comply, with all material
applicable laws, ordinances, rules, regulations and requirements of governmental
authorities (including without limitation ERISA and the rules and regulations
thereunder and Public Law 92-603), and hold and maintain, and at all times cause
each Subsidiary to hold and maintain, in full force and effect all
certifications, favorable governmental reviews, governmental approvals, licenses
and permits necessary or desirable to enable Guarantors and the Subsidiaries to
conduct their respective businesses as not contemplated to be conducted except
where the failure to comply therewith or hold and maintain such certifications,
favorable governmental reviews, governmental approvals, licenses or permits
would not, individually or in the aggregate, have a material adverse effect on
the business, operations, properties or financial or other condition of either
Guarantor and its Subsidiaries, taken as a whole, and except where compliance
with any such laws, ordinances, rules, regulations or requirements would cause
Guarantors or a Subsidiary to violate laws of the United States of America to
which such Guarantor or such Subsidiary is subject, notwithstanding the
foregoing, (i) a Subsidiary may reincorporate in another state or merge with or
into the Guarantor that is its parent or another Subsidiary wholly-owned by such
Guarantor or other Subsidiaries and (ii) Guarantors may reincorporate in another
state or merge with or into a Subsidiary wholly-owned by such Guarantor or other
Subsidiaries, provided that the successor corporation assumes in writing all the
obligations of such Guarantor hereunder and said successor corporation of such
obligations is effective and is fully binding upon and enforceable against such
successor corporation.
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(f) Books and Records. The Guarantors each agree to maintain complete and
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accurate books and records (specifically including, without limitation, the
originals or copies of documents supporting entries in the books of account) as
required by law. In addition, if (i) an Event of Default under this Agreement or
(ii) an event of default (as such term is defined therein) under any loan
agreement, credit facility or indenture having an outstanding balance of at
least $10,000,000, the effect of which is to cause the lender or creditor
thereunder to have a right of redemption or to accelerate the maturity of such
indebtedness, shall occur, and in the case of (i), continue for a period of 15
days, Xxxxx and its duly authorized representative shall have the right, during
normal business hours and upon reasonable notice, to examine and copy such books
and records and all other documents and materials in the possession of and under
the control of the Guarantors with respect to subject matter and terms of this
Agreement. Xxxxx shall (and shall cause its representative to) keep confidential
and shall not use or disclose, other than in connection with the enforcement of
its rights hereunder, any non-public information contained in any of such books
and records.
4. Negative Covenants.
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So long as Xxxxx or any subsidiary of Xxxxx remains obligated (either
directly or as guarantor or otherwise) with respect to any outstanding
Obligations, or any amount is owing to Xxxxx hereunder, Guarantors shall not,
unless otherwise consented to in writing by Xxxxx:
(a) Limitation of Fundamental Changes. Merge or consolidate with any other
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Person (except as expressly permitted by Section 3(e) hereof) unless, after
giving effect to such merger or consolidation, no Default or Event of Default
has occurred and is continuing, or liquidate or dissolve itself (or suffer any
liquidation or dissolution), or dispose of or lease or sell, or permit any
Subsidiary to dispose of or lease or sell, all or any substantial portion of its
properties, assets and business to any other Person, except that Guarantors or
any Subsidiary may lease, sell or otherwise dispose of all or any part of its
property, assets or business (including, without limitation, Stock) to any
Person, including, without limitation, a Guarantor or a Consolidated Subsidiary
for consideration at least equal to the fair market value of such properties,
assets or business (as determined by the Board of Directors of Guarantors in
good faith).
(b) Maintenance of Consolidated Net Worth. Permit at any time the Net Worth
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of the Guarantors (or any successors thereto) on a combined basis to be less
than $500 million. "Net Worth" shall mean, at a particular date, all amounts
which, in conformity with generally accepted accounting principles, would be
included under stockholders' equity on a consolidated balance
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sheet of each of the Guarantors and their consolidated subsidiaries, taken
together, at such date.
5. No Amendments or Waiver, etc. Except in Writing; Remedies Cumulative.
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No amendment or waiver of any provision of this Agreement shall in any
event be effective unless the same shall be in writing and signed by Xxxxx and
the Guarantors.
6. Indemnification.
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In addition to the amounts payable under Section 1, Guarantors hereby
agree, jointly and severally, to protect, indemnify, pay and save Xxxxx harmless
from and against any and all claims, demands, liabilities, damages, losses,
costs, charges and expenses (including reasonable attorneys' fees) which Xxxxx
incurs or becomes subject to as a consequence, direct or indirect, of (i) any
breach by either of the Guarantors of any covenant, term or condition in, or the
occurrence of any Default or Event of Default under, this Agreement, together
with all expenses resulting from the compromise or defense of any claims or
liabilities arising as a result of any such breach, Default or Event of Default
and (ii) defense against any legal action commenced to challenge this Agreement,
all to the extent not caused or incurred as a result of the gross negligence or
willful misconduct of Xxxxx.
The obligations of Guarantors under this Section 6 shall survive the
termination of this Agreement.
7. Miscellaneous.
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(a) Binding Effect; Assignment. This Agreement is a continuing obligation
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and shall be binding upon and inure to the benefit of and be enforceable by
Xxxxx and Guarantors and their respective successors, transferees and assigns,
provided that Guarantors may not transfer or assign all or any part of this
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Agreement without the prior written consent of Xxxxx.
(b) Notices. All notices, consents, requests, instructions, approvals and
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other communications hereunder shall be in writing and shall be deemed to have
been duly given, if delivered in person or by courier, telegraphed, telexed or
sent by facsimile transmission or mailed, by certified or registered mail,
postage prepaid at the following address (or at such other address provided by
one party to the other in writing):
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If to Tenet:
Xxxxx Healthcare Corporation
c/o Tenet Health Systems
00000 Xxxxxx Xxxxxxx
Xxxxxx, XX 00000
Telecopy no.: (000) 000-0000
Attention: Controller
with a copy to:
Xxxxx Healthcare Corporation
0000 Xxxxx Xxxxxx
Xxxxx Xxxxxxx, XX 00000
Xxxxx Xxxxxx, Xxxxxxxxxx 00000
Telecopy no.: (000) 000-0000
Attention: General Counsel
If to Vencor:
Vencor Healthcare, Inc.
0000 Xxxxx Xxxxxx
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Telecopy no.: (000) 000-0000
Attention: President
If to Healthcare:
Vencor Healthcare, Inc.
0000 Xxxxx Xxxxxx
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Telecopy no.: (000) 000-0000
Attention: President
(c) Counterparts. This Agreement may be executed in several counterparts,
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each of which shall be deemed an original, but such counterparts shall together
constitute but one and the same instrument.
(d) Governing Law. This Agreement shall be governed by and construed in
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accordance with the laws of the State of California.
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(e) Construction. In this Agreement:
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(i) Unless the context otherwise requires, the terms "herein,"
"hereof," and "hereunder" refer to this Agreement;
(ii) the headings of the sections and subsections hereof and the table
of contents hereof are inserted for convenience only and do not constitute
a part of this Agreement; and
(iii) all references to the Assumption Agreements and the Assumed
Leases shall refer to such agreements as the same have been, and hereafter
may be amended, supplemented or modified from time to time.
8. Definitions.
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The terms defined in this Section (unless the context otherwise
requires) for all purposes of this Agreement shall have the respective meanings
specified in this Section.
"Affiliate": as to any Person, any Person directly or indirectly
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controlling, controlled by or under common control with such Person, whether
through the ownership of voting securities, by contract or otherwise.
"Agreement": this Amended and Restated Guarantee Reimbursement
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Agreement, as the same may be amended, supplemented or modified from time to
time.
"Assumed Leases": mean those leases the obligations under which were
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assumed by Vencor or its predecessor or a subsidiary thereof and which
theretofore had been the obligations of Xxxxx and/or certain subsidiaries of
Xxxxx, as either a tenant or a guarantor.
"Assumption Agreements": the various Assignment and Assumption of
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Lease Agreements dated on or prior to January 31, 1990, or subsequent thereto,
between Xxxxx and/or certain of Xxxxx subsidiaries, on the one hand, and certain
Subsidiaries, on the other hand, each together with the related Guaranty of
Lease.
"Business Day": a day other than a Saturday, Sunday or other day on
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which commercial banks in the City of Los Angeles, the State of California are
authorized or required by law to close.
"Consolidated Subsidiaries": all Subsidiaries of a Guarantor, the
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accounts of which have been, or which in accordance with GAAP should be,
consolidated with the accounts of such Guarantor on a consolidated balance sheet
of such Guarantor.
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"Counsel for Guarantors": at any particular date, such counsel, who
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may be the General Counsel or Assistant General Counsel of Guarantors at such
date, as may be selected by Guarantors.
"Default": any of the events specified in Section 9, whether or not
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any requirement for the giving of notice, the lapse of time, or both, has been
satisfied.
"$": dollars in lawful currency of the United States of America.
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"ERISA": the Employee Retirement Income Security Act of 1974, as the
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same may be amended, supplemented or modified from time to time.
"ERISA Affiliate": each trade or business (whether or not
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incorporated) which together with Guarantors or a Subsidiary would be deemed to
be a "single employer" within the meaning of Section 4001 of ERISA or under
subsection (b), (c), (m) or (o) of Section 414 of the Code.
"Event of Default": any of the events specified in Section 9 hereof,
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provided that any requirement for the giving of notice, lapse of time, or both,
or any other condition, has been satisfied.
"GAAP": generally accepted accounting principles as in effect from
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time to time in the United States of America.
"Independent Certified Public Accountants": a firm of independent
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accountants which is known as one of the "big Six" accounting firms, selected by
Guarantors.
"PBGC": the Pension Benefit Guaranty Corporation established pursuant
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to Subtitle A of Title IV of ERISA.
"Person": an individual, partnership, corporation, business trust,
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joint stock company, truck, unincorporated association, joint venture or other
entity or a government or any agency or political subdivision thereof.
"Plan": any employee benefit plan described in Section 3(2) of ERISA
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established or maintained by Guarantors or a Subsidiary in respect of which
Guarantors or a commonly controlled entity is an "employer" as defined in
Section 3(5) of ERISA or with respect to which Guarantors, a subsidiary or a
commonly controlled entity has an obligation to contribute.
"Reportable Event": any of the events set forth in Section 4043(b) of
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ERISA or the regulations thereunder.
"Stock": the meaning assigned to the term 'margin stock' in
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subsection 221.2(h) of Regulation U of the Board of
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Governors of the Federal Reserve System, as the same may be amended,
supplemented or modified from time to time.
"Subsidiary": any corporation of which more than 50% of the
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outstanding shares of stock having ordinary voting power to elect a majority of
the board of directors (other than stock having such power only by reason of the
happening of a contingency) is at the time owned by either of the Guarantors or
by one or more of its subsidiaries or by such Guarantor and one or more of its
subsidiaries.
9. Event of Default. An Event of Default shall mean any of the
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following: (a) any failure by either Guarantor to pay any amount payable under
this Agreement when due and payable, or any failure of Guarantor or any
Subsidiary to pay any other amount when due with respect to any of the
Obligations as and when due or within any applicable cure period; (b) the
failure by either Guarantor to observe or perform any of its obligations
hereunder, which failure shall continue unremedied for a period of 30 days after
its receipt of written notice of such failure from Xxxxx; (c) the failure of any
representation or warranty made or deemed to be made by either Guarantor
hereunder (including in any financial statements or documents provided pursuant
to this Agreement) to be true and correct as of the date made or deemed to be
made; (d) the entry by a court having jurisdiction over a Guarantor of a decree
of order for relief in respect of such Guarantor in an involuntary case of
proceeding under any applicable federal or state bankruptcy, insolvency,
reorganization, rehabilitation or other similar law; or (e) the commencement by
any Guarantor or third party of a voluntary case or proceeding under any
applicable federal or state bankruptcy, insolvency, reorganization or other
similar law or of any other case or proceeding to be adjudicated a bankrupt or
insolvent, or the consent by any Guarantor to the entry of a decree or order for
relief in an involuntary case or proceeding under any applicable federal or
state bankruptcy, insolvency, reorganization or other similar law or to the
commencement of any bankruptcy or insolvency case or proceeding against it. If
an Event of Default occurs (i) Xxxxx, by notice to the Guarantors, may declare
any or all amounts payable by the Guarantors under this Agreement to be due and
payable forthwith, whereupon the same shall immediately become due and payable,
without presentment, demand, protest, or other notice of any kind, or right of
offset, all of which are expressly waived, anything contained herein to the
contrary notwithstanding; provided that no payment by a Guarantor pursuant to
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this Section 9 shall relieve either Guarantor from making any and all
future payments pursuant to this Agreement when due and payable under this
Agreement, and (ii) the party that did not default will have such remedy as is
available under laws and regulations relating thereto. Notwithstanding the
foregoing, none of the foregoing events shall be deemed an Event of Default
hereunder to the extent (and during the time period) Xxxxx has provided a
written waiver thereof pursuant hereto.
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IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the date first written above.
VENCOR, INC.
By: /s/ Xxxx X. Force
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Name: Xxxx X. Force
Title: Vice President
VENCOR HEALTHCARE, INC.
By: /s/ Xxxx X. Force
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Name: Xxxx X. Force
Title: Vice President
XXXXX HEALTHCARE CORPORATION
By: /s/ X.X. Xxxxx
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Name: Xxxxxxxx X. Xxxxx
Title: Vice President
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