EXHIBIT 10.2
AMENDMENT XX. 0
XXXXXXXXX Xx. 0 (this "Amendment") dated as of November 28, 2001, under
the $120,000,000 Credit Agreement dated as of April 20, 2001 (the "Credit
Agreement") among KINDRED HEALTHCARE OPERATING, INC. (formerly named Vencor
Operating, Inc.) (the "Borrower"), KINDRED HEALTHCARE, INC. (formerly named
Vencor, Inc.) ("Kindred"), the LENDERS, SWINGLINE BANK AND LC ISSUING BANKS
party thereto (collectively, "Lenders"), JPMORGAN CHASE BANK (formerly named
Xxxxxx Guaranty Trust Company of New York), as Administrative Agent and
Collateral Agent, and GENERAL ELECTRIC CAPITAL CORPORATION, as Documentation
Agent and Collateral Monitoring Agent.
W I T N E S S E T H:
WHEREAS, the parties hereto desire to amend the Credit Agreement to (i)
permit the Borrower from time to time to apply certain excess cash to prepay
loans outstanding under the Senior Secured Credit Agreement (such term and other
capitalized terms used in this Amendment without definition having the meanings
set forth in Section 1), (ii) extend the time to comply with the provisions of
the Encumbrance Letter and (iii) provide that compliance by Kindred and the
Borrower with the provisions of the Encumbrance Letter shall be sufficient to
satisfy the requirements of Section 5.14(d)(i) of the Credit Agreement, in each
case, subject to the terms and conditions set forth below; and
WHEREAS, the parties hereto desire to amend the Encumbrance Letter
subject to the terms and conditions set forth below;
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. The following definitions are inserted in
appropriate alphabetical order in Section 1.01 of the Credit Agreement:
"Excess Cash" means, with respect to any Fiscal Quarter, the amount by
which (i) (a) the aggregate cash balances of the Borrower and its Restricted
Subsidiaries (excluding any Reinvestable Proceeds deposited in a Collateral
Account or Senior Secured Collateral Account pursuant to Section 2.11(a)) as of
the last Business Day of
such Fiscal Quarter (as reflected in the Borrower's consolidated balance sheet
as at the end of such Fiscal Quarter and consistent with the Borrower's
historical cash management practices) less (b) any amounts required by Section
2.11(e)(iii) to be applied towards prepayment of Loans and Swingline Loans on
account of such aggregate cash balances exceeds (ii) $56,000,000.
"Excess Cash Prepayment" means, at any time, any optional prepayment by
the Borrower of loans under the Senior Secured Credit Agreement so long as (i)
such prepayment is made within 60 days of the end of a Fiscal Quarter or, in the
case of any prepayment relating to the Fiscal Quarter ended September 30, 2001,
by no later than December 31, 2001, (ii) such prepayment is in an aggregate
amount (including principal and accrued interest on the principal amount repaid
to the date of prepayment) not exceeding the Excess Cash determined with respect
to such Fiscal Quarter, (iii) at least five days prior to making such
prepayment, the Borrower shall have delivered to the Administrative Agent a
certificate of a Financial Officer setting forth the proposed amount of such
prepayment and stating that in such Financial Officer's best judgement (as
supported by cash flow and borrowing projections (and underlying assumptions)
set forth in reasonable detail in an attachment to such certificate), such
Financial Officer believes that making such prepayment has not resulted and will
not result in the Borrower making or needing to make Borrowings during the then
current Fiscal Quarter in an amount materially greater or at a time materially
earlier than the amounts and times such Financial Officer anticipated Borrowings
would have been made had no such prepayment been made and (iv) on the date on
which such prepayment is proposed to be made, no Loans or Swingline Loans shall
be outstanding.
Section 3. Voluntary Prepayments of Debt under the Senior Secured
Credit Agreement. Section 7.15 of the Credit Agreement is hereby amended by
inserting the following words at the end thereof:
"; provided further that, unless a Default shall have occurred and be
continuing, this Section will not apply to any Excess Cash Prepayment."
Section 4. Encumbrance Letter. (a) The various time periods set forth
in the Encumbrance Letter are hereby extended to February 28, 2002.
(b) (i) The undersigned Lenders hereby authorize the Collateral Agent,
in its sole discretion and from time to time, as contemplated by the Encumbrance
Letter, to waive compliance with the requirement that Kindred or the Borrower
remove or contest certain of the Liens or other defects listed in the schedule
attached to the Encumbrance Letter.
(ii) The undersigned Lenders confirm and agree, without
limiting the generality of Section 9.05 of the Credit Agreement, that
in the absence of gross negligence or willful misconduct, the
Collateral Agent shall not be liable to any Lender on account of
granting any such waiver and any consequences thereof.
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(c) Clause (g) of the definition of "Permitted Encumbrances" is hereby
amended by deleting the word "removed" and replacing in substitution therefor
the words "removed, insured over by First American Title Insurance Company,
waived".
(d) Section 5.14(d)(i) of the Credit Agreement is hereby amended to
read as follows:
"Vencor shall comply with the provisions of the Encumbrance Letter, as
such provisions may be amended or waived from time to time."
Section 5. Representations Correct; No Default. Kindred and the
Borrower each represents and warrants that (i) the representations and
warranties contained in the Financing Documents are true as though made on and
as of the date hereof and will be true on and as of the Amendment Effective Date
(as defined below) as though made on and as of such date and (ii) no Default has
occurred and is continuing on the date hereof and no Default will occur or be
continuing on the Amendment Effective Date.
Section 6. Counterparts; Effectiveness. (a) This Amendment may be
signed in any number of counterparts, each of which shall be an original, with
the same effect as if the signatures thereto and hereto were upon the same
instrument.
(b) This Amendment shall become effective as of the date hereof on the
date (the "Amendment Effective Date") when the Administrative Agent shall have
received duly executed counterparts hereof signed by Kindred, the Borrower and
the Required Lenders (or, in the case of any Lender as to which an executed
counterpart shall not have been received, the Administrative Agent shall have
received telegraphic, telex or other written confirmation from such party of
execution of a counterpart hereof by such Lender).
(c) No later than the first Business Day after the Fee Determination
Date (as defined below), the Borrower shall pay the Administrative Agent, in
immediately available funds for the account of each Lender that has evidenced
its agreement hereto as provided in Section 6(b) by 5:00 P.M. (New York City
time) on the later of (i) November 29, 2001 and (ii) the date the Administrative
Agent issues a notice to the Lenders saying this Amendment has become effective
(such later date, the "Fee Determination Date"), an amendment fee in an amount
equal to 0.05% of such Lender's Commitment (as in effect on the opening of
business on the date of this Amendment).
(d) Except as expressly set forth herein, the waivers and amendments
contained herein shall not constitute a waiver or amendment of any term or
condition of the Credit Agreement or any other Financing Document, and all such
terms and conditions shall remain in full force and effect and are hereby
ratified and confirmed in all respects.
Section 7. Governing Law. THIS AMENDMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed by their respective authorized officers as of the day and year
first above written.
KINDRED HEALTHCARE OPERATING, INC.
By:/s/ Xxxxxxx X. Xxxxxxxxxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxxxxxxxxx
Title: Senior Vice President and Chief
Financial Officer
KINDRED HEALTHCARE, INC.
By:/s/ Xxxxxxx X. Xxxxxxxxxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxxxxxxxxx
Title: Senior Vice President and Chief
Financial Officer
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LENDERS
JPMORGAN CHASE BANK
By:/s/ Houston X. Xxxxxxxx
----------------------------------
Name: Houston X. Xxxxxxxx
Title: Managing Director
GENERAL ELECTRIC CAPITAL
CORPORATION
By:/s/ Xxxxx X. Xxxxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Duly Authorized Signatory
XXXXXXX, XXXXX CREDIT PARTNER, L.P.
By:/s/ Xxxxxx X. Xxxxxxx
---------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Managing Director
CREDIT LYONNAIS NEW YORK BRANCH
By:/s/ Xxxx-Xxxxxxx Van Essche
----------------------------------
Name: Xxxx-Xxxxxxx Van Essche
Title: Vice President
FOOTHILLL INCOME TRUST II, L.P.
By:/s/ M.E. Xxxxxxx
----------------------------------
Name: M.E. Xxxxxxx
Title: Senior Vice President
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