Exhibit 10.2
WAIVER NO. 5
Waiver No. 5 (this Waiver No. 5) dated as of August 27, 1999, under the
$1,000,000,000 Credit Agreement dated as of April 29, 1998 (as heretofore
amended, the Credit Agreement) among VENCOR OPERATING, INC., VENCOR, INC.
(formerly named Vencor Healthcare, Inc.), the LENDERS, SWINGLINE BANK AND LC
ISSUING BANKS party thereto, the SENIOR MANAGING AGENTS, MANAGING AGENTS AND CO-
AGENTS party thereto and ▇▇▇▇▇▇ GUARANTY TRUST COMPANY OF NEW YORK, as
Documentation Agent and Collateral Agent, and NATIONSBANK, N.A., as
Administrative Agent.
W I T N E S S E T H:
WHEREAS, Vencor has advised the Lender Parties that due to its recent
results of operations and current financial condition it needs an extension of
certain waivers under the Credit Agreement granted in (a) the Waiver dated
January 29, 1999 by the Lenders party thereto (hereinafter Waiver No. 1), (b)
the Waiver dated as of March 31, 1999 by the Lenders party thereto (hereinafter
Waiver No. 2), (c) the Waiver dated as of May 28, 1999 by the Lenders party
thereto (hereinafter Waiver No. 3) and (d) the Waiver dated as of July 30, 1999
by the Lenders party thereto (hereinafter Waiver No. 4 and together with Waiver
No. 1, Waiver No. 2 and Waiver No. 3, the Prior Waivers), and, subject to the
terms and conditions hereof, the Lenders party hereto are willing to extend such
waivers under the Credit Agreement under the terms more fully set forth herein.
NOW, THEREFORE, the parties hereto agree as follows:
Section 1. Definitions. Unless otherwise specifically defined herein,
each term used herein that is defined in the Credit Agreement shall have the
meaning assigned to such term in the Credit Agreement. As used herein, the
following additional terms have the following meanings:
"Disclosure Materials" means (a) the March 10 Meeting Materials, (b) the
May 20 Meeting Materials, (c) the July 20 Meeting Materials, (d) Vencor's Annual
Report on Form 10-K for 1998 (the 1998 10-K), (e) Vencor's Quarterly Report on
Form 10-Q for the first quarter of
1999 (the 1st Quarter 10-Q), and (f) Vencor's Quarterly Report on Form 10-Q for
the second quarter of 1999 (the 2nd Quarter 10-Q).
"Freeze Period" means any period during which:
(a) any Vencor Company has failed to pay any rent or other sum
payable to a Ventas Company under any Master Lease Agreement when the same
became due and payable and any Ventas Company has given any Vencor Company a
notice pursuant to Section 16.1(b) of such Master Lease Agreement demanding
payment thereof, and by 11:30 A.M. on the fifth day after such notice none of
the following circumstances exists: (i) such rent or other sum has been paid in
full, (ii) a stay of any termination or notice of termination of such Master
Lease Agreement is in effect by order of a court or arbitral authority or (iii)
the relevant Ventas Company has agreed in writing to withdraw its demand for
payment or to a standstill, tolling or other suspension of its rights to give a
notice of termination of such Master Lease Agreement, provided that if a Freeze
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Period does not exist on account of either clause (ii) or (iii), a Freeze Period
shall nonetheless subsequently and immediately exist if (A) any such stay
expires or is withdrawn or (B) any such withdrawal, standstill or other
suspension by its terms ceases to be in effect or otherwise terminates, as the
case may be; or
(b) any Ventas Company has given a notice to any Vencor Company
pursuant to the penultimate sentence of Section 16.1 of any Master Lease
Agreement terminating such Master Lease Agreement, for so long as none of the
following circumstances exists: (i) each event of default under such Master
Lease Agreement upon the basis of which such notice was given has been cured and
the relevant Ventas Company has confirmed in writing that such notice is no
longer effective and that such Master Lease Agreement will not be terminated on
account of such notice, (ii) a stay of any termination of such Master Lease
Agreement is in effect by order of a court or arbitral authority or (iii) the
relevant Ventas Company has agreed in writing to withdraw such notice or to a
standstill, tolling or other suspension of the period of time fixed in such
notice, provided that if a Freeze Period does not exist on account of either
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clause (ii) or (iii), a Freeze Period shall nonetheless subsequently and
immediately exist if (A) any such stay expires or is withdrawn or (B) any such
withdrawal, standstill, tolling or other suspension by its terms ceases to be in
effect or otherwise terminates; or
(c) the obligor of any Medicaid Receivable, Medicare Receivable or VA
Receivable (or any agent thereof) collects a payment of any PPS Overpayment
Amount by
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exercising a right of set-off or recoupment (or any similar right) against its
obligations on account of any such Receivable or, on account of any demand by
such an obligor or agent for payment by a date certain of any PPS Overpayment
Amount (after giving effect to any negotiations with such obligor or agent prior
to such date certain), any Vencor Company pays or will be, on the day following
any date of determination, obligated to pay any PPS Overpayment Amount, and the
cumulative amount of all PPS Overpayment Amounts so collected by exercise of the
right of set-off, recoupment or similar right from or paid by the Vencor
Companies, in the aggregate, or that the Vencor Companies, in the aggregate, are
obligated to pay during the period from March 10, 1999 to the date of
determination (without duplication but including in all cases any amounts paid
or payable pursuant to the April 21, 1999 letter from Mutual of Omaha Insurance
Company (the MOIC Letter)) exceeds $10,000,000; or
(d) the trustee under the 1998 Subordinated Note Indenture or Persons
purporting to constitute the holders of at least 25% of the outstanding 1998
Subordinated Notes give notice accelerating the maturity of the 1998
Subordinated Notes or such trustee or Persons purporting to be the holders of
10% or more of the principal amount of the 1998 Subordinated Notes commence
legal proceedings to collect any unpaid amount of principal of or interest on
the 1998 Subordinated Notes and in any such case the Required Basic Lenders
determine (which they may do in their sole and absolute discretion) that a
Freeze Period is to exist, provided that any such determination may be
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successively rescinded or re-instated by a subsequent determination of the
Required Basic Lenders (who need not be the same Basic Lenders and who may do so
in their sole and absolute discretion).
"Lease Accounting Issue" means the circumstance that, in the absence of
an amendment to the Master Lease Agreements of the nature described in the last
sentence of Section 2(a), under generally accepted accounting principles, the
Master Lease Agreements should have been treated as capital leases in the
preparation of Vencor's financial statements as a consequence of the provisions
in Section 16.4 thereof.
"March 10 Meeting Materials" means the written materials prepared by
or on behalf of Vencor and distributed to the Persons attending the lender
meeting held by Vencor on March 10, 1999 at such meeting.
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"May 20 Meeting Materials" means the written materials prepared by or
on behalf of Vencor and distributed to the Persons attending the lender meeting
held by Vencor on May 20, 1999 at such meeting.
"July 20 Meeting Materials" means the written materials prepared by or
on behalf of Vencor and distributed to the Persons attending the lender meeting
held by Vencor on July 20, 1999 at such meeting.
"PPS Overpayment Amount" means any amount that constitutes a liability
of a Vencor Company to a federal or state governmental authority on account of
hospital and skilled nursing facility PIP overpayments made to it, as described
in the March 10 Meeting Materials (but including amounts accrued after December
31, 1998).
Section 2. Certain Waivers. (a) The Lenders hereby waive (including for
purposes of Section 9.02 of the Credit Agreement but, in the case of clauses
(iv) and (v), subject to Section 9) any Default that:
(i) may have occurred or occurs as a result of Vencor failing to be in
compliance with the provisions of Article 6 of the Credit Agreement;
(ii) occurs as a result of any Vencor Company failing to pay any rent or
other sum payable to any Ventas Company under or pursuant to the terms of
any Master Lease Agreement when the same becomes due and payable;
(iii) occurred as a result of the Borrower's failure to make the interest
payment on the 1998 Subordinated Notes due on May 1,1999 (including by way
of an Event of Default described in clause (h) of Section 9.03 of the
Credit Agreement, but not including an Event of Default arising under
clause (p) of Section 9.02 of the Credit Agreement on account of the
Facility B Loans having been declared immediately due and payable, even if
such acceleration is based solely or in part on such failure to pay);
(iv) may have occurred as a result of the Borrower at any time prior to
the date hereof having made or been deemed to have made the representation
and warranty set forth in Section 4.05(d) of the Credit Agreement without
qualification by reference to the circumstances described in any of the
Disclosure Materials and the Lease Accounting Issue;
(v) may have occurred as a result of the Borrower at any time prior to
the date hereof having made or been deemed to have made the representations
and warranties set
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forth in Sections 4.05(b), 4.05(c), 4.06, 4.09 and 4.14 and such
representations and warranties, in light of the circumstances described in
any of the Disclosure Materials or the Lease Accounting Issue, having been
incorrect in material respects when made or deemed made; and
(vi) occurs by reason of Vencor failing timely to deliver any financial
statements or related certificates pursuant to Section 5.01 of the Credit
Agreement.
The Lenders also agree that any amendment of any Master Lease Agreement to
delete Section 16.4 thereof would not constitute a violation of Section 7.11(b)
of the Credit Agreement.
(b) The foregoing waivers shall be effective solely during the period
ending 5:00 P.M. (Eastern time) on September 24, 1999 (the Waiver Period).
Section 3. Revolving Credit Facility (a) The Revolving Credit Commitments
were permanently ratably reduced to an aggregate amount of $125,000,000 pursuant
to Waiver No. 2 and were further permanently ratably reduced to an aggregate
amount of $80,000,000 pursuant to Waiver No. 3.
(b) The maximum Aggregate LC Exposure set forth in Section 2.07(b)(i) of
the Credit Agreement was permanently reduced to $30,000,000 pursuant to Waiver
No. 2. In addition to the limit on expiry dates set forth in Section 2.07(c) of
the Credit Agreement, no Letter of Credit issued or extended during the Waiver
Period shall have an expiry date when issued or so extended later than one year
from the date of issuance or the expiry date in effect immediately prior to such
extension, as the case may be.
(c) The requirements of clause (d) of Section 3.02 of the Credit Agreement
are hereby waived during the Waiver Period to the limited extent that (i) the
representation and warranty set forth in Section 4.05(d) is not true solely on
account of the circumstances described in any of the Disclosure Materials or the
Lease Accounting Issue or (ii) the representations and warranties set forth in
Sections 4.05(b), 4.05(c), 4.06, 4.09 and 4.14, in light of the circumstances
described in any of the Disclosure Materials or the Lease Accounting Issue, are
incorrect in material respects, and any representation or warranty made or
deemed made by the Borrower on or after the date hereof during the Waiver Period
pursuant to Section 3.02 of the Credit Agreement shall be deemed qualified to
such extent.
Section 4. Borrowings. (a) The Borrower agrees that during the period
from the date hereof until 5:30 P.M. (New York City time) on September 24, 1999,
it will not give any Notice
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of Borrowing for Swingline Loans or Revolving Credit Loans in an amount in
excess of its actual cash needs in the ordinary course of business (net of other
sources of funds available or expected to be available to it, including previous
Borrowings) during the three-day period beginning with the related date of
Borrowing, for amounts it actually intends to pay and determined consistent with
the Borrowers historical cash management practices (it being agreed that such
practices may need to take into account any changes in funds availability made
by the Vencor Companies cash management banks as a result of Vencor's current
financial condition), as certified in reasonable detail (including a breakdown
by category of the expenses or other amounts to be paid during such periods) by
the Borrower's Chief Financial Officer or Treasurer in a certificate
accompanying such Notice of Borrowing, provided that:
(i) if the amount so determined is less than $1,000,000, such Borrowing
may be in the amount of $1,000,000;
(ii) the Borrower will not make any Borrowing for the purpose of making
payment of any rent or other sum payable to any Ventas Company under a
Master Lease Agreement except on the date a Vencor Company is actually
going to make such payment (as certified by the Borrower's Chief Financial
Officer or Treasurer in the certificate accompanying the related Notice of
Borrowing), and the requirement to make any such payment shall be
disregarded when determining the Borrower's actual cash needs on any day
prior to such day;
(iii) the maximum amount of Swingline Borrowings and Revolving Credit
Borrowings and Aggregate LC Exposure that may be outstanding during the
Waiver Period may not exceed $55,000,000 (determined without including the
Aggregate LC Exposure on account of Letters of Credit outstanding on the
date of Waiver No. 1 (and any extensions or concurrent replacements thereof
that do not increase the amount thereof)); and
(iv) during any Freeze Period, the Borrower will not give any Notice of
Borrowing or request the issuance of any Additional Letter of Credit other
than for purposes of extending or concurrently replacing, without any
increase in the amount thereof, any Letter of Credit that was outstanding
on the date of Waiver No. 1 (or any previous extension or concurrent
replacement thereof), and during any Freeze Period neither the Revolving
Credit Lenders nor the Swingline Bank nor any LC Issuing Bank
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shall have any obligation to fund any Borrowing or issue any Additional
Letter of Credit (other than as so qualified) (whether or not the related
Notice of Borrowing or notice of issuance was given before or during such
Freeze Period), provided that the foregoing does not affect the rights of
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the Swingline Bank and the obligations of the Revolving Credit Lenders
under Section 2.08(i) of the Credit Agreement.
(b) The Borrower further agrees that:
(i) all Borrowings made pursuant to this Section 4 shall be made
and remain outstanding solely as Base Rate Borrowings;
(ii) any Notice of Borrowing for a Borrowing of Revolving Credit
Loans during the Waiver Period shall be given not later than Noon (Eastern
time) on the date of such Borrowing and any Notice of Swingline Borrowing
during the Wavier Period shall be given not later than 1:00 P.M. (Eastern
time) on the date of the related Swingline Borrowing;
(iii) during the Waiver Period and at any time thereafter when any
Default has occurred and is continuing, the Applicable Margin, LC Fee Rate
and Commitment Fee Rate shall always be determined as if Level IX were
applicable, regardless of the actual Leverage Ratio;
(iv) during the Waiver Period and at any time thereafter when any
Default has occurred and is continuing, interest on all Base Rate Loans
shall be payable on the 22nd day of each month rather than quarterly and
letter of credit fees payable pursuant to Section 2.07(h) of the Credit
Agreement and commitment fees payable pursuant to Section 2.09 of the
Credit Agreement shall be payable on the 22nd day of each month instead of
quarterly (and on each other date specified in the applicable section); and
(v) during the Waiver Period and at any time thereafter when any
Default has occurred and is continuing, the Borrower may not elect any
Interest Period for a Fixed Rate Loan pursuant to Section 2.06 other than
one month or 30 days, as the case may be.
(c) The provisions of Section 4(a) (and for purposes thereof, of any
defined term used therein) may not be amended, waived, supplemented or modified
in any respect without the written consent of Lenders having outstanding
Revolving Credit Exposures and/or outstanding Facility A Loans in an aggregate
amount (excluding accrued interest) equal to at
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least 75% of the sum of (x) the aggregate amount of the Revolving Credit
Exposures at such time and (y) the aggregate outstanding principal amount of
Facility A Loans at such time.
SECTION 5. Additional Convenants. Each of Vencor and the Borrower agrees
that, so long as any Lender has any Credit Exposure under the Credit Agreement
or any interest or fee accrued thereunder remains unpaid:
(a) Vencor will deliver the following information to the
Administrative Agent:
(i) notice by facsimile immediately, and in any event on the same
day, if any Vencor Company either pays or fails to pay any rent or
other amount payable to any Ventas Company under any Master Lease
Agreement when due (without regard for any grace period);
(ii) notice by facsimile immediately, and in any event on the same
day, if the Borrower either makes or fails to make any payment of
principal of or interest on the 1998 Subordinated Notes when due
(without regard for any grace period);
(iii) notice by facsimile promptly, and in any event on the same day,
of receipt from any Ventas Company of (1) a notice pursuant to Section
16.1(b) of any Master Lease Agreement demanding payment of any rent or
other sum payable under such Master Lease Agreement that was not paid
when due, or (2) a notice pursuant to the penultimate sentence of
Section 16.1 of any Master Lease Agreement terminating such Master
Lease Agreement, in each case together with a copy of such notice;
(iv) notice by facsimile promptly, and in any event on the same day,
of receipt from the trustee under the 1998 Subordinated Note Indenture
or Persons purporting to constitute the holders of at least 25% of the
outstanding 1998 Subordinated Notes of notice accelerating the maturity
of the 1998 Subordinated Notes, together with a copy of such notice, or
of knowledge that such trustee or Persons purporting to be the holders
of 10% or more of the principal amount of the 1998 Notes have commenced
legal proceedings to collect any unpaid amount of principal of or
interest on the 1998 Subordinated Notes;
(v) notice by facsimile promptly, and in any event on the same day,
of (1) receiving notice or otherwise becoming aware that the obligor of
any Medicaid Receivable, Medicare Receivable or VA Receivable (or any
agent thereof) has
8
collected a payment of any PPS Overpayment Amount by exercising a
right of set-off or recoupment (or any similar right) against its
obligations on account of such Receivable, (2) receipt of a demand by
such an obligor or agent for payment by a date certain of any PPS
Overpayment Amount or (3) making of a payment pursuant to the MOIC
Letter, specifying the amount of such payment so collected or made or
amount demanded and the cumulative amount (without duplication) of all
such payments made by, or so demanded or so collected from, the Vencor
Companies, in the aggregate, during the period from March 10, 1999 to
the date of such notice and, in any event, of determining that a
Freeze Period exists pursuant to clause (c) of the definition thereof;
(vi) by facsimile no later than 5:00 P.M. (Eastern time) on each
Tuesday (or, if such day is not a Domestic Business Day, the next
succeeding Domestic Business Day), a report setting forth for each day
(a Census Measurement Day) during the seven-day period ending on the
day preceding such report the 10-day moving average of the daily
census in (1) its hospitals (the Hospital Daily Census) and (2) its
nursing homes (the Nursing Homes Daily Census) (all such calculations
to be made in a manner consistent with Vencor's historical practices
in compiling and reporting such data); and
(vii) for each month (with sufficient copies for each Lender) a copy
of Vencor's monthly management operating report (including financial
statements) for such month, to be in substantially the same format and
level of detail as the prior period report delivered to the Agents in
connection with the negotiation of Waiver No. 2 (with such exclusions
and variations as the Agents may approve) and to be delivered within
45 days after the end of such month if it is the last month of a
fiscal quarter and in all other cases within 30 days after the end of
such month.
(b) For each Census Measurement Day, the Hospital Daily Census shall be no
less than 2,450 and the Nursing Home Daily Census shall be no less than 29,000.
SECTION 6. Miscellaneous Other Provisions. (a) The rights of each Lender
Party pursuant to clause (ii) of Section 12.03(a) of the Credit Agreement shall
be determined without giving effect to this Waiver No. 5 or the Prior Waivers.
Without limiting the generality of
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Section 12.03(a), the Borrower agrees that it will pay on demand all statements
for fees and expenses (which may include amounts on account) of any financial,
accounting or valuation advisers or special counsel retained by the Agents or
the steering committee for the Lenders, as well as all out-of-pocket expenses
incurred by either Agent or any member of the steering committee in connection
with it acting as such.
(b) The right of the Borrower pursuant to Section 12.06(c) to consent to
any Assignee and the related assignment shall be determined without giving
effect to this Waiver No. 5, and any Assignee and the related assignment shall
always (including any time after expiration of the Waiver Period) be subject to
the consent of the Administrative Agent regardless of whether any Event of
Default has occurred and is continuing.
(c) The amount specified in Section 9.02(k) of the Credit Agreement was
permanently reduced from $20,000,000 to $1,000,000 pursuant to Waiver No. 2.
(d) The Documentation Agent, in its capacity as Leasehold Mortgagee with
respect to the Master Lease Agreements, was authorized and directed by Waiver
No. 3 to confirm that the provisions of the May 8 Amendment No. 2 to the Second
Standstill Agreement between Vencor and Ventas, bearing on certain cure rights
of the Vencor Companies under the Master Lease Agreements, shall neither shorten
nor extend the cure period for the Leasehold Mortgagee pursuant to Section 22.4
of the Master Lease Agreements. The Documentation Agent, in such capacity, is
authorized and directed to deliver similar confirmations with respect to
successive similarly structured amendments to such Second Standstill Agreement.
SECTION 7. Lapse of Waiver. Vencor agrees that its failure to comply with
any provision of this Waiver No. 5 (which shall include the failure, for
whatever reason, of the Hospital Daily Census or the Nursing Home Daily Census
to be at or above the applicable level specified in Section 5(b)) shall cause
the waivers granted hereby to cease to be in effect (i) in the case of clauses
(i) through (v) of Section 5(a), if such failure continues for one Domestic
Business Day (without the requirement of any notice from the Administrative
Agent or any Lenders), (ii) in the case of clause (vii) of Section 5(a), if such
failure continues for more than five days after notice from the Administrative
Agent given at the direction of the Required Basic Lenders and (iii) in all
other cases, immediately and without the requirement of any prior notice from or
further action on the part of any Lender or the Agents.
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SECTION 8. Representations Correct; No Default. Vencor represents and
warrants that, except as expressly waived hereby, on and as of the date hereof
(i) the representations and warranties contained in the Credit Agreement are
true as though made on and as of the date hereof and (ii) no Default has
occurred and is continuing. Vencor further represents and warrants that:
(a) the financial statements in the 1998 10-K fairly present in all
material respects, in conformity with generally accepted accounting principles,
the consolidated financial position of Vencor and its consolidated subsidiaries
at the end of such year and their consolidated results of operations and cash
flows for such year;
(b) the financial statements in the 2nd Quarter 10-Q fairly present in all
material respects, in conformity with generally accepted accounting principles
(subject to normal year-end adjustments and the absence of footnotes), the
consolidated financial position of Vencor and its consolidated subsidiaries at
the end of such quarter and their consolidated results of operations for such
quarter; and
(c) the information (other than projections and forecasts) included in the
July 20 Meeting Materials, when taken as a whole together with the other
Disclosure Materials, is true and accurate in all material respects or based on
reasonable estimates, and not incomplete by omitting to state any fact necessary
to make such information, when taken as a whole together with the other
Disclosure Materials, not misleading in any material respect in light of the
circumstances under which such information was provided. The projections and
forecasts included in the July 20 Meeting Materials were based on reasonable
assumptions and, when prepared, represented a reasonable estimate of the future
performance of the Vencor Companies (subject to any express disclaimers set
forth in the July 20 Meeting Materials).
SECTION 9. Counterparts; Effectiveness. (a) This waiver 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 Waiver No. 5 shall become effective as of the date hereof when
the Documentation Agent shall have received duly executed counterparts hereof
signed by Vencor, the Borrower and the Required Basic Lenders (or, in the case
of any Lender as to which an executed counterpart shall not have been received,
the Documentation Agent shall have received
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telegraphic, telex or other written confirmation from such party of execution of
a counterpart hereof by such Lender).
(c) Promptly after this Waiver No. 5 has become effective, the Borrower
shall pay to the Administrative Agent, in immediately available funds, for the
account of each Basic Lender that has evidenced its agreement hereto as provided
in Section 9(b) by 5:00 P.M. (Eastern time) on the later of (i)August 26, 1999
and (ii) the date the Documentation Agent issues a notice to the Basic Lenders
saying that this Waiver No. 5 has become effective, a waiver fee in an amount
equal to 0.10% of the sum of (A) the Revolving Credit Commitment of such Lender
and (B) the aggregate outstanding principal amount of the Facility A Loans of
such Lender (as at the opening of business on the date hereof).
(d) Except as expressly set forth herein, the waivers 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. Each of Vencor and the Borrower understands and
accepts the interim nature of the waivers provided hereby, and agrees that no
failure or delay by the Lender Parties, or any of them, in exercising any right,
power or privilege under this Waiver No. 5, any Prior Waiver or any Financing
Document, or any other action taken or not taken or statement made during the
period that any Prior Waiver was in effect or this Waiver No. 5 is in effect
shall operate as a waiver thereof or obligate any Lender Party to agree to an
extension of the waivers granted hereby or any other waivers, nor shall any
single or partial exercise of any such right, power or privilege preclude any
other or further exercise of thereof or of any other right, power or privilege.
The waivers set forth in clauses (iv) and (v) of Section 2(a) are solely for the
purpose of clarifying the ability of the Borrower during the Waiver Period,
subject to the terms hereof, to continue to have available to it Revolving
Credit Loans, Swingline Loans and Additional Letters of Credit, and do not
constitute a waiver, release or other diminution of any claim, cause of action
or other right that any Lender Party may have against any Person on account of
or in any way based on any representation and warranty made under any Financing
Document having been incorrect in any respect when made or deemed made, all of
which claims, causes of action and other rights are expressly preserved.
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SECTION 10. Governing Law. THIS WAIVER NO. 5 SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, the parties hereto have caused this Waiver No. 4 to be
duly executed by their respective authorized officers as of the day and year
first above written.
VENCOR OPERATING, INC.
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
Title: Senior Vice President &
Chief Financial Officer
VENCOR, INC.
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
Title: Senior Vice President &
Chief Financial Officer
LENDERS
-------
▇▇▇▇▇▇ GUARANTY TRUST COMPANY
OF NEW YORK
By: /s/
---------------------------------
Name:
Title:
APPALOOSA INVESTMENT LIMITED
PARTNERSHIP I
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chief Financial Officer
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BANK OF AMERICA NT & SA
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Senior Vice President
BANK OF AMERICA, NA
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Senior Vice President
BANK OF NEW YORK
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President
BANKERS TRUST
By: /s/
---------------------------------
Name:
Title:
BANQUE PARIBAS
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
---------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
Title: Director
By: /s/
---------------------------------
Name:
Title:
14
BEAR, ▇▇▇▇▇▇▇ & CO INC
By: /s/
---------------------------------
Name:
Title:
CERBERUS PARTNERS LP
By: /s/ ▇▇▇▇ ▇. Neporent
---------------------------------
Name: ▇▇▇▇ ▇. Neporent
Title: Managing Director
CHASE SECURITIES INC. as agent for The Chase
Manhattan Bank
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Authorized Signatory
CREDIT LYONNAIS NY BRANCH
By: /s/ ▇▇▇▇-▇▇▇▇▇▇▇ Van Essche
---------------------------------
Name: ▇▇▇▇-▇▇▇▇▇▇▇ Van Essche
Title: Vice President
CREDITANSTALT
By:_________________________________
Name:
Title:
By:_________________________________
Name:
Title:
15
FERNWOOD ASSOCIATES LP
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: General Partner
FIRST UNION NATIONAL BANK
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Vice President
FLEET NATIONAL BANK
By: /s/ ▇▇▇▇▇▇ ▇. Rilzy
---------------------------------
Name: ▇▇▇▇▇▇ ▇. Rilzy
Title: Vice President
FRANKLIN MUTUAL ADVISERS LLC
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: Senior Vice President
GENERAL ELECTRIC CAPITAL
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Duly Authorized Signatory
16
▇▇▇▇▇▇▇ ▇▇▇▇▇ CREDIT PARTNERS LP
By: /s/
---------------------------------
Name:
Title:
HALCYON DISTRESSED SECURITIES LP
By: /s/
---------------------------------
Name:
Title:
INDUSTRIAL BANK OF JAPAN
By: /s/ Takuya Honjo
---------------------------------
Name: Takuya Honjo
Title: Senior Vice President
PENSLER CAPITAL CORP.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: Associate
PNC BANK NA
By:_________________________________
Name:
Title:
17
SUMITOMO BANK
By:_________________________________
Name:
Title:
T ▇▇▇▇ PRICE RECOVERY FUND II LP
By:_________________________________
Name:
Title:
▇▇▇ ▇▇▇▇▇▇
SENIOR INCOME TRUST
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
18