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EXHIBIT 10.3
EIGHTH AMENDMENT TO
DEBTOR-IN-POSSESSION CREDIT AGREEMENT
AND CONSENT
June 8, 2000
Reference is made to that certain Debtor-In-Possession Credit
Agreement dated as of September 13, 1999 (as heretofore amended, supplemented or
otherwise modified, the "DIP Credit Agreement"), by and among Vencor, Inc., a
Delaware corporation ("Vencor"), and Vencor Operating, Inc., a Delaware
corporation ("Vencor Opco"), each as debtor and debtor-in-possession, and each
of Vencor's subsidiaries listed on the signature pages thereof, each as debtor
and debtor-in-possession (each such subsidiary, Vencor and Vencor Opco
individually referred to herein as a "Borrower" and, collectively, on a joint
and several basis, as the "Borrowers"); the Lenders listed on the signature
pages thereof; and Morgan Guaranty Trust Company of New York, as arranger,
collateral agent and administrative agent (in such capacity, "Administrative
Agent") for the Lenders, and as an issuing bank for Letters of Credit
thereunder. Capitalized terms used herein without definition herein shall have
the meanings assigned to such terms in the DIP Credit Agreement.
The Borrowers have requested that Lenders (i) extend the termination
date of the Commitments, (ii) extend the deadline for filing a plan of
reorganization acceptable to the Required Lenders in the Cases, (iii) amend
certain financial covenants, and (iv) make certain other amendments to the DIP
Credit Agreement, in each case as more fully set forth below. Accordingly,
Borrowers and the undersigned Lenders hereby agree as follows:
1. The definition of "Borrowing Base" in Section 1.01 of the DIP
Credit Agreement is hereby amended by adding at the end of the table contained
therein three additional rows as follows:
July 2000 $65,568,883
August 2000 $65,568,883
September 2000 $65,568,883
2. The definition of "Stated Maturity Date" in Section 1.01 of the
DIP Credit Agreement is hereby amended by deleting the reference to "June 30,
2000" contained therein and substituting therefor "September 30, 2000".
3. Section 2.05(a) of the DIP Credit Agreement is hereby amended by
deleting the reference to "April 30, 2000" contained therein and substituting
therefor "July 31, 2000".
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4. Section 5.01(b) of the DIP Credit Agreement is hereby amended by
adding at the end of the table contained therein three additional rows as
follows:
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Fiscal Quarter ending August 15, 2000
June 30, 2000
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July 2000 August 31, 2000
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August 2000 September 30, 2000
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5. Section 5.10 of the DIP Credit Agreement is hereby amended by
deleting the reference to "June 15, 2000" contained therein and substituting
therefor "June 30, 2000"; provided, however, that upon the effectiveness of
numbered paragraphs 2 and 3 hereof, the reference to "June 30, 2000" shall be
deleted and "July 18, 2000" shall be substituted therefor.
6. Section 6.01 of the DIP Credit Agreement is hereby amended by
adding at the end of the table contained therein three additional rows as
follows:
July 2000 $149,000,000
August 2000 $178,000,000
September 2000 $208,000,000
7. Section 6.03 of the DIP Credit Agreement is hereby amended by
adding at the end of the table contained therein three additional rows as
follows:
July 2000 2,550
August 2000 2,500
September 2000 2,500
8. Section 6.06 of the DIP Credit Agreement is hereby amended by
adding at the end of the table contained therein three additional rows as
follows:
July 2000 $45,000,000
August 2000 $51,000,000
September 2000 $58,000,000
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9. Section 7.12 of the DIP Credit Agreement is hereby amended by
deleting the last sentence therefrom in its entirety and substituting therefor
the following:
"Without limiting the foregoing, the aggregate base rental
(as such term is used in the Master Lease Agreements) payments
(together with any additional amounts escrowed for such purpose)
by all Vencor Companies to all Ventas Companies in respect of
Master Lease Properties shall not exceed, in any month,
$15,150,000."
10. Section 8.01 of the DIP Credit Agreement is hereby amended by (i)
deleting "or" at the end of subdivision (p) thereof, (ii) adding "or" at the end
of subdivision (q) thereof, and (iii) adding immediately after subdivision (q)
thereof a new subdivision (r) as follows:
"(r) the commencement of any action or proceeding in the
Cases by any Vencor Company against any Ventas Company with
respect to the Master Leases or the spin-off of the Vencor
Companies from the Vencor Companies;"
The Borrowers have also submitted to Lenders an amendment and
supplement to the Cash Plan, attached hereto as Annex A (the "Cash Plan
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Supplement"), setting forth, for July 2000 and August 2000, a consolidated cash
forecast for the Borrowers. Each of the undersigned Lenders hereby (i)
acknowledges that the substance of the Cash Plan Supplement is satisfactory to
such Lender and (ii) consents to supplementing the Cash Plan with the forecast
for July 2000 and August 2000 contained in the Cash Plan Supplement.
On and after the Eighth Amendment Effective Date (as defined below),
each reference in the DIP Credit Agreement to "this Agreement", "hereunder",
"hereof", "herein" or words of like import referring to the DIP Credit
Agreement, and each reference in the other Financing Documents to the "DIP
Credit Agreement", "thereunder", "thereof" or words of like import referring to
the DIP Credit Agreement, shall mean and be a reference to the DIP Credit
Agreement as amended by this Eighth Amendment to Debtor-In-Possession Credit
Agreement (this "Eighth Amendment"; the DIP Credit Agreement, as so amended,
being the "Amended Agreement").
Without limiting the generality of the provisions of Section 11.05 of
the DIP Credit Agreement, the amendments and the consent set forth in the
paragraphs above shall be limited precisely as written, and nothing in this
Eighth Amendment shall be deemed to (a) constitute a consent to any other
supplement to the Cash Plan or any other document, transaction, occurrence,
event or condition under Section 5.01(m) of the DIP Credit Agreement or any
other term, provision or condition of the DIP Credit Agreement or any of such
other Financing Documents, or (b) prejudice any right or remedy that the
Administrative Agent or any Lender may now have or may have in the future under
or in connection with the DIP Credit Agreement or any of such other Financing
Documents. Except as specifically amended by this Eighth Amendment, the DIP
Credit Agreement and such other Financing Documents shall remain in full force
and effect and are hereby ratified and confirmed.
In order to induce Lenders to enter into this Eighth Amendment, each
Borrower, by its execution of a counterpart of this Eighth Amendment, represents
and warrants that (a) such
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Borrower has the corporate or other power and authority and all material
Governmental Approvals required to enter into this Eighth Amendment and to carry
out the transactions contemplated by, and perform its obligations under, the
Amended Agreement, (b) the execution and delivery of this Eighth Amendment and
the performance of the Amended Agreement have been duly authorized by all
necessary corporate or other action on the part of such Borrower, (c) the
execution and delivery by such Borrower of this Eighth Amendment and the
performance by such Borrower of the Amended Agreement do not and will not
contravene, or constitute a default under, any Applicable Laws (including an
applicable order of the Court) or any provision of its Organizational Documents,
or of any agreement or other instrument binding upon it or result in or require
the imposition of any Liens (other than the Liens created by the Collateral
Documents) on any of its assets, (d) the execution and delivery by such Borrower
of this Eighth Amendment and the performance by such Borrower of the Amended
Agreement do not and will not require any action by or in respect of, or filing
with, any governmental body, agency or official (except for the Court and such
as shall have been made at or before the time required and shall be in full
force and effect on and after the date when made), (e) this Eighth Amendment and
the Amended Agreement have been duly executed and delivered by such Borrower and
constitute the valid and binding obligations of such Borrower, enforceable in
accordance with their respective terms, except as may be limited by general
principles of equity, (f) for purposes of the Borrowing Order notice of this
Eighth Amendment has been given to and received by counsel to the Committee (as
defined in the Borrowing Order), and (g) after giving effect to this Eighth
Amendment, no event has occurred and is continuing or will result from the
consummation of the transactions contemplated by this Eighth Amendment that
would constitute a Default.
This Eighth Amendment may be executed in any number of counterparts
and by different parties hereto in separate counterparts, each of which when so
executed and delivered shall be deemed an original, but all such counterparts
together shall constitute but one and the same instrument. This Eighth Amendment
(other than numbered paragraphs 2 and 3 hereof) shall become effective (the date
of such effectiveness being the "Eighth Amendment Effective Date") upon the
earliest date on or prior to June 15, 2000 that (a) the Borrowers and Lenders
shall have executed counterparts of this Eighth Amendment and the Borrowers and
the Administrative Agent shall have received written or telephonic notification
of such execution and authorization of delivery thereof; and (b) the
Administrative Agent shall have received evidence satisfactory to it that all
outstanding statements of O'Melveny & Myers LLP, Davis Polk & Wardwell and
Policano & Manzo that are received by Vencor prior to 12:00 Noon (New York City
time) on June 9, 2000 have been paid in full. Numbered paragraphs 2 and 3 of
this Eighth Amendment shall not become effective unless and until (i) the
Administrative Agent shall have received from the Borrowers an amendment fee in
the aggregate amount of $200,000 on or prior to the Commitment Termination Date
for ratable distribution to each Lender that has executed and delivered this
Eighth Amendment on or prior to June 15, 2000 according to the ratio of (x) the
Commitment of such executing Lender to (y) the aggregate Commitments of all such
executing Lenders, and (ii) the Court shall have approved both the terms of this
Eighth Amendment in their entirety and the payment of such $200,000 amendment
fee.
THIS EIGHTH AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING WITHOUT
LIMITATION SECTION 5-1401 OF THE GENERAL
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OBLIGATIONS LAW OF THE STATE OF NEW YORK), WITHOUT REGARD TO CONFLICTS OF LAWS
PRINCIPLES.
[Remainder of page intentionally left blank.]
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BORROWERS:
Advanced Infusion Systems, Inc.
American X-Rays, Inc.
C.P.C. of Louisiana, Inc.
Community Behavioral Health System, Inc.
Community Psychiatric Centers of Arkansas, Inc.
Community Psychiatric Centers of California
Community Psychiatric Centers of Florida, Inc.
Community Psychiatric Centers of Idaho, Inc.
Community Psychiatric Centers of Indiana, Inc.
Community Psychiatric Centers of Kansas, Inc.
Community Psychiatric Centers of Mississippi, Inc.
Community Psychiatric Centers of Missouri, Inc.
Community Psychiatric Centers of North Carolina, Inc.
Community Psychiatric Centers of Oklahoma, Inc.
Community Psychiatric Centers of Utah, Inc.
Community Psychiatric Centers Properties Incorporated
Community Psychiatric Centers Properties of Oklahoma, Inc.
Community Psychiatric Centers Properties of Texas, Inc.
Community Psychiatric Centers Properties of Utah, Inc.
Courtland Gardens Health Center, Inc.
CPC Investment Corp.
CPC Managed Care Health Services, Inc.
CPC of Georgia, Inc.
CPC Properties of Arkansas, Inc.
CPC Properties of Illinois, Inc.
CPC Properties of Indiana, Inc.
CPC Properties of Kansas, Inc.
CPC Properties of Louisiana, Inc.
CPC Properties of Mississippi, Inc.
CPC Properties of Missouri, Inc.
CPC Properties of North Carolina, Inc.
First Rehab, Inc.
Florida Hospital Properties, Inc.
Health Care Holdings, Inc.
Health Care Technology, Inc.
Helian ASC of Northridge, Inc.
Helian Health Group, Inc.
Helian Recovery Corporation
Homestead Health Center, Inc.
Horizon Healthcare Services, Inc.
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Interamericana Health Care Group
J.B. Thomas Hospital, Inc.
Lafayette Health Care Center, Inc.
MedEquities, Inc.
Medisave of Tennessee, Inc.
Medisave Pharmacies, Inc.
Old Orchard Hospital, Inc.
Palo Alto Surgecenter Corporation
Peachtree-Parkwood Hospital, Inc.
PersonaCare, Inc.
PersonaCare Living Center of Clearwater, Inc.
PersonaCare of Bradenton, Inc.
PersonaCare of Clearwater, Inc.
PersonaCare of Connecticut, Inc.
PersonaCare of Georgia, Inc.
PersonaCare of Huntsville, Inc.
PersonaCare of Little Rock, Inc.
PersonaCare of Ohio, Inc.
PersonaCare of Owensboro, Inc.
PersonaCare of Pennsylvania, Inc.
PersonaCare of Pompano East, Inc.
PersonaCare of Pompano West, Inc.
PersonaCare of Reading, Inc.
PersonaCare of San Antonio, Inc.
PersonaCare of San Pedro, Inc.
PersonaCare of Shreveport, Inc.
PersonaCare of St. Petersburg, Inc.
PersonaCare of Warner Robbins, Inc.
PersonaCare of Wisconsin, Inc.
PersonaCare Properties, Inc.
Prodata Systems, Inc.
Recovery Inns of America, Inc.
Respiratory Care Services, Inc.
Stamford Health Facilities, Inc.
THC-Chicago, Inc.
THC-Hollywood, Inc.
THC-Houston, Inc.
THC-Minneapolis, Inc.
THC-North Shore, Inc.
THC-Orange County, Inc.
THC-San Diego, Inc.
THC-Seattle, Inc.
TheraTx Healthcare Management, Inc.
TheraTx Health Services, Inc.
TheraTx Management Services, Inc.
Theratx Medical Supplies, Inc.
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TheraTx Rehabilitation Services, Inc.
Theratx Staffing, Inc.
Transitional Hospitals Corporation, a Delaware Corporation
Transitional Hospitals Corporation, a Nevada Corporation
Transitional Hospitals Corporation of Indiana, Inc.
Transitional Hospitals Corporation of Louisiana, Inc.
Transitional Hospitals Corporation of Michigan, Inc.
Transitional Hospitals Corporation of Nevada, Inc.
Transitional Hospitals Corporation of New Mexico, Inc.
Transitional Hospitals Corporation of Tampa, Inc.
Transitional Hospitals Corporation of Texas, Inc.
Transitional Hospitals Corporation of Wisconsin, Inc.
Tucker Nursing Center, Inc.
Tunstall Enterprises, Inc.
VC-OIA, Inc.
VC-TOHC, Inc.
VC-WM, Inc.
Vencare, Inc.
Vencare Rehab Services, Inc.
Vencor Facility Services, Inc.
Vencor Holdings, L.L.C.
Vencor Home Care Services, Inc.
Vencor Hospice, Inc.
Vencor Hospitals East, L.L.C.
Vencor Hospitals West, L.L.C.
Vencor, Inc.
Vencor Insurance Holdings, Inc.
Vencor Investment Company
Vencor Nevada, L.L.C.
Vencor Nursing Centers East, L.L.C.
Vencor Nursing Centers Central L.L.C.
Vencor Nursing Centers North, L.L.C.
Vencor Nursing Centers South, L.L.C.
Vencor Nursing Centers West, L.L.C.
Vencor Operating, Inc.
Vencor Pediatric Care, Inc.
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Vencor Provider Network, Inc.
Ventech Systems, Inc.
BY: Vencor Operating, Inc., as agent and attorney-in-fact
for each of the foregoing entities
By: ______________________________________
Name:
Title:
Stamford Health Associates, L.P.
BY: Stamford Health Facilities, Inc., Its General Partner
By: ______________________________________
Name:
Title:
Vencor Home Care and Hospice Indiana Partnership
BY: Vencor Home Care Services, Inc., Its General Partner
By: ______________________________________
Name:
Title:
BY: Vencor Hospice, Inc., Its General Partner
By: ______________________________________
Name:
Title:
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Vencor Hospitals Limited Partnership
BY: Vencor Operating, Inc., Its General Partner
By: ______________________________________
Name:
Title:
BY: Vencor Nursing Centers Limited Partnership,
Its General Partner
BY: VENCOR OPERATING, INC., ITS GENERAL
PARTNER
By: _________________________________
Name:
Title:
Vencor Nursing Centers Central Limited Partnership
BY: Vencor Operating, Inc., Its General Partner
By: ______________________________________
Name:
Title:
BY: Vencor Nursing Centers Limited Partnership,
Its General Partner
BY: Vencor Operating, Inc., Its General
Partner
By: _________________________________
Name:
Title:
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Vencor Nursing Centers Limited Partnership
BY: Vencor Operating, Inc., Its General Partner
By: ______________________________________
Name:
Title:
BY: Vencor Hospitals Limited Partnership, Its
General Partner
BY: Vencor Operating, Inc., Its General
Partner
By: _________________________________
Name:
Title:
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AGENTS AND LENDERS:
MORGAN GUARANTY TRUST COMPANY OF NEW
YORK, as Arranger, Collateral Agent
and Administrative Agent and as a
Lender
By: ______________________________________
Name:
Title:
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ABLECO FINANCE LLC, as a Lender
By: ______________________________________
Name:
Title:
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APPALOOSA INVESTMENT LIMITED
PARTNERSHIP I, as a LENDER
By: _____________________________________
Name:
Title:
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BANKERS TRUST COMPANY, as a Lender
By: _____________________________________
Name:
Title:
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CHASE SECURITIES INC, AS AGENT FOR THE CHASE
MANHATTAN BANK, as a Lender
By: _____________________________________
Name:
Title:
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GOLDMAN SACHS CREDIT PARTNERS L.P., as a Lender
By: _____________________________________
Name:
Title:
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PARIBAS, as a Lender
By: _____________________________________
Name:
Title:
By: _____________________________________
Name:
Title:
[INTENTIONALLY OMMITTED]
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VAN KAMPEN PRIME RATE INCOME TRUST, as a Lender
By: VAN KAMPEN INVESTMENT ADVISORY CORP.
By: _____________________________________
Name:
Title:
VAN KAMPEN CLO I, LIMITED, as a Lender
By: VAN KAMPEN MANAGEMENT INC.
By: _____________________________________
Name:
Title:
VAN KAMPEN SENIOR FLOATING RATE FUND, as a Lender
By: VAN KAMPEN INVESTMENT ADVISORY CORP.
By: _____________________________________
Name:
Title:
VAN KAMPEN SENIOR INCOME TRUST, as a Lender
By: VAN KAMPEN INVESTMENT ADVISORY CORP.
By: _____________________________________
Name:
Title:
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FRANKLIN MUTUAL ADVISERS LLC, as a Lender
By: __________________________________________
Name:
Title:
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FRANKLIN FLOATING RATE TRUST, as a Lender
By: __________________________________________
Name:
Title:
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FOOTHILL CAPITAL CORPORATION, as a Lender
By: __________________________________________
Name:
Title:
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FOOTHILL INCOME TRUST II, L.P., as a Lender
By: FIT II GP, LLC, its general partner
By: ______________________________________
Name:
Title:
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ACKNOWLEDGEMENT AND CONSENT OF SUBSIDIARY GUARANTOR
By its execution of a counterpart of this Eighth Amendment, the
undersigned, as a Subsidiary Guarantor under that certain Guaranty Agreement
dated as of September 13, 1999 (the "Guaranty") for the benefit of Lenders, and
as an Original Lien Grantor under that certain Security Agreement dated as of
September 13, 1999 (the "Security Agreement") between the undersigned, the
Borrowers and Collateral Agent, as Secured Party, hereby acknowledges that it
has read this Eighth Amendment and consents to the terms thereof and further
hereby confirms and agrees that, notwithstanding the effectiveness of this
Eighth Amendment, the obligations of the undersigned under the Guaranty and the
Security Agreement shall not be impaired or affected and each of the Guaranty
and the Security Agreement is, and shall continue to be, in full force and
effect and is hereby confirmed and ratified in all respects.
CARIBBEAN BEHAVIORAL HEALTH
SYSTEMS, INC.
By: _____________________________
Name:
Title:
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