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EXHIBIT 10.2
AMENDMENT TO
DEBTOR-IN-POSSESSION CREDIT AGREEMENT
August 16, 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 further extend the deadline
for filing a plan of reorganization acceptable to the Required Lenders in the
Chapter 11 Cases. Accordingly, Borrowers and the undersigned Lenders hereby
agree that Section 5.10 of the DIP Credit Agreement is hereby amended by
deleting the reference to "August 17, 2000" contained therein and substituting
therefor "September 29, 2000".
The Borrowers have further requested that Lenders amend the covenant
requiring the Borrowers to maintain at all times a Net Amount of Accounts
Receivable. Accordingly, Borrowers and the undersigned Lenders hereby agree
that Section 6.04 of the DIP Credit Agreement is hereby amended by deleting the
reference to "$300,000,000" contained therein and substituting therefore
"$285,000,000".
On and after the 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 Amendment to Debtor-In-Possession Credit Agreement
(this "Amendment"; the DIP Credit Agreement, as so amended, being the "Amended
Agreement").
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Without limiting the generality of the provisions of Section 11.05 of
the DIP Credit Agreement, the amendments set forth in the paragraphs above shall
be limited precisely as written, and nothing in this Amendment shall be deemed
to 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 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 Amendment, each
Borrower, by its execution of a counterpart of this Amendment, represents and
warrants that (a) such Borrower has the corporate or other power and authority
and all material Governmental Approvals required to enter into this Amendment
and to carry out the transactions contemplated by, and perform its obligations
under, the Amended Agreement, (b) the execution and delivery of this 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 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 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, (e) this 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 (i) this Amendment constitutes a
non-material modification of the DIP Credit Agreement and the Financing
Documents, and (ii) notice of this 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 Amendment, no event has occurred and is continuing or will
result from the consummation of the transactions contemplated by this Amendment
that would constitute a Default.
This 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 Amendment shall
become effective (the date of such effectiveness being the "Amendment Effective
Date") upon the earliest date on or prior to August 16, 2000 that (a) the
Borrowers and Required Lenders shall have executed counterparts of this
Amendment and the Borrowers and the Administrative Agent shall have received
written or telephonic notification of such execution and authorization of
delivery thereof; (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 August 11, 2000 have been paid in full; and
(c) no objections to this Amendment have been served on the Administrative Agent
by the Committee.
Pursuant to paragraph 3 of the Borrowing Order, this Amendment shall
become effective upon the Amendment Effective Date without the need for any
further order of the Court
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and upon compliance with the notice requirement of paragraph 3 of the Borrowing
Order and the Committee having submitted no objection thereto.
THIS 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 OBLIGATIONS LAW OF THE STATE OF NEW YORK), WITHOUT REGARD
TO CONFLICTS OF LAWS PRINCIPLES.
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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:
Vencor Hospitals Limited Partnership
By: Vencor Operating, Inc., Its General Partner
By: ____________________________________________
Name:
Title:
S-4
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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:
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:
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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:
S-8
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BANKERS TRUST COMPANY, as a Lender
By: ____________________________________________
Name:
Title:
S-9
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CHASE SECURITIES INC, AS AGENT FOR THE
CHASE MANHATTAN BANK, as a Lender
By: ____________________________________________
Name:
Title:
S-10
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GOLDMAN SACHS CREDIT PARTNERS L.P., as a Lender
By: ____________________________________________
Name:
Title:
S-11
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VAN KAMPEN PRIME RATE INCOME TRUST, as a Lender
By: VAN KAMPEN INVESTMENT ADVISORY CORP.
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:
S-12
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FRANKLIN MUTUAL ADVISERS LLC, as a Lender
By: ____________________________________________
Name:
Title:
S-13
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FRANKLIN FLOATING RATE TRUST, as a Lender
By: ____________________________________________
Name:
Title:
S-14
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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 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 Amendment and consents to the terms thereof and further hereby
confirms and agrees that, notwithstanding the effectiveness of this 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:
