Amendment No. 1 to $300,000,000 Credit Agreement among Kindred Healthcare Operating, Inc., Kindred Healthcare, Inc., Lenders, and JPMorgan Chase Bank

Summary

This amendment updates the $300 million Credit Agreement dated April 20, 2001, between Kindred Healthcare Operating, Inc., Kindred Healthcare, Inc., several lenders, and JPMorgan Chase Bank. It extends certain deadlines related to the Encumbrance Letter to February 28, 2002, and clarifies that following the Encumbrance Letter satisfies specific agreement requirements. The amendment also adjusts definitions and confirms that all other terms remain unchanged. It becomes effective once signed by the required parties, and a small amendment fee is payable to participating lenders.

EX-10.4 5 dex104.txt AMENDED CREDIT AGREEMENT ($300 MILLION) EXHIBIT 10.4 AMENDMENT NO. 1 AMENDMENT No. 1 (this "Amendment") dated as of November 28, 2001, under the $300,000,000 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 party thereto and JPMORGAN CHASE BANK (formerly named Morgan Guaranty Trust Company of New York), as Administrative Agent and Collateral Agent. W I T N E S S E T H: WHEREAS, Kindred and the Borrower have requested the Required Lenders (such term and other capitalized terms used in this Amendment without definition having the meanings set forth in the Credit Agreement) to extend the various time periods set forth in the Encumbrance Letter to February 28, 2002 (the "Encumbrance Letter Waiver"); and WHEREAS, the parties hereto desire to amend the Credit Agreement to provide that compliance by Kindred and the Borrower with the provisions of the Encumbrance Letter shall be sufficient to satisfy the requirements of Section 5.12(d) of the Credit Agreement; NOW, THEREFORE, the parties hereto agree as follows: SECTION 1. Encumbrance Letter. (a) (i) The undersigned Lenders hereby (A) grant the Encumbrance Letter Waiver and (B) 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. (b) 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" (c) Section 5.12(d) 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 2. 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 3. 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 3(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 the aggregate outstanding principal amount of such Lender's Loans (as outstanding 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 4. Governing Law. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. 2 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/ Richard A. Schweinhart -------------------------------- Name: Richard A. Schweinhart Title: Senior Vice President and Chief Financial Officer KINDRED HEALTHCARE, INC. By:/s/ Richard A. Schweinhart -------------------------------- Name: Richard A. Schweinhart Title: Senior Vice President and Chief Financial Officer 3 CREDIT LYONNAIS NEW YORK BRANCH By: /s/ John-Charles Van Essche ---------------------------------- Name: John-Charles Van Essche Title: Vice President 4 BANKERS TRUST COMPANY By: /s/ Alice L. Wagner ------------------------------- Name: Alice L. Wagner Title: Vice President 5 VAN KAMPEN PRIME RATE INCOME TRUST By: Van Kampen Investment Advisory Corp. By: /s/ Darvin D. Pierce ------------------------------------- Name: Darvin D. Pierce Title: Executive Director 6 BEAR STEARNS & CO., INC. By: /s/ Gregory A. Hanley -------------------------------- Name: Gregory A. Hanley Title: Senior Managing Director 7 GOLDMAN, SACHS CREDIT PARTNERS L.P. By: /s/ Robert S. Fanelli ------------------------------- Name: Robert S. Fanelli Title: Authorized Signatory 8 JPMORGAN CHASE BANK By: /s/ Houston A. Stebbins ---------------------------- Name: Houston A. Stebbins Title: Managing Director 9 VAN KAMPEN SENIOR INCOME TRUST By: Van Kampen Investment Advisory Corp. By: /s/ Darvin D. Pierce ------------------------------------ Name: Darvin D. Pierce Title: Executive Director 10 VAN KAMPEN SENIOR FLOATING RATE FUND By: Van Kampen Investment Advisory Corp. By: /s/ Darvin D. Pierce ------------------------------- Name: Darvin D. Pierce Title: Executive Director 11 SILVER OAK CAPITAL LLC By: /s/ Jeffrey H. Aronson ------------------------- Name: Jeffrey H. Aronson Title: Authorized Signatory 12 T. ROWE PRICE RECOVERY FUND II, L.P. By: /s/ Kim Z. Golden ------------------------------- Name: Kim Z. Golden Title: Managing Director 13 PENSLER CAPITAL CORPORATION By: /s/ Sanford Pensler ---------------------- Name: Sanford Pensler Title: President 14 GOLDEN TREE HIGH YIELD OPPORTUNITIES I, LP By: /s/ Treacy Goffrey ---------------------- Name: Treacy Goffrey Title: Partner 15 GOLDEN TREE HIGH YIELD MASTER FUND, LTD By: /s/ Treacy Goffrey ------------------------ Name: Treacy Goffrey Title: Partner 16 CONTINENTAL CASUALTY COMPANY By: /s/ Richard W. Dubbarke ------------------------- Name: Richard W. Dubbarke Title: Vice President 17 PRESIDENT & FELLOWS HARVARD COLLEGE By: /s/ Timothy S. Peterson ---------------------------- Name: Timothy S. Peterson Title: 18 REGIMENT CAPITAL, LTD. By: /s/ Timothy S. Peterson -------------------------- Name: Timothy S. Peterson Title: 19 WELLS FARGO BANK By: /s/ Cory Branden --------------------------- Name: Cory Branden Title: Corporate Trust Officer 20 CERBERUS PARTNER, L.P. By: Cerberus Associates, LLC, General Partner By: /s/ Mark A. Neporent ------------------------- Name: Mark A. Neporent Title: Managing Director 21 LCMI I LIMITED PARTNERSHIP By: /s/ Mark A. Campellone ---------------------- Name: Lyon Capital Management LLC Mark A. Campellone Title: Senior Portfolio Manager 22 NORTHWOODS CAPITAL III, LIMITED By: Angelo, Gordon & Co., L.P., as Collateral Manager By: /s/ John W. Fraser ------------------------- Name: John W. Fraser Title: Managing Director 23 OPPENHEIMER SENIOR FLOATING RATE FUND By: /s/ Lisa Chaffee -------------------- Name: Lisa Chaffee Title: Manager 24 NORTHWOODS CAPITAL II, LIMITED By: Angelo, Gordon & Co., L.P. As Collateral Manager By: /s/ John W. Fraser ------------------------- Name: John W. Fraser Title: Managing Director 25 NORTHWOODS CAPITAL, LIMITED By: Angelo, Gordon & Co., L.P., as Collateral Manager By: /s/ John W. Fraser ------------------------- Name: John W. Fraser Title: Managing Director 26 AG CAPITAL FUNDING PARTNERS, L.P. By: _______________________________ Name: Title: 27 LONGACRE MASTER FUND LTD. By: _____________________________ Name: Title: 28 SUNAMERICA CORPORATION By: __________________________ Name: Title: 29 THOROUGHBRED LTD PARTNERSHIP I By: ________________________________ Name: Title: 30 LIPIZZANER LDC By: _______________________ Name: Title: 31 PALOMINO FUND LTD. By: ______________________ Name: Title: 32 APPALOOSA INVESTMENT LIMITED PARTNERSHIP I By: ________________________ Name: Title: 33 SPS HIGH YIELD LOAN TRADING By: _______________________ Name: Title: 34