EXHIBIT 4.7
AMENDMENT NO. 5 TO CREDIT AGREEMENT
AMENDMENT NO. 5 dated as of August 26, 1996 to the Credit
Agreement dated as of September 11, 1995 among Vencor, Inc. ("Vencor"), the
other Borrowers referred to therein (the "Subsidiary Borrowers") and the Banks,
Co-Agents, LC Issuing Banks and Agents referred to therein, as heretofore
amended ("Vencor's Credit Agreement").
WHEREAS, terms defined in Vencor's Credit Agreement have the
same respective meanings when used herein;
WHEREAS, Atria Communities, Inc. ("Atria") proposes to enter
into a $200,000,000 credit agreement ("Atria's Credit Agreement"), to borrow
thereunder from time to time and to cause letters of credit to be issued (or
deemed issued) thereunder to provide, among other things, credit support for IRB
Debt;
WHEREAS, Atria proposes to grant Liens on its assets to secure
its obligations in respect of such borrowings, its reimbursement obligations in
respect of drawings under such letters of credit and its obligations under
certain interest rate hedging agreements;
WHEREAS, Atria proposes to cause one or more of its
subsidiaries to guarantee such obligations and to secure their respective
guarantees by granting Liens on their respective assets;
WHEREAS, Vencor proposes to guarantee such obligations of
Atria (other than certain portions thereof relating to mature properties) up to
a maximum guaranteed amount of $100,000,000 and such maximum guaranteed amount
is to be reduced from time to time as provided in Section 2.2 of the Parent
Guaranty (as hereinafter defined);
WHEREAS, Vencor proposes to cause the Subsidiary Borrowers to
guarantee Vencor's performance of its guarantee of the obligations of Atria and
may hereafter cause one or more other Subsidiaries to give similar guarantees of
Vencor's performance thereof (the Subsidiary Borrowers and such other
Subsidiaries, if any, being herein collectively called the "Supporting
Guarantors");
WHEREAS, Vencor has asked the Banks to amend certain covenants
in Vencor's Credit Agreement to permit the foregoing transactions;
WHEREAS, in consideration of such amendment, Vencor proposes
to cause each Supporting Guarantor to guarantee Vencor's performance of its
obligations under Vencor's Credit Agreement; and
WHEREAS, the guarantees of the Supporting Guarantors in
respect of Vencor's Credit Agreement and their guarantees in respect of Atria's
Credit Agreement are to be limited in amount (to the extent required by
applicable insolvency laws), are to be enforced only upon the occurrence of
certain significant credit events and, if and when enforced, are to be enforced
on a pro rata basis in proportion to the outstanding amounts then guaranteed
thereunder;
NOW, THEREFORE, the undersigned parties agree as follows:
SECTION 1. Definitions. (a) Section 1.01 of Vencor's Credit
-----------
Agreement is amended by adding the following new definitions in the appropriate
alphabetical order:
"Atria's Credit Agreement" means the $200,000,000 Credit
Agreement dated as of August 15, 1996 among Atria, the lending
institutions named therein, PNC Bank, National Association, as
Administrative Agent, National City Bank of Kentucky, as Documentation
Agent and the Syndication Agents named therein, as said Credit
Agreement may be amended from time to time.
"Atria Supporting Guaranties" means guaranties by the
Supporting Guarantors that Vencor will perform its obligations under
the Parent Guaranty, such guaranties to be substantially in the form of
Section 19 of the Parent Guaranty.
"Parent Guaranty" means Vencor's guaranty dated as of August
15, 1996 of the obligations of Atria under Atria's Credit Agreement, as
such guaranty may be amended from time to time; provided that no such
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amendment shall, without the prior written consent of the Required
Banks, (i) increase the "Maximum Guaranteed Amount" (as defined
therein) or, except as expressly provided in Section 5.19 hereof,
postpone or reduce the amount of any scheduled reduction of said
Maximum Guaranteed Amount specified in Section 2.2 thereof or (ii)
change any provision of Atria's Supporting Guaranties or the meaning of
any defined term used therein.
"Supporting Guarantors" means, at any time, each Subsidiary
Borrower and each other Subsidiary (if any) that is a guarantor of the
obligations of Vencor under the Parent Guaranty at such time.
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"Vencor Supporting Guaranties" means guaranties by the
Supporting Guarantors that Vencor will perform its obligations under
Vencor's Credit Agreement, such guaranties to be substantially in the
form of Exhibit O hereto.
(b) The definition of "Borrower" in Section 1.01 of Vencor's Credit
Agreement is amended by deleting the words "Hillhaven Properties, Ltd., an
Oregon Corporation," and Hillhaven Properties Ltd. is deleted from the cover
page, the first paragraph and the signature pages of Vencor's Credit Agreement.
SECTION 2. Supporting Guaranties. Vencor's Credit Agreement is amended
---------------------
by adding the following new Section 2.16 at the end of Article II:
SECTION 2.16. Supporting Guaranties. If at any time any
---------------------
Subsidiary of Vencor (other than Atria and its subsidiaries) enters
into any Guaranty of any obligation of Atria or any of Atria's
Subsidiaries, (i) such Guaranty shall be an Atria Supporting Guaranty
and (ii) such Subsidiary shall simultaneously enter into a Vencor
Supporting Guaranty. If at any time all the Atria Supporting Guaranties
are terminated because the provisions for the termination thereof set
forth in Section 21 of the Parent Guaranty are met, all Vencor
Supporting Guaranties then in effect shall be terminated concurrently
therewith.
SECTION 3. Form of Vencor Supporting Guaranty. Exhibit O hereto is
----------------------------------
added to Vencor's Credit Agreement as Exhibit O thereto.
SECTION 4. Representations and Warranties. Vencor's Credit Agreement
------------------------------
is amended by adding the following new Section 4.16 at the end of Article IV:
SECTION 4.16. Vencor Supporting Guaranties. The
----------------------------
representations of each Supporting Guarantor in Section 2 of its Vencor
Supporting Guaranty are true and correct.
SECTION 5. Limitation on Debt of Vencor. Section 5.07(f) of Vencor's
----------------------------
Credit Agreement is amended to read as follows:
(f) (i) a Guarantee of Debt of Atria not exceeding
$100,000,000 in aggregate principal amount, it being understood that
such Guarantee of Debt of Atria may remain in effect even if Atria is
no longer a Subsidiary, and (ii) Guarantees of Debt of Subsidiaries
(other than Atria and its subsidiaries) permitted by Section 5.08;
SECTION 6. Limitation on Debt of Subsidiaries. (a) Section 5.08(e) of
----------------------------------
Vencor's Credit Agreement is amended to read as follows:
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(e) Guarantees by one or more Subsidiaries of (i) Vencor's
performance of its obligations under the Parent Guaranty not exceeding
$100,000,000 in aggregate principal amount, it being understood that
such Guarantees may remain in effect even if Atria is no longer a
Subsidiary, and (ii) Debt of Subsidiaries (other than Atria and its
subsidiaries) permitted by this Section, provided that the aggregate
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amount of Debt Guaranteed pursuant to this clause (ii) shall not exceed
$100,000,000 at any time;
(b) Section 5.08(k) of Vencor's Credit Agreement is amended to
read as follows:
(k) Debt incurred after June 30, 1996 by Atria and its
subsidiaries under Atria's Credit Agreement and Guarantees by Atria and
its subsidiaries of such Debt; provided that the aggregate outstanding
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principal amount of all Debt incurred or Guaranteed by Atria and its
subsidiaries pursuant to this clause (k) and clause (h) of this
Section, calculated on a consolidated basis, shall not at any time
exceed $200,000,000.
SECTION 7. Negative Pledge. Section 5.09(k) of Vencor's
---------------
Credit Agreement is amended to read as follows:
(k) Liens on assets of Atria and its subsidiaries securing (x)
Debt of Atria and its subsidiaries permitted by Section 5.08(k), (y)
reimbursement obligations of Atria and its subsidiaries permitted by
Section 5.08(h) and (z) obligations of Atria and its subsidiaries under
"Designated Interest Rate Agreements" (as such term is defined in
Atria's Credit Agreement).
SECTION 8. Limitation on Investments in Minority-Owned
-------------------------------------------
Affiliates. Clause (i) of Section 5.12 of Vencor's Credit Agreement is amended
- ----------
to read as follows:
(i) Investments existing on the Closing Date in Minority-Owned
Affiliates existing on the Closing Date and identified on Schedule III
hereto and Investments in shares of common stock of Atria existing on
August 20, 1996 and the Term Promissory Note dated August 19, 1996 in
the principal amount of $14 million evidencing the obligation of
Hillhaven Properties, Ltd. to repay to Vencor such principal amount and
the interest thereon.
SECTION 9. Transactions with Affiliates. Schedule IV to
----------------------------
Vencor's Credit Agreement is amended by adding the following two items at the
end of the list of Affiliate Agreements that Vencor is permitted to perform
notwithstanding the restriction on transactions with Affiliates set forth in
Section 5.13 of Vencor's Credit Agreement:
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8. Service Agreements whereby First Healthcare Corporation
or Nationwide Care, Inc. agree to provide certain
administrative, maintenance, operation and utility
services for and on behalf of Atria Communities, Inc. or
an affiliate of Atria Communities, Inc. Atria
Communities, Inc. has agreed to pay the expenses
incurred by First Healthcare Corporation or Nationwide
Care, Inc. in rendering the services required under the
Service Agreements. First Healthcare Corporation and
Nationwide Care, Inc. will not make any profit on
providing the services to Atria Communities, Inc. or its
affiliates under the Service Agreements.
9. A Lease Agreement between New Pond Village Associates
and Atria Communities, Inc. whereby Atria Communities,
Inc. leases from New Pond Village Associates the
assisted living center located in New Pond Massachusetts
and known as New Pond Village. Under the terms of the
Lease, Atria Communities, Inc. must pay as rental all
costs and expenses relating to the assisted living
center, including without limitation, all debt service.
The assisted living facility will be transferred to
Atria Communities, Inc. for $1.00 upon satisfaction of
certain conditions, including without limitation,
satisfaction of all zoning requirements.
SECTION 10. Limitation on Restrictions Affecting Subsidiaries.
-------------------------------------------------
Section 5.14 of Vencor's Credit Agreement is amended by deleting the word "or"
at the end of clause (e), changing the period at the end of clause (f) to ";
and" and adding the following new clause (g):
(g) the Parent Guaranty, insofar as the provisions thereof
require that, if any Subsidiary of Vencor (other than Atria and its
subsidiaries) secures any Consolidated Debt for Borrowed Money, it must
secure the Debt and reimbursement obligations of Atria and its
Subsidiaries permitted by Section 5.08(h) and 5.08(k) equally and
ratably with such Consolidated Debt for Borrowed Money; provided that
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the foregoing provision of the Parent Guaranty shall not in any event
apply to any of the assets included or required to be included in the
Collateral pursuant to subsections (A), (B) and (C) of Section 3 of the
Security Agreement as in effect on August 15, 1996 or any proceeds
thereof.
SECTION 11. Reduction of Amount of Parent Guaranty. Vencor's
--------------------------------------
Credit Agreement is amended by adding the following new Section 5.19 at the end
of Article V:
SECTION 5.19. Reduction of Amount of Parent Guaranty. Vencor
--------------------------------------
will cause the maximum amount guaranteed by it pursuant to the Parent
Guaranty to be reduced as and when provided in Section 2.2 of the
Parent Guaranty (and will not
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elect to defer any such reduction or reduce the amount of any such
reduction); provided that Vencor may elect to defer all or any portion
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of any such reduction for a period not exceeding 12 months.
SECTION 12. Defaults. Section 6.01 of Vencor's Credit
--------
Agreement is amended by replacing "5.18" in the third line of clause (b) with
"5.19".
SECTION 13. Rights Otherwise Unaffected. This Amendment is
---------------------------
limited to the matters expressly set forth herein. Except to the extent
specifically amended or waived hereby, all terms of Vencor's Credit Agreement
shall remain in full force and effect.
SECTION 14. Governing Law. This Amendment shall be governed
-------------
by and construed in accordance with the laws of the State of New York.
SECTION 15. Counterparts. 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.
SECTION 16. Effectiveness. This Amendment shall become
-------------
effective when the following conditions are satisfied:
(a) the Documentation Agent shall have received from each of
the Required Banks and each of the Borrowers either a counterpart
hereof signed by such party or facsimile or other written confirmation
from such party that it has signed a counterpart hereof;
(b) each of the conditions to the effectiveness of Amendment
No. 4 to Vencor's Credit Agreement shall have been satisfied and said
Amendment No. 4 shall have become effective as provided in Section 11
thereof;
(c) the Documentation Agent shall have received a Vencor
Supporting Guaranty from each of the Subsidiary Borrowers; and
(d) the Documentation Agent shall have received an opinion of
counsel for Vencor with respect to (i) corporate existence and power of
Vencor and the Supporting Guarantors, (ii) corporate and governmental
authorization of Vencor and the Supporting Guarantors, and (iii)
noncontravention and binding effect of Vencor's Credit Agreement as
amended by this Amendment No. 5, the Vencor Supporting Guaranties and
the Atria Supporting Guaranties, in form and substance satisfactory to
the Documentation Agent in its sole discretion (by its execution and
delivery of this Amendment No. 5, Vencor authorizes and directs such
counsel to delivery such opinion).
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IN WITNESS WHEREOF, the undersigned parties have caused this
Amendment to be duly executed as of the date first above written.
BORROWERS
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VENCOR, INC.
By: /s/ Richard A. Lechleiter
---------------------------------------
Name: Richard A. Lechleiter
Title: Vice President of Finance
and Corporate Controller
FIRST HEALTHCARE CORPORATION
By: /s/ Richard A. Lechleiter
---------------------------------------
Name: Richard A. Lechleiter
Title: Vice President of Finance
and Corporate Controller
NORTHWEST HEALTH CARE, INC.
By: /s/ Richard A. Lechleiter
---------------------------------------
Name: Richard A. Lechleiter
Title: Vice President of Finance
and Corporate Controller
MEDISAVE PHARMACIES, INC.
By: /s/ Richard A. Lechleiter
---------------------------------------
Name: Richard A. Lechleiter
Title: Vice President of Finance
and Corporate Controller
HILLHAVEN PROPERTIES, LTD.
By: /s/ Richard A. Lechleiter
---------------------------------------
Name: Richard A. Lechleiter
Title: Vice President of Finance
and Corporate Controller
HILLHAVEN OF CENTRAL FLORIDA, INC.
By: /s/ Richard A. Lechleiter
---------------------------------------
Name: Richard A. Lechleiter
Title: Vice President of Finance
and Corporate Controller
NATIONWIDE CARE, INC.
By: /s/ Richard A. Lechleiter
---------------------------------------
Name: Richard A. Lechleiter
Title: Vice President of Finance
and Corporate Controller
BANKS
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BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION
By: /s/ James C. Colegate
---------------------------------------
Name: James C. Colgate
Title: Senior Vice President
THE BANK OF NEW YORK
By: /s/ Douglas Ober
---------------------------------------
Name: Douglas Ober
Title: Vice President
THE CHASE MANHATTAN BANK (as
successor by merger to Chemical Bank)
By: /s/ Dawn Lee Lum
---------------------------------------
Name: Dawn Lee Lum
Title: Vice President
/dpw/cw/028/27009/107/CA/amend5.exec
8
CREDIT SUISSE
By: /s/ Harry R. Olsen
---------------------------------------
Name: Harry R. Olsen
Title: Member of Senior Management
By: /s/ Kristinn R. Kristinsson
---------------------------------------
Name: Kristinn R. Kristinsson
Title: Associate
MELLON BANK, N.A.
By: /s/ Marsha Wicker
---------------------------------------
Name: Marsha Wicker
Title: Vice President
PNC BANK, KENTUCKY, INC.
By: /s/ Todd D. Munson
---------------------------------------
Name: Todd D. Munson
Title: Vice President
TORONTO-DOMINION (TEXAS), INC.
By: /s/ Warren Finlay
---------------------------------------
Name: Warren Finlay
Title: Vice President
WACHOVIA BANK OF NORTH CAROLINA
By: /s/ Robert G. Brookby
---------------------------------------
Name: Robert G. Brookby
Title: Executive Vice President
BANK OF LOUISVILLE AND TRUST
COMPANY
By: /s/ Roy L. Johnson, Jr.
---------------------------------------
Name: Roy L. Johnson, Jr.
Title: Senior Vice President
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BANK ONE, COLUMBUS, NA
By: /s/ James Zook
---------------------------------------
Name: James Zook
Title: Vice President
FIRST UNION NATIONAL BANK OF
NORTH CAROLINA
By: /s/ Joseph H. Towell
---------------------------------------
Name: Joseph H. Towell
Title: Senior Vice President
FLEET NATIONAL BANK, formerly known as,
FLEET BANK OF MASSACHUSETTS
By: /s/ Ginger Stolzenthaler
---------------------------------------
Name: Ginger Stolzenthaler
Title: Vice President
LTCB TRUST COMPANY
By: /s/ Rene LeBlanc
---------------------------------------
Name: Rene LeBlanc
Title: Senior Vice President
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK
By: /s/ Diana H. Imhof
---------------------------------------
Name: Diana H. Imhof
Title: Vice President
NATIONAL CITY BANK OF KENTUCKY
By: /s/ Deroy Scott
---------------------------------------
Name: Deroy Scott
Title: Vice President
NATIONSBANK, N. A.
By: /s/ S.W. Choppin
---------------------------------------
Name: S.W. Choppin
Title: Senior Vice President
NBD BANK
By: /s/ Cindy A. Herzog
---------------------------------------
Name: Cindy A. Herzog
Title: Authorized Agent
BANK OF AMERICA NW, N.A. doing business as
SEAFIRST BANK
aka SEATTLE-FIRST NATIONAL BANK
By: /s/ Ward G. Kerby
---------------------------------------
Name: Ward G. Kerby
Title: Assistant Vice President
U.S. BANK OF WASHINGTON NATIONAL
ASSOCIATION
By: /s/ Arnold J. Conrad
---------------------------------------
Name: Arnold J. Conrad
Title: Vice President
Exhibit O
FORM OF
VENCOR SUPPORTING GUARANTY
Guaranty dated as of August __, 1996 by _______________ (the
"Supporting Guarantor") for the benefit of the Banks, Co-Agents, LC Issuing
Banks, Administrative Agent, Documentation Agent and Collateral Agent from time
to time party to Vencor's Credit Agreement (as defined below) (the "Vencor
Lenders") and, to the extent set forth in Section 9 below, the Creditors from
time to time party to Atria's Credit Agreement (as defined below):
WHEREAS, terms defined in the Credit Agreement dated as of
September 11, 1995 among Vencor, Inc. ("Vencor"), the other Borrowers referred
to therein (the "Subsidiary Borrowers") and the Banks, Co-Agents, LC Issuing
Banks and Agents referred to therein, as such agreement may be amended from time
to time ("Vencor's Credit Agreement"), have the same respective meanings when
used herein;
WHEREAS, Atria Communities, Inc. ("Atria") proposes to enter
into a $200,000,000 credit agreement ("Atria's Credit Agreement"), to borrow
thereunder from time to time and to cause letters of credit to be issued
thereunder to provide credit support for IRB Debt;
WHEREAS, Vencor proposes to guarantee such obligations of
Atria (other than a portion thereof relating to mature properties);
WHEREAS, Vencor proposes to cause the Subsidiary Borrowers to
guarantee Vencor's performance of its guarantee of the obligations of Atria and
may hereafter cause one or more other Subsidiaries to give similar guarantees of
Vencor's performance thereof (the Subsidiary Borrowers and such other
Subsidiaries, if any, herein collectively called the "Supporting Guarantors");
WHEREAS, Vencor and the Banks have agreed to amend certain
covenants in Vencor's Credit Agreement to permit the foregoing transactions; and
WHEREAS, in consideration of such Amendment, Vencor has agreed
to cause each Supporting Guarantor to guarantee Vencor's performance of its
obligations under Vencor's Credit Agreement;
NOW, THEREFORE, it is agreed as follows:
SECTION 1. Definitions. The following terms, as used
-----------
herein, have the following meanings:
"Atria's Administrative Agent" means PNC Bank, National
Association, as Administrative Agent under the Atria Credit Agreement and any
permitted successor thereto that has been identified as such by notice from
Atria to Vencor's Administrative Agent.
"Atria's Required Lenders" means the "Required Lenders" as
such term is defined in Atria's Credit Agreement.
"Corresponding Atria Guaranty" means the guaranty by the
Supporting Guarantor that Vencor will perform its obligations under the Parent
Guaranty (as such term is defined in Atria's Credit Agreement).
"Significant Credit Event" shall have the meaning set forth in
Section 9 hereof.
"Vencor's Administrative Agent" means NationsBank, N.A., as
Administrative Agent under Vencor's Credit Agreement and any permitted successor
thereto that has been identified as such by notice from Vencor to Atria's
Administrative Agent.
"Vencor's Required Banks" means the "Required Banks" as such
term is defined in Vencor's Credit Agreement.
SECTION 2. Representations and Warranties. The Supporting
------------------------------
Guarantor represents and warrants that:
(a) The Supporting Guarantor is a corporation duly
incorporated, validly existing and in good standing under the laws of the
jurisdiction of its incorporation, and has all corporate powers and all material
governmental licenses, authorizations, consents and approvals required to carry
on its business as now conducted.
(b) The execution, delivery and performance by the Supporting
Guarantor of this Guaranty are within the corporate powers of the Supporting
Guarantor, have been duly authorized by all necessary corporate action, require
no action by or in respect of, or filing with, any governmental body, agency or
official and do not contravene, or constitute a default under, any provision of
applicable law or regulation or of the certificate of incorporation or by-laws
of the Supporting Guarantor or of any agreement, judgment, injunction, order,
decree or other instrument binding upon the Supporting Guarantor or any of its
Subsidiaries or result in the creation or imposition of any Lien on any asset of
the Supporting Guarantor or any of its Subsidiaries.
(c) This Guaranty constitutes a valid and binding agreement of
the Supporting Guarantor, enforceable in accordance with its terms.
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(d) There is no action, suit or proceeding pending against, or
to the knowledge of the Supporting Guarantor threatened against or affecting,
the Supporting Guarantor or any of its Subsidiaries before any court or
arbitrator or any governmental body, agency or official in which there is a
reasonable possibility of an adverse decision which could have a material
adverse effect upon the condition (financial or otherwise), results of
operations, business, or prospects of Vencor and its Subsidiaries, considered as
a whole, or which in any manner draws into question the validity or
enforceability of this Guaranty.
SECTION 3. The Guarantee. The Supporting Guarantor
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unconditionally and irrevocably guarantees the full and punctual payment of all
present and future indebtedness and other obligations of Vencor evidenced by or
arising under any Financing Document as and when the same shall become due and
payable, whether at maturity or by declaration or otherwise, according to the
terms hereof and thereof (including any interest which accrues on any of the
foregoing obligations after the commencement of any case, proceeding or other
action relating to the bankruptcy, insolvency or reorganization of Vencor,
whether or not allowed or allowable as a claim in any such proceeding). If
Vencor fails punctually to pay the indebtedness and other obligations guaranteed
by the Supporting Guarantor hereby, the Supporting Guarantor unconditionally
agrees to cause such payment to be made punctually as and when the same shall
become due and payable, whether at maturity or by declaration or otherwise, and
as if such payment were made by Vencor.
SECTION 4. Guarantee Unconditional. Except as provided in
-----------------------
Section 9, the obligations of the Supporting Guarantor under this Guaranty shall
be unconditional and absolute and, without limiting the generality of the
foregoing, shall not be released, discharged or otherwise affected by:
(a) any extension, renewal, settlement, compromise, waiver or
release in respect of any obligation of Vencor under any Financing
Document by operation of law or otherwise;
(b) any modification, amendment or waiver of or supplement
to any Financing Document;
(c) any release, impairment, non-perfection or invalidity of
any direct or indirect security, or of any guarantee or other liability
of any third party, for any obligation of Vencor under any Financing
Document;
(d) any change in the corporate existence, structure or
ownership of Vencor or any of its Subsidiaries, or any insolvency,
bankruptcy, reorganization or other similar proceeding affecting Vencor
or any of its Subsidiaries or its assets, or
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any resulting release or discharge of any obligation of Vencor or any
of its Subsidiaries contained in any Financing Document;
(e) the existence of any claim, set-off or other rights which
the Supporting Guarantor or Vencor may have at any time against any
Bank, any LC Issuing Bank, any Agent or any other Person, whether or
not arising in connection with this Guaranty, provided that nothing
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herein shall prevent the assertion of any such claim by separate suit
or compulsory counterclaim;
(f) any invalidity or unenforceability relating to or against
Vencor for any reason of any Financing Document, or any provision of
applicable law or regulation purporting to prohibit the payment by
Vencor of any amount payable by it under any Financing Document; or
(g) any other act or omission to act or delay of any kind by
Vencor, any Bank, any LC Issuing Bank, any Agent or any other Person or
any other circumstance whatsoever that might, but for the provisions of
this Section 4, constitute a legal or equitable discharge of the
Supporting Guarantor's obligations under this Guaranty.
SECTION 5. Discharge Only Upon Payment in Full; Reinstatement
--------------------------------------------------
in Certain Circumstances. The Supporting Guarantor's obligations under this
- ------------------------
Guaranty constitute a continuing guaranty and shall remain in full force and
effect until either (i) this Guaranty is terminated pursuant to Section 2.16 of
Vencor's Credit Agreement or (ii) the Commitments of each Bank shall have been
terminated and the Credit Exposure of each Bank shall have been reduced to zero
and all amounts payable by Vencor under the Financing Documents shall have been
paid in full. If at any time any amount payable by Vencor under any Financing
Document is rescinded or must be otherwise restored or returned upon the
insolvency, bankruptcy or reorganization of Vencor or otherwise, the Supporting
Guarantor's obligations under this Guaranty with respect to such payment shall
be reinstated at such time as though such payment had become due but had not
been made at such time.
SECTION 6. Waiver. The Supporting Guarantor irrevocably waives
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acceptance hereof, presentment, demand, protest and any notice not provided for
herein, as well as any requirement that at any time any action be taken by any
Person against Vencor or any other Person or against any security.
SECTION 7. Subrogation and Contribution. Upon making any
----------------------------
payment hereunder with respect to the obligations of Vencor, the Supporting
Guarantor shall be subrogated to the rights of the payee against Vencor with
respect to such payment, and shall also have a right of contribution against all
other Supporting Guarantors in respect of any such payment pro rata among same
based on their respective net fair value as
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enterprises; provided that the Supporting Guarantor shall not enforce any
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payment by way of subrogation against Vencor or contribution against any other
Supporting Guarantor so long as any Bank has any Commitment to Vencor under
Vencor's Credit Agreement or any amount payable by Vencor under any Financing
Document remains unpaid.
SECTION 8. Stay of Acceleration. If acceleration of the time
--------------------
for payment of any amount payable by Vencor under any Financing Document is
stayed upon the insolvency, bankruptcy or reorganization of Vencor, all such
amounts otherwise subject to acceleration under the terms of such Financing
Document shall nonetheless be payable by the Supporting Guarantor hereunder
forthwith on demand by the Documentation Agent made at the request of the
requisite number of Banks specified in Section 6.01 of Vencor's Credit
Agreement.
SECTION 9. Deferral of Enforcement; Pro Rata Sharing.
-----------------------------------------
(a) This Guaranty shall not be enforced unless one or more
"Significant Credit Events" shall have occurred and be continuing. For purposes
hereof, the term "Significant Credit Event" means:
(i) Vencor, Atria or any Supporting Guarantor commences a
voluntary case or other proceeding seeking liquidation, reorganization
or other relief with respect to itself or its debts under any
bankruptcy, insolvency or other similar law now or hereafter in effect
or seeking the appointment of a trustee, receiver, liquidator,
custodian or other similar official of it or any substantial part of
its property, or consents to any such relief or to the appointment of
or taking possession by any such official in an involuntary case or
other proceeding commenced against it, or makes a general assignment
for the benefit of creditors, or fails generally to pay its debts as
they become due, or takes any corporate action to authorize any of the
foregoing; or
(ii) an involuntary case or other proceeding is commenced
against Vencor, Atria or any Supporting Guarantor seeking liquidation,
reorganization or other relief with respect to it or its debts under
any bankruptcy, insolvency or other similar law now or hereafter in
effect or seeking the appointment of a trustee, receiver, liquidator,
custodian or other similar official of it or any substantial part of
its property, and such involuntary case or other proceeding shall
remain undismissed and unstayed for a period of 60 days; or an order
for relief shall be entered against Vencor, Atria or any Supporting
Guarantor under the Federal bankruptcy laws as now or hereafter in
effect; or
(iii) all amounts outstanding under either Atria's Credit
Agreement or Vencor's Credit Agreement shall have become due and
payable upon the final maturity thereof or by reason of acceleration;
or
5
(iv) Vencor's Required Banks (as such term is defined in
Vencor's Credit Agreement) have signed and delivered to Atria's
Administrative Agent a certificate stating that (x) an event of default
under Vencor's Credit Agreement has occurred and is continuing, and (y)
Vencor's Required Banks have determined that the credit facility
provided under Vencor's Credit Agreement is in a "workout;" or
(v) Atria's Required Lenders (as such term is defined in
Atria's Credit Agreement) have signed and delivered to Vencor's
Administrative Agent a certificate stating that (x) an event of default
under Atria's Credit Agreement has occurred and is continuing, and (y)
Atria's Required Lenders have determined that the credit facility
provided under Atria's Credit Agreement is in a "workout."
(b) It is the desire and intent of the Supporting Guarantor
and the beneficiaries of this Guaranty that this Guaranty be enforced to the
fullest extent permissible under the laws and public policies applied in each
jurisdiction in which enforcement is sought. If and to the extent that the
obligations of the Supporting Guarantor under this Guaranty would, in the
absence of this sentence, be adjudicated to be invalid or unenforceable because
of any applicable state or federal law relating to fraudulent conveyances or
transfers, then the amount of the Supporting Guarantor's liability hereunder in
respect of the obligations of Vencor guaranteed hereunder shall be deemed to be
reduced ab initio to that maximum amount which would be permitted without
causing such Supporting Guarantor's obligations hereunder to be so invalidated;
provided that if, at the time of enforcement of either this Guaranty or the
- --------
Corresponding Atria Guaranty, the amount payable under this Guaranty or the
Corresponding Atria Guaranty is limited by this Section 9(b) or the
substantially identical provision set forth in the Corresponding Atria Guaranty,
as the case may be, then the amounts payable under both this Guaranty and the
Corresponding Atria Guaranty shall be limited so that the maximum amount payable
under each guaranty is proportional to the respective aggregate amount
guaranteed under each such guaranty (without regard to the limits under this
Section 9(b) or the substantially identical provision of the Corresponding Atria
Guaranty) when the Significant Credit Event that exists at the time of
enforcement occurred (or if two or more Significant Credit Events exist at the
time of enforcement, when the earlier of such Significant Credit Events
occurred).
(c) The Supporting Guarantor agrees that, if it makes any
payments upon enforcement of either this Guaranty or the Corresponding Atria
Guaranty, it will make a pro rata payment under the other of such guaranties so
that (i) the payments under this Guaranty and the Corresponding Atria Guaranty
are concurrent and (ii) the total amount paid under each guaranty is
proportional to the aggregate amount guaranteed under such guaranty (without
regard to the limits under Section 9(b) hereof or the substantially identical
provision of the Corresponding Atria Guaranty) when the Significant Credit Event
that exists at the time of enforcement occurred (or if two or more Significant
Credit
6
Events exist at the time of enforcement, when the earlier of such Significant
Credit Events occurred.)
(d) The provisions of this Section 9 are intended for the
benefit of the beneficiaries of the Corresponding Atria Guaranty and shall be
directly enforceable by them.
(e) The Corresponding Atria Guaranty contains provisions
substantially identical to this Section 9, which provisions are intended for the
benefit of the beneficiaries of this Guaranty and shall be directly enforceable
by them. The Supporting Guarantor will not permit such provisions to be
terminated, amended, waived or otherwise changed without the prior written
consent of Vencor's Required Banks.
SECTION 10. Notices. Notices and other communications
-------
hereunder shall be given in writing in the manner specified in Section 11.01 of
Vencor's Credit Agreement.
SECTION 11. Governing Law. This Guaranty shall be governed
-------------
by and construed in accordance with the laws of the State of New York.
IN WITNESS WHEREOF, the Supporting Guarantor has caused this
Guaranty to be duly executed by its authorized officer as of the day and year
first above written.
[NAME OF SUPPORTING GUARANTOR]
By:
-----------------------------
Name:
Title:
7
VENCOR SUPPORTING GUARANTY
Guaranty dated as of August 26, 1996 by FIRST HEALTHCARE
CORPORATION (the "Supporting Guarantor") for the benefit of the Banks,
Co-Agents, LC Issuing Banks, Administrative Agent, Documentation Agent and
Collateral Agent from time to time party to Vencor's Credit Agreement (as
defined below) (the "Vencor Lenders") and, to the extent set forth in Section 9
below, the Creditors from time to time party to Atria's Credit Agreement (as
defined below):
WHEREAS terms defined in the Credit Agreement dated as of
September 11, 1995 among Vencor, Inc. ("Vencor"), the other Borrowers referred
to therein (the "Subsidiary Borrowers") and the Banks, Co-Agents, LC Issuing
Banks and Agents referred to therein, as such agreement may be amended from time
to time ("Vencor's Credit Agreement"), have the same respective meanings when
used herein;
WHEREAS, Atria Communities, Inc. ("ATRIA") proposes to
enter into a $200,000,000 credit agreement ("Atria's Credit Agreement"), to
borrow thereunder from time to time and to cause letters of credit to be issued
thereunder to provide credit support for IRB Debt;
WHEREAS, Vencor proposes to guarantee such obligations of
Atria (other than a portion thereof relating to mature properties);
WHEREAS Vencor proposes to cause the Subsidiary Borrowers
to guarantee Vencor's performance of its guarantee of the obligations of Atria
and may hereafter cause one or more other Subsidiaries to give similar
guarantees of Vencor's performance thereof (the Subsidiary Borrowers and such
other Subsidiaries, if any, herein collectively called the "Supporting
Guarantors");
WHEREAS, Vencor and the Banks have agreed to amend certain
covenants in Vencor's Credit Agreement to permit the foregoing transactions; and
WHEREAS, in consideration of such Amendment, Vencor has
agreed to cause each Supporting Guarantor to guarantee Vencor's performance of
its obligations under Vencor's Credit Agreement;
NOW, THEREFORE, it is agreed as follows:
SECTION 1. Definitions. The following terms, as used
-----------
herein, have the following meanings:
"Atria's Administrative Agent" means PNC Bank, National
Association, as Administrative Agent under the Atria Credit Agreement and any
permitted successor thereto that has been identified as such by notice from
Atria to Vencor's Administrative Agent.
"Atria's Required Lenders" means the "Required Lenders"
as such term is defined in Atria's Credit Agreement.
"Corresponding Atria Guaranty" means the guaranty by the
Supporting Guarantor that Vencor will perform its obligations under the Parent
Guaranty (as such term is defined in Atria's Credit Agreement).
"Significant Credit Event" shall have the meaning set
forth in Section 9 hereof.
"Vencor's Administrative Agent" means NationsBank, N.A.,
as Administrative Agent under Vencor's Credit Agreement and any permitted
successor thereto that has been identified as such by notice from Vencor to
Atria's Administrative Agent.
"Vencor's Required Banks" means the "Required Banks" as
such term is defined in Vencor's Credit Agreement
SECTION 2. Representations and Warranties. The Supporting
------------------------------
Guarantor represents and warrants that:
(a) The Supporting Guarantor is a corporation duly
incorporated, validly existing and in good standing under the laws of the
jurisdiction of its incorporation, and has all corporate powers and all material
governmental licenses, authorizations, consents and approvals required to carry
on its business as now conducted.
(b) The execution, delivery and performance by the
Supporting Guarantor of this Guaranty are within the corporate powers of the
Supporting Guarantor, have been duly authorized by all necessary corporate
action, require no action by or in respect of, or filing with, any governmental
body, agency or official and do not contravene, or constitute a default under,
any provision of applicable law or regulation or of the certificate of
incorporation or by-laws of the
2
Supporting Guarantor or of any agreement, judgment, injunction, order, decree or
other instrument binding upon the Supporting Guarantor or any of its
Subsidiaries or result in the creation or imposition of any Lien on any asset
of the Supporting Guarantor or any of its Subsidiaries.
(c) This Guaranty constitutes a valid and binding
agreement of the Supporting Guarantor, enforceable in accordance with its terms.
(d) There is no action, suit or proceeding pending
against, or to the knowledge of the Supporting Guarantor threatened against or
affecting, the Supporting Guarantor or any of its Subsidiaries before any court
or arbitrator or any governmental body, agency or official in which there is a
reasonable possibility of an adverse decision which could have a material
adverse effect upon the condition (financial or otherwise), results of
operations, business, or prospects of Vencor and its Subsidiaries, considered as
a whole, or which in any manner draws into question the validity or
enforceability of this Guaranty.
SECTION 3. The Guarantee. The Supporting Guarantor
-------------
unconditionally and irrevocably guarantees the full and punctual payment of all
present and future indebtedness and other obligations of Vencor evidenced by or
arising under any Financing Document as and when the same shall become due and
payable, whether at maturity or by declaration or otherwise, according to the
terms hereof and thereof (including any interest which accrues on any of the
foregoing obligations after the commencement of any case, proceeding or other
action relating to the bankruptcy, insolvency or reorganization of Vencor,
whether or not allowed or allowable as a claim in any such proceeding). If
Vencor fails punctually to pay the indebtedness and other obligations guaranteed
by the Supporting Guarantor hereby, the Supporting Guarantor unconditionally
agrees to cause such payment to be made punctually as and when the same shall
become due and payable, whether at maturity or by declaration or otherwise, and
as if such payment were made by Vencor.
SECTION 4. Guarantee Unconditional. Except as provided in
-----------------------
Section 9, the obligations of the Supporting Guarantor under this Guaranty shall
be unconditional and absolute and, without limiting the generality of the
foregoing, shall not be released, discharged or otherwise affected by:
(a) any extension, renewal, settlement, compromise,
waiver or release in respect of any obligation of Vencor
under any Financing Document by operation of law or otherwise;
(b) any modification, amendment or waiver of or
supplement to any Financing Document;
3
(c) any release, impairment, non-perfection or
invalidity of any direct or indirect security, or
of any guarantee or other liability of any third
party, for any obligation of Vencor under any
Financing Document;
(d) any change in the corporate existence,
structure or ownership of Vencor or any of its
Subsidiaries, or any insolvency bankruptcy,
reorganization or other similar proceeding
affecting Vencor or any of its Subsidiaries or its
assets, or any resulting release or discharge of
any obligation of Vencor or any of its Subsidiaries
contained in any Financing Document;
(e) the existence of any claim, set-off or other
rights which the Supporting Guarantor or Vencor may
have at any time against any Bank, any LC Issuing
Bank, any Agent or any other Person, whether or not
arising in connection with this Guaranty, provided
--------
that nothing herein shall prevent the assertion of
any such claim by separate suit or compulsory
counterclaim;
(f) any invalidity or unenforceability relating to
or against Vencor for any reason of any Financing
Document, or any provision of applicable law or
regulation purporting to prohibit the payment by
Vencor of any amount payable by it under any
Financing Document; or
(g) any other act or omission to act or delay of
any kind by Vencor, any Bank, any LC Issuing Bank,
any Agent or any other Person or any other
circumstance whatsoever that might but for the
provisions of this Section 4, constitute a legal or
equitable discharge of the Supporting Guarantor's
obligations under this Guaranty.
SECTION 5. Discharge Only Upon Payment in Full
-----------------------------------
Reinstatement in Certain Circumstances. The Supporting Guarantor's obligations
- --------------------------------------
under this Guaranty constitute a continuing guaranty and shall remain in full
force and effect until either (i) this Guaranty is terminated pursuant to
Section 2.16 of Vencor's Credit Agreement or (ii) the Commitments of each Bank
shall have been terminated and the Credit Exposure of each Bank shall have been
reduced to zero and all amounts payable by Vencor under the Financing Documents
shall have been paid in full. If at any time any amount payable by Vencor under
any Financing Document is rescinded or must be otherwise restored or returned
upon the
4
insolvency, bankruptcy or reorganization of Vencor or otherwise, the Supporting
Guarantor's obligations under this Guaranty with respect to such payment shall
be reinstated at such time as though such payment had become due but had not
been made at such time.
SECTION 6. Waiver. The Supporting Guarantor irrevocably
------
waives acceptance hereof, presentment, demand, protest and any notice not
provided for herein, as well as any requirement that at any time any action be
taken by any Person against Vencor or any other Person or against any security.
SECTION 7. Subrogation and Contribution. Upon making any
----------------------------
payment hereunder with respect to the obligations of Vencor, the Supporting
Guarantor shall be subrogated to the rights of the payee against Vencor with
respect to such payment, and shall also have a right of contribution against all
other Supporting Guarantors in respect of any such payment pro rata among same
based on their respective net fair value as enterprises; provided that the
--------
Supporting Guarantor shall not enforce any payment by way of subrogation against
Vencor or contribution against any other Supporting Guarantor so long as any
Bank has any Commitment to Vencor under Vencor's Credit Agreement or any amount
payable by Vencor under any Financing Document remains unpaid.
SECTION 8. Stay of Acceleration. If acceleration of the
--------------------
time for payment of any amount payable by Vencor under any Financing Document is
stayed upon the insolvency, bankruptcy or reorganization of Vencor, all such
amounts otherwise subject to acceleration under the terms of such Financing
Document shall nonetheless be payable by the Supporting Guarantor hereunder
forthwith on demand by the Documentation Agent made at the request of the
requisite number of Banks specified in Section 6.01 of Vencor's Credit
Agreement.
SECTION 9. Deferral of Enforcement Pro Rata Sharing.
----------------------------------------
(a) This Guaranty shall not be enforced unless one or more
"Significant Credit Events" shall have occurred and be continuing. For purposes
hereof, the term "Significant Credit Event" means:
(i) Vencor, Atria or any Supporting Guarantor commences
a voluntary case or other proceeding seeking liquidation,
reorganization or other relief with respect to itself or its debts
under any bankruptcy, insolvency or other similar law now or
hereafter in effect or seeking the appointment of a trustee,
receiver, liquidator, custodian or other similar official of it or
any substantial part of its property, or consents to any such relief
or to the appointment of or taking possession by any such official in
5
an involuntary case or other proceeding commenced against it, or
makes a general assignment for the benefit of creditors, or fails
generally to pay its debts as they become due, or takes any corporate
action to authorize any of the foregoing; or
(ii) an involuntary case or other proceeding is commenced
against Vencor, Atria or any Supporting Guarantor seeking
liquidation, reorganization or other relief with respect to it or its
debts under any bankruptcy insolvency or other similar law now or
hereafter in effect or seeking the appointment of a trustee,
receiver, liquidator, custodian or other similar official of it or
any substantial part of its property, and such involuntary case or
other proceeding shall remain undismissed and unstayed for a period
of 60 days; or an order for relief shall be entered against Vencor
Atria or any Supporting Guarantor under the Federal bankruptcy laws
as now or hereafter in effect; or
(iii) all amounts outstanding under either Atria's
Credit Agreement or Vencor's Credit Agreement shall have become due
and payable upon the final maturity thereof or by reason of
acceleration; or
(iv) Vencor's Required Banks (as such term is defined in
Vencor's Credit Agreement) have signed and delivered to Atria's
Administrative Agent a certificate stating that (x) an event of
default under Vencor's Credit Agreement has occurred and is
continuing, and (y) Vencor's Required Banks have determined that the
credit facility provided under Vencor's Credit Agreement is in a
"workout;" or
(v) Atria's Required Lenders (as such term is
defined in Atria's Credit Agreement) have signed and delivered to
Vencor's Administrative Agent a certificate stating that (x) an event
of default under Atria's Credit Agreement has occurred and is
continuing, and (y) Atria's Required Lenders have determined that the
credit facility provided under Atria's Credit Agreement is in a
"workout."
(b) It is the desire and intent of the Supporting
Guarantor and the beneficiaries of this Guaranty that this Guaranty be enforced
to the fullest extent permissible under the laws and public policies applied in
each jurisdiction in which enforcement is sought. If and to the extent that the
obligations of the Supporting Guarantor under this Guaranty would, in the
absence of this sentence, be adjudicated to be invalid or unenforceable because
of any applicable state or federal law relating to fraudulent conveyances or
transfers, then the amount of the Supporting Guarantor's liability hereunder in
respect of the obligations of Vencor guaranteed hereunder shall be deemed to be
reduced ab initio to that maximum
6
amount which would be permitted without causing such Supporting Guarantor's
obligations hereunder to be so invalidated; provided that if, at the time of
--------
enforcement of either this Guaranty or the Corresponding Atria Guaranty, the
amount payable under this Guaranty or the Corresponding Atria Guaranty is
limited by this Section 9(b) or the substantially identical provision set forth
in the Corresponding Atria Guaranty, as the case may be, then the amounts
payable under both this Guaranty and the Corresponding Atria Guaranty shall be
limited so that the maximum amount payable under each guaranty is proportional
to the respective aggregate amount guaranteed under each such guaranty (without
regard to the limits under this Section 9(b) or the substantially identical
provision of the Corresponding Atria Guaranty) when the Significant Credit Event
that exists at the time of enforcement occurred (or if two or more Significant
Credit Events exist at the time of enforcement, when the earlier of such
Significant Credit Events occurred).
(c) The Supporting Guarantor agrees that, if it makes any payments
upon enforcement of either this Guaranty or the Corresponding Atria Guaranty, it
will make a pro rata payment under the other of such guaranties so that (i) the
payments under this Guaranty and the Corresponding Atria Guaranty are concurrent
and (ii) the total amount paid under each guaranty is proportional to the
aggregate amount guaranteed under such guaranty (without regard to the limits
under Section 9(b) hereof or the substantially identical provision of the
Corresponding Atria Guaranty) when the Significant Credit Event that exists at
the time of enforcement occurred (or if two or more Significant Credit Events
exist at the time of enforcement, when the earlier of such Significant Credit
Events occurred).
(d) The provisions of this Section 9 are intended for the benefit of
the beneficiaries of the Corresponding Atria Guaranty and shall be directly
enforceable by them.
(e) The Corresponding Atria Guaranty contains provisions substantially
identical to this Section 9, which provisions are intended for the benefit of
the beneficiaries of this Guaranty and shall be directly enforceable by them.
The Supporting Guarantor will not permit such provisions to be terminated,
amended, waived or otherwise changed without the prior written consent of
Vencor's Required Banks.
7
SECTION 10. Notices. Notices and other communications hereunder shall
-------
be given in writing in the manner specified in Section 11.01 of Vencor's Credit
Agreement.
SECTION 11. Governing Law. This Guaranty shall be governed by and
-------------
construed in accordance with the laws of the State of New York.
8
IN WITNESS WHEREOF, the Supporting Guarantor has caused this Guaranty
to be duly executed by its authorized officer as of the day and year first above
written.
FIRST HEALTHCARE CORPORATION
By: /s/ Richard A. Lechleiter
-----------------------------
Name: Richard A. Lechleiter
Title: Vice President of Finance
and Corporate Controller
VENCOR SUPPORTING GUARANTY
Guaranty dated as of August 26, 1996 by HILLHAVEN OF CENTRAL FLORIDA,
INC. (the "Supporting Guarantor") for the benefit of the Banks, Co-Agents, LC
Issuing Banks, Administrative Agent, Documentation Agent and Collateral Agent
from time to time party to Vencor's Credit Agreement (as defined below) (the
"Vencor Lenders") and, to the extent set forth in Section 9 below, the Creditors
from time to time party to Atria's Credit Agreement (as defined below):
WHEREAS, terms defined in the Credit Agreement dated as of September
11, 1995 among Vencor, Inc. ("Vencor"), the other Borrowers referred to therein
(the "Subsidiary Borrowers") and the Banks, Co-Agents, LC Issuing Banks and
Agents referred to therein, as such agreement may be amended from time to time
("Vencor's Credit Agreement"), have the same respective meanings when used
herein;
WHEREAS, Atria Communities, Inc. ("Atria") proposes to enter into a
$200,000,000 credit agreement ("Atria's Credit Agreement"), to borrow thereunder
from time to time and to cause letters of credit to be issued thereunder to
provide credit support for IRB Debt;
WHEREAS, Vencor proposes to guarantee such obligations of Atria (other
than a portion thereof relating to mature properties):
WHEREAS, Vencor proposes to cause the Subsidiary Borrowers to
guarantee Vencor's performance of its guarantee of the obligations of Atria and
may hereafter cause one or more other Subsidiaries to give similar guarantees of
Vencor's performance thereof (the Subsidiary Borrowers and such other
Subsidiaries, if any, herein collectively called the "Supporting Guarantors");
WHEREAS, Vencor and the Banks have agreed to amend certain covenants
in Vencor's Credit Agreement to permit the foregoing transactions; and
WHEREAS, in consideration of such Amendment, Vencor has agreed to
cause each Supporting Guarantor to guarantee Vencor's performance of its
obligations under Vencor's Credit Agreement;
NOW, THEREFORE, it is agreed as follows:
SECTION 1. Definitions. The following terms, as used herein, have the
-----------
following meanings:
"Atria's Administrative Agent" means PNC Bank, National Association,
as Administrative Agent under the Atria Credit Agreement and any permitted
successor thereto that has been identified as such by notice from Atria to
Vencor's Administrative Agent.
"Atria's Required Lenders" means the "Required Lenders" as such term
is defined in Atria's Credit Agreement.
"Corresponding Atria Guaranty" means the guaranty by the Supporting
Guarantor that Vencor will perform its obligations under the Parent Guaranty (as
such term is defined in Atria's Credit Agreement).
"Significant Credit Event" shall have the meaning set forth in Section
9 hereof.
"Vencor's Administrative Agent" means NationsBank, N.A., as
Administrative Agent under Vencor's Credit Agreement and any permitted successor
thereto that has been identified as such by notice from Vencor to Atria's
Administrative Agent.
"Vencor's Required Banks" means the "Required Banks" as such term is
defined in Vencor's Credit Agreement.
SECTION 2. Representations and Warranties. The Supporting Guarantor
------------------------------
represents and warrants that:
(a) The Supporting Guarantor is a corporation duly incorporated,
validly existing and in good standing under the laws of the jurisdiction of its
incorporation, and has all corporate powers and all material governmental
licenses, authorizations, consents and approvals required to carry on its
business as now conducted.
(b) The execution, delivery and performance by the Supporting
Guarantor of this Guaranty are within the corporate powers of the Supporting
Guarantor, have been duly authorized by all necessary corporate action, require
no action by or in respect of, or filing with, any governmental body, agency or
official
2
and do not contravene, or constitute a default under, any provision of
applicable law or regulation or of the certificate of incorporation or by-laws
of the Supporting Guarantor or of any agreement, judgment, injunction, order,
decree or other instrument binding upon the Supporting Guarantor or any of its
Subsidiaries or result in the creation or imposition of any Lien on any asset of
the Supporting Guarantor or any of its Subsidiaries.
(c) This Guaranty constitutes a valid and binding agreement of the
Supporting Guarantor, enforceable in accordance with its terms.
(d) There is no action, suit or proceeding pending against, or to the
knowledge of the Supporting Guarantor threatened against or affecting, the
Supporting Guarantor or any of its Subsidiaries before any court or arbitrator
or any governmental body, agency or official in which there is a reasonable
possibility of an adverse decision which could have a material adverse effect
upon the condition (financial or otherwise), results of operations, business, or
prospects of Vencor and its Subsidiaries, considered as a whole, or which in any
manner draws into question the validity or enforceability of this Guaranty.
SECTION 3. The Guarantee. The Supporting Guarantor unconditionally and
-------------
irrevocably guarantees the full and punctual payment of all present and future
indebtedness and other obligations of Vencor evidenced by or arising under any
Financing Document as and when the same shall become due and payable, whether at
maturity or by declaration or otherwise, according to the terms hereof and
thereof (including any interest which accrues on any of the foregoing
obligations after the commencement of any case, proceeding or other action
relating to the bankruptcy, insolvency or reorganization of Vencor, whether or
not allowed or allowable as a claim in any such proceeding). If Vencor fails
punctually to pay the indebtedness and other obligations guaranteed by the
Supporting Guarantor hereby, the Supporting Guarantor unconditionally agrees to
cause such payment to be made punctually as and when the same shall become due
and payable, whether at maturity or by declaration or otherwise, and as if such
payment were made by Vencor.
SECTION 4. Guarantee Unconditional. Except as provided in Section 9,
-----------------------
the obligations of the Supporting Guarantor under this Guaranty shall
be unconditional and absolute and, without limiting the generality of the
foregoing, shall not be released, discharged or otherwise affected by:
(a) any extension, renewal, settlement, compromise, waiver or release
in respect of any obligation of Vencor under any Financing Document by
operation of law or otherwise;
3
(b) any modification, amendment or waiver of or supplement to any
Financing Document;
(c) any release, impairment, non-perfection or invalidity of any
direct or indirect security, or of any guarantee or other
liability of any third party, for any obligation of Vencor under
any Financing Document;
(d) any change in the corporate existence, structure or ownership
of Vencor or any of its Subsidiaries, or any insolvency,
bankruptcy, reorganization or other similar proceeding affecting
Vencor or any of its Subsidiaries or its assets, or any resulting
release or discharge of any obligation of Vencor or any of its
Subsidiaries contained in any Financing Document;
(e) the existence of any claim, set-off or other rights which the
Supporting Guarantor or Vencor may have at any time against any
Bank, any LC Issuing Bank, any Agent or any other Person, whether
or not arising in connection with this Guaranty, provided that
--------
nothing herein shall prevent the assertion of any such claim by
separate suit or compulsory counterclaim;
(f) any invalidity or unenforceability relating to or against
Vencor for any reason of any Financing Document, or any provision
of applicable law or regulation purporting to prohibit the
payment by Vencor of any amount payable by it under any Financing
Document; or
(g) any other act or omission to act or delay of any kind by
Vencor, any Bank, any LC Issuing Bank, any Agent or any other
Person or any other circumstance whatsoever that might, but for
the provisions of this Section 4, constitute a legal or equitable
discharge of the Supporting Guarantor's obligations under this
Guaranty.
SECTION 5. Discharge Only Upon Payment in Full; Reinstatement in
-----------------------------------------------------
Certain Circumstances. The Supporting Guarantor's obligations under this
- ---------------------
Guaranty constitute a continuing guaranty and shall remain in full force and
effect until either (i) this Guaranty is terminated pursuant to Section 2.16 of
Vencor's Credit Agreement or (ii) the Commitments of each Bank shall have been
terminated and the Credit Exposure of each Bank shall have been reduced to zero
4
and all amounts payable by Vencor under the Financing Documents shall have been
paid in full. If at any time any amount payable by Vencor under any Financing
Document is rescinded or must be otherwise restored or returned upon the
insolvency, bankruptcy or reorganization of Vencor or otherwise, the Supporting
Guarantor's obligations under this Guaranty with respect to such payment shall
be reinstated at such time as though such payment had become due but had not
been made at such time.
SECTION 6. Waiver. The Supporting Guarantor irrevocably waives
------
acceptance hereof, presentment, demand, protest and any notice not provided for
herein, as well as any requirement that at any time any action be taken by any
Person against Vencor or any other Person or against any security.
SECTION 7. Subrogation and Contribution. Upon making any payment
----------------------------
hereunder with respect to the obligations of Vencor, the Supporting Guarantor
shall be subrogated to the rights of the payee against Vencor with respect to
such payment, and shall also have a right of contribution against all other
Supporting Guarantors in respect of any such payment pro rata among same based
on their respective net fair value as enterprises; provided that the Supporting
--------
Guarantor shall not enforce any payment by way of subrogation against Vencor or
contribution against any other Supporting Guarantor so long as any Bank has any
Commitment to Vencor under Vencor's Credit Agreement or any amount payable by
Vencor under any Financing Document remains unpaid.
SECTION 8. Stay of Acceleration. If acceleration of the time for
--------------------
payment of any amount payable by Vencor under any Financing Document is stayed
upon the insolvency, bankruptcy or reorganization of Vencor, all such amounts
otherwise subject to acceleration under the terms of such Financing Document
shall nonetheless be payable by the Supporting Guarantor hereunder forthwith on
demand by the Documentation Agent made at the request of the requisite number of
Banks specified in Section 6.01 of Vencor's Credit Agreement.
SECTION 9. Deferral of Enforcement; Pro Rata Sharing.
----------------------------------------
(a) This Guaranty shall not be enforced unless one or more
"Significant Credit Events" shall have occurred and be continuing. For purposes
hereof, the term "Significant Credit Event" means:
(i) Vencor, Atria or any Supporting Guarantor commences a voluntary
case or other proceeding seeking liquidation, reorganization or other
relief with respect to itself or its debts under any bankruptcy, insolvency
or other similar law now or hereafter in effect or seeking the
5
appointment of a trustee, receiver, liquidator, custodian or other similar
official of it or any substantial part of its property, or consents to any
such relief or to the appointment of or taking possession by any such
official in an involuntary case or other proceeding commenced against it,
or makes a general assignment for the benefit of creditors, or fails
generally to pay its debts as they become due, or takes any corporate
action to authorize any of the foregoing; or
(ii) an involuntary case or other proceeding is commenced against
Vencor, Atria or any Supporting Guarantor seeking liquidation,
reorganization or other relief with respect to it or its debts under any
bankruptcy, insolvency or other similar law now or hereafter in effect or
seeking the appointment of a trustee, receiver, liquidator, custodian or
other similar official of it or any substantial part of its property, and
such involuntary case or other proceeding shall remain undismissed and
unstayed for a period of 60 days; or an order for relief shall be entered
against Vencor, Atria or any Supporting Guarantor under the Federal
bankruptcy laws as now or hereafter in effect; or
(iii) all amounts outstanding under either Atria's Credit Agreement or
Vencor's Credit Agreement shall have become due and payable upon the final
maturity thereof or by reason of acceleration; or
(iv) Vencor's Required Banks (as such term is defined in Vencor's
Credit Agreement) have signed and delivered to Atria's Administrative
Agent a certificate stating that (x) an event of default under Vencor's
Credit Agreement has occurred and is continuing, and (y) Vencor's
Required Banks have determined that the credit facility provided under
Vencor's Credit Agreement is in a "workout;" or
(v) Atria's Required Lenders (as such term is defined in Atria's
Credit Agreement) have signed and delivered to Vencor's Administrative
Agent a certificate stating that (x) an event of default under Atria's
Credit Agreement has occurred and is continuing, and (y) Atria's Required
Lenders have determined that the credit facility provided under Atria's
Credit Agreement is in a "workout."
(b) It is the desire and intent of the Supporting Guarantor and the
beneficiaries of this Guaranty that this Guaranty be enforced to the fullest
extent permissible under the laws and public policies applied in each
jurisdiction in which enforcement is sought. If and to the extent that the
obligations of the Supporting Guarantor under this Guaranty would, in the
absence of this sentence, be adjudicated to be invalid or unenforceable because
of any applicable state or
6
federal law relating to fraudulent conveyances or transfers, then the amount of
the Supporting Guarantor's liability hereunder in respect of the obligations of
Vencor guaranteed hereunder shall be deemed to be reduced ab initio to that
maximum amount which would be permitted without causing such Supporting
Guarantor's obligations hereunder to be so invalidated; provided that if, at the
--------
time of enforcement of either this Guaranty or the Corresponding Atria Guaranty,
the amount payable under this Guaranty or the Corresponding Atria Guaranty is
limited by this Section 9(b) or the substantially identical provision set forth
in the Corresponding Atria Guaranty, as the case may be, then the amounts
payable under both this Guaranty and the Corresponding Atria Guaranty shall be
limited so that the maximum amount payable under each guaranty is proportional
to the respective aggregate amount guaranteed under each such guaranty (without
regard to the limits under this Section 9(b) or the substantially identical
provision of the Corresponding Atria Guaranty) when the Significant Credit Event
that exists at the time of enforcement occurred (or if two or more Significant
Credit Events exist at the time of enforcement, when the earlier of such
Significant Credit Events occurred).
(c) The Supporting Guarantor agrees that, if it makes any payments
upon enforcement of either this Guaranty or the Corresponding Atria Guaranty, it
will make a pro rata payment under the other of such guaranties so that (i) the
payments under this Guaranty and the Corresponding Atria Guaranty are concurrent
and (ii) the total amount paid under each guaranty is proportional to the
aggregate amount guaranteed under such guaranty (without regard to the limits
under Section 9(b) hereof or the substantially identical provision of the
Corresponding Atria Guaranty) when the Significant Credit Event that exists at
the time of enforcement occurred (or if two or more Significant Credit Events
exist at the time of enforcement, when the earlier of such Significant Credit
Events occurred).
(d) The provisions of this Section 9 are intended for the benefit of
the beneficiaries of the Corresponding Atria Guaranty and shall be directly
enforceable by them.
(e) The Corresponding Atria Guaranty contains provisions substantially
identical to this Section 9, which provisions are intended for the benefit of
the beneficiaries of this Guaranty and shall be directly enforceable by them.
The Supporting Guarantor will not permit such provisions to be terminated,
amended, waived or otherwise changed without the prior written consent of
Vencor's Required Banks.
7
SECTION 10. Notices. Notices and other communications hereunder shall
-------
be given in writing in the manner specified in Section 11.01 of Vencor's
Credit Agreement.
SECTION 11. Governing Law. This Guaranty shall be governed by and
-------------
construed in accordance with the laws of the State of New York.
8
IN WITNESS WHEREOF, the Supporting Guarantor has caused this Guaranty
to be duly executed by its authorized officer as of the day and year first above
written.
HILLHAVEN OF CENTRAL FLORIDA, INC.
By: /s/ Richard A. Lechleiter
---------------------------------
Name: Richard A. Lechleiter
Title: Vice President of Finance
and Corporate Controller
VENCOR SUPPORTING GUARANTY
Guaranty dated as of August 26, 1996 by MEDISAVE PHARMACIES, INC. (the
"Supporting Guarantor") for the benefit of the Banks, Co-Agents, LC Issuing
Banks, Administrative Agent, Documentation Agent and Collateral Agent from time
to time party to Vencor's Credit Agreement (as defined below) (the "Vencor
Lenders") and, to the extent set forth in Section 9 below, the Creditors from
time to time party to Atria's Credit Agreement (as defined below):
WHEREAS, terms defined in the Credit Agreement dated as of September
11, 1995 among Vencor, Inc. ("Vencor"), the other Borrowers referred to therein
(the "Subsidiary Borrowers'.) and the Banks, Co-Agents, LC Issuing Banks and
Agents referred to therein, as such agreement may be amended from time to time
("Vencor's Credit Agreement"), have the same respective meanings when used
herein;
WHEREAS, Atria Communities, Inc. ("Atria") proposes to enter into a
$200,000,000 credit agreement ("Atria's Credit Agreement"), to borrow thereunder
from time to time and to cause letters of credit to be issued thereunder to
provide credit support for IRB Debt;
WHEREAS, Vencor proposes to guarantee such obligations of Atria (other
than a portion thereof relating to mature properties);
WHEREAS, Vencor proposes to cause the Subsidiary Borrowers to
guarantee Vencor's performance of its guarantee of the obligations of Atria and
may hereafter cause one or more other Subsidiaries to give similar guarantees of
Vencor's performance thereof (the Subsidiary Borrowers and such other
Subsidiaries, if any, herein collectively called the "Supporting Guarantors");
WHEREAS, Vencor and the Banks have agreed to amend certain covenants
in Vencor's Credit Agreement to permit the foregoing transactions; and
WHEREAS, in consideration of such Amendment, Vencor has agreed to
cause each Supporting Guarantor to guarantee Vencor's performance of its
obligations under Vencor's Credit Agreement;
NOW, THEREFORE, it is agreed as follows:
SECTION 1. Definitions. The following terms, as used herein, have the
-----------
following meanings:
"Atria's Administrative Agent" means PNC Bank, National Association,
as Administrative Agent under the Atria Credit Agreement and any permitted
successor thereto that has been identified as such by notice from Atria to
Vencor's Administrative Agent.
"Atria's Required Lenders" means the "Required Lenders" as such term
is defined in Atria's Credit Agreement.
"Corresponding Atria Guaranty" means the guaranty by the Supporting
Guarantor that Vencor will perform its obligations under the Parent Guaranty (as
such term is defined in Atria's Credit Agreement).
"Significant Credit Event" shall have the meaning set forth in Section
9 hereof.
"Vencor's Administrative Agent" means NationsBank, N.A., as
Administrative Agent under Vencor's Credit Agreement and any permitted successor
thereto that has been identified as such by notice from Vencor to Atria's
Administrative Agent.
"Vencor's Required Banks" means the "Required Banks" as such term is
defined in Vencor's Credit Agreement.
SECTION 2. Representations and Warranties. The Supporting Guarantor
------------------------------
represents and warrants that:
(a) The Supporting Guarantor is a corporation duly incorporated,
validly existing and in good standing under the laws of the jurisdiction of its
incorporation, and has all corporate powers and all material governmental
licenses, authorizations, consents and approvals required to carry on its
business as now conducted.
(b) The execution, delivery and performance by the Supporting
Guarantor of this Guaranty are within the corporate powers of the Supporting
Guarantor, have been duly authorized by all necessary corporate action, require
no action by or in respect of, or filing with, any governmental body, agency or
official and do not contravene, or constitute a default under, any provision of
applicable law or regulation or of the certificate of incorporation or by-laws
of the Supporting Guarantor or of any agreement, judgment, injunction, order,
decree or other instrument binding upon the Supporting Guarantor or any of its
Subsidiaries
2
or result in the creation or imposition of any Lien on any asset of the
Supporting Guarantor or any of its Subsidiaries.
(c) This Guaranty constitutes a valid and binding agreement of the
Supporting Guarantor, enforceable in accordance with its terms.
(d) There is no action, suit or proceeding pending against, or to the
knowledge of the Supporting Guarantor threatened against or affecting, the
Supporting Guarantor or any of its Subsidiaries before any court or arbitrator
or any governmental body, agency or official in which there is a reasonable
possibility of an adverse decision which could have a material adverse effect
upon the condition (financial or otherwise), results of operations, business, or
prospects of Vencor and its Subsidiaries, considered as a whole, or which in any
manner draws into question the validity or enforceability of this Guaranty.
SECTION 3. The Guarantee. The Supporting Guarantor unconditionally
-------------
arid irrevocably guarantees the full and punctual payment of all present and
future indebtedness and other obligations of Vencor evidenced by or arising
under any Financing Document as and when the same shall become due and payable,
whether at maturity or by declaration or otherwise, according to the terms
hereof and thereof (including any interest which accrues on any of the foregoing
obligations after the commencement of any case, proceeding or other action
relating to the bankruptcy, insolvency or reorganization of Vencor, whether or
not allowed or allowable as a claim in any such proceeding). If Vencor fails
punctually to pay the indebtedness and other obligations guaranteed by the
Supporting Guarantor hereby, the Supporting Guarantor unconditionally agrees to
cause such payment to be made punctually as and when the same shall become due
and payable, whether at maturity or by declaration or otherwise, and as if such
payment were made by Vencor.
SECTION 4. Guarantee Unconditional. Except as provided in Section 9,
-----------------------
the obligations of the Supporting Guarantor under this Guaranty shall be
unconditional and absolute and, without limiting the generality of the
foregoing, shall not be released, discharged or otherwise affected by:
(a) any extension, renewal, settlement, compromise, waiver or release
in respect of any obligation of Vencor under any Financing Document by
operation of law or otherwise;
(b) any modification, amendment or waiver of or supplement to any
Financing Document;
(c) any release, impairment, non-perfection or invalidity of any
direct or indirect security, or of any guarantee or other
3
liability of any third party, for any obligation of Vencor under
any Financing Document;
(d) any change in the corporate existence, structure or ownership
of Vencor or any of its Subsidiaries, or any insolvency,
bankruptcy, reorganization or other similar proceeding affecting
Vencor or any of its Subsidiaries or its assets, or any resulting
release or discharge of any obligation of Vencor or any of its
Subsidiaries contained in any Financing Document;
(e) the existence of any claim, set-off or other rights which
the Supporting Guarantor or Vencor may have at any time against
any Bank, any LC Issuing Bank, any Agent or any other Person,
whether or nor arising in connection with this Guaranty,
provided that nothing herein shall prevent the assertion of any
--------
such claim by separate suit or compulsory counterclaim;
(f) any invalidity or unenforceability relating to or against
Vencor for any reason of any Financing Document, or any provision
of applicable law or regulation purporting to prohibit the
payment by Vencor of any amount payable by it under any Financing
Document; or
(g) any other act or omission to act or delay of any kind by
Vencor, any Bank, any LC Issuing Bank, any Agent or any other
Person or any other circumstance whatsoever that might, but for
the provisions of this Section 4, constitute a legal or equitable
discharge of the Supporting Guarantor's obligations under this
Guaranty.
SECTION 5. Discharge Only Upon Payment in Full; Reinstatement in
-----------------------------------------------------
Certain Circumstances. The Supporting Guarantor's obligations under this
- ---------------------
Guaranty constitute a continuing guaranty and shall remain in full force and
effect until either (i) this Guaranty is terminated pursuant to Section 2.16 of
Vencor's Credit Agreement or (ii) the Commitments of each Bank shall have been
terminated and the Credit Exposure of each Bank shall have been reduced to zero
and all amounts payable by Vencor under the Financing Documents shall have been
paid in full. If at any time any amount payable by Vencor under any Financing
Document is rescinded or must be otherwise restored or returned upon the
insolvency, bankruptcy or reorganization of Vencor or otherwise, the Supporting
Guarantor's obligations under this Guaranty with respect to such payment shall
be reinstated at such time as though such payment had become due but had not
been made at such time.
4
SECTION 6. Waiver. The Supporting Guarantor irrevocably waives
------
acceptance hereof, presentment, demand, protest and any notice not provided for
herein, as well as any requirement that at any time any action be taken by any
Person against Vencor or any other Person or against any security.
SECTION 7. Subrogation and Contribution. Upon making any payment
----------------------------
hereunder with respect to the obligations of Vencor, the Supporting Guarantor
shall be subrogated to the rights of the payee against Vencor with respect to
such payment, and shall also have a right of contribution against all other
Supporting Guarantors in respect of any such payment pro rata among same based
on their respective net fair value as enterprises; provided that the Supporting
--------
Guarantor shall not enforce any payment by way of subrogation against Vencor or
contribution against any other Supporting Guarantor so long as any Bank has any
Commitment to Vencor under Vencor's Credit Agreement or any amount payable by
Vencor under any Financing Document remains unpaid.
SECTION 8. Stay of Acceleration. If acceleration of the time for
--------------------
payment of any amount payable by Vencor under any Financing Document is stayed
upon the insolvency, bankruptcy or reorganization of Vencor, all such amounts
otherwise subject to acceleration under the terms of such Financing Document
shall nonetheless be payable by the Supporting Guarantor hereunder forthwith on
demand by the Documentation Agent made at the request of the requisite number of
Banks specified in Section 6.01 of Vencor's Credit Agreement.
SECTION 9. Deferral of Enforcement: Pro Rata Sharing.
-----------------------------------------
(a) This Guaranty shall not be enforced unless one or more
"Significant Credit Events" shall have occurred and be continuing. For purposes
hereof, the term "Significant Credit Event" means:
(i) Vencor, Atria or any Supporting Guarantor commences a voluntary
case or other proceeding seeking liquidation, reorganization or other
relief with respect to itself or its debts under any bankruptcy, insolvency
or other similar law now or hereafter in effect or selling the appointment
of a trustee, receiver, liquidator, custodian or other similar official of
it or any substantial part of its property, or consents to any such relief
or to the appointment of or taking possession by any such official in an
involuntary case or other proceeding commenced against it, or makes a
general assignment for the benefit of creditors, or fails generally to pay
its debts as they become due, or takes any corporate action to authorize
any of the foregoing; or
(ii) an involuntary case or other proceeding is commenced against
Vencor, Atria or any Supporting Guarantor seeking liquidation,
5
reorganization or other relief with respect to it or its debts under any
bankruptcy, insolvency or other similar law now or hereafter in effect or
seeking the appointment of a trustee, receiver, liquidator, custodian or
other similar official of it or any substantial part of its property, and
such involuntary case or other proceeding shall remain undismissed and
unstayed for a period of 60 days; or an order for relief shall be entered
against Vencor, Atria or any Supporting Guarantor under the Federal
bankruptcy laws as now or hereafter in effect; or
(iii) all amounts outstanding under either Atria's Credit
Agreement or Vencor's Credit Agreement shall have become due and payable
upon the final maturity thereof or by reason of acceleration; or
(iv) Vencor's Required Banks (as such term is defined in Vencor's
Credit Agreement) have signed and delivered to Atria's Administrative Agent
a certificate stating that (x) an event of default under Vencor's Credit
Agreement has occurred and is continuing, and (y) Vencor's Required Banks
have determined that the credit facility provided under Vencor's Credit
Agreement is in a "workout;" or
(v) Atria's required Lenders (as such term is defined in Atria's
Credit Agreement) have signed and delivered to Vencor's Administrative
Agent a certificate stating that (x) an event of default under Atria's
Credit Agreement has occurred and is continuing, and (y) Atria's Required
Lenders have determined that the credit facility provided under Atria's
Credit Agreement is in a "workout."
(b) It is the desire and intent of the Supporting Guarantor and the
beneficiaries of this Guaranty that this Guaranty be enforced to the fullest
extent permissible under the laws and public policies applied in each
jurisdiction in which enforcement is sought. If and to the extent that the
obligations of the Supporting Guarantor under this Guaranty would, in the
absence of this sentence, be adjudicated to be invalid or unenforceable because
of any applicable state or federal law relating to fraudulent conveyances or
transfers, then the amount of the Supporting Guarantor's liability hereunder in
respect of the obligations of Vencor guaranteed hereunder shall be deemed to be
reduced ab initio to that maximum amount which would be permitted without
causing such Supporting Guarantor's obligations hereunder to be so invalidated;
provided that if, at the time of enforcement of either this Guaranty or the
Corresponding Atria Guaranty, the amount payable under this Guaranty or the
Corresponding Atria Guaranty is limited by this Section 9(b) or the
substantially identical provision set forth in the Corresponding Atria Guaranty,
as the case may be, then the amounts payable under both this Guaranty and the
Corresponding Atria Guaranty shall be limited so that the maximum amount payable
under each guaranty is proportional to the respective aggregate amount
guaranteed under each such guaranty (without regard
6
to the limits under this Section 9(b) or the substantially identical provision
of the corresponding Atria Guaranty) when the Significant Credit Event that
exists at the time of enforcement occurred (or if two or more Significant Credit
Events exist at the time of enforcement, when the earlier of such Significant
Credit Events occurred).
(c) The Supporting Guarantor agrees that, if it makes any payments
upon enforcement of either this Guaranty or the Corresponding Atria Guaranty, it
will make a pro rata payment under the other of such guaranties so that (i) the
payments under this Guaranty and the Corresponding Atria Guaranty are concurrent
and (ii) the total amount paid under each guaranty is proportional to the
aggregate amount guaranteed under such guaranty (without regard to the limits
under Section 9(b) hereof or the substantially identical provision of the
Corresponding Atria Guaranty) when the Significant Credit Event that exists at
the time of enforcement occurred (or if two or more Significant Credit Events
exist at the time of enforcement when the earlier of such Significant Credit
Events occurred).
(d) The provisions of this Section 9 are intended for the benefit of
the beneficiaries of the Corresponding Atria Guaranty and shall be directly
enforceable by them.
(e) The Corresponding Atria Guaranty contains provisions substantially
identical to this Section 9, which provisions are intended for the benefit of
the beneficiaries of this Guaranty and shall be directly enforceable by them.
The Supporting Guarantor will not permit such provisions to be terminated
amended, waived or otherwise changed without the prior written consent of
Vencor's Required Banks.
SECTION 10. Notices. Notices and other communications hereunder shall
-------
be given in writing in the manner specified in Section 11.01 of Vencor's Credit
Agreement.
SECTION 11. Governing Law. This Guaranty shall be governed by and
-------------
construed in accordance with the laws of the State of New York.
7
IN WITNESS WHEREOF, the Supporting Guarantor has caused this Guaranty
to be duly executed by its authorized officer as of the day and year first above
written.
MEDISAVE PHARMACIES, INC.
By: /s/ Richard A. Lechleiter
------------------------------
Name: Richard A. Lechleiter
Title: Vice President of Finance
and Corporate Controller
VENCOR SUPPORTING GUARANTY
Guaranty dated as of August 26, 1996 by NATIONWIDE CARE, INC. (the
"Supporting Guarantor") for the benefit of the Banks, Co-Agents, LC Issuing
Banks, Administrative Agent, Documentation Agent and Collateral Agent from time
to time party to Vencor's Credit Agreement (as defined herein) (the "Vencor
Lenders") and, to the extent set forth in Section 9 below, the Creditors from
time to time party to Atria's Credit Agreement (as defined below):
WHEREAS, terms defined in the Credit Agreement dated as of September
11, 1995 among Vencor, Inc. ("Vencor"), the other Borrowers referred to therein
(the "Subsidiary Borrowers") and the Banks, Co-Agents, LC Issuing Banks and
Agents referred to therein, as such agreement may be amended from time to time
("Vencor's Credit Agreement"), have the same respective meanings when used
herein;
WHEREAS, Atria Communities, Inc. ("Atria") proposes to enter into a
$200,000,000 credit agreement ("Atria's Credit Agreement"), to borrow thereunder
from time to time and to cause letters of credit to be issued thereunder to
provide credit support for IRB Debt;
WHEREAS, Vencor proposes to guarantee such obligations of Atria (other
than a portion thereof relating to mature properties);
WHEREAS, Vencor proposes to cause the Subsidiary Borrowers to
guarantee Vencor's performance of its guarantee of the obligations of Atria and
may hereafter cause one or more other Subsidiaries to give similar guarantees of
Vencor's performance thereof (the Subsidiary Borrowers and such other
Subsidiaries, if any, herein collectively called the "Supporting Guarantors");
WHEREAS, Vencor and the Banks have agreed to amend certain covenants
in Vencor's Credit Agreement to permit the foregoing transactions; and
WHEREAS, in consideration of such Amendment, Vencor has agreed to
cause each Supporting Guarantor to guarantee Vencor's performance of its
obligations under Vencor's Credit Agreement;
NOW, THEREFORE, it is agreed as follows:
SECTION 1. Definitions. The following terms, as used herein, have the
-----------
following meanings:
"Atria's Administrative Agent" means PNC Bank, National Association,
as Administrative Agent under the Atria Credit Agreement and any permitted
successor thereto that has been identified as such by notice from Atria to
Vencor's Administrative Agent.
"Atria's Required Lenders" means the "Required Lenders" as such term
is defined In Atria's Credit Agreement.
"Corresponding Atria Guaranty" means the guaranty by the Supporting
Guarantor that Vencor will perform its obligations under the Parent Guaranty (as
such term is defined in Atria's Credit Agreement)
"Significant Credit Event" shall have the meaning set forth in Section
9 hereof.
"Vencor's Administrative Agent" means NationsBank, N.A., as
Administrative Agent under Vencor's Credit Agreement and any permitted successor
thereto that has been identified as such by notice from Vencor to Atria's
Administrative Agent.
"Vencor's Required Banks" means the "Required Banks" as such term is
defined in Vencor's Credit Agreement.
SECTION 2. Representations and Warranties. The Supporting Guarantor
------------------------------
represents and warrants that:
(a) The Supporting Guarantor is a corporation duly incorporated,
validly existing and in good standing under the laws of the jurisdiction of its
incorporation, and has all corporate powers and all material governmental
licenses, authorizations, consents and approvals required to carry on its
business as now conducted.
(b) The execution, delivery and performance by the Supporting
Guarantor of this Guaranty are within the corporate powers of the Supporting
Guarantor, have been duly authorized by all necessary corporate action, require
no action by or in respect of, or filing with, any governmental body, agency or
official and do not contravene, or constitute a default under, any provision of
applicable
2
law or regulation or of the certificate of incorporation or by-laws of the
Supporting Guarantor or of any agreement, judgment, injunction, order, decree or
other instrument binding upon the Supporting Guarantor or any of its
Subsidiaries or result in the creation or imposition of any Lien on any asset of
the Supporting Guarantor or any of its Subsidiaries.
(c) This Guaranty constitutes a valid and binding agreement of the
Supporting Guarantor, enforceable in accordance with its terms.
(d) There is no action, suit or proceeding pending against,
or to the knowledge of the Supporting Guarantor threatened against or affecting,
the Supporting Guarantor or any of its Subsidiaries before any court or
arbitrator or any governmental body, agency or official in which there is a
reasonable possibility of an adverse decision which could have a material
adverse effect upon the condition (financial or otherwise), results of
operations, business, or prospects of Vencor and its Subsidiaries, considered as
a whole, or which in any manner draws into question the validity or
enforceability of this Guaranty.
SECTION 3. The Guarantee. The Supporting Guarantor unconditionally
-------------
and irrevocably guarantees the full and punctual payment of all present and
future indebtedness and other obligations of Vencor evidenced by or arising
under any Financing Document as and when the same shall become due and payable,
whether at maturity or by declaration or otherwise, according to the terms
hereof and thereof (including any interest which accrues on any of the foregoing
obligations after the commencement of any case, proceeding or other action
relating to the bankruptcy, insolvency or reorganization of Vencor, whether or
not allowed or allowable as a claim in any such proceeding). If Vencor fails
punctually to pay the indebtedness and other obligations guaranteed by the
Supporting Guarantor hereby, the Supporting Guarantor unconditionally agrees to
cause such payment to be made punctually as and when the same shall become due
and payable, whether at maturity or by declaration or otherwise, and as if such
payment were made by Vencor.
SECTION 4. Guarantee Unconditional. Except as provided in Section
-----------------------
9, the obligations of the Supporting Guarantor under this Guaranty shall be
unconditional and absolute and, without limiting the generality of the
foregoing, shall not be released, discharged or otherwise affected by:
(a) any extension, renewal, settlement, compromise, waiver or
release in respect of any obligation of Vencor under any Financing
Document by operation of law or otherwise;
3
(b) any modification, amendment or waiver of or supplement to
any Financing Document;
(c) any release, impairment, non-perfection or invalidity of
any direct or indirect security, or of any guarantee or other
liability of any third party, for any obligation of Vencor
under any Financing Document;
(d) any change in the corporate existence, structure or
ownership of Vencor or any of its Subsidiaries, or any
insolvency, bankruptcy, reorganization or other similar
proceeding affecting Vencor or any of its Subsidiaries or its
assets, or any resulting release or discharge of any
obligation of Vencor or any of its Subsidiaries contained in
any Financing Document:
(e) the existence of any claim, set-off or other rights which
the Supporting Guarantor or Vencor may have at any time
against any Bank, any LC Issuing Bank, any Agent or any other
Person, whether or not arising in connection with this
Guaranty, provided that nothing herein shall prevent the
--------
assertion of any such claim by separate Suit Of compulsory
counterclaim;
(f) any invalidity or unenforceability relating to or against
Vencor for any reason of any Financing Document, or any
provision of applicable law or regulation purporting to
prohibit the payment by Vencor of any amount payable by it
under any Financing Document: or
(g) any other act or omission to act or delay of any kind by
Vencor, any Bank, any LC Issuing Bank, any Agent or any other
Person or any other circumstance whatsoever that might, but
for the provisions of this Section 4, constitute a legal or
equitable discharge of the Supporting Guarantor's obligations
under this Guaranty.
SECTION 5. Discharge Only Upon Payment in Full: Reinstatement
--------------------------------------------------
in Certain Circumstances. The Supporting Guarantor's obligations under this
- ------------------------
Guaranty constitute a continuing guaranty and shall remain in full force and
effect until either (i) this Guaranty is terminated pursuant to Section 216 of
Vencor's Credit Agreement or (ii) the Commitments of each Bank shall have been
4
terminated and the Credit Exposure of each Bank shall have been reduced to zero
and all amounts payable by Vencor under the Financing Documents shall have been
paid in full. If at any time any amount payable by Vencor under any Financing
Document is rescinded or must be otherwise restored or returned upon the
insolvency, bankruptcy or reorganization of Vencor or otherwise, the Supporting
Guarantor's obligations under this Guaranty with respect to such payment shall
be reinstated at such time as though such payment had become due but had not
been made at such time.
SECTION 6. Waiver. The Supporting Guarantor irrevocably waives
------
acceptance hereof, presentment, demand, protest and any notice not provided for
herein, as well as any requirement that at any time any action be taken by any
Person against Vencor or any other Person or against any security.
SECTION 7. Subrogation and Contribution. Upon making any payment
----------------------------
hereunder with respect to the obligations of Vencor, the Supporting Guarantor
shall be subrogated to the rights of the payee against Vencor with respect to
such payment, and shall also have a right of contribution against all other
Supporting Guarantors in respect of any such payment pro rata among same based
on their respective net fair value as enterprises; provided that the Supporting
--------
Guarantor shall not enforce any payment by way of subrogation against Vencor or
contribution against any other Supporting Guarantor so long as any Bank has any
Commitment to Vencor under Vencor's Credit Agreement or any amount payable by
Vencor under any Financing Document remains unpaid.
SECTION 8. Stay of Acceleration. If acceleration of the time
--------------------
for payment of any amount payable by Vencor under any Financing Document is
stayed upon the insolvency, bankruptcy or reorganization of Vencor all such
amounts otherwise subject to acceleration under the terms of such Financing
Document shall nonetheless be payable by the Supporting Guarantor hereunder
forthwith on demand by the Documentation Agent made at the request of the
requisite number of Banks specified in Section 6.01 of Vencor's Credit
Agreement.
SECTION 9. Deferral of Enforcement: Pro Rata Sharing.
-----------------------------------------
(a) This Guaranty shall not be enforced unless one of more
"Significant Credit Events" shall have occurred and be continuing. For purposes
hereof, the term "Significant Credit Event" means:
(i) Vencor, Atria or any Supporting Guarantor commences a
voluntary case or other proceeding seeking liquidation, reorganization
or
5
other relief with respect to itself or its debts under any bankruptcy,
insolvency or other similar law now or hereafter in effect or seeking
the appointment of a trustee, receiver, liquidator, custodian or other
similar official of it or any substantial part of its property, or
consents to any such relief or to the appointment of or taking
possession by any such official in an involuntary case or other
proceeding commenced against it, or makes a general assignment for the
benefit of creditors, or fails generally to pay its debts as they
become due, or takes any corporate action to authorize any of the
foregoing; or
(ii) an involuntary case or other proceeding is commenced
against Vencor, Atria or any Supporting Guarantor seeking liquidation,
reorganization or other relief with respect to it or its debts under
any bankruptcy, insolvency or other similar law now or hereafter in
effect or seeking the appointment of a trustee, receiver, liquidator,
custodian or other similar official of it or any substantial part of
its property, and such involuntary case or other proceeding shall
remain undismissed and unstayed for a period of 60 days; or an order
for relief shall be entered against Vencor, Atria or any Supporting
Guarantor under the Federal bankruptcy laws as now or hereafter in
effect; or
(iii) all amounts outstanding under either Atria's
Credit Agreement or Vencor' s Credit Agreement shall have become due
and payable upon the final maturity thereof or by reason of
acceleration; or
(iv) Vencor's Required Banks (as such term is defined in
Vencor's Credit Agreement) have signed and delivered to Atria's
Administrative Agent a certificate stating that (x) an event of
default under Vencor's Credit Agreement has occurred and is
continuing, and (y) Vencor's Required Banks have determined that the
credit facility provided under Vencor's Credit Agreement is in a
"workout;" or
(v) Atria's Required Lenders (as such term is
defined in Atria's Credit Agreement) have signed and delivered to
Vencor's Administrative Agent a certificate stating that (x) an event
of default under Atria's Credit Agreement has occurred and is
continuing, and (y) Atria's Required Lenders have determined that the
credit facility provided under Atria's Credit Agreement is in a
"workout."
(b) It is the desire and intent of the Supporting Guarantor
and the beneficiaries of this Guaranty that this Guaranty be enforced to the
fullest extent permissible under the laws and public policies applied in each
jurisdiction in which
6
enforcement is sought. If and to the extent that the obligations of the
Supporting Guarantor under this Guaranty would, in the absence of this sentence,
be adjudicated to be invalid or unenforceable because of any applicable state or
federal law relating to fraudulent conveyances or transfers, then the amount of
the Supporting Guarantor's liability hereunder in respect of the obligations of
Vencor guaranteed hereunder shall be deemed to be reduced ab initio to that
maximum amount which would be permitted without causing such Supporting
Guarantor's obligations hereunder to be so invalidated; provided that if; at the
--------
time of enforcement of either this Guaranty or the Corresponding Atria Guaranty,
the amount payable under this Guaranty or the Corresponding Atria Guaranty is
limited by this Section 9(b) or the substantially identical provision set forth
in the Corresponding Atria Guaranty, as the case may be, then the amounts
payable under both this Guaranty and the Corresponding Atria Guaranty shall be
limited so that the maximum amount payable under each guaranty is proportional
to the respective aggregate amount guaranteed under each such guaranty (without
regard to the limits under this Section 9(b) or the substantially identical
provision of the Corresponding Atria Guaranty) when the Significant Credit Event
that exists at the time of enforcement occurred (or if two or more Significant
Credit Events exist at the time of enforcement, when the earlier of such
Significant Credit Events occurred).
(c) The Supporting Guarantor agrees that, if it makes any
payments upon enforcement of either this Guaranty or the Corresponding Atria
Guaranty, it will make a pro rata payment under the other of such guaranties so
that (i) the payments under this Guaranty and the Corresponding Atria Guaranty
are concurrent and (ii) the total amount paid under each guaranty is
proportional to the aggregate amount guaranteed under such guaranty (without
regard to the limits under Section 9(b) hereof or the substantially identical
provision of the Corresponding Atria Guaranty) when the Significant Credit Event
that exists at the time of enforcement occurred (or if two or more Significant
Credit Events exist at the time of enforcement, when the earlier of such
Significant Credit Events occurred).
(d) The provisions of this Section 9 are intended for the
benefit of the beneficiaries of the Corresponding Atria Guaranty and shall be
directly enforceable by them.
(e) The Corresponding Atria Guaranty contains provisions
substantially identical to this Section 9, which provisions are intended for the
benefit of the beneficiaries of this Guaranty and shall be directly enforceable
by them. The Supporting Guarantor will not permit such provisions to be
terminated,
7
amended, waived or otherwise changed without the prior written consent of
Vencor's Required Banks.
SECTION 10. Notices. Notices and other communications hereunder
-------
shall be given in writing in the manner specified in Section 11.01 of Vencor's
Credit Agreement.
SECTION 11. Governing Law. This Guaranty shall be governed by and
------------
construed in accordance with the laws of the State of New York.
8
IN WITNESS WHEREOF, the Supporting Guarantor has caused this
Guaranty to be duly executed by its authorized officer as of the day and year
first above written.
NATIONWIDE CARE, INC.
By: /s/ Richard A. Lechleiter
---------------------------------
Name: Richard A. Lechleiter
Title: Vice President of Finance
and Corporate Controller
VENCOR SUPPORTING GUARANTY
Guaranty dated as of August 26, 1996 by NORTHWEST HEALTH CARE, INC.
(the "Supporting Guarantor") for the benefit of the Banks, Co-Agents, LC Issuing
Banks, Administrative Agent, Documentation Agent and Collateral Agent from time
to time party to Vencor's Credit Agreement (as defined below) (the "Vencor
Lenders") and, to the extent set forth in Section 9 below, the Creditors from
time to time party to Atria's Credit Agreement (as defined below):
WHEREAS, terms defined in the Credit Agreement dated as of
September 11, 1995 among Vencor, Inc. ("Vencor"), the other Borrowers referred
to therein (the "Subsidiary Borrowers") and the Banks, Co-Agents, LC Issuing
Banks and Agents referred to therein, as such agreement may be amended from time
to time ("Vencor's Credit Agreement"), have the same respective meanings when
used herein;
WHEREAS, Atria Communities, Inc. ("Atria") proposes to enter into a
$200,000,000 credit agreement ("Atria's Credit Agreement"), to borrow thereunder
from time to time and to cause letters of credit to be issued thereunder to
provide credit support for IRB Debt;
WHEREAS, Vencor proposes to guarantee such obligations of Atria
(other than a portion thereof relating to mature properties);
WHEREAS, Vencor proposes to cause the Subsidiary Borrowers to
guarantee Vencor's performance of its guarantee of the obligations of Atria and
may hereafter cause one or more other Subsidiaries to give similar guarantees of
Vencor's performance thereof (the Subsidiary Borrowers and such other
Subsidiaries, if any, herein collectively called the "Supporting Guarantors");
WHEREAS, Vencor and the Banks have agreed to amend certain
covenants in Vencor's Credit Agreement to permit the foregoing transactions; and
WHEREAS, in consideration of such Amendment, Vencor has agreed to
cause each Supporting Guarantor to guarantee Vencor's performance of its
obligations under Vencor's Credit Agreement;
NOW, THEREFORE, it is agreed as follows:
SECTION 1. Definitions. The following terms, as used herein, have
-----------
the following meanings:
"Atria's Administrative Agent" means PNC Bank, National
Association, as Administrative Agent under the Atria Credit Agreement and any
permitted successor thereto that has been identified as such by notice from
Atria to Vencor's Administrative Agent.
"Atria's Required Lenders" means the "Required Lenders" as such
term is defined in Atria's Credit Agreement.
"Corresponding Atria Guaranty" means the guaranty by the
Supporting Guarantor that Vencor will perform its obligations under the Parent
Guaranty (as such term is defined in Atria's Credit Agreement).
"Significant Credit Event" shall have the meaning set forth in
Section 9 hereof.
"Vencor's Administrative Agent" means NationsBank, N.A., as
Administrative Agent under Vencor's Credit Agreement and any permitted successor
thereto that has been identified as such by notice from Vencor to Atria's
Administrative Agent.
"Vencor's Required Banks" means the "Required Banks" as such term
is defined in Vencor's Credit Agreement.
SECTION 2. Representations and Warranties. The Supporting Guarantor
------------------------------
represents and warrants that:
(a) The Supporting Guarantor is a corporation duly incorporated,
validly existing and in good standing under the laws of the jurisdiction of its
incorporation, and has all corporate powers and all material governmental
licenses, authorizations, consents and approvals required to carry on its
business as now conducted.
(b) The execution, delivery and performance by the Supporting
Guarantor of this Guaranty are within the corporate powers of the Supporting
Guarantor, have been duly authorized by all necessary corporate action, require
no action by or in respect of, or filing with, any governmental body, agency or
official and do not contravene, or constitute a default under, any provision of
applicable
2
law or regulation or of the certificate of incorporation or by-laws of the
Supporting Guarantor or of any agreement, judgment, injunction, order, decree or
other instrument binding upon the Supporting Guarantor or any of its
Subsidiaries or result in the creation or imposition of any Lien on any asset of
the Supporting Guarantor or any of its Subsidiaries.
(c) This Guaranty constitutes a valid and binding agreement of
the Supporting Guarantor, enforceable in accordance with its terms.
(d) There is no action, suit or proceeding pending against, or
to the knowledge of the Supporting Guarantor threatened against or affecting,
the Supporting Guarantor or any of its Subsidiaries before any court or
arbitrator or any governmental body, agency or official in which there is a
reasonable possibility of an adverse decision which could have a material
adverse effect upon the condition (financial or otherwise), results of
operations, business, or prospects of Vencor and its Subsidiaries, considered as
a whole, or which in any manner draws into question the validity or
enforceability of this Guaranty.
SECTION 3. The Guarantee. The Supporting Guarantor unconditionally
-------------
and irrevocably guarantees the full and punctual payment of all present and
future indebtedness and other obligations of Vencor evidenced by or arising
under any Financing Document as and when the same shall become due and payable,
whether at maturity or by declaration or otherwise, according to the terms
hereof and thereof (including any interest which accrues on any of the foregoing
obligations after the commencement of any case, proceeding or other action
relating to the bankruptcy, insolvency or reorganization of Vencor, whether or
not allowed or allowable as a claim in any such proceeding). If Vencor fails
punctually to pay the indebtedness and other obligations guaranteed by the
Supporting Guarantor hereby, the Supporting Guarantor unconditionally agrees to
cause such payment to be made punctually as and when the same shall become due
and payable, whether at maturity or by declaration or otherwise, and as if such
payment were made by Vencor.
SECTION 4. Guarantee Unconditional. Except as provided in
-----------------------
Section 9, the obligations of the Supporting Guarantor under this Guaranty shall
be unconditional and absolute and, without limiting the generality of the
foregoing, shall not be released, discharged or otherwise affected by:
(a) any extension, renewal, settlement, compromise, waiver or
release in respect of any obligation of Vencor under any Financing
Document by operation of law or otherwise;
3
(b) any modification, amendment or waiver of or supplement to
any Financing Document;
(c) any release, impairment, non-perfection or invalidity of
any direct or indirect security, or of any guarantee or other
liability of any third party, for any obligation of Vencor
under any Financing Document;
(d) any change in the corporate existence, structure or
ownership of Vencor or any of its Subsidiaries, or any
insolvency, bankruptcy reorganization or other similar
proceeding affecting Vencor or any of its Subsidiaries or its
assets, or any resulting release or discharge of any
obligation of Vencor or any of its Subsidiaries contained in
any Financing Document;
(e) the existence of any claim, set-off or other rights which
the Supporting Guarantor or Vencor may have at any time
against any Bank, any L.C. Issuing Bank, any Agent or any
other person, whether or not arising in connection with this
Guaranty, provided that nothing herein shall prevent the
--------
assertion of any such claim by separate suit or compulsory
counterclaim;
(f) any invalidity or unenforceability relating to or against
Vencor for any reason of any Financing Document, or any
provision of applicable law or regulation purporting to pro-
hibit the payment by Vencor of any amount payable by it under
any Financing Document; or
(g) any other act or omission to act or delay of any kind by
Vencor, any Bank, any LC Issuing Bank, any Agent or any other
Person or any other circumstance whatsoever that might, but
for the provisions of this Section 4, constitute a legal or
equitable discharge of the Supporting Guarantor's obligations
under this Guaranty.
SECTION 5. Discharge Only Upon Payment in Full: Reinstatement
--------------------------------------------------
in Certain Circumstances. The Supporting Guarantor's obligations under this
- ------------------------
Guaranty constitute a continuing guaranty and shall remain in full force and
effect until either (i) this Guaranty is terminated pursuant to Section 2.16 of
Vencor's Credit Agreement or (ii) the Commitments of each Bank shall have been
terminated and the Credit Exposure of each Bank shall have been reduced to zero
and all amounts payable by Vencor under the Financing Documents shall have been
paid in full. If at any time any amount payable by Vencor under any Financing
Document is rescinded or must be otherwise restored or returned upon the
4
insolvency, bankruptcy or reorganization of Vencor or otherwise the Supporting
Guarantor' s obligations under this Guaranty with respect to such payment shall
be reinstated at such time as though such payment had become due but had not
been made at such time.
SECTION 6. Waiver. The Supporting Guarantor irrevocably waives
------
acceptance hereof, presentment, demand, protect and any notice not provided for
herein, as well as any requirement that at any time any action be taken by any
Person against Vencor or any other Person or against any security.
SECTION 7. Subrogation and Contribution. Upon mailing any
----------------------------
payment hereunder with respect to the obligations of Vencor, the Supporting
Guarantor shall be subrogated to the rights of the payee against Vencor with
respect to such payment, and shall also have a right of contribution against all
other Supporting Guarantors in respect of any such payment pro rata among same
based on their respective net fair value as enterprises; provided that the
--------
Supporting Guarantor shall not enforce any payment by way of subrogation against
Vencor or contribution against any other Supporting Guarantor so long as any
Bank has any Commitment to Vencor under Vencor's Credit Agreement or any amount
payable by Vencor under any Financing Document remains unpaid.
SECTION 8. Stay of Acceleration. If acceleration of the time
--------------------
for payment of any amount payable by Vencor under any Financing Document is
stayed upon the insolvency, bankruptcy or reorganization of Vencor, all such
amounts otherwise subject to acceleration under the terms of such Financing
Document shall nonetheless be payable by the Supporting Guarantor hereunder
forthwith on demand by the Documentation Agent made at the request of the
requisite number of Banks specified in Section 6.01 of Vencor's Credit
Agreement.
SECTION 9. Deferral of Enforcement: Pro Rata Sharing.
-----------------------------------------
(a) This Guaranty shall not be enforced unless one or more
"Significant Credit Events" shall have occurred and be continuing. For purposes
hereof, the term "Signiticant Credit Event" means:
(i) Vencor, Atria or any Supporting Guarantor commences a voluntary
case or other proceeding seeking liquidation, reorganization or other
relief with respect to itself or its debts under any bankruptcy, insolvency
or other similar law now or hereafter in effect or selling the appointment
of a trustee, receiver, liquidator, custodian or other such official of it
or any substantial part of its property, or consents to any such relief or
to the appointment of or taking possession by any such official in
5
an involuntary case or other proceeding commenced against it, or makes a
general assignment for the benefit of creditors, or fails generally to pay
its debts as they become due, or takes any corporate action to authorize
any of the foregoing; or
(ii) an involuntary case or other proceeding is commenced against
Vencor, Atria or any Supporting Guarantor seeking liquidation,
reorganization or other relief with respect to it or its debts under any
bankruptcy, insolvency or other similar law now or hereafter in effect or
seeking the appointment of a trustee, receiver, liquidator, custodian or
other similar official of it or any substantial part of its property, and
such involuntary case or other proceeding shall remain undismissed and
unstayed for a period of 60 days; or an order for relief shall be entered
against Vencor, Atria or any Supporting Guarantor under the Federal
bankruptcy laws as now or hereafter in effect; or
(iii) all amounts outstanding under either Atria's Credit
Agreement or Vencor's Credit Agreement shall have become due and payable
upon the final maturity thereof or by reason of acceleration; or
(iv) Vencor's Required Banks (as such term is defined in Vencor's
Credit Agreement) have signed and delivered to Atria's Administrative Agent
a certifcate stating that (x) an event of default under Vencor's Credit
Agreement has occurred and is continuing, and (y) Vencor's Required Banks
have determined that the credit facility provided under Vencor's Credit
Agreement is in a "workout;" or
(v) Atria's Required Lenders (as such term is defined in
Atria's Credit Agreement) have signed and delivered to Vencor's
Administrative Agent a certificate stating that (x) an event of default
under Atria's Credit Agreement has occurred and is continuing, and (y)
Atria's Required Lenders have determined that the credit facility provided
under Atria's Credit Agreement is in a "workout."
(b) It is the desire and intent of the Supporting Guarantor
and the beneficiaries of this Guaranty that this Guaranty be enforced to the
fullest extent permissible under the laws and public policies applied in each
jurisdiction in which enforcement is sought. If and to the extent that the
obligations of the Supporting Guarantor under this Guaranty would, in the
absence of this sentence, be adjudicated to be invalid or unenforceable because
of any applicable state or federal law relating to fraudulent conveyances or
transfers, then the amount of the Supporting Guarantor's liability hereunder in
respect of the obligations of Vencor guaranteed hereunder shall be deemed to be
reduced ab initio to that maximum
6
amount which would be permitted without causing such Supporting Guarantor's
obligations hereunder to be so invalidated; provided that if, at the time of
--------
enforcement of either this Guaranty or the Corresponding Atria Guaranty, the
amount payable under this Guaranty or the Corresponding Atria Guaranty is
limited by this Section 9(b) or the substantially identical provision set forth
in the Corresponding Atria Guaranty, as the case may be, then the amounts
payable under both this Guaranty and the Corresponding Atria Guaranty shall be
limited so that the maximum amount payable under each guaranty is proportional
to the respective aggregate amount guaranteed under each such guaranty (without
regard to the limits under this Section 9(b) or the substantially identical
provision of the Corresponding Atria Guaranty) when the Significant Credit Event
that exists at the time of enforcement occurred (or if two or more Significant
Credit Events exist at the time of enforcement, when the earlier of such
Significant Credit Events occurred).
(c) The Supporting Guarantor agrees that, if it makes any
payments upon enforcement of either this Guaranty or the Corresponding Atria
Guaranty, it will make a pro rata payment under the other of such guaranties so
that (i) the payments under this Guaranty and the Corresponding Atria Guaranty
are concurrent and (ii) the total amount paid under each guaranty is
proportional to the aggregate amount guarantee under such guaranty (without
regard to the limits under Section 9(b) hereof or the substantially identical
provision of the Corresponding Atria Guaranty) when the significant Credit Event
that exists at the time of enforcement occurred (or if two or more Significant
Credit Events exist at the time of enforcement, when the earlier of such
Significant Credit Events occurred).
(d) The provisions of this Section 9 are intended for the
benefit of the beneficiaries of the Corresponding Atria Guaranty and shall be
directly enforceable by them.
(e) The Corresponding Atria Guaranty contain provisions
substantially identical to this Section 9, which provisions are intended for the
benefit of the beneficiaries of this Guaranty and shall be directly enforceable
by them. The Supporting Guarantor will not permit such provisions to be
terminated, amended, waived or otherwise changed without the prior written
consent of Vencor's Required Banks.
7
SECTION 10. Notices. Notices and other communications hereunder
-------
shall be given in writing in the manner specified in Section 11.01 of Vencor's
Credit Agreement.
SECTION 11. Governing Law. This Guaranty shall be governed by and
-------------
construed in accordance with the laws of the State of New York.
8
IN WITNESS WHEREOF, the Supporting Guarantor has caused this
Guaranty to be duly executed by its authorized officer as of the day and year
first above written.
NORTHWEST HEALTH CARE, INC
By: /s/ Richard A. Lechleiter
--------------------------
Name: Richard A. Lechleirer
Title: Vice President of Finance
and Corporate Controller
HIRN DOHENY & HARPER
2000 Meidinger Tower Telephone (502) 585-2450
Louisville, Kentucky 40202 Telecopier (502) 585-2207
August 26, 1996
To the Banks, LC Issuing Banks
and Agents referred to in
the Vencor Credit Agreement defined
below
c/o Morgan Guaranty Trust Company
of New York, as Agent
60 Wall Street
New York, NY 10260
Ladies and Gentlemen:
We have acted as special counsel for (a) Vencor, Inc., a Delaware
corporation ("Vencor"), and (b) First Healthcare Corporation, a Delaware
corporation, Northwest Health Care, Inc., an Idaho corporation, Medisave
Pharmacies, Inc., a Delaware corporation, Hillhaven of Central Florida, Inc., a
Delaware corporation, and Nationwide Care, Inc., an Indiana corporation
(collectively) the "Supporting Guarantors", and individually, a "Supporting
Guarantor") in connection with the execution and delivery of (i) Amendment No. 5
to Credit Agreement dated as of August 26, 1996 ("Amendment No. 5") among
Vencor, the Supporting Guarantors, the Banks, Co-Agents and LC Issuing Banks
referred to therein, Morgan Guaranty Trust Company of New York, as Documentation
Agent, NationsBank, N.A. (Carolinas), as Administrative Agent, and J.P. Morgan
Delaware, as Collateral Agent, which amends the Credit Agreement dated as of
September 11, 1995 (as previously amended, the "Vencor Credit Agreement"),
among the same parties to Amendment No. 5, (ii) the Vencor Supporting
Guaranties, each dated as of August 26, 1996, respectively executed and
delivered by the Supporting Guarantors (collectively, the "Vencor Supporting
Guaranties") pursuant to Amendment No. 5, and (iii) the Parent Guaranty dated as
of August 15, 1996 (the "Atria Supporting Guaranty"), among Atria Corumunities,
Inc., a Delaware corporation ("Atria"), Vencor, the Supporting Guarantors and
PNC Bank, National Association, as Administrative Agent under the Credit
Agreement dated as of August 15, 1996 (the "Atria Credit Agreement"), among
Atria, the Lenders (as defined therein), PNC Bank, National Association, as
Administrative Agent, National City Bank of Kentucky, as Documentation Agent,
and PNC Bank, National Association, National City Bank of Kentucky and The
Toronto Dominion Bank, New York Agency, as Syndication Agents. This opinion is
being rendered to you pursuant to Section 16(d) of Amendment No. 5. Unless
otherwise defined herein, terms defined in either the Vencor Credit Agreement or
the Atria Credit Agreement are used herein as respectively defined therein.
HIRN DOHENY & HARPER
To the Banks, LC Issuing Banks
and Agents
August 26, 1996
Page 2
We have examined originals or copies, certified or otherwise identified
to our satisfaction, of the Vencor Credit Agreement, the Atria Credit Agreement,
Amendment No. 5, the Vencor Supporting Guaranties, the Atria Supporting Guaranty
and such other documents, corporate records, certificates of public officials
and other instruments, and have conducted such other investigations of fact and
law, as we have deemed necessary or advisable for purposes of this opinion.
For purposes of the opinions hereinafter expressed, we have assumed
(i) the due execution and delivery of the Vencor Credit Agreement, Amendment
No. 5, the Atria Credit Agreement and the Atria Supporting Guaranty, pursuant to
due authorization, by all parties thereto other than Vencor and the Supporting
Guarantors, (ii) that the Vencor Credit Agreement, Amendment No. 5, the Atria
Credit Agreement and the Atria Supporting Guaranty each constitutes the legal,
valid and binding obligation, enforceable in accordance with its terms, of each
party thereto other than Vencor and the Supporting Guarantors, (iii) that all
materials, records and documents, including the Vencor Credit Agreement, the
Atria Credit Agreement, Amendment No. 5, the Vencor Supporting Guaranties and
the Atria Supporting Guaranty, examined by us in connection with the preparation
of this opinion are complete, authentic and accurate and, to the extent
represented by certified or photostatic copies, conform to their respective
originals, (iv) that all signatures (other than those of the respective officers
of Vencor and the Supporting Guarantors) contained in such materials, records
and documents, including the Vencor Credit Agreement, the Atria Credit
Agreement, Amendment No. 5 and the Atria Supporting Guaranty, are genuine
signatures of the parties purporting to have signed the same, and (v) that no
action has been taken which amends, revokes or otherwise affects any of the
materials, records or documents, including the Vencor Credit Agreement, the
Atria Credit Agreement, Amendment No. 5, the Vencor Supporting Guaranties and
the Atria Supporting Guaranty; provided, however, that in the course of our
review, nothing has come to our attention leading us to question, or giving us
reasonable grounds to question, the validity of any such assumptions.
Upon the basis of the foregoing, we are of the opinion that:
1. Vencor is a corporation validly existing under the laws of the State
of Delaware. Each Supporting Guarantor is a corporation validly existing under
the respective laws of the state of its incorporation.
HIRN DOHENY & HARPER
To the Banks, LC Issuing Banks
and Agents
August 26, 1996
Page 3
2. The execution and delivery by Vencor and each Supporting Guarantor
of Amendment No. 5, as the same amends the Vencor Credit Agreement, and the
Atria Supporting Guaranty and, in the case of each Supporting Guarantor; the
respective Vencor Supporting Guaranty to which it is a party, and the
performance by Vencor and each Supporting Guarantor of its obligations
thereunder (i) are within the corporate powers thereof, (ii) have been duly
authorized by all necessary corporate and governmental action, and (iii) do not
contravene, or constitute a default under, the respective organizational
documents thereof or any agreement executed in connection with the incurrence of
Debt for borrowed money and which is binding upon Vencor or such Supporting
Guarantor or any of its respective Subsidiaries and, other than as provided in
the Atria Supporting Guaranty and Amendment No. 5, do not result in or require
the imposition of any Lien on any asset thereof or any of its respective
Subsidiaries under any agreement executed in connection with the incurrence of
Debt for borrowed money and which is binding thereupon or upon any of its
respective Subsidiaries.
3. Each of the Vencor Credit Agreement, as amended by Amendment No. 5,
and the Atria Supporting Guaranty constitutes a valid and binding agreement of
Vencor and each Supporting Guarantor, enforceable in connection with its terms.
The Vencor Supporting Guaranty of each Supporting Guarantor constitutes a valid
and binding agreement of such Supporting Guarantor, enforceable in accordance
with its terms.
We express no opinion as to the applicability (and, if applicable, the
effect) of Section 548 of the United States Bankruptcy Code or any comparable
provision of state law to the questions addressed above or the conclusions
expressed with respect thereto.
The opinions expressed in paragraph 3 above are subject to the following
qualifications:
(i) the enforceability of the Vencor Credit Agreement, as amended
by Amendment No. 5, the Vencor Supporting Guaranties and the Atria Supporting
Guaranty may be limited by bankruptcy, reorganization, insolvency, moratorium,
or other similar laws affecting the enforcement of creditors' rights generally
and by general equitable principles;
(ii) insofar as provisions contained in the Vencor Credit
Agreement, as amended by Amendment No. 5, the Vencor Supporting Guaranties and
the Atria Supporting Guaranty provide for
HIRN DOHENY & HARPER
To the Banks, LC Issuing Banks
and Agents
August 26, 1996
Page 4
indemnification, the enforcement thereof may be limited by public policy
considerations;
(iii) We express no opinion as to the validity or enforceability
of any provision in the Vencor Credit Agreement, as amended by Amendment No. 5,
the Vencor Supporting Guaranties or the Atria Supporting Guaranty (A) modifying
or waiving any requirement of commercial reasonableness or prior notice or the
right of redemption, arising under the Kentucky UCC, (B) purporting to grant to
the Banks, the Collateral Agent, the Lenders or the Administrative Agent any
rights, remedies or powers with respect to the disposition of property, with or
without notice, to the extent that such rights, remedies or powers are not
expressly permitted under the Kentucky UCC, (C) purporting to preclude the
modification of the Vencor Credit Agreement, as amended by Amendment No. 5, the
Vencor Supporting Guaranties or the Atria Supporting Guaranty through conduct,
custom or course of performance, action or dealing, (D) purporting to waive
equitable rights or remedies, or (E) purporting to require the payment or
reimbursement of fees, costs, expenses or other amounts which are unreasonable
in nature or amount; and
(iv) the provisions of the Vencor Credit Agreement, as amended by
Amendment No. 5, the Vencor Supporting Guaranties and the Atria Supporting
Guaranty regarding the payment of attorneys' fees as a remedy upon demand will,
to the extent that the substantive laws of the Commonwealth of Kentucky govern
such provisions, be limited to those attorneys' fees recoverable pursuant to
KRS 411.195.
With respect to the opinions expressed in paragraph 3 above, we point
out that the Vencor Credit Agreement, as amended by Amendment No. 5, and the
Vencor Supporting Guaranties (the "New York Law Documents") contain provisions
stating that such documents are governed by and are to be construed in
accordance with the laws of the State of New York. We are of the opinion that,
under the existing statutory and decisional law of the Commonwealth of Kentucky,
a Kentucky state court or a United States federal court sitting in the
Commonwealth of Kentucky would give effect to the provisions in the New York Law
Documents providing for New York law to govern the New York Law Documents
(except as aforesaid), and we have no reason to believe that any such court
would refuse to enforce any of the provisions thereof for public policy reasons
or otherwise. If the New York Law Documents were governed by the laws of the
Commonwealth of Kentucky, we would give the same opinions
HIRN DOHENY & HARPER
To the Banks, LC Issuing Banks
and Agents
August 26, 1996
Page 5
expressed in paragraph 3 above with respect thereto under such laws.
With respect to the opinions expressed in paragraph 1 above, we have
relied exclusively upon a certificate of existence for Vencor and each
Supporting Guarantor, as issued by the Secretary of State of the state of
incorporation thereof. With respect to the opinions expressed in paragraphs 2
and 3 above we have relied upon the opinion of Richard T. Riney, Transactions
Counsel of Vencor and the Supporting Guarantors, of even date herewith, as to
(i) Vencor's due authorization of the execution and delivery of Amendment No. 5
and the Atria Supporting Guaranty, (ii) Vencor's corporate power to execute and
deliver Amendment No. 5 and the Atria Supporting Guaranty, (iii) the Supporting
Guarantors' due authorization of the execution and delivery of Amendment No. 5,
the Atria Supporting Guaranty, and the Vencor Supporting Guaranties, (iv) the
Supporting Guarantors' corporate power to execute and deliver Amendment No. 5,
the Atria Supporting Guaranty, and the Vencor Supporting Guaranties, and (v) the
non-contravention of, the absence of default under, and the absence of the
imposition of any Lien on any asset by or under, any agreement executed in
connection with the incurrence of Debt for borrowed money which is binding upon
Vencor or any Supporting Guarantor or any of their respective Subsidiaries.
We are members of the bar of the Commonwealth of Kentucky and the
opinions expressed above are limited to the laws of the Commonwealth of Kentucky
and the federal laws of the United States of America. We have made no
examination of the effects of the laws of any other jurisdiction upon the issues
covered by such opinions.
This opinion is rendered solely to you in connection with the above
matter. This opinion may not be relied upon by you for any other purpose or
relied upon by any other person without our prior written consent.
Very truly yours,
/s/ Hirn Doheny & Harper
HIRN DOHENY & HARPER