EXHIBIT 4.5
AMENDMENT NO.2
TO
AMENDED AND RESTATED CREDIT AGREEMENT
AMENDMENT dated as of October 24, 1997 to the Amended and Restated Credit
Agreement dated as of May 30, 1997, as amended as of June 24, 1997 (the "CREDIT
AGREEMENT") among VENCOR, INC. ("VENCOR"), the BANKS, SWINGLINE BANK, LC ISSUING
BANKS, MANAGING AGENTS and CO-AGENTS party thereto, MORGAN GUARANTY TRUST
COMPANY OF NEW YORK, as Documentation Agent (the "DOCUMENTATION AGENT") and
Collateral Agent, and NATIONSBANK, N.A., as Administrative Agent.
W I T N E S S E T H :
WHEREAS, the parties hereto desire to amend the Credit Agreement to
increase by $50,000,000 the amount of Restricted Payments that Vencor is
permitted to make;
NOW, THEREFORE, the parties hereto agree as follows:
Section 1. DEFINED TERMS; REFERENCES. Unless otherwise specifically
defined herein, each term used herein which is defined in the Credit Agreement
has the meaning assigned to such term in the Credit Agreement. Each reference to
"hereof", "hereunder", "herein" and "hereby" and each other similar reference
and each reference to "this Agreement" and each other similar reference
contained in the Credit Agreement shall, after this Amendment becomes effective,
refer to the Credit Agreement as amended hereby.
Section 2. AMENDMENT OF RESTRICTED PAYMENTS COVENANT. Section 5.11 of the
Credit Agreement is amended to read as follows:
Section 5.11. RESTRICTED PAYMENTS. Unless Vencor has an
Investment Grade Rating, Vencor will not, and will not permit any
Subsidiary to, declare or make any Restricted Payment on or after the
Initial Closing Date, except:
(a) any distribution of shares of Ventech Systems, Inc. by
Vencor to its own shareholders;
(b) dividends on Equity Securities of Vencor declared and
paid during the period from January 1, 1997 to March 31, 1998,
inclusive, in an aggregate amount not exceeding $10,000,000;
(c) Restricted Payments (other than dividends on Equity
Securities of Vencor) made during the period from January 1, 1997
to March 31, 1998, inclusive, in an aggregate amount not
exceeding $100,000,000; and
(d) any other Restricted Payment declared and made after
March 31, 1998 if, immediately after such Restricted Payment is
declared or made, the aggregate amount of all Restricted Payments
declared or made after March 31, 1998 does not exceed the sum of
(i) the amount set forth below opposite the period in which the
date of such declaration or payment occurs plus (ii) the amount
by which $100,000,000 exceeds the aggregate amount of all
Restricted Payments made pursuant to clause (c) above:
PERIOD AMOUNT
April 1, 1998 through March 31, 1999 $10,000,000
April 1, 1999 through March 31, 2000 $20,000,000
April 1, 2000 through March 31, 2001 $30,000,000
April 1, 2001 through March 31, 2002 $40,000,000
provided that in no event shall Vencor or any Subsidiary declare or
make any Restricted Payment pursuant to this Section if, immediately
before or after giving effect thereto, any Default shall have occurred
and be continuing.
SECTION 3. REPRESENTATIONS OF VENCOR. Vencor represents and warrants that
(i) the representations and warranties of Vencor set forth in Article 4 of the
Credit Agreement will be true on and as of the Amendment Effective Date and (ii)
no Default will have occurred and be continuing on such date.
SECTION 4. GOVERNING LAW. This Amendment shall be governed by and
construed in accordance with the laws of the State of New York.
SECTION 5. 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 6. EFFECTIVENESS. This Amendment shall become effective on the
date (the "AMENDMENT EFFECTIVE DATE") when the Documentation Agent shall have
received from each of Vencor and the Required Banks a counterpart hereof signed
by such party or facsimile or other written confirmation (in form satisfactory
to the Documentation Agent) that such party has signed a counterpart hereto.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed as of the date first above written.
VENCOR, INC.
By: /s/ Steven L. Monaghan
------------------------------------
Title: Vice President
MORGAN GUARANTY TRUST
COMPANY OF NEW YORK
By: /s/ Diana H. Imhof
------------------------------------
Title: Vice President
NATIONSBANK, N.A.,
By: /s/ Ashley M. Crabtree
------------------------------------
Title: Senior Vice President
BANK OF AMERICA NT & SA,
By: /s/ Edward S. Han
------------------------------------
Title: Vice President
THE BANK OF NEW YORK
By: /s/ Edward J. Dougherty, III
------------------------------------
Title: Vice President
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THE CHASE MANHATTAN BANK
By: /s/ Dawn Lee Lum
-----------------------------
Title: Vice President
PNC BANK, KENTUCKY, INC,
By: /s/ Benjamin A. Willingham
-----------------------------
Title: Vice President
TORONTO DOMINION (TEXAS), INC.
By: /s/ Darlene Riedel
------------------------------
Title: Vice President
THE BANK OF NOVA SCOTIA
By: /s/ W. J. Brown
-------------------------------
Title: Vice President
CREDIT LYONNAIS NEW YORK BRANCH
By: /s/ Farboud Tavangar
-------------------------------
Title: First Vice President
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CREDIT SUISSE FIRST BOSTON
By: /s/ Christian Bourqui
--------------------------------
Title: Associate
By: /s/ Thomas G. Muoio
--------------------------------
Title: Vice President
DEUTSCHE BANK AG NEW YORK
AND/OR CAYMAN ISLAND BRANCHES
By: /s/ Iain Stewart
-------------------------------
Title: Vice President
By: /s/ Susan L. Peterson
-------------------------------
Title: Vice President
FLEET NATIONAL BANK
By: /s/ Ginger Stolzenthaler
-------------------------------
Title: Senior Vice President
THE INDUSTRIAL BANK OF JAPAN
TRUST COMPANY
By: /s/ Takuya Honjo
-------------------------------
Title: Senior Vice President
WACHOVIA BANK, N.A.,
By: /s/ John B. Tibe
-------------------------------
Title: Assistant Vice President
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ABN AMRO BANK N.V.
By: /s/ Steven L. Hipsman
------------------------------------
Title: Vice President
By: /s/ Linda K. Davis
------------------------------------
Title: Vice President
BANK OF MONTREAL
By: /s/ Peter W. Steelman
------------------------------------
Title: Director
BANK ONE, KENTUCKY, NA
By: /s/ Dennis P. Heishman
------------------------------------
Title: Senior Vice President
COMERICA BANK
By: /s/ Colleen M. Murphy
------------------------------------
Title: Assistant Vice President
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CORESTATES BANK, N.A.
By: /s/ Elizabeth D. Morris
-----------------------------------
Title: Vice President
THE FUJI BANK, LIMITED
By: /s/ Tetsuo Kamatsu
-----------------------------------
Title: Joint General Manager
LTCB TRUST COMPANY
By: /s/ Hiroshi Kitada
-----------------------------------
Title: Senior Vice President
NATIONAL CITY BANK OF KENTUCKY,
By: /s/ Deroy Scott
-----------------------------------
Title: Vice President
NBD BANK, N.A.
By: /s/ Christine M. Morrison
-----------------------------------
Title: Vice President
UNION BANK OF CALIFORNIA, N.A.
By: /s/ Patricia A. Samson
-----------------------------------
Title: Assistant Vice President
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AMSOUTH BANK OF ALABAMA
By: /s/ Keith S. Law
-----------------------------------
Title: Vice President
BANQUE PARIBAS
By:___________________________________
Title:
By:___________________________________
Title:
FIRST UNION NATIONAL BANK OF
NORTH CAROLINA
By: /s/ Ann M. Dodd
-----------------------------------
Title: Senior Vice President
U.S. BANK OF WASHINGTON, N.A.
By: /s/ Arnold J. Conrad
-----------------------------------
Title: Vice President
CIBC, INC.
By: /s/ Judith A. Kirshner
-----------------------------------
Title: Executive Director
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KREDIETBANK, N.V.
By: /s/ Robert Snauffer
------------------------------------
Title: Vice President
By: /s/ Tod R. Angus
------------------------------------
Title: Vice President
THE MITSUBISHI TRUST AND BANKING
CORPORATION
By: /s/ Nobuo Tominaga
------------------------------------
Title: Chief Manager
THE SAKURA BANK LIMITED
NEW YORK BRANCH
By:____________________________________
Title:
SOCIETE GENERALE, CHICAGO
BRANCH
By:____________________________________
Title:
FIRST AMERICAN NATIONAL BANK
By: /s/ Kent D. Wood
------------------------------------
Title: Assistant Vice President
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BANK OF LOUISVILLE
BY: /s/ Roy L. Johnson, Jr.
-------------------------------------
Title: Senior Vice President
THE DAI-ICHI KANGYO BANK, LTD.
CHICAGO BRANCH
By: /s/ Takeo Teramura
-------------------------------------
Title: Vice President
FIFTH THIRD BANK
By: /s/ Judy R. Semaria
-------------------------------------
Title: Assistant Vice President
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