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EXHIBIT
10.2
CONSENT NO. 4 AND
WAIVER
CONSENT NO. 4 AND WAIVER
(this “ Consent ”) dated as of April 26,
2007, pursuant to the $400,000,000 Amended and Restated Credit
Agreement dated as of June 28, 2004 (as heretofore amended,
the “ Credit Agreement ”) among KINDRED
HEALTHCARE, INC. (the “ Borrower ”), the LENDERS
party thereto, and JPMORGAN CHASE BANK, N.A. (formerly known as
JPMorgan Chase Bank), as Administrative Agent and Collateral
Agent.
W I T N E S S E T
H:
WHEREAS, the Borrower has
informed the Agents and the Lenders that (a) the Borrower
intends to enter into certain Agreements for Sale of Real Estate
dated as of April 27, 2007 (collectively, the “
Ventas Agreement ”) with Ventas Realty, Limited
Partnership (together with its affiliates, “ Ventas
Realty ”) pursuant to which agreements the Borrower has
agreed, subject to certain conditions, to purchase on or before
June 30, 2007 (the “ Ventas Facilities Purchase
”) from Ventas Realty the Healthcare Facilities listed on
Schedule A hereto (the “ Ventas Facilities ”)
for aggregate consideration (the “ Ventas Facilities
Purchase Consideration ”) comprising a cash payment of
approximately $171,500,000, all as more fully set forth in the
Ventas Agreement, (b) the Borrower proposes to effect the
purchase of the Ventas Facilities through the Borrower or one or
more Restricted Subsidiaries (the Borrower or any such Restricted
Subsidiary, a “ Purchaser ”) and (c) the
Borrower and Ventas Realty will enter into certain lease amendment
agreements (the “ Proposed Master Lease Amendments
”) with respect to the Master Lease Agreements pursuant to
which the Ventas Facilities and other properties are currently
leased by the Borrower, pursuant to which amendments the Purchasers
shall, among other things, agree to pay a lease termination fee of
approximately $3,500,000 with respect to the Ventas Facilities and
to provide Ventas Realty with certain enhanced reporting and
inspection rights; and
WHEREAS, the Borrower has
also informed the Agents and the Lenders that, following the
consummation of the Ventas Facilities Purchase, the Borrower
intends to pursue (i) a sale of the Ventas Facilities to one
or more Persons (other than the Borrower or any direct or indirect
Subsidiary of the Borrower), which sales may be effected by means
of a sale of the Borrower’s Equity Interests in the
Restricted Subsidiaries that then own such facilities and no other
unrelated assets (any such sale, a “ Proposed Ventas
Facility Sale ”), (ii) a sale of the personal
property, inventory and any other operating assets associated with
each Ventas Facility (any such sale, a “ Proposed Personal
Property Sale ”) and (iii) a sale of the Accounts
relating to each Ventas Facility (any such sale, a “
Proposed Accounts Sale ”), with the intention (but no
requirement being established hereby) of consummating transactions
of the type described in the preceding provisions of this paragraph
with respect to all Ventas Facilities by March 31, 2008 and
for aggregate cash consideration expected (but not required hereby)
of approximately $90,000,000;
NOW, THEREFORE, the parties
hereto agree as follows:
Section 1. Defined
Terms . 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.
Section 2. Future Assets
to be Added to Collateral . The Required Lenders hereby waive
compliance by the Borrower with the provisions of paragraphs
(b) and (g) of Section 5.09 of the Credit Agreement
to the extent (but solely to the extent) that such provisions would
require the Borrower or any Restricted Subsidiary, upon
consummation of the Ventas Facilities Purchase, to cause one or
more of the Ventas Facilities to be added to the Collateral;
provided that if a Proposed Ventas Facility Sale is not
consummated on or prior to March 31, 2008 with respect to a
Ventas Facility, then the Borrower shall, and shall cause each
applicable Purchaser to, comply with the provisions of paragraphs
(b) and (g) of Section 5.09 of the Credit Agreement
to the extent applicable to such Ventas Facility, assuming for such
purpose that such Ventas Facility was acquired by the Borrower or
such Purchaser on such date.
Section 3. Consolidations,
Mergers and Asset Sales . The Required Lenders hereby
(a) waive compliance by the Borrower with the provisions of
Section 7.03(a) and Section 7.03(c)(ii)(y) of the Credit
Agreement to the extent (but only to the extent) necessary to
permit the Borrower and the Purchasers to enter into and consummate
any Proposed Ventas Facility Sale and any related Proposed Personal
Property Sale and Proposed Accounts Sale, (b) agree that no
portion of the basket provided for in Section 7.03(c)(ii)(y)
of the Credit Agreement shall be deemed to have been utilized by
any Proposed Ventas Facility Sale and any related Proposed Personal
Property Sale and Proposed Accounts Sale and (c) agree that,
for all other purposes of the Financing Documents, any Proposed
Ventas Facility Sale and any related Proposed Personal Property
Sale and Proposed Accounts Sale shall be deemed to have been made
pursuant to, and in accordance with, Section 7.03 of the
Credit Agreement; provided that at the time of, and
immediately after giving effect to, any such sale, no Default shall
have occurred and be continuing.
Section 4. Limitations on
Acquisitions and Investments . The Required Lenders hereby
(a) waive compliance by the Borrower with the provisions of
Section 7.08 of the Credit Agreement to the extent (but only
to the extent) necessary to permit the consummation of the Ventas
Facilities Purchase, (b) agree that no portion of the basket
provided for in Section 7.08(b)(ii) of the Credit Agreement
shall be deemed to be utilized by the payment of the Ventas
Facilities Purchase Consideration and (c) agree that, for all
other purposes of the Credit Agreement, the Ventas Facilities
Purchase shall be deemed to have been made pursuant to, and in
accordance with, Section 7.08(b) of the Credit Agreement;
provided that at the time of, and immediately after giving
effect to, the Ventas Facilities Purchase, no Default shall have
occurred and be continuing.
Section 5. No Modification
of Certain Documents without Consent . The Required Lenders
hereby waive compliance by the Borrower with the provisions of
Section 7.12(c) of the Credit Agreement, and with respect to
each Ventas Facility, Section 2.08(b) of the Leasehold
Mortgage applicable to such Ventas Facility, to the
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extent (but only to the extent)
necessary to permit the Proposed Master Lease
Amendments.
Section 6. Waiver of
Events Of Default . The Required Lenders hereby waive any
Default or Event of Default that may arise under Secti
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