KINDRED HEALTHCARE, INC - FORM 8-K - EX-10.1

Attached files

file	filename
8-K - 8-K - KINDRED HEALTHCARE, INC	d825255d8k.htm
EX-4.1 - EX-4.1 - KINDRED HEALTHCARE, INC	d825255dex41.htm
EX-5.1 - EX-5.1 - KINDRED HEALTHCARE, INC	d825255dex51.htm
EX-1.1 - EX-1.1 - KINDRED HEALTHCARE, INC	d825255dex11.htm
EX-3.1 - EX-3.1 - KINDRED HEALTHCARE, INC	d825255dex31.htm
EX-3.2 - EX-3.2 - KINDRED HEALTHCARE, INC	d825255dex32.htm
EX-1.2 - EX-1.2 - KINDRED HEALTHCARE, INC	d825255dex12.htm
EX-99.1 - EX-99.1 - KINDRED HEALTHCARE, INC	d825255dex991.htm

Exhibit 10.1

FOURTH AMENDMENT AND RESTATEMENT AGREEMENT dated as of November 25, 2014 (this “Amendment”), among KINDRED HEALTHCARE, INC., a Delaware corporation (the “Borrower”), the Consenting Lenders (as defined below) and JPMORGAN CHASE BANK, N.A., as Administrative Agent (the “Administrative Agent”).

RECITALS

A. The Borrower, the Lenders party thereto from time to time and the Administrative Agent are party to that certain Third Amended and Restated Term Loan Credit Agreement dated as of April 9, 2014 (as further amended, amended and restated, supplemented or otherwise modified from time to time in accordance with the terms thereof, the “Credit Agreement”).

B. Pursuant to Section 10.02 of the Credit Agreement, the consent of the Borrower and the Lenders who comprise at least the “Required Lenders” (as defined in the Credit Agreement) is required to effect this Amendment and the amendments set forth herein.

C. Subject to the terms and conditions set forth herein, each Person signing in the capacity of a “Lender” delivering an executed signature page to this Amendment to the Administrative Agent at or prior to 5:00 p.m., New York City time, on November 21, 2014 (each such Person, or its successor or assigns, as applicable, a “Consenting Lender”) has consented to this Amendment and agreed to the amendments set forth in Section 2 below, which shall become effective upon the Fourth Amendment and Restatement Date (as defined below).

D. Each of Citigroup Global Markets Inc., J.P. Morgan Securities LLC and GE Capital Markets, Inc. (“GE Capital”) have agreed to act as joint lead arrangers and joint bookrunners (in such capacities, the “Lead Arrangers”) in arranging this Amendment, which the Borrower acknowledges hereby.

AGREEMENTS

In consideration of the foregoing and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Borrower, the Administrative Agent and the Consenting Lenders hereby agree as follows:

SECTION 1. Defined Terms. Capitalized terms used herein (including in the recitals hereto) and not otherwise defined herein shall have the meanings assigned to such terms in the Credit Agreement. The rules of construction specified in Section 1.03 of the Credit Agreement also apply to this Amendment mutatis mutandis.

SECTION 2. Amendment and Restatement of the Credit Agreement. The Borrower, the Administrative Agent and the Consenting Lenders agree that, subject to the terms and conditions set forth herein, on the Fourth Amendment and Restatement Date:

(a) the Credit Agreement shall be amended and restated to read in its entirety in the form of the Fourth Amended and Restated Credit Agreement attached as Annex A hereto (the “Fourth Amended and Restated Credit Agreement”);

(b) as used in the Fourth Amended and Restated Credit Agreement, the terms “Agreement”, “this Agreement”, “herein”, “hereinafter”, “hereto”, “hereof” and words of similar import shall, unless the context otherwise requires, from and after the date hereof, mean or refer to the Fourth Amended and Restated Credit Agreement; and

(c) as used in any other Financing Document, all references to the “Credit Agreement” in such Financing Documents shall, unless the context otherwise requires, mean or refer to the Fourth Amended and Restated Credit Agreement.

SECTION 3. Conditions to the Fourth Amendment and Restatement Date. The “Fourth Amendment and Restatement Date” shall be the date on which the following conditions shall have been satisfied:

(a) The Administrative Agent (or its counsel) shall have received from (i) the Borrower, (ii) the Consenting Lenders who comprise at least the Required Lenders and (iii) the Administrative Agent, either (x) counterparts of this Amendment signed on behalf of such parties or (y) written evidence satisfactory to the Administrative Agent (which may include facsimile or other electronic transmissions of signed signature pages) that such parties have signed counterparts of this Amendment.

(b) Immediately before and immediately after the Fourth Amendment and Restatement Date, (i) no Event of Default shall have occurred and be continuing and (ii) the representations and warranties (x) of each Credit Party set forth in the Financing Documents and (y) in Section 5 of this Amendment shall be true and correct in all material respects as of the Fourth Amendment and Restatement Date (it being understood that, to the extent that any such representation and warranty specifically refers to an earlier date, it shall be true and correct in all material respects as of such earlier date and any such representation and warranty that is qualified as to “materiality,” “material adverse effect” or similar language shall be true and correct in all respects (after giving effect to any such qualification therein)).

(c) The Administrative Agent shall have received a certificate of an appropriate officer of the Borrower certifying that the conditions set forth in Section 3(b) of this Amendment have been satisfied.

(d) The Administrative Agent shall have received a duly executed certificate of an appropriate officer of the Borrower, certifying (i) that the copies of the Borrower’s Organizational Documents (x) as previously certified and delivered to the Administrative Agent, remain in full force and effect as of the Fourth Amendment and Restatement Date without modification or amendment since such original delivery or (y) as certified as of a recent date by the appropriate Governmental Authority of the jurisdiction of the Borrower’s organization or formation and attached to such officer’s certificate, are true, correct and complete and in full force and effect as of the Fourth Amendment and Restatement Date, (ii) that the copies of the Borrower’s resolutions approving and adopting the Financing Documents to which it is party, the transactions contemplated herein, and authorizing the execution and delivery thereof, as attached to such officer’s certificate, are true, correct and complete copies and in full force and effect as of the Fourth Amendment and Restatement Date and (iii) as to incumbency certificates identifying the officers of the Borrower that are authorized to execute this Amendment and to execute and act on the Borrower’s behalf in connection with this Amendment.

(e) The Administrative Agent shall have received certificates of good standing or the equivalent for the Borrower from the Borrower’s jurisdiction of organization or formation, in each case certified as of a recent date by the appropriate Governmental Authority.

(f) The Administrative Agent shall have received a customary duly executed opinion of Cleary Gottlieb Steen & Hamilton LLP, dated as of the Fourth Amendment and Restatement Date and reasonably satisfactory to the Administrative Agent.

(g) The Administrative Agent shall have received payment of consent fees by the Borrower for the ratable benefit of each Consenting Lender equal to 0.25% of the outstanding principal amount of outstanding term loans held by each Consenting Lender at the time of its consent.

(h) The Administrative Agent and the Lead Arrangers shall have received on or prior to the Fourth Amendment and Restatement Date, in immediately available funds, payment or reimbursement (or the Borrower shall have made arrangements reasonably satisfactory to the Administrative Agent for such payment or reimbursement) of all costs, fees, out-of-pocket expenses, compensation and other amounts then due and payable in connection with this Amendment, including all reasonable invoiced fees and expenses of Cahill Gordon & Reindel LLP, as counsel to the Administrative Agent and the Lead Arrangers, to the extent invoiced at least two (2) Business Days prior to the Fourth Amendment and Restatement Date.

The Administrative Agent shall notify the Borrower, the Consenting Lenders and the other Lenders of the Fourth Amendment and Restatement Date and such notice shall be conclusive and binding.

SECTION 4. Post-Closing Requirements. Within one hundred twenty (120) days after the Fourth Amendment and Restatement Date, unless waived or extended by the Administrative Agent in its sole discretion, with respect to each real property encumbered by a Mortgage, the Administrative Agent shall have received, with respect to the existing Mortgages, the following, in each case in form and substance reasonably acceptable to the Administrative Agent:

either:

(a) email correspondence provided to the Administrative Agent in form and substance reasonably satisfactory to the Administrative Agent, from local counsel in the jurisdiction in which the real property encumbered by a Mortgage is located substantially to the effect that:

(i) the recording of the existing Mortgage is the only filing or recording necessary to give constructive notice to third parties of the lien created by such Mortgage as security for the Secured Obligations (as defined in the Mortgage), including the Secured Obligations evidenced by the Fourth Amended and Restated Credit Agreement and the other documents executed in connection therewith, for the benefit of the Secured Parties (as defined in the Mortgage); and

(ii) no other documents, instruments, filings, recordings, rerecordings, re-filings or other actions, including, without limitation, the payment of any mortgage recording taxes or similar taxes, are necessary or appropriate under applicable law in order to maintain the continued enforceability, validity or priority of the Lien created by such Mortgage as security for the Secured Obligations, including the Secured Obligations evidenced by the Fourth Amended and Restated Credit Agreement and the other documents executed in connection therewith, for the benefit of the Secured Parties; or

(b) such other documentation with respect to each real property encumbered by a Mortgage, in each case in form and substance reasonably acceptable to the Administrative Agent, as shall confirm the enforceability, validity and perfection of the lien in favor of the Secured Parties, including, if reasonably determined to be necessary or advisable by the Administrative Agent:

(i) an amendment to the existing Mortgage (the “Mortgage Amendment”) to reflect the matters set forth in this Amendment, duly executed and acknowledged by the applicable Credit Party, and in form for recording in the recording office where such Mortgage was recorded, together with such certificates, affidavits, questionnaires or returns as shall be required in connection with the recording or filing thereof under applicable law;

(ii) a favorable opinion, addressed to the Administrative Agent and the Secured Parties (as defined in the Security Agreement) covering, among other things, the due authorization, execution, delivery and enforceability of the applicable Mortgage as amended by the Mortgage Amendment (such opinion may take assumptions for any matters addressed in the local counsel opinion originally delivered in connection with the Mortgage);

(iii) a date down endorsement to the existing title policy, which shall be in form and substance reasonably satisfactory to the Administrative Agent and reasonably assure the Administrative Agent as of the date of such endorsement that the real property subject to the lien of such Mortgage is free and clear of all defects and encumbrances except those Liens permitted under such Mortgage (for the avoidance of doubt, for title policies related to real property in Texas, the form T-38 endorsement and/or a title search shall satisfy this requirement);

(iv) evidence of payment by the Borrower of all search and examination charges escrow charges and related charges, mortgage recording taxes, fees, charges, costs and expenses required for the recording of the Mortgage Amendment referred to above; and

(v) such affidavits, certificates, information and instruments of indemnification as shall be required to induce the title insurance company to issue the endorsement to the title policy contemplated in this Section 4(b) and evidence of payment of all applicable title insurance premiums, search and examination charges, mortgage recording taxes and related charges required for the issuance of the endorsement to the title policy contemplated in this Section 4(b).

SECTION 5. Representations and Warranties. By its execution of this Amendment, the Borrower hereby certifies as of the date hereof that:

(a) this Amendment has been duly authorized by all necessary corporate or other organizational action and has been duly executed and delivered by the Borrower and constitutes a legal, valid and binding obligation of the Borrower, enforceable against the Borrower in accordance with its terms, except to the extent the enforceability thereof may be limited by applicable debtor relief laws affecting creditors’ rights generally and by equitable principles of law (regardless of whether enforcement is sought in equity or at law) and implied covenants of good faith and fair dealing; and

(b) the execution, delivery and performance of this Amendment and the other documents executed in connection herewith (i) do not require any consent or approval of, registration or filing with, or any other action by, any Governmental Authority, except for such as (x) have been obtained or made and are in full force and effect, or (y) the failure of which to obtain would not reasonably be expected to result in a Material Adverse Effect, (ii) will not violate any Applicable Laws with respect to the Borrower or the Organizational Documents of the Borrower, except to the extent that such violation would not reasonably be expected to result in a Material Adverse Effect, (iii) will not violate or result in a default under any contractual obligation to which the Borrower is party, except to the extent that such violation or default would not reasonably be expected to result in a Material Adverse Effect and (iv) will not result in the creation or imposition of any Lien on any asset of the Borrower (other than Permitted Liens).

SECTION 6. Amendment, Modification and Waiver. This Amendment may not be amended, modified or waived except pursuant to a writing signed by each of the parties hereto.

SECTION 7. Liens Unimpaired. After giving effect to this Amendment, neither the modification of the Credit Agreement effected pursuant to this Amendment nor the execution, delivery, performance or effectiveness of this Amendment:

(a) impairs the validity, effectiveness or priority of the Liens granted pursuant to any Financing Document, and such Liens continue unimpaired with the same priority to secure repayment of all Obligations, whether heretofore or hereafter incurred; or

(b) requires that any new filings be made or other action taken to perfect or to maintain the perfection of such Liens.

SECTION 8. Entire Agreement. This Amendment, the Fourth Amended and Restated Credit Agreement and the other Financing Documents constitute the entire agreement among the parties hereto with respect to the subject matter hereof and thereof and supersede all other prior agreements and understandings, both written and verbal, among the parties hereto with respect to the subject matter hereof. Except as expressly set forth herein, this Amendment and the Fourth Amended and Restated Credit Agreement shall not by implication or otherwise limit, impair, constitute a waiver of, or otherwise affect the rights and remedies of any party under, the Credit Agreement, nor alter, modify, amend or in any way affect any of the terms, conditions, obligations, covenants or agreements contained in the Credit Agreement, all of which are ratified and affirmed in all respects and shall continue in full force and effect. It is understood and agreed that each reference in each Financing Document to the “Credit Agreement”, whether direct or indirect, shall hereafter be deemed to be a reference to the Fourth Amended and Restated Credit Agreement and that this Amendment is a “Financing Document”.

SECTION 9. GOVERNING LAW. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK. SECTIONS 10.09 AND 10.10 OF THE CREDIT AGREEMENT ARE HEREBY INCORPORATED BY REFERENCE INTO THIS AMENDMENT AND SHALL APPLY HERETO.

SECTION 10. Severability. If any provision of this Amendment is held to be illegal, invalid or unenforceable, the legality, validity and enforceability of the remaining provisions of this Amendment shall not be affected or impaired thereby. The invalidity of a provision in a particular jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.

SECTION 11. Counterparts. This Amendment may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Delivery by facsimile or other electronic means of an executed counterpart of a signature page to this Amendment shall be effective as delivery of an original executed counterpart of this Amendment.

SECTION 12. Headings. The headings of this Amendment are for purposes of reference only and shall not limit or otherwise affect the meaning hereof.

[Remainder of Page Intentionally Left Blank]

IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed and delivered by their authorized signatories as of the date first above written.


KINDRED HEALTHCARE, INC., as the Borrower

By:		/s/ Joseph L. Landenwich
		Name: Joseph L. Landenwich
		Title: Co-General Counsel and Corporate
		Secretary