FIRST SUPPLEMENTAL INDENTURE
XXXXX HEALTHCARE CORPORATION, as Issuer
AND
THE BANK OF NEW YORK,
as Trustee
Dated as of October 27, 1995
Supplemental to Indenture, dated as of
March 1, 1995, relating to the Issuer's
10-1/8% Senior Subordinated Notes Due 2005
TABLE OF CONTENTS
PARTIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
RECITALS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
ARTICLE ONE - DEFINITIONS AND OTHER GENERAL
PROVISIONS. . . . . . . . . . . . . . . . . . . . . . . . .
SECTION 1.1 Definitions . . . . . . . . . . . . . . . . . . . . . . . .
SECTION 1.2 Effect of Headings and Table of
Contents. . . . . . . . . . . . . . . . . . . . . . . . . .
SECTION 1.3 Successors and Assigns. . . . . . . . . . . . . . . . . . .
SECTION 1.4 Separability Clause . . . . . . . . . . . . . . . . . . . .
SECTION 1.5 Benefits of First Supplemental
Indenture . . . . . . . . . . . . . . . . . . . . . . . . .
SECTION 1.6 Governing Law . . . . . . . . . . . . . . . . . . . . . . .
SECTION 1.7 Effectiveness . . . . . . . . . . . . . . . . . . . . . . .
ARTICLE TWO - AMENDMENTS. . . . . . . . . . . . . . . . . . . . . . . . .
ARTICLE THREE - NOTICE, ENDORSEMENT AND CHANGE OF FORM
OF SECURITIES . . . . . . . . . . . . . . . . . . . . . . .
SECTION 3.1 Replacement of Exhibits . . . . . . . . . . . . . . . . . .
SECTION 3.2 Notation on Securities. . . . . . . . . . . . . . . . . . .
SIGNATURES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
ACKNOWLEDGMENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
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FIRST SUPPLEMENTAL INDENTURE, dated as of October 27,1995 (the "First
Supplemental Indenture"), between XXXXX HEALTHCARE CORPORATION, a Nevada
corporation (hereinafter called the "Company"), and THE BANK OF NEW YORK, as
trustee (hereinafter called the "Trustee"), under the Indenture (the
"Indenture"), dated as of March 1, 1995, between the Company and the Trustee
relating to the Company's 10-1/8% Senior Subordinated Notes Due 2005 (the
"Securities").
RECITALS OF THE COMPANY
The Company proposes to offer (the "Offering") Exchangeable
Subordinated Notes due 2007 which are exchangeable for shares of common stock of
Vencor, Inc. (the "Exchangeable Notes").
In connection with the Offering, the Company is soliciting consents to
the amendments to the Indenture (the "Amendments") (all as described in the
Solicitation of Consents, dated October 20, 1995 (the "Consent Solicitation").
In accordance with Section 8.02 of the Indenture the Holders of a
majority of the outstanding principal amount of the Securities then outstanding
have consented to such Amendments.
The Board of Directors of the Company has duly authorized the
execution and delivery of this First Supplemental Indenture. The Company has
delivered an Officers' Certificate and an Opinion of Counsel to the Trustee
pursuant to Section 8.06 of the Indenture and has done all other things
necessary to make this First Supplemental Indenture a valid agreement of the
Company in accordance with the terms hereof and of the Indenture.
WHEREFORE, each party agrees as follows for the benefit of the other
party and for the equal or ratable benefit of the Holders of the Securities:
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ARTICLE I
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 1.1 DEFINITIONS.
For all purposes of the Indenture and this First Supplemental
Indenture, except as otherwise expressly provided or unless the context
otherwise requires:
(1) the words "herein," "hereof" and "hereunder" and other words
of similar import refer to the Indenture and this First Supplemental
Indenture as a whole and not to any particular Article, Section or
subdivision; and
(2) certain capitalized terms used but not defined herein shall
have the meanings assigned to them in the Indenture.
SECTION 1.2 EFFECT OF HEADINGS AND TABLE OF CONTENTS.
The Article and Section headings and the Table of Contents are for
convenience only and shall not affect the construction hereof. All references
to Sections in the Indenture shall remain unchanged.
SECTION 1.3 SUCCESSORS AND ASSIGNS.
All covenants and agreements in this First Supplemental Indenture by
the Company shall bind its successors and assigns, or any other obligor on the
Securities, whether expressed or not.
SECTION 1.4 SEPARABILITY CLAUSE.
In case any provision in this First Supplemental Indenture shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
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SECTION 1.5 BENEFITS OF FIRST SUPPLEMENTAL INDENTURE.
Nothing in this First Supplemental Indenture, express or implied,
shall give to any Person, other than the parties hereto and their successors
hereunder, any Paying Agent and the Holders, any benefit or any legal or
equitable right, remedy or claim under this First Supplemental Indenture.
SECTION 1.6 GOVERNING LAW.
This First Supplemental Indenture shall be governed by and construed
in accordance with the laws of the State of New York and all rights and remedies
shall be governed by such law without reference to its conflict of laws
provision.
SECTION 1.7 EFFECTIVENESS.
This First Supplemental Indenture shall take effect on the date (the
"Effective Date") that each of the following conditions shall have been
satisfied:
(a) the Trustee shall have received an Opinion of Counsel and an
Officers' Certificate from the Company each dated the Effective Date and in the
form set forth in Section 8.06 of the Indenture.
(b) each of the parties hereto shall have executed and delivered
this First Supplemental Indenture.
ARTICLE II
THE AMENDMENTS
1. Section 1.01 of the Indenture is hereby amended, by including the
following between the definition of "Specified Assets" and the definition of
"Stockholders' Equity":
"SPECIFIED EXCHANGE" means any retirement of Indebtedness upon the
exercise by a holder of such Indebtedness, pursuant to the terms thereof,
of any right to exchange such Indebtedness for shares of common stock of
Vencor, Inc. or any successor there-
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to or any other equity securities, other than Equity Interests of a
Subsidiary, owned by the Company as of October 11, 1995, or for any
securities or other property received with respect to such common stock or
equity securities, whether or not such right is subject to the Company's
ability to pay an amount in cash in lieu thereof.
2. Subsection (iii) of the first paragraph of Section 3.07 of the
Indenture is hereby amended and restated, in its entirety, to state the
following:
(iii) make any principal payment on, or purchase, redeem, defease or
otherwise acquire or retire for value any Indebtedness that is subordinated
to the Securities, except at the original final maturity date thereof or
pursuant to a Specified Exchange or the Refinancing;
ARTICLE III
NOTICE, ENDORSEMENT AND CHANGE OF FORM OF SECURITIES
SECTION 1 NOTICE TO SECURITYHOLDERS.
After the Amendments become effective, the Company shall mail to
Securityholders a notice briefly describing such Amendments in accordance with
Section 8.02 of the Indenture.
SECTION 2 NOTATION ON SECURITIES.
(a) Securities authenticated and delivered after the
effectiveness of this First Supplemental Indenture shall be affixed by the
Trustee with the following notation:
"The Company and the Trustee have entered
into a First Supplemental Indenture, dated as
of October 27, 1995, which amended the covenant
regarding limitations on restricted payments.
Reference is hereby made to such First
Supplemental Indenture, copies of which are on
file with The Bank of New York, Trustee."
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The Trustee may require holders of Securities authenticated and
delivered prior to the effectiveness of this First Supplemental Indenture to
deliver such Securities to the Trustee so that the Trustee may affix them with
the aforementioned notation.
(b) If the Company or the Trustee so determines, the Company, in
exchange for the Securities, shall issue and the Trustee shall authenticate new
Securities that reflect the changed terms.
* * * * *
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This First Supplemental Indenture may be executed in any number of
counterparts, each of which so executed shall be deemed to be an original,
but all such counterparts shall together constitute but one in the same
instrument.
Dated as of October 27, 1995
XXXXX HEALTHCARE CORPORATION
By: /s/ Xxxxx X. Xxxxx
----------------------------
Name: Xxxxx X. Xxxxx
Title: Senior Vice President
Attest:
(Seal)
/s/ Xxxx Xxxxxxxx
----------------------------
Name: Xxxx Xxxxxxxx
Title: Assistant Secretary
Dated as of October 27, 0000
XXX XXXX XX XXX XXXX,
as Trustee
By: /s/ Xxxxxx Xxxxxxx
----------------------------
Name: Xxxxxx Xxxxxxx
Title: Assistant Vice President
Attest:
(Seal)
/s/ Xxxx Xxxxxxxxx
----------------------------
Name: Xxxx Xxxxxxxxx
Title: Assistant Treasurer
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