SECOND SUPPLEMENTAL INDENTURE
XXXXX HEALTHCARE CORPORATION, as Issuer
AND
THE BANK OF NEW YORK,
as Trustee
Dated as of August 21, 1997
Supplemental to Indenture, dated as of
October 16, 1995, relating to the Issuer's
8-5/8% Senior Notes Due 2003
TABLE OF CONTENTS
PARTIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
RECITALS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE ONE - DEFINITIONS AND OTHER GENERAL
PROVISIONS. . . . . . . . . . . . . . . . . . . . . . . . 2
SECTION 1.1 Definitions . . . . . . . . . . . . . . . . . . . . . . . 2
SECTION 1.2 Effect of Headings and Table of
Contents. . . . . . . . . . . . . . . . . . . . . . . . . 2
SECTION 1.3 Successors and Assigns. . . . . . . . . . . . . . . . . . 2
SECTION 1.4 Separability Clause . . . . . . . . . . . . . . . . . . . 2
SECTION 1.5 Benefits of Second Supplemental
Indenture . . . . . . . . . . . . . . . . . . . . . . . . 3
SECTION 1.6 Governing Law . . . . . . . . . . . . . . . . . . . . . . 3
SECTION 1.7 Effectiveness . . . . . . . . . . . . . . . . . . . . . . 3
ARTICLE TWO - AMENDMENTS. . . . . . . . . . . . . . . . . . . . . . . . 3
SECTION 2.1 Amendments to Section 1.01. . . . . . . . . . . . . . . . 3
SECTION 2.2 Amendment to Section 1.02 . . . . . . . . . . . . . . . . 8
SECTION 2.3 Amendment to Section 2.15 . . . . . . . . . . . . . . . . 8
SECTION 2.4 Amendment to Section 3.07 . . . . . . . . . . . . . . . . 8
SECTION 2.5 Amendment to Section 3.08 . . . . . . . . . . . . . . . .11
SECTION 2.6 Amendment to Section 3.09 . . . . . . . . . . . . . . . .13
SECTION 2.7 Amendment to Section 3.10 . . . . . . . . . . . . . . . .15
i
SECTION 2.8 Amendment to Section 3.16 . . . . . . . . . . . . . . . .15
SECTION 2.9 Amendment to Section 9.02 . . . . . . . . . . . . . . . .15
ARTICLE THREE - NOTICE, ENDORSEMENT AND CHANGE OF FORM
OF SECURITIES . . . . . . . . . . . . . . . . . . . . . .16
SECTION 3.1 Notice to Securityholders . . . . . . . . . . . . . . . .16
SECTION 3.2 Notation on Securities. . . . . . . . . . . . . . . . . .16
SIGNATURES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .17
ACKNOWLEDGMENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .18
ii
SECOND SUPPLEMENTAL INDENTURE, dated as of August 21, 1997 (the
"SECOND 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 October 16, 1995, between the Company and the Trustee
relating to the Company's 8-5/8% Senior Notes Due 2003 (the "SECURITIES").
RECITALS OF THE COMPANY
WHEREAS, the Company proposes to amend (the "AMENDMENTS") the
Indenture to conform the restrictive covenants contained therein to those
contained in the Indenture, dated as of January 15, 1997, between the Company
and the Bank of New York, as Trustee, relating to the Company's 7-7/8% Senior
Notes due 2003, the Indenture, dated as of January 15, 1997, between the Company
and the Bank of New York, as Trustee, relating to the Company's 8% Senior Notes
due 2005, and the Indenture, dated as of January 15, 1997, between the Company
and the Bank of New York, as Trustee, relating to the Company's 8-5/8% Senior
Subordinated Notes due 2007.
WHEREAS, the Company has solicited consents to the Amendments from the
holders of record of the Securities outstanding at the close of business on
August 7, 1997.
WHEREAS, in accordance with Section 8.02 of the Indenture, the Holders
of a majority of the principal amount of the Securities then outstanding (other
than any Securities owned by the Company or any Affiliate of the Company) have
consented to such Amendments.
WHEREAS, the Board of Directors of the Company has duly authorized the
execution and delivery of this Second 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 the Company has done all other
things necessary to make this Second Supplemental Indenture a valid agreement of
the Company in accordance with the terms hereof and of the Indenture.
NOW THEREFORE, the Company and Trustee agree as follows for the
benefit of the other party and for the equal and ratable benefit of the Holders
of the Securities:
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 1.1 DEFINITIONS.
For all purposes of the Indenture and this Second 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 Second 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 of this
Second Supplemental Indenture are for convenience only and shall not affect the
construction hereof. Except as otherwise specifically set forth herein, all
references to Sections in the Indenture shall remain unchanged.
SECTION 1.3 SUCCESSORS AND ASSIGNS.
All covenants and agreements in this Second 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 Second 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.
2
SECTION 1.5 BENEFITS OF SECOND SUPPLEMENTAL INDENTURE.
Nothing in this Second 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 Second Supplemental Indenture.
SECTION 1.6 GOVERNING LAW.
This Second 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 Second 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
accordance with Section 8.06 of the Indenture; and
(b) each of the parties hereto shall have executed and delivered
this Second Supplemental Indenture.
ARTICLE II
THE AMENDMENTS
SECTION 2.1 AMENDMENTS TO SECTION 1.01.
(a) The Definition of "ASSET SALE" in Section 1.01 of the Indenture
is hereby amended to read in its entirety as follows:
""ASSET SALE" means (i) the sale, lease, conveyance or other
disposition of any assets (including, without limitation, by way of a sale
and leaseback) other than in the ordinary course of business consistent
3
with past practices and (ii) the issuance or sale by the Company or any of
its Subsidiaries of Equity Interests of any of the Company's Subsidiaries,
in the case of either clause (i) or (ii), whether in a single transaction
or a series of related transactions (a) that have a fair market value in
excess of $25.0 million or (b) for net proceeds in excess of $25.0 million.
Notwithstanding the foregoing: (a) a transfer of assets by the Company to a
Subsidiary or by a Subsidiary to the Company or another Subsidiary, (b) the
issuance of Equity Interests by a Subsidiary to the Company or to another
Subsidiary, (c) a Restricted Payment that is permitted by Section 3.07
hereof and (d) a Hospital Swap shall not be deemed to be an Asset Sale."
(b) The definition of "EXISTING INDEBTEDNESS" in Section 1.01 of the
Indenture is hereby amended to read in its entirety as follows:
""EXISTING INDEBTEDNESS" means Indebtedness of the Company and its
Subsidiaries (other than Indebtedness under the New Credit Facility) in
existence on January 30, 1997, until such amounts are repaid, including all
reimbursement obligations with respect to letters of credit outstanding as
of January 30, 1997."
(c) The definition of "HOSPITAL" in Section 1.01 of the Indenture is
hereby amended to read in its entirety as follows:
""HOSPITAL" means a hospital, outpatient clinic, long-term care
facility or other facility or business that is used or useful in or related
to the provision of healthcare services."
(d) Section 1.01 of the Indenture is hereby amended by adding the
definition of "NEW CREDIT FACILITY" to read in its entirety as follows:
""NEW CREDIT FACILITY" means that certain Credit Agreement by and
among the Company and Xxxxxx Guaranty Trust Company of New York and the
other banks that are party thereto, providing for $2.8 billion in aggregate
principal amount of Indebtedness, including any related notes, instruments
and agreements executed in connection therewith, and in each case as
amended, modified, extended, renewed, refunded, replaced or refinanced, in
whole or in part, from time to time."
4
(e) The definition of "PERMITTED LIENS" in Section 1.01 of the
Indenture is hereby amended to read in its entirety as follows:
""PERMITTED LIENS" means (i) Liens in favor of the Company; (ii) Liens
on property of a Person existing at the time such Person is merged into or
consolidated with the Company or any Subsidiary of the Company or becomes a
Subsidiary of the Company; PROVIDED that such Liens were in existence prior
to the contemplation of such merger, consolidation or acquisition (unless
such Liens secure Indebtedness that was incurred in connection with or in
contemplation of such acquisition and is used to refinance tax-exempt
Indebtedness) and do not extend to any assets or the Company or its
Subsidiaries other than those of the Person merged into or consolidated
with the Company or that becomes a Subsidiary of the Company; (iii) Liens
on property existing at the time of acquisition thereof by the Company or
any Subsidiary of the Company; PROVIDED that such Liens were in existence
prior to the contemplation of such acquisition (unless such Liens secure
Indebtedness that was incurred in connection with or in contemplation of
such acquisition and is used to refinance tax-exempt Indebtedness); (iv)
Liens to secure the performance of statutory obligations, tender, bid,
performance, government contract, surety or appeal bonds or other
obligations of a like nature incurred in the ordinary course of business;
(v) Liens existing on January 30, 1997; (vi) Liens for taxes, assessments
or governmental charges or claims that are not yet delinquent or that are
being contested in good faith by appropriate proceedings promptly
instituted and diligently concluded; PROVIDED that any reserve or other
appropriate provision as shall be required in conformity with GAAP shall
have been made therefor; (vii) other Liens on assets of the Company or any
Subsidiary of the Company securing Indebtedness that is permitted by the
terms hereof to be outstanding having an aggregate principal amount at any
one time outstanding not to exceed 10% of the Stockholders' Equity of the
Company; and (viii) Liens to secure Permitted Refinancing Indebtedness
incurred to refinance Indebtedness that was secured by a Lien permitted
hereunder and that was incurred in accordance with the provisions hereof;
PROVIDED that such Liens do not extend to or cover any property or assets
of the Company or any Subsidiary other than assets or property securing the
Indebtedness so refinanced."
(f) The definition of "PERMITTED REFINANCING INDEBTEDNESS" in Section
1.01 of the Indenture is hereby amended to read in its entirety as follows:
5
""PERMITTED REFINANCING INDEBTEDNESS" means any Indebtedness of the
Company or any of its Subsidiaries issued in exchange for, or the net
proceeds of which are used solely to extend, refinance, renew, replace,
defease, or refund, other Indebtedness of the Company or any of its
Subsidiaries; PROVIDED, that, except in the case of Indebtedness of the
Company issued in exchange for, or the net proceeds of which are used
solely to extend, refinance, renew, replace, defease, or refund,
Indebtedness of a Subsidiary of the Company: (i) the principal amount of
such Permitted Refinancing Indebtedness does not exceed the principal
amount of the Indebtedness so extended, refinanced, renewed, replaced,
defeased or refunded (plus the amount of any premiums paid and reasonable
expenses incurred in connection therewith); (ii) such Permitted Refinancing
Indebtedness has a final maturity date later than the final maturity date
of, and has a Weighted Average Life to Maturity equal to or greater than
the Weighted Average Life to Maturity of, the Indebtedness being extended,
refinanced, renewed, replaced, defeased or refunded; (iii) if the
Indebtedness being extended, refinanced, renewed, replaced, defeased or
refunded is subordinated in right of payment to the Securities, such
Permitted Refinancing Indebtedness has a final maturity date later than the
final maturity date of, and is subordinated in right of payment to, the
Securities on subordination terms at least as favorable to the Holders of
the Securities as those contained in the documentation governing the
Indebtedness being extended, refinanced, renewed, replaced, defeased or
refunded; (iv) such Indebtedness is incurred by the Company if the Company
is the obligor on the Indebtedness being extended, refinanced, renewed,
replaced, defeased or refunded; and (v) such Indebtedness is incurred by
the Company or a Subsidiary if a Subsidiary is the obligor on the
Indebtedness being extended, refinanced, renewed, replaced, defeased or
refunded."
(g) The definition of "REFINANCING" in Section 1.01 of the Indenture
is hereby amended to read in its entirety as follows:
""REFINANCING" has the meaning ascribed to it in the Prospectus dated
January 27, 1997 relating to the Senior Notes and the Senior Subordinated
Notes."
(h) The definition of "RELATED BUSINESS" in Section 1.01 of the
Indenture is hereby amended to read in its entirety as follows:
6
""RELATED BUSINESS" means a healthcare business affiliated or
associated with a Hospital or any business related or ancillary to the
provision of healthcare services or information or the investment in
management, leasing or operation of a Hospital."
(i) Section 1.01 of the Indenture is hereby amended by adding the
definition of "SENIOR NOTES" to read in its entirety as follows:
""SENIOR NOTES" means the 7 7/8% Senior Notes due 2003 and the 8%
Senior Notes due 2005 of the Company in an aggregate principal amount of
$1.3 billion, issued pursuant to the indentures dated as of January 15,
1997 between the Company and the Bank of New York, as trustee, as amended
or supplemented from time to time."
(j) The definition of "SENIOR SUBORDINATED NOTES" in Section 1.01 of
the Indenture is hereby amended to read in its entirety as follows:
""SENIOR SUBORDINATED NOTES" means the 8 5/8% Senior Subordinated Notes
due 2007 of the Company in an aggregate principal amount of $700.0 million,
issued pursuant to the Senior Subordinated Note Indenture."
(k) The definition of "SENIOR SUBORDINATED NOTE INDENTURE" in Section
1.01 of the Indenture is hereby amended to read in its entirety as follows:
""SENIOR SUBORDINATED NOTE INDENTURE" means the Indenture dated as of
January 15, 1997 between the Company and The Bank of New York, as trustee,
as amended or supplemented from time to time, under which the Senior
Subordinated Notes were issued."
(l) Section 1.01 of the Indenture is hereby amended by adding the
definition of "SPECIFIED EXCHANGE" to read in its entirety as follows:
""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 thereto 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 or cash in lieu
7
thereof, whether or not such right is subject to the Company's ability to
pay an amount in cash in lieu thereof."
(m) Section 1.01 of the Indenture is hereby amended, by including the
following definitions at the end thereof:
""2005 EXCHANGEABLE SUBORDINATED NOTES" means the 6% Exchangeable
Subordinated Notes due 2005 of the Company in an aggregate principal amount
of $320.0 million, issued pursuant to the Indenture dated as of January 10,
1996, between the Company and The Bank of New York, as trustee, as amended
or supplemented from time to time."
""2005 SENIOR SUBORDINATED NOTES" means the 10 1/8% Senior Subordinated
Notes due 2005 of the Company in an aggregate principal amount of $900.0
million, issued pursuant to the Indenture dated as of March 1, 1995,
between the Company and The Bank of New York, as trustee, as amended or
supplemented from time to time."
SECTION 2.2 AMENDMENT TO SECTION 1.02.
Section 1.02 of the Indenture is hereby amended to delete the
references therein to "Commencement Date," "Excess Proceeds," "Offer Amount,"
"Offer Period," "Purchase Price," and "Senior Asset Sale Offer."
SECTION 2.3 AMENDMENT TO SECTION 2.15.
Section 2.15 of the Indenture is hereby deleted in its entirety.
SECTION 2.4 AMENDMENT TO SECTION 3.07.
Section 3.07 of the Indenture is hereby amended to read in its
entirety as follows:
"SECTION 3.07. LIMITATIONS ON RESTRICTED PAYMENTS.
The Company shall not, and shall not permit any of its Subsidiaries
to, directly or indirectly: (i) declare or pay any dividend or make any
distribution on account of the Company's or any of its Subsidiaries' Equity
Interests (other than (w) Physician Joint Venture Distributions, (x)
dividends or distributions payable in Qualified Equity Interests of the
Compa-
8
ny, (y) dividends or distributions payable to the Company or any Subsidiary
of the Company, and (z) dividends or distributions by any Subsidiary of the
Company payable to all holders of a class of Equity Interests of such
Subsidiary on a PRO RATA basis); (ii) purchase, redeem or otherwise acquire
or retire for value any Equity Interests of the Company; or (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 (all such payments and other actions
set forth in clauses (i) through (iii) above being collectively referred to
as "RESTRICTED PAYMENTS"), unless, at the time of and after giving effect
to such Restricted Payment (the amount of any such Restricted Payment, if
other than cash, shall be the fair market value (as conclusively evidenced
by a resolution of the Board of Directors set forth in an Officers'
Certificate delivered to the Trustee within 60 days prior to the date of
such Restricted Payment) of the asset(s) proposed to be transferred by the
Company or such Subsidiary, as the case may be, pursuant to such Restricted
Payment):
(a) no Default or Event of Default shall have occurred and be
continuing or would occur as a consequence thereof; and
(b) the Company would, at the time of such Restricted Payment and
after giving PRO FORMA effect thereto as if such Restricted Payment had
been made at the beginning of the most recently ended four full fiscal
quarter period for which internal financial statements are available
immediately preceding the date of such Restricted Payment, have been
permitted to incur at least $ 1.00 of additional Indebtedness pursuant to
the Fixed Charge Coverage Ratio test set forth in the first paragraph of
Section 3.09 hereof; and
(c) such Restricted Payment, together with the aggregate of all other
Restricted Payments made by the Company and its Subsidiaries after March 1,
1995 (excluding Restricted Payments permitted by clauses (ii), (iii) and
(iv) of the next succeeding paragraph), is less than the sum of (1) 50% of
the Consolidated Net Income of the Company for the period (taken as one
accounting period) from the beginning of the first fiscal quarter
commencing after March 1, 1995 to the end of the Company's most recently
ended fiscal quarter for which internal financial statements are available
at the time of such Restricted Payment (or, if such Xxxxxxx-
9
dated Net Income for such period is a deficit, less 100% of such deficit),
PLUS (2) 100% of the aggregate net cash proceeds received by the Company
from the issue or sale (other than to a Subsidiary of the Company) since
March 1, 1995 of Qualified Equity Interests of the Company or of debt
securities of the Company or any of its Subsidiaries that have been
converted into or exchanged for such Qualified Equity Interests of the
Company, PLUS (3) $20.0 million.
If no Default or Event of Default has occurred and is continuing, or
would occur as a consequence thereof, the foregoing provisions shall not
prohibit the following Restricted Payments:
(i) the payment of any dividend within 60 days after the date of
declaration thereof, if at said date of declaration such
payment would have complied with the provisions hereof;
(ii) the payment of cash dividends on any series of Disqualified
Stock issued after the January 30, 1997 in an aggregate amount
not to exceed the cash received by the Company since January
30, 1997 upon issuance of such Disqualified Stock;
(iii) the redemption, repurchase, retirement or other acquisition of
any Equity Interests of the Company or any Subsidiary in
exchange for, or out of the net cash proceeds of, the
substantially concurrent sale (other than to a Subsidiary of
the Company) of Qualified Equity Interests of the Company;
PROVIDED that the amount of any such net cash proceeds that
are utilized for any such redemption, repurchase, retirement
or other acquisition shall be excluded from clause (c)(2) of
the preceding paragraph;
(iv) the defeasance, redemption or repurchase of subordinated
Indebtedness with the net cash proceeds from an incurrence of
Permitted Refinancing Indebtedness or in exchange for or out
of the net cash proceeds from the substantially concurrent
sale (other than to a Subsidiary of the Company) of Qualified
Equity Interests of the Company; PROVIDED that the amount of
any such net cash proceeds that are utilized for any such
redemption, repurchase, retirement or other acqui-
10
sition shall be excluded from clause (c)(2) of the preceding
paragraph;
(v) the repurchase, redemption or other acquisition or retirement
for value of any Equity Interests of the Company or any
Subsidiary of the Company held by any member of the Company's
(or any of its Subsidiaries') management pursuant to any
management equity subscription agreement or stock option
agreement; PROVIDED that the aggregate price paid for all such
repurchased, redeemed, acquired or retired Equity Interests
shall not exceed $15.0 million in any twelve-month period; and
(vi) the making and consummation of a Change of Control Offer with
respect to the Senior Subordinated Notes, the 2005 Senior
Subordinated Notes or the 2005 Exchangeable Subordinated Notes
in accordance with the provisions of the indentures relating
thereto.
Not later than the date of making any Restricted Payment, the Company
shall deliver to the Trustee an Officers' Certificate stating that such
Restricted Payment is permitted and setting forth the basis upon which the
calculations required by this covenant were computed."
SECTION 2.5 AMENDMENT TO SECTION 3.08.
Section 3.08 of the Indenture is hereby amended to read in its
entirety as follows:
"SECTION 3.08. LIMITATIONS ON DIVIDEND AND OTHER PAYMENT RESTRICTIONS
AFFECTING SUBSIDIARIES.
The Company shall not, and shall not permit any of its Subsidiaries
to, directly or indirectly, create or otherwise cause or suffer to exist or
become effective any consensual Transfer Restriction, except for such
Transfer Restrictions existing under or by reason of:
(a) Existing Indebtedness as in effect on January 30, 1997,
11
(b) this Indenture and the indentures related to the Senior Notes and
the Senior Subordinated Notes,
(c) applicable law,
(d) any instrument governing Indebtedness or Capital Stock of a
Person acquired by the Company or any of its Subsidiaries as in effect at
the time of such acquisition (except to the extent such Indebtedness was
incurred in connection with or in contemplation of such acquisition, unless
such Indebtedness was incurred in connection with or in contemplation of
such acquisition for the purpose of refinancing Indebtedness which was
tax-exempt, or in violation of Section 3.09 hereof), which encumbrance or
restriction is not applicable to any Person, or the properties or assets of
any Person, other than the Person, or the property or assets of the Person,
so acquired, PROVIDED that the Consolidated Cash Flow of such Person shall
not be taken into account in determining whether such acquisition was
permitted by the terms hereof except to the extent that such Consolidated
Cash Flow would be permitted to be dividends to the Company without the
prior consent or approval of any third party,
(e) customary non-assignment provisions in leases entered into in the
ordinary course of business,
(f) purchase money obligations for property acquired in the ordinary
course of business that impose restrictions on the ability of any of the
Company's Subsidiaries to transfer the property so acquired to the Company
or any of its Subsidiaries,
(g) Permitted Refinancing Indebtedness, PROVIDED that the
restrictions contained in the agreements governing such Permitted
Refinancing Indebtedness are no more restrictive than those contained in
the agreements governing the Indebtedness being refinanced, or
(h) the New Credit Facility and related documentation as the same is
in effect on January 30, 1997 and as amended or replaced from time to time,
PROVIDED that no such amendment or replacement is more restrictive as to
Transfer Restrictions than the New Credit Facility and related
documentation as in effect on the January 30, 1997."
12
SECTION 2.6 AMENDMENT TO SECTION 3.09.
Section 3.09 of the Indenture is hereby amended to read in its
entirety as follows:
"SECTION 3.09 LIMITATIONS ON INCURRENCE OF INDEBTEDNESS AND ISSUANCE
OF PREFERRED STOCK
The Company shall not, and shall not permit any of its Subsidiaries
to, directly or indirectly, create, incur, issue, assume, Guarantee or
otherwise become directly or indirectly liable, contingently or otherwise,
with respect to (collectively, "INCUR") after January 30, 1997 any
Indebtedness (including Acquired Debt), and the Company shall not issue any
Disqualified Stock and shall not permit any of its Subsidiaries to issue
any shares of preferred stock; PROVIDED, HOWEVER, that the Company may
incur Indebtedness (including Acquired Debt) and the Company may issue
shares of Disqualified Stock if the Fixed Charge Coverage Ratio for the
Company's most recently ended four full fiscal quarters for which internal
financial statements are available immediately preceding the date on which
such additional Indebtedness is incurred or such Disqualified Stock is
issued would have been at least 2.5 to l, determined on a PRO FORMA basis
(including a PRO FORMA application of the net proceeds therefrom), as if
the additional Indebtedness had been incurred or the Disqualified Stock had
been issued, as the case may be, at the beginning of such four-quarter
period. Indebtedness consisting of reimbursement obligations in respect of
a letter of credit shall be deemed to be incurred when the letter of credit
is first issued.
The foregoing provisions shall not apply to:
(a) the incurrence by the Company of Indebtedness pursuant to the New
Credit Facility in an aggregate principal amount at any time outstanding not to
exceed an amount equal to $2.8 billion less the aggregate amount of all
mandatory repayments applied to permanently reduce the commitments with respect
to such Indebtedness;
(b) the incurrence by the Company of Indebtedness represented by the
Securities, the Senior Notes and the Senior Subordinated Notes;
13
(c) the incurrence by the Company and its Subsidiaries of the
Existing Indebtedness;
(d) the incurrence by the Company or any of its Subsidiaries of
Permitted Refinancing Indebtedness in exchange for, or the net proceeds of which
are used to extend, refinance, renew, replace, defease or refund, Indebtedness
that was permitted by this Indenture to be incurred (including, without
limitation, Existing Indebtedness);
(e) the incurrence by the Company of Hedging Obligations that are
incurred for the purpose of fixing or hedging interest rate or currency risk
with respect to any fixed or floating rate Indebtedness that is permitted by the
terms hereof to be outstanding or any receivable or liability the payment of
which is determined by reference to a foreign currency; PROVIDED that the
notional principal amount of any such Hedging Obligation does not exceed the
principal amount of the Indebtedness to which such Hedging Obligation relates;
(f) the incurrence by the Company or any of its Subsidiaries of
Physician Support Obligations;
(g) the incurrence by the Company or any of its Subsidiaries of
intercompany Indebtedness between or among the Company and any of its
Subsidiaries;
(h) the incurrence by the Company or any of its Subsidiaries of
Indebtedness represented by tender, bid, performance, government contract,
surety or appeal bonds, standby letters of credit or warranty or contractual
service obligations of like nature, in each case to the extent incurred in the
ordinary course of business of the Company or such Subsidiary;
(i) the incurrence by any Subsidiary of the Company of Indebtedness,
the aggregate principal amount of which, together with all other Indebtedness of
the Company's Subsidiaries at the time outstanding (excluding the Existing
Indebtedness until repaid or refinanced and excluding Physician Support
Obligations), does not exceed the greater of (1) 10% of the Company's
Stockholders' Equity as of the date of incurrence or (2) $10.0 million; PROVIDED
that, in the case of clause (l) only, the Fixed Charge Coverage Ratio for the
Company's most recently ended four full
14
fiscal quarters for which internal financial statements are available
immediately preceding the date on which such Indebtedness is incurred would have
been at least 2.5 to 1, determined on a PRO FORMA basis (including a PRO FORMA
application of the net proceeds therefrom), as if such Indebtedness had been
incurred at the beginning of such four-quarter period; and
(j) the incurrence by the Company of Indebtedness (in addition to
Indebtedness permitted by any other clause of this covenant) in an aggregate
principal amount at any time outstanding not to exceed $250.0 million."
SECTION 2.7 AMENDMENT TO SECTION 3.10.
Section 3.10 of the Indenture is hereby deleted in its entirety.
SECTION 2.8 AMENDMENT TO SECTION 3.16.
Section 3.16 of the Indenture is amended by replacing the amount "$10
million" in the last sentence with the amount "$25 million".
SECTION 2.9 AMENDMENT TO SECTION 9.02.
The address of the Company in Section 9.02 of the Indenture is hereby
amended to read in its entirety as follows:
"Xxxxx Healthcare Corporation
0000 Xxxxx Xxxxxx
Xxxxx Xxxxxxx, Xxxxxxxxxx 00000
Telecopier No.: (000) 000-0000
Attention: Treasurer"
15
ARTICLE III
NOTICE, ENDORSEMENT AND CHANGE OF FORM OF SECURITIES
SECTION 3.1 NOTICE TO SECURITYHOLDERS.
After the Effective Date, the Company shall mail to Securityholders a
notice briefly describing the Amendments in accordance with Section 8.02 of the
Indenture.
SECTION 3.2 NOTATION ON SECURITIES.
Securities authenticated and delivered after the Effective Date shall,
at the Company's expense, be affixed by the Trustee with the following notation:
"The Company and the Trustee have entered into a Second Supplemental
Indenture, dated as of August 21, 1997, which amended certain covenants and
eliminated the Company's obligation to offer to repurchase Securities with
the proceeds from certain asset sales. Reference is hereby made to such
Second Supplemental Indenture, copies of which are on file with The Bank of
New York, as Trustee."
The Trustee may, but shall not be required to, require holders of
Securities authenticated and delivered prior to the Effective Date to deliver
such Securities to the Trustee so that the Trustee may affix them with the
aforementioned notation.
* * * * *
16
This Second Supplemental Indenture may be executed in counterparts, each of
which when so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
Dated as of Xxxxxx 00, 0000
XXXXX HEALTHCARE CORPORATION
By: /s/ Xxxxxxx Xxxxxxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Senior Vice President
THE BANK OF NEW YORK,
AS TRUSTEE
By: /s/ Xxxxxx Xxxxxxx
---------------------------------
Name: Xxxxxx Xxxxxxx
Title: Assistant Vice President
17
