FIRST SUPPLEMENTAL INDENTURE
XXXXX HEALTHCARE CORPORATION, as Issuer
AND
THE BANK OF NEW YORK,
as Trustee
Dated as of October 30, 1995
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 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
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 . . . . . . . . . . . . . . . . . . . . . . . . .
2
FIRST SUPPLEMENTAL INDENTURE, dated as of
October 30,1995 (the "First Supplemental Indenture"),
between XXXXX HEALTHCARE CORPORATION, a Nevada corpora-
tion (hereinafter called the "Company"), and THE BANK OF
NEW YORK, as trustee (hereinafter called the "Trustee"),
under the Indenture (the "Indenture"), dated as of Octo-
ber 16, 1995, between the Company and the Trustee relat-
ing to the Company's 8-5/8% Senior Notes due 2003 (the
"Securities").
RECITALS OF THE COMPANY
The Company proposes to offer (the "Offering")
Exchangeable Subordinated Notes due 2007 which are ex-
changeable 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 Solici-
tation").
In accordance with Section 8.02 of the Inden-
ture the Holders of a majority of the outstanding prin-
cipal 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 Sup-
plemental 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:
3
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 ex-
pressly provided or unless the context otherwise re-
quires:
(1) the words "herein," "hereof" and
"hereunder" and other words of similar import refer
to the Indenture and this First Supplemental Inden-
ture 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 Supplemen-
tal Indenture shall be invalid, illegal or unenforceable,
the validity, legality and enforceability of the remain-
ing provisions shall not in any way be affected or im-
paired thereby.
4
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 Supple-
mental 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 defini-
tion of "Specified Assets" and the definition of "Stock-
holders' 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-
5
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 pur-
chase, redeem, defease or otherwise acquire or
retire for value any Indebtedness that is subordi-
nated to the Securities, except at the original
final maturity date thereof or pursuant to a Speci-
fied Exchange or the Refinancing;
ARTICLE III
NOTICE, ENDORSEMENT AND CHANGE OF FORM OF SECURITIES
SECTION 3.1 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 3.2 Notation on Securities.
(a) Securities authenticated and deliv-
ered after the effectiveness of this First Supplemental
Indenture shall be affixed by the Trustee with the fol-
lowing notation:
"The Company and the Trustee have entered
into a First Supplemental Indenture, dated as
of October 30, 1995, which amended the covenant
regarding limitations on restricted payments.
Reference is hereby made to such First Supple-
mental Indenture, copies of which are on file
with The Bank of New York, Trustee."
6
The Trustee may require holders of Securities
authenticated and delivered prior to the effectiveness of
this First Supplemental Indenture to deliver such Securi-
ties 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 Secu-
rities that reflect the changed terms.
* * * * *
7
This First Supplemental Indenture may be exe-
cuted 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 30, 1995
XXXXX HEALTHCARE CORPORATION
By: /s/ Xxxxx Xxxxxxxxx
-----------------------------
Name: Xxxxx Xxxxxxxxx
Title: Senior Vice President
Attest:
(Seal)
/s/ Xxxx Xxxxxxxx
---------------------------
Name: Xxxx Xxxxxxxx
Title: Assistant Secretary
Dated as of October 30, 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
8
STATE OF CALIFORNIA )
: ss.:
COUNTY OF LOS ANGELES )
On this 30th day of October, 1995, before me
personally came Xxxxx Xxxxxxxxx, to me known, who, being
by me duly sworn, did depose and say that he/she is
Senior Vice President of XXXXX HEALTHCARE CORPORATION,
one of the corporations described in and which executed
the above instrument and that he/she signed his/her name
thereto.
/s/ Xxxxxxx X. Xxxxxx
-----------------------------
STATE OF NEW YORK )
: ss.:
COUNTY OF NEW YORK )
On this 27th day of October, 1995, before me
personally came Xxxxxx Xxxxxxx, to me known, who, being
by me duly sworn, did depose and say that he/she is an
Assistant Vice President of THE BANK OF NEW YORK, one of
the corporations described in and which executed the
above instrument and that he/she signed his/her name
thereto.
/s/ Xxxxxxx X. Xxxxxxx
-----------------------------
9
