THIRD SUPPLEMENTAL INDENTURE
XXXXX HEALTHCARE CORPORATION, as Issuer
AND
THE BANK OF NEW YORK,
as Trustee
Dated as of May 7, 1998
Supplemental to Indenture, dated as of
March 1, 1995, relating to the Issuer's
9 5/8% Senior Notes Due 2002
TABLE OF CONTENTS
PARTIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
RECITALS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
ARTICLE I DEFINITIONS AND OTHER PROVISIONS OF
GENERAL APPLICATION. . . . . . . . . . . . . . . . . . . .
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 Third Supplemental
Indenture. . . . . . . . . . . . . . . . . . . . . . . . .
SECTION 1.6 Governing Law. . . . . . . . . . . . . . . . . . . . . . .
SECTION 1.7 Effectiveness. . . . . . . . . . . . . . . . . . . . . . .
ARTICLE II THE AMENDMENTS . . . . . . . . . . . . . . . . . . . . . .
SECTION 2.1 Amendments to Section 1.01 . . . . . . . . . . . . . . . .
SECTION 2.2 Amendment to Section 1.02. . . . . . . . . . . . . . . . .
SECTION 2.3 Amendment to Section 3.04. . . . . . . . . . . . . . . . .
SECTION 2.4 Amendment to Section 3.05. . . . . . . . . . . . . . . . .
SECTION 2.5 Amendment to Section 3.07. . . . . . . . . . . . . . . . .
SECTION 2.6 Amendment to Section 3.08. . . . . . . . . . . . . . . . .
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SECTION 2.7 Amendment to Section 3.09. . . . . . . . . . . . . . . . .
SECTION 2.8 Amendment to Section 3.11. . . . . . . . . . . . . . . . .
SECTION 2.9 Amendment to Section 3.12. . . . . . . . . . . . . . . . .
SECTION 2.10 Amendment to Section 3.13. . . . . . . . . . . . . . . . .
SECTION 2.11 Amendment to Section 3.14. . . . . . . . . . . . . . . . .
SECTION 2.12 Amendment to Section 3.15. . . . . . . . . . . . . . . . .
SECTION 2.13 Amendment to Section 3.16. . . . . . . . . . . . . . . . .
SECTION 2.14 Amendment to Section 3.17. . . . . . . . . . . . . . . . .
SECTION 2.15 Amendment to Section 4.01. . . . . . . . . . . . . . . . .
ARTICLE III NOTICE, ENDORSEMENT AND CHANGE OF
FORM OF SECURITIES. . . . . . . . . . . . . . . . . . . . . . .
SECTION 3.1 Notice to Securityholders. . . . . . . . . . . . . . . . .
SECTION 3.2 Notation on Securities . . . . . . . . . . . . . . . . . .
SIGNATURES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
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THIRD SUPPLEMENTAL INDENTURE, dated as of May 7, 1998 (the "THIRD
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 9 5/8% Senior Notes Due 2002 (the "SECURITIES").
RECITALS OF THE COMPANY
WHEREAS, the Company proposes to amend (the "AMENDMENTS") the
Indenture to delete substantially all of the restrictive covenants contained
therein.
WHEREAS, the Company has commenced an offer to purchase any and all of
the Securities pursuant to its Offer to Purchase and Solicitation of Consents
dated April 23, 1998 (the "TENDER OFFER").
WHEREAS, the Company has solicited consents to the Amendments from the
holders of record of the Securities.
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 Third 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 Third 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 I.1 DEFINITIONS.
For all purposes of the Indenture and this Third 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 Third 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 I.2 EFFECT OF HEADINGS AND TABLE OF CONTENTS.
The Article and Section headings and the Table of Contents of this
Third 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 I.3 SUCCESSORS AND ASSIGNS.
All covenants and agreements in this Third Supplemental Indenture by
the Company shall bind its successors and assigns, or any other obligor on the
Securities, whether expressed or not.
SECTION I.4 SEPARABILITY CLAUSE.
In case any provision in this Third 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 I.5 BENEFITS OF THIRD SUPPLEMENTAL INDENTURE.
Nothing in this Third 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 Third Supplemental Indenture.
SECTION I.6 GOVERNING LAW.
This Third 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 I.7 EFFECTIVENESS.
This Third Supplemental Indenture shall be effective on the date
hereof; PROVIDED, that the Amendments in Article II of this Third Supplemental
Indenture shall take effect on the date (the "EFFECTIVE DATE") that the Trustee
shall have received an Officers' Certificate from the Company, dated the
Effective Date, in accordance with Section 8.06 of the Indenture, stating that
the Tender Offer has been consummated and that the Amendments in Article II of
this Third Supplemental Indenture shall take effect on such date.
ARTICLE II
THE AMENDMENTS
SECTION II.1 AMENDMENTS TO SECTION 1.01.
The following definitions are hereby deleted from Section 1.01 of the
Indenture: Acquired Debt, Asset Sale, Capital Lease, Capital Lease
Obligation, Capital Stock, Change of Control, Change of Control Triggering
Event, Consolidated Cash Flow, Consolidated Net Income, Consolidated Net
Worth, Continuing Directors, Disqualified Stock, Equity Interests, Existing
Indebtedness, Fixed Charge Coverage Ratio, Fixed Charges, Hedging
Obligations, Hospital, Hospital Swap, Indebtedness, International
Subsidiaries, Investment Grade, Investments, Lien, Metrocrest Letter of
Credit Facility, Xxxxx'x, Net Income, Net Proceeds, Non-Cash Consideration,
Non-Recourse Debt, Performance Investment Plan, Permitted Collateral,
Permitted Liens, Permitted Refinancing Indebtedness, Physician Joint Venture
Distributions, Physician Support
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Obligations, Qualified Equity Interests, Rating Agencies, Rating Category,
Rating Date, Rating Decline, Refinancing, Related Business, Restricted
Investment, S&P, Senior Subordinated Notes, Senior Subordinated Note
Indenture, Specified Assets, Specified Exchange, Stockholders Equity,
Transfer Restriction, Wholly Owned Subsidiary.
SECTION II.2 AMENDMENT TO SECTION 1.02.
The following definitions are hereby deleted from Section 1.02 of
the Indenture. Affiliate Transaction, Change of Control Offer, Change of
Control Payment, Change of Control Payment Date, Purchase Date, Restricted
Payments and Senior Asset Sale Offer.
SECTION II.3 AMENDMENT TO SECTION 3.04.
Clause (ii) of Section 3.04 of the Indenture is hereby amended to
read in its entirety as follows:
"(ii) [Intentionally Omitted]"
SECTION II.4 AMENDMENT TO SECTION 3.05.
Section 3.05 of the Indenture is hereby amended to read in its
entirety as follows:
"SECTION 3.05 TAXES.
[Intentionally Omitted]"
SECTION II.5 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.
[Intentionally Omitted]"
SECTION II.6 AMENDMENT TO SECTION 3.08.
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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.
[Intentionally Omitted]"
SECTION II.7 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
[Intentionally Omitted]"
SECTION II.8 AMENDMENT TO SECTION 3.11.
Section 3.11 of the Indenture is hereby amended to read in its
entirety as follows:
"SECTION 3.11 LIMITATIONS ON TRANSACTIONS WITH AFFILIATES.
[Intentionally Omitted]"
SECTION II.9 AMENDMENT TO SECTION 3.12.
Section 3.12 of the Indenture is hereby amended to read in its
entirety as follows:
"SECTION 3.12 LIMITATIONS ON LIENS.
[Intentionally Omitted]"
SECTION II.10 AMENDMENT TO SECTION 3.13.
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Section 3.13 of the Indenture is hereby amended to read in its
entirety as follows:
"SECTION 3.13 CHANGE OF CONTROL.
[Intentionally Omitted]"
SECTION II.11 AMENDMENT TO SECTION 3.14.
Section 3.14 of the Indenture is hereby amended to read in its entirety as
follows:
"SECTION 3.14 CORPORATE EXISTENCE.
[Intentionally Omitted]"
SECTION II.12 AMENDMENT TO SECTION 3.15.
Section 3.15 of the Indenture is hereby amended to read in its entirety as
follows:
"SECTION 3.15 LINES OF BUSINESS.
[Intentionally Omitted]"
SECTION II.13 AMENDMENT TO SECTION 3.16.
Section 3.16 of the Indenture is hereby amended to read in its entirety as
follows:
"SECTION 3.16 LIMITATIONS ON ISSUANCES OF GUARANTEES OF INDEBTEDNESS BY
SUBSIDIARIES.
[Intentionally Omitted]"
SECTION II.14 AMENDMENT TO SECTION 3.17.
Section 3.17 of the Indenture is hereby amended to read in its entirety as
follows:
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"SECTION 3.17 NO AMENDMENT TO SUBORDINATED PROVISIONS OF SENIOR
SUBORDINATED NOTE INDENTURE.
[Intentionally Omitted]"
SECTION II.15 AMENDMENT TO SECTION 4.01.
Section 4.01 of the Indenture is hereby amended to read in its entirety as
follows:
"SECTION 4.01 LIMITATIONS ON MERGERS, CONSOLIDATIONS OR SALES OF ASSETS.
The Company may not consolidate or merge with or into (whether or not
the Company is the surviving corporation), or sell, assign, transfer, lease,
convey or otherwise dispose of all or substantially all of its properties or
assets in one or more related transactions to another corporation, Person or
entity unless:
(i) the Company is the surviving corporation or the entity or the
Person formed by or surviving any such consolidation or merger
(if other than the Company) or to which such sale, assignment,
transfer, lease, conveyance or other disposition shall have been
made is a corporation organized or existing under the laws of the
United States, any state thereof or the District or Columbia;
(ii) the entity or Person formed by or surviving any such
consolidation or merger (if other than the Company) or the entity
or Person to which such sale, assignment, transfer, lease,
conveyance or other disposition shall have been made assumes all
the Obligations of the Company under this Indenture and the
Securities pursuant to a supplemental indenture in a form
reasonably satisfactory to the Trustee; and
(iii) immediately after such transaction no Default or Event of
Default exists.
The Company shall deliver to the Trustee prior to the consummation of
the proposed transaction an Officers' Certificate to the foregoing effect and an
Opinion of Counsel, covering clauses (i) through (iii) above, stating that the
proposed
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transaction and such supplemental indenture comply with this Indenture. The
Trustee shall be entitled to conclusively rely upon such Officers'
Certificate and Opinion of Counsel."
ARTICLE III
NOTICE, ENDORSEMENT AND CHANGE OF FORM OF SECURITIES
SECTION III.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 III.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 Third
Supplemental Indenture, dated as of May 7, 1998, which deleted
substantially all of the restrictive covenants in the Securities.
Reference is hereby made to such Third 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.
* * * * *
This Third 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 May 7, 1998
XXXXX HEALTHCARE CORPORATION
By: /s/ XXXXXXX X. XXXXXX
----------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
THE BANK OF NEW YORK,
AS TRUSTEE
By: /s/ XXXX XX XXXXXX
----------------------------
Name: Xxxx Xx Xxxxxx
Title: Assistant Vice President
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