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
10 1/8% Senior Subordinated Notes Due 2005
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 4.04 . . . . . . . . . . . . . . . .
SECTION 2.4 Amendment to Section 4.05 . . . . . . . . . . . . . . . .
SECTION 2.5 Amendment to Section 4.07 . . . . . . . . . . . . . . . .
SECTION 2.6 Amendment to Section 4.08 . . . . . . . . . . . . . . . .
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SECTION 2.7 Amendment to Section 4.09. . . . . . . . . . . . . . . . .
SECTION 2.8 Amendment to Section 4.11. . . . . . . . . . . . . . . . .
SECTION 2.9 Amendment to Section 4.12. . . . . . . . . . . . . . . . .
SECTION 2.10 Amendment to Section 4.13. . . . . . . . . . . . . . . . .
SECTION 2.11 Amendment to Section 4.14. . . . . . . . . . . . . . . . .
SECTION 2.12 Amendment to Section 4.15. . . . . . . . . . . . . . . . .
SECTION 2.13 Amendment to Section 4.16. . . . . . . . . . . . . . . . .
SECTION 2.14 Amendment to Section 4.17. . . . . . . . . . . . . . . . .
SECTION 2.15 Amendment to Section 5.01. . . . . . . . . . . . . . . . .
ARTICLE III NOTICE, ENDORSEMENT AND CHANGE
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 10 1/8% Senior Subordinated Notes Due 2005 (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 9.02 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 con sented 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 9.06 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.
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
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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 Obligations, Qualified Equity Interests,
Rating Agencies, Rating Category, Rating Date, Rating Decline, Refinancing,
Related Business, Restricted Investment, Senior Asset Sale Offer, S&P,
Specified Assets, Stockholders Equity, Senior
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Subordinated Notes, Senior Subordinated Note Indenture, Specified Exchange,
2005 Exchangeable Subordinated Notes, Senior Notes, Senior Note Indenture,
Transfer Restriction and 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 Subordinated Asset Sale Offer.
SECTION II.3 AMENDMENT TO SECTION 4.04.
Clause (ii) of Section 4.04 of the Indenture is hereby amended to read
in its entirety as follows:
"(ii) [Intentionally Omitted]"
SECTION II.4 AMENDMENT TO SECTION 4.05.
Section 4.05 of the Indenture is hereby amended to read in its entirety
as follows:
"SECTION 4.05 TAXES.
[Intentionally Omitted]"
SECTION II.5 AMENDMENT TO SECTION 4.07.
Section 4.07 of the Indenture is hereby amended to read in its entirety
as follows:
"SECTION 4.07 LIMITATIONS ON RESTRICTED PAYMENTS.
[Intentionally Omitted]"
SECTION II.6 AMENDMENT TO SECTION 4.08.
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Section 4.08 of the Indenture is hereby amended to read in its entirety
as follows:
"SECTION 4.08 LIMITATIONS ON DIVIDEND AND OTHER PAYMENT RESTRICTIONS
AFFECTING SUBSIDIARIES.
[Intentionally Omitted]"
SECTION II.7 AMENDMENT TO SECTION 4.09.
Section 4.09 of the Indenture is hereby amended to read in its entirety
as follows:
"SECTION 4.09 LIMITATIONS ON INCURRENCE OF INDEBTEDNESS AND ISSUANCE OF
PREFERRED STOCK.
[Intentionally Omitted]"
SECTION II.8 AMENDMENT TO SECTION 4.11.
Section 4.11 of the Indenture is hereby amended to read in its entirety
as follows:
"SECTION 4.11 LIMITATIONS ON TRANSACTIONS WITH AFFILIATES.
[Intentionally Omitted]"
SECTION II.9 AMENDMENT TO SECTION 4.12.
Section 4.12 of the Indenture is hereby amended to read in its entirety
as follows:
"SECTION 4.12 LIMITATIONS ON LIENS.
[Intentionally Omitted]"
SECTION II.10 AMENDMENT TO SECTION 4.13.
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Section 4.13 of the Indenture is hereby amended to read in its entirety
as follows:
"SECTION 4.13 CHANGE OF CONTROL.
[Intentionally Omitted]"
SECTION II.11 AMENDMENT TO SECTION 4.14.
Section 4.14 of the Indenture is hereby amended to read in its entirety
as follows:
"SECTION 4.14 CORPORATE EXISTENCE.
[Intentionally Omitted]"
SECTION II.12 AMENDMENT TO SECTION 4.15.
Section 4.15 of the Indenture is hereby amended to read in its entirety
as follows:
"SECTION 4.15 LINES OF BUSINESS.
[Intentionally Omitted]"
SECTION II.13 AMENDMENT TO SECTION 4.16.
Section 4.16 of the Indenture is hereby amended to read in its entirety
as follows:
"SECTION 4.16 LIMITATIONS ON ISSUANCES OF GUARANTEES OF INDEBTEDNESS BY
SUBSIDIARIES.
[Intentionally Omitted]"
SECTION II.14 AMENDMENT TO SECTION 4.17.
Section 4.17 of the Indenture is hereby amended to read in its entirety
as follows:
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"SECTION 4.17 NO SENIOR SUBORDINATED DEBT.
[Intentionally Omitted]"
SECTION II.15 AMENDMENT TO SECTION 5.01.
Section 5.01 of the Indenture is hereby amended to read in its entirety
as follows:
"SECTION 5.01 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 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."
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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 Securi
ties 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
counter parts 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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