EXHIBIT
4.12
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
March 1, 1995, relating to the Issuer's
9-5/8% Senior Notes Due 2002
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 30,1995 (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 9-5/8% Senior Notes due 2002 (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 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 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 30, 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 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
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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
--------------------------------
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