EXHIBIT 4(c)
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
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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
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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 0THER 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.
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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
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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."
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(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 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:
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""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:
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""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."
(1) 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
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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" mean 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 Company,
8
(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 Consolidated
9
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 lion.
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 acquisition
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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,
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(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."
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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 1, 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;
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(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 (1) only, the Fixed Charge Coverage Ratio for the
Company's most recently ended four full
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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"
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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.
* * * * *
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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 X. 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
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