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EXHIBIT 4(A)
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THE HILLHAVEN CORPORATION
and
VENCOR, INC.
to
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STATE STREET BANK AND TRUST COMPANY,
Trustee
FIRST SUPPLEMENTAL INDENTURE
Dated as of September 27, 1995
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$175,000,000
10-1/8% Senior Subordinated Notes
due 2001
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FIRST SUPPLEMENTAL INDENTURE (this "Supplemental Indenture"), dated as
of September 27, 1995, among THE HILLHAVEN CORPORATION, a Nevada corporation
("Hillhaven"), VENCOR, INC., a Delaware corporation ("Vencor"), and STATE
STREET BANK AND TRUST COMPANY, a Massachusetts banking corporation (the
"Trustee").
WHEREAS, Hillhaven and the Trustee are parties to an Indenture, dated
as of September 2, 1993 (the "Indenture"), pursuant to which Hillhaven issued
its 10-1/8% Senior Subordinated Notes due 2001 (the "Notes");
WHEREAS, Hillhaven has entered into an Agreement and Plan of Merger
(the "Merger Agreement") dated as of April 23, 1995, as amended and restated as
of July 31, 1995, between Vencor and Hillhaven, pursuant to which Hillhaven is
to be merged with and into Vencor with Vencor being the surviving corporation
in compliance with Section 801 of the Indenture; and Hillhaven and Vencor have
delivered to the Trustee their respective Officers' Certificates and opinions
of Counsel, each stating, among other things, that the Supplemental Indenture
complies with the Indenture;
WHEREAS, Section 901 of the Indenture provides, among other things,
that Hillhaven, when authorized by a Board Resolution (as defined in the
Indenture), and the Trustee, at any time and from time to time may, without
prior notice to or the consent of any of the Holders (as defined in the
Indenture), enter into one or more indentures supplemental to the Indenture, in
a form satisfactory to the Trustee, to evidence succession of another Person
(as defined in the Indenture) to Hillhaven and the assumption by such Person of
all of the obligations, including the performance of all covenants contained in
the Indenture, of Hillhaven under the Notes and the Indenture;
WHEREAS, Hillhaven and Vencor have jointly offered to purchase for
cash any and all of the outstanding Notes upon terms and subject to conditions
set forth in the Offer to Purchase and Consent Solicitation (the "Offer to
Purchase and Consent Solicitation"), dated August 15, 1995, as supplemented by
the Supplement (the "Supplement"), dated September 13, 1995, to the Offer to
Purchase and Consent Solicitation and in the accompanying Second Letter of
Transmittal and Consent (which, together with the blue Letter of Transmittal
and Consent distributed with the Offer to Purchase and Consent Solicitation,
collectively constitute the "Offer"), pursuant to which, among other things,
Hillhaven and Vencor are soliciting consents to certain proposed amendments to
the Indenture as described in the Offer to Purchase and Consent Solicitation,
as supplemented by the Supplement;
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WHEREAS, Section 902 of the Indenture provides, among other things,
that Hillhaven, when authorized by a Board Resolution, and the Trustee, at any
time and from time to time may, with the consent of the Holders of not less
than a majority in aggregate principal amount of the outstanding Notes (the
"Requisite Consents"), may enter into one or more indentures supplemental to
the Indenture, in form and substance satisfactory to the Trustee, for the
purpose of adding certain provisions to or changing in any manner or
eliminating certain provisions of the Indenture or of modifying in certain
manners the rights of the Holders under the Indenture, the Notes or any
Guarantee (as defined in the Indenture);
WHEREAS, Hillhaven and Vencor have obtained the Requisite Consents to
amend the Indenture as provided herein and have delivered or caused to be
delivered such Consents to the Trustee, all as provided in Section 902 of the
Indenture;
WHEREAS, the execution and delivery of this instrument has been duly
authorized by Board Resolution, and all conditions and requirements necessary
to make this instrument a valid and binding agreement have been duly performed
and complied with; and
NOW, THEREFORE, for and in consideration of the premises and other
good and valuable consideration, receipt and sufficiency of which are hereby
acknowledged, it is mutually covenanted and agreed, for the equal proportionate
benefit of all Holders, as follows:
ARTICLE I
ASSUMPTION AND SECURITIES
Section 1.1. Vencor hereby assumes, effective as of the Effective Time
(as defined in the Merger Agreement), all of the obligations, including the
performance of all covenants contained in the Indenture, of Hillhaven under the
Notes and the Indenture.
ARTICLE II
AMENDMENTS TO THE INDENTURE
Section 2.1. Effective as of the Acceptance Date (as defined in the
Offer to Purchase and Consent
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Solicitation, as supplemented by the Supplement), the Indenture is amended as
follows:
Section 501.
(i) To amend Section 501(c)(i) in its entirety to read as
follows:
"(i) there shall be a default in the performance, or breach,
of any covenant or agreement of the Company or of any
Guarantor under this Indenture (other than a default in the
performance or breach of a covenant or agreement which is
specifically dealt with in clauses (a) or (b) or subclauses
(ii), (iii) or (iv) of this clause (c) or pursuant to Sections
1004, 1005, 1006, 1007, 1008, 1009, 1010, 1011, 1012, 1013,
1014, 1016, 1017 or 1019 of this Indenture and such default or
breach shall continue for a period of 30 days after written
notice has been given by certified mail, (x) to the Company by
the Trustee or (y) to the Company and the Trustee by the
Holders of at least 25% in aggregate principal amount of the
outstanding Securities;"
(ii) To delete the text of Sections 501(d), 501(e) and
501(f) in its entirety and replace such text in each instance with the
text "[intentionally omitted]."
Section 801. To delete the text of clauses (ii), (iii) and (iv) of
Section 801(a) in its entirety and replace such text in each instance with the
text "(intentionally omitted]."
Section 1004. To delete the text of Section 1004 in its entirety and
replace such text with the text "(intentionally omitted]."
Section 1005. To delete the text of Section 1005 in its entirety and
replace such text with the text "(intentionally omitted]."
Section 1006. To delete the text of Section 1006 in its entirety and
replace such text with the text "(intentionally omitted]."
Section 1007. To delete the text of Section 1007 in its entirety and
replace such text with the text "[intentionally omitted]."
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Section 1008. To delete the text of Section 1008 in its entirety and
replace such text with the text "[intentionally omitted]."
Section 1009. To delete the text of Section 1009 in its entirety and
replace such text with the text "[intentionally omitted]."
Section 1010. To delete the text of Section 1010 in its entirety and
replace such text with the text "[intentionally omitted]."
Section 1011. To delete the text of Section 1011 in its entirety and
replace such text with the text "[intentionally omitted]."
Section 1012. To delete the text of Section 1012 in its entirety and
replace such text with the text "[intentionally omitted]."
Section 1013. To delete the text of Section 1013 in its entirety and
replace such text with the text "(intentionally omitted]."
Section 1014. To delete the text of Section 1014 in its entirety and
replace such text with the text "[intentionally omitted]."
Section 1016. To delete the text of Section 1016 in its entirety and
replace such text with the text "(intentionally omitted]."
Section 1017. To delete the text of Section 1017 in its entirety and
replace such text with the text "[intentionally omitted]."
Section 1019. To delete the text of Section 1019 in its entirety and
replace such text with the following text:
"The Company will deliver to the Trustee on or before a date
not more than 120 days after the end of each Fiscal Year of
the Company ending after the date hereof a written statement
signed by the principal executive officer, principal financial
officer or principal accounting officer of the Company
stating, whether or not, after a review of the activities of
the Company during such year and the Company's performance
under this Indenture to the best knowledge, based on such
review, of the signers thereof, the Company has fulfilled all
its obligations and is in compliance (such compliance to be
determined without regard to any period of grace or
requirement of notice provided under the
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Indenture) with all conditions and covenants under the
Indenture throughout such year and if there has been a
Default, specifying each Default and the nature and status
thereof."
ARTICLE III
MISCELLANEOUS
Section 3.1. The Trustee accepts the trusts created by the Indenture,
as supplemented by this Supplemental Indenture, and agrees to perform the same
upon the terms and conditions of the Indenture, as supplemented by this
Supplemental Indenture.
Section 3.2. Each of Vencor and the Trustee hereby confirms and
reaffirms the Indenture in every particular, except as modified, supplemented
and expressly amended by this Supplemental Indenture.
Section 3.3. In case any provisions in this 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 3.4. Nothing in this Supplemental Indenture or the Notes,
express or implied, shall give to any Person (other than the parties hereto and
their successors under the Indenture, as supplemented by this Supplemental
Indenture, any Paying Agent (as defined in the Indenture) the holders and the
Holders of Senior Indebtedness (as defined in the Indenture)) any benefit or
any legal or equitable right, remedy or claim under the Indenture, as
supplemented by this Supplemental Indenture.
Section 3.5. This instrument may be signed in any number of
counterparts with the same effect as if the signatures to each counterpart were
upon a single instrument, and all such counterparts together shall be deemed to
be an original of this Supplemental Indenture.
Section 3.6. This Supplemental Indenture shall be governed by and
construed in accordance with the laws of the State of New York (without giving
effect to the conflicts of laws principles thereof).
Section 3.7. Upon the execution and effectiveness of this Supplemental
Indenture, the Indenture shall be modified in accordance herewith, and this
Supplemental Indenture shall form a part of the Indenture for all purposes; and
every Holder of Notes theretofore or
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IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed, and their respective corporate seals to be
hereunto affixed and attested, all as of the day and year first above written.
THE HILLHAVEN CORPORATION
By /s/ ROBERT F. PACQUER
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Name: Robert F. Pacquer
Title: Sr. Vice President
Attest:
By /s/ RICHARD P. ADCOCK
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Name: Richard P. Adcock
Title: Secretary
VENCOR, INC.
By
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Name:
Title:
Attest:
By
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Name:
Title:
STATE STREET BANK AND TRUST
COMPANY, as Trustee as aforesaid
By
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Name:
Title:
Attest:
By
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Name:
Title:
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IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed, and their respective corporate seals to be
hereunto affixed and attested, all as of the day and year first above written.
THE HILLHAVEN CORPORATION
By
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Name:
Title:
Attest:
By
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Name:
Title:
VENCOR, INC.
By
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Name:
Title:
Attest:
By
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Name:
Title:
STATE STREET BANK AND TRUST
COMPANY, as Trustee as aforesaid
By /s/ BRIAN J. CURTIS
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Name: Brian J. Curtis
Title: Assistant Vice President
Attest:
By /s/ ANDREW M. SINASKY
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Name: Andrew M. Sinasky
Title: Assistant Secretary
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IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed, and their respective corporate seals to be
hereunto affixed and attested, all as of the day and year first above written.
THE HILLHAVEN CORPORATION
By
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Name:
Title:
Attest:
By
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Name:
Title:
VENCOR, INC.
By /s/ W. EARL REED, III
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Name: W. Earl Reed, III
Title: Vice President of Finance
and Development
Attest:
By /s/ JUNE N. KING
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Name: June N. King
Title: Assistant Secretary
STATE STREET BANK AND TRUST
COMPANY, as Trustee as aforesaid
By
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Name:
Title:
Attest:
By
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Name:
Title:
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thereafter authenticated and delivered under the Indenture shall be bound by
this Supplemental Indenture.