EXHIBIT 4.3.2
FIRST SUPPLEMENTAL INDENTURE
Dated as of June 22, 1994
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FIRST SUPPLEMENTAL INDENTURE, dated as of June 22, 1994 (the "First
Supplemental Indenture"), between CONTINENTAL MEDICAL SYSTEMS, INC., a Delaware
corporation (hereinafter called the "Company"), and NATIONSBANK OF VIRGINIA,
N.A., a national banking corporation, as trustee under the Indenture referred to
below (hereinafter called the "Trustee").
WHEREAS, the Company and the Trustee are parties to an Indenture, dated as
of March 15, 1993 (hereinafter called the "Existing Indenture", all capitalized
terms used in this First Supplemental Indenture and not otherwise defined being
used as defined in the Existing Indenture), pursuant to which the Company issued
its 10-3/8% Senior Subordinated Notes due 2003, Series B (hereinafter called the
"Securities");
WHEREAS, on June 7, 1994, the Company solicited (the "Solicitation")
consents to amend certain provisions of the Existing Indenture;
WHEREAS, the Existing Indenture provides that, when authorized by a Board
Resolution, indentures supplemental thereto may be executed and delivered by the
Company and the Trustee with the consent of the Holders of not less than a
majority in principal amount of the Outstanding Securities (or in certain cases
the consent of the Holder of each Outstanding Security affected thereby), such
consent to be by Act of said Holders delivered to the Company and the Trustee;
WHEREAS, pursuant to the Solicitation, the Holders of at least a majority
in principal amount of the Outstanding Securities have so consented to the
execution and delivery of this First Supplemental Indenture; and
WHEREAS, all things necessary have been done to make this First
Supplemental Indenture, when executed and delivered by the Company, the legal,
valid and binding agreement of the Company, in accordance with its terms.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
The parties hereto mutually covenant and agree as follows:
PART ONE
Section 1009 of the Existing Indenture is hereby supplemented, modified and
restated to read as set forth in Exhibit A to this First Supplemental Indenture.
PART TWO
(S) 1. This First Supplemental Indenture shall be construed as supplemental
to the Indenture and shall form a part thereof, and the Existing Indenture is
hereby incorporated by reference herein and, as supplemented, modified and
restated hereby, is hereby ratified, approved and confirmed.
(S) 2. This First Supplemental Indenture shall be governed by and construed
in accordance with the laws of the State of New York.
(S) 3. This First Supplemental Indenture 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 an
original of this First Supplemental Indenture.
(S) 4. This First Supplemental Indenture shall be effective and operative
on the date and time hereof.
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IN WITNESS WHEREOF, the parties hereto have caused this First 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.
CONTINENTAL MEDICAL SYSTEMS, INC.
By: /s/ Dennis Lehman
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Name: Dennis Lehman
Title: Senior V.P.
Attest: /s/ David Nation
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Name : David Nation
Title: Secretary
NATIONSBANK OF VIRGINIA, N.A.,
as Trustee
By: /s/ Franklin S. Wood
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Name: Franklin S. Wood
Title: Assistant Vice President
Attest: /s/ Bob Richardson
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Name: Bob Richardson
Title: Vice President
STATE OF Virginia )
) SS.:
CITY OF Richmond )
On the 10 day of June, 1994, before me personally came Franklin S. Wood and
Bob Richardson respectively, to me known, who, being by me duly sworn, did
acknowledge before me that they reside at Richmond, VA and Midlothian, VA,
respectively; that they are Assistant VP and VP, respectively, of NationsBank of
Virginia, N.A., one of the corporations described in and which executed the
above instrument; that they know the corporate seal of such corporation; that
the seal affixed to said instrument is such corporate seal; that it was affixed
pursuant to authority of the Board of Directors of such corporation; and that
they signed their names thereto pursuant to like authority.
(NOTARIAL SEAL)
/s/ Sheliah B. Berryman
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My Commission Expires 8/31, 1996
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STATE OF Pennsylvania )
) SS.:
COUNTY OF Cumberland )
On the 1st day of July, 1994, before me personally came Dennis L. Lehman
and David G. Nation, respectively, to me known, who, being by me duly sworn, did
acknowledge before me that they reside at Mechanicsburg, PA and Mechanicsburg,
PA, respectively; that they are Chief Financial Officer and Secretary,
respectively, of Continental Medical Systems, Inc., one of the corporations
described in and which executed the above instrument; that they know the
corporate seal of such corporation; that the seal affixed to said instrument is
such corporate seal; that it was so affixed pursuant to authority of the Board
of Directors of such corporation; and that they signed their names thereto
pursuant to like authority.
(NOTARIAL SEAL)
/s/ Susan J. Crabb
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Notarial Seal
Susan J. Crabb, Notary Public
Upper Allen Twp., Cumberland County
My Commission Expires Nov. 13, 1995
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Exhibit A
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SECTION 1009. Limitation on Restricted Payments. The Company will not, and will
not permit any Subsidiary to, directly or indirectly:
(i) declare or pay any dividend on, or make any distribution to holders
of, any Capital Stock of the Company (other than dividends or distributions
payable solely in shares of Qualified Capital Stock of the Company or in
options, warrants or other rights to acquire Qualified Capital Stock of the
Company);
(ii) purchase, redeem or otherwise acquire or retire for value any Capital
Stock of the Company or any Affiliate thereof (other than any Wholly Owned
Subsidiary of the Company) or any option, warrant or other right to acquire such
Capital Stock of the Company or any Affiliate thereof;
(iii) make any principal payment on, or redeem, repurchase, defease or
otherwise acquire or retire for value, prior to any scheduled repayment, or
maturity, any Subordinated Indebtedness;
(iv) incur, create or assume any guarantee of Indebtedness of any Affiliate
(other than with respect to (a) guarantees of Indebtedness of any Wholly Owned
Subsidiary by the Company or by any Subsidiary or (b) guarantees of Indebtedness
of the Company by any Subsidiary of the Company, in each case in accordance with
the terms of this Indenture); or
(v) make any investment in any Person (other than any Permitted Investment)
(such payments described in (i) through (v) collectively, "Restricted Payments")
unless at the time of and after giving effect to the proposed Restricted Payment
(the amount of any such Restricted Payment, if other than cash, as determined by
the Board of Directors, whose determination shall be conclusive and evidenced by
a Board Resolution), (1) no Default or Event of Default shall have occurred and
be continuing; (2) immediately before and immediately after giving effect to
such transaction on a pro forma basis, the Company could incur $1.00 of
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additional Indebtedness under the provisions of Section 1008 (other than
Permitted Indebtedness); and (3) the aggregate amount of all Restricted
Payments (plus, without duplication, dividends and distributions paid to any
Person other than the Company, a Wholly Owned Subsidiary or a Permitted Joint
Venture as permitted by paragraph (b) of Section 1010) and any Restricted
Payments made pursuant to clauses (i), (iv), (v), (vii) and (viii) of the
succeeding paragraph) declared or made after the date of this Indenture shall
not exceed the sum of
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(A) 50% of the Consolidated Net Income of the Company accrued on a
cumulative basis during the period beginning on the date of this Indenture and
ending on the last day of the Company's last fiscal quarter ending prior to the
date of such proposed Restricted Payment (or, if such aggregate cumulative
Consolidated Net Income shall be a loss, minus 100% of such loss);
(B) the aggregate Net Cash Proceeds, received after the date of this
Indenture by the Company as capital contributions to the Company;
(C) the aggregate Net Cash Proceeds, received after the date of this
Indenture by the Company from the issuance or sale (other than to any of its
Subsidiaries) of shares of Capital Stock (other than Redeemable Capital Stock)
of the Company or any options or warrants to purchase such shares (other than
issuances in respect of clause (ii) of the subsequent paragraph) of Capital
Stock (other than Redeemable Capital Stock) of the Company;
(D) the aggregate Net Cash Proceeds received after the date of this
Indenture by the Company (other than from any of its Subsidiaries) upon the
exercise of any options or warrants to purchase shares of Capital Stock of the
Company; and
(E) the aggregate Net Cash Proceeds received after the date of this
Indenture by the Company for debt securities that have been converted into or
exchanged for Qualified Capital Stock of the Company to the extent such debt
securities are originally sold for cash plus the aggregate cash received by the
Company at the time of such conversion or exchange.
None of the foregoing provisions shall be deemed to prohibit the
following Restricted Payments so long as in the case of clauses (ii), (iii),
(v), (vi) and (viii) there is no Default or Event of Default continuing;
(i) dividends paid within 60 days after the date of declaration if
at the date of declaration, such payment would be permitted by the provisions of
the preceding paragraph and such payment shall be deemed to have been paid on
such date of declaration for purposes of the calculation required by the
provisions of the foregoing paragraph;
(ii) the redemption, repurchase or other acquisition or retirement
of any shares of any class of Capital Stock of the Company or Subordinated
Indebtedness in exchange for, or out of the net proceeds of, a substantially
concurrent issue and sale (other than to a Subsidiary) of shares of Qualified
Capital Stock of the Company; provided that any net proceeds from the issue and
sale of such Qualified Capital Stock are excluded from clause 3(C) of the
foregoing paragraph;
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(iii) the redemption, repurchase, or other acquisition or retirement of
Subordinated Indebtedness of the Company (other than Redeemable Capital Stock)
made by exchange for, or out of the proceeds of the substantially concurrent
sale of, new Indebtedness of the Company so long as (A) the principal amount of
such new Indebtedness does not exceed the principal amount of the Indebtedness
being so redeemed, repurchased, acquired or retired for value (plus the amount
of any premium required to be paid under the terms of the instrument governing
the Indebtedness being so redeemed, repurchased, acquired or retired), (B) such
Indebtedness is subordinated to Senior Indebtedness and the Securities at least
to the same extent as such Subordinated Indebtedness so purchased, exchanged,
redeemed, repurchased, acquired or retired for value, (C) such Indebtedness has
a Stated Maturity for its final scheduled principal payment later than the
Stated Maturity for the final scheduled principal payment of the Securities and
(D) such Indebtedness has an Average Life to Stated Maturity equal to or greater
than the remaining Average Life to Stated Maturity of the Securities;
(iv) any purchase, redemption or other acquisition of Capital Stock of a
Permitted Joint Venture from a physician or other healthcare provider which is
required to be purchased, redeemed or otherwise acquired by applicable law;
(v) in addition to the transactions covered by clause (iv) of this
paragraph, any purchase, redemption or other acquisition of Capital Stock of a
Permitted Joint Venture;
(vi) the incurrence, creation or assumption of any guarantee of
Indebtedness of a Permitted Joint Venture;
(vii) the making of any payment pursuant to any guarantee of Indebtedness
of a Permitted Joint Venture; or
(viii) the incurrence, creation or assumption of any Physician Support
Obligations and any payments made in respect thereof in an amount not to exceed
$5,000,000 in any given Fiscal Year.
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