<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION
ON JANUARY 12, 2000
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
AMENDMENT NO. 1
TO
FORM T-3
FOR APPLICATIONS FOR QUALIFICATION OF INDENTURES
UNDER THE TRUST INDENTURE ACT OF 1939
------------------------
CHEMED CORPORATION
CHEMED CAPITAL TRUST
(NAME OF APPLICANT)
255 EAST FIFTH STREET
2600 CHEMED CENTER
CINCINNATI, OHIO 45202-4726
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES)
SECURITIES TO BE ISSUED UNDER THE INDENTURES TO BE QUALIFIED
<TABLE>
<CAPTION>
TITLE OF CLASS AMOUNT
- -------------- ------
<S> <C>
JUNIOR SUBORDINATED DEBENTURES OF CHEMED CORPORATION........ $54,000,000
CONVERTIBLE TRUST PREFERRED SECURITIES OF CHEMED CAPITAL $54,000,000
TRUST.....................................................
GUARANTEE OF CONVERTIBLE TRUST PREFERRED SECURITIES OF $54,000,000
CHEMED CAPITAL TRUST......................................
</TABLE>
Approximate date of proposed public offering: As soon as practicable after
filing this application for Qualification.
Name and Address of Agent for service:
<TABLE>
<S> <C>
NAOMI C. DALLOB WITH COPIES TO:
VICE PRESIDENT AND SECRETARY ROBERT ROSENMAN, ESQ.
2600 CHEMED CENTER CRAVATH, SWAINE & MOORE
255 EAST FIFTH STREET 825 EIGHTH AVENUE
CINCINNATI, OHIO 45202-4726 NEW YORK, NEW YORK 10019
(513) 762-6900 (212) 474-1000
</TABLE>
The obligors hereby amend this application for qualification on such date or
dates as may be necessary to delay its effectiveness until: (i) the 20th day
after the filing of a further amendment which specifically states it shall
supersede this amendment, or (ii) such date as the Commission, acting pursuant
to Section 307(c) of the Act, may determine upon written request of the
obligors.
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<PAGE> 2
GENERAL
ITEM 1. GENERAL INFORMATION.
Furnish the following information as to the Applicants:
(a) Form of organization:
Chemed Corporation: A Corporation.
Chemed Capital Trust: A Statutory Business Trust
(b) State or other sovereign power under the laws of which organized:
Chemed Corporation: State of Delaware.
Chemed Capital Trust: State of Delaware.
ITEM 2. SECURITIES ACT EXEMPTION APPLICABLE.
State briefly the facts relied upon by the Applicants as a basis for the
claim that registration of the indenture securities under the Securities Act of
1933 is not required.
Chemed Corporation, a Delaware corporation (the "Company") and Chemed
Capital Trust, a Delaware statutory business trust (the "Trust"), are relying
upon the exemption from the registration requirements of the Securities Act of
1933 (the "Securities Act") provided by Section 3(a)(9) thereunder, in
connection with the offer by the Company and the Trust, upon the terms and
subject to the conditions set forth in the Offering Circular dated December 23,
1999, and the accompanying Letter of Transmittal (which together constitute the
"Exchange Offer"), to exchange Convertible Trust Preferred Securities
representing preferred undivided beneficial interests in the assets of the Trust
(the "Preferred Securities"), for up to 2,000,000 of the outstanding shares (the
"Shares") of Capital Stock, par value $1 per share (the "Capital Stock"), of the
Company. Concurrently with the issuance of Preferred Securities in exchange for
Shares validly tendered in the Exchange Offer, the Company will deposit in the
Trust as trust assets its Convertible Junior Subordinated Debentures due 2030
(the "Junior Subordinated Debentures"), having an aggregate principal amount
equal to the aggregate stated liquidation amount of the Preferred Securities to
be issued by the Trust in the Exchange Offer. The Company will irrevocably
guarantee (the "Guarantee"), on a subordinated basis, the Trust's obligations
under the Preferred Securities.
There have not been any sales of securities of the same series as the
Preferred Securities, the Guarantee or the Junior Subordinated Debentures by the
Company or the Trust, and no such sales are contemplated, by or through an
underwriter, at or about the time of the Exchange Offer.
The Company and the Trust retained Credit Suisse First Boston Corporation
("CSFB") to advise the Company and the Trust as to the structure, process and
financial matters related to the Exchange Offer. CSFB's services to the Company
and the Trust are limited solely to such advisory services, and CSFB will not,
directly or indirectly, solicit the exchange of Preferred Securities for Shares
under the Exchange Offer or otherwise make recommendations with respect to
acceptance or rejection of the Exchange Offer. In exchange for such advisory
services, CSFB will be paid a flat fee which is not dependent upon the outcome
of the transaction. CSFB will not be paid any commission or similar variable
type of remuneration.
The Company also has retained D.F. King as the "Information Agent" and
Norwest Bank Minnesota, N.A. as the "Exchange Agent" in connection with the
Exchange Offer. The Information Agent and the Exchange Agent will provide to
holders of Shares only information otherwise contained in the Offering Circular
and general information regarding the mechanics of the Exchange Offer. Neither
the Information Agent nor the Exchange Agent will solicit exchanges in
connection with the Exchange Offer and will not make recommendations as to the
acceptance or rejection of the Exchange Offer.
No cash payment will be made to or by any holder of Preferred Securities in
connection with such holder's participation in the Exchange Offer.
2
<PAGE> 3
AFFILIATIONS
ITEM 3. AFFILIATES.
Furnish a list or diagram of all affiliates of the Applicants and indicate
the respective percentages of voting securities or other bases of control.
Set forth below is a list of all the Company's subsidiaries. The Company
owns, directly or indirectly, 100% of the voting securities of the following
subsidiaries (unless otherwise noted):
ACD, Inc.
AJJ, Inc.
ARR Enterprises, Inc.
Cadre Computer Resource, Inc.
Caring Companions, Inc.
Complete Plumbing Services, Inc. (49%)
Consolidated HVAC, Inc.
Dell HealthCare Inc.
Elder Care Solutions, Inc.
Georgia Nursing Services, Inc.
Jet Resource, Inc.
Medical Personnel Services, Inc.
National Home Care, Inc.
Nurotoco of Massachusetts, Inc.
Nurotoco of New Jersey, Inc.
O C R Holding Company
O C R Michigan, Inc.
Patient Care, Inc.
Patient Care Medical Services, Inc. (Ohio)
Patient Care Medical Services, Inc.
Priority Care, Inc.
Roto-Rooter, Inc.
Roto-Rooter of Canada, Ltd.
Roto-Rooter Corporation
Roto-Rooter Development Company
Roto-Rooter Management Company
Roto-Rooter Services Company
RR Plumbing Services Corporation (49%)
R R UK, Inc.
Service America Network, Inc.
Service America Systems, Inc.
Starburst, Inc.
Sure-Flow Inc.
The Company has the exclusive right, subject to the terms of the
Declaration (as defined herein), to appoint, replace or remove trustees of the
Trust and to increase or decrease the number of trustees of the Trust, subject
to the right of holders of Preferred Securities to appoint a trustee of the
Trust (the "Special Trustee") upon the occurrence of certain events described in
the Declaration.
See Item 4 for the directors and executive officers of the Company and the
trustees of the Trust, some of whom may be deemed to be "affiliates" of the
Company and the Trust by virtue of their positions.
3
<PAGE> 4
MANAGEMENT AND CONTROL
ITEM 4. DIRECTORS AND EXECUTIVE OFFICERS.
List the names and complete mailing addresses of all directors and
executive officers of the Applicant and all persons chosen to become directors
or executive officers. Indicate all offices with the Applicant held or to be
held by each person named.
The following table sets forth the names, positions and mailing addresses
of all the directors and executive officers of the Company as of the date of
this application.
<TABLE>
<CAPTION>
MAILING
NAME POSITION ADDRESS
- ---- -------- -------
<S> <C> <C>
Rick L. Arquilla....... Director *
James H. Devlin........ Vice President and Director *
Charles H. Erhart, *
Jr................... Director
Joel F. Gemunder....... Director *
Patrick P. Grace....... Director *
Edward L. Hutton....... Chairman, Chief Executive Officer and Director *
Thomas C. Hutton....... Vice President and Director *
Walter L. Krebs........ Director *
Sandra E. Laney........ Senior Vice President, Chief Administrative Officer and Director *
Spencer S. Lee......... Director *
Kevin J. McNamara...... President and Director *
John M. Mount.......... Vice President and Director *
Timothy S. O'Toole..... Executive Vice President, Treasurer and Director *
Donald E. Saunders..... Director *
Arthur V. Tucker, *
Jr................... Vice President and Controller
Paul C. Voet........... Executive Vice President and Director *
George J. Walsh III.... Director *
</TABLE>
- ---------------
* The mailing address for each officer and director is c/o Chemed Corporation,
2600 Chemed Center, 255 East Fifth Street, Cincinnati, Ohio 45202-4726.
The following table sets forth the names, positions and mailing addresses
of the trustees of the Trust as of the date of this application.
<TABLE>
<CAPTION>
NAME POSITION MAILING ADDRESS
- ---- -------- ---------------
<S> <C> <C>
Kevin J. McNamara.......................... Administrative Trustee *
Timothy S. O'Toole......................... Administrative Trustee *
Sandra E. Laney............................ Administrative Trustee *
Firstar Bank, National Association......... Property Trustee 425 Walnut Street
Cincinnati, Ohio 45202
First Union Trust Company, National
Association.............................. Delaware Trustee One Rodney Square,
Suite 100
920 King Street
Wilmington, Delaware 19801
</TABLE>
- ---------------
* The mailing address for each Administrative Trustee is c/o Chemed Corporation,
2600 Chemed Center, 255 East Fifth Street, Cincinnati, Ohio 45202-4726.
4
<PAGE> 5
ITEM 5. PRINCIPAL OWNERS OF VOTING SECURITIES.
Furnish the following information as to each person owning 10 percent or
more of the voting securities of the Applicant.
As of December 20, 1999, there were no persons or entities known by the
Company to beneficially own more than 10% of the voting securities of the
Company.
The Company has the exclusive right, subject to the terms of the
Declaration, to appoint, replace or remove trustees of the Trust and to increase
or decrease the number of trustees of the Trust, subject to the right of holders
of Preferred Securities to appoint a trustee of the Trust (the "Special
Trustee") upon the occurrence of certain events described in the Declaration.
ITEM 6. UNDERWRITERS.
Give the name and complete mailing address of (a) each person who within
three years prior to the date of filing the application, acted as an underwriter
of any securities of the obligor which were outstanding on the date of filing
the application, and (b) each proposed principal underwriter of the securities
proposed to be offered. As to each person specified in (a), give the title of
each class of securities underwritten.
(a) The Company and the Trust have not sold securities in an underwritten
offering during the last three years.
(b) There are no underwriters of the securities that are the subject of
this application.
CAPITAL SECURITIES
ITEM 7. CAPITALIZATION.
(a) Furnish the following information as to each authorized class of
securities of the Applicants.
As of December 20, 1999, the Company had the following authorized class of
securities:
<TABLE>
<CAPTION>
AMOUNT AMOUNT
TITLE OF CLASS AUTHORIZED OUTSTANDING
- -------------- ---------- -----------
<S> <C> <C>
Capital Stock, par value $1 per share....................... 15,000,000 10,398,781
</TABLE>
Upon the consummation of the Exchange Offer, the Company will have the
following additional authorized classes of securities:
<TABLE>
<CAPTION>
AMOUNT AMOUNT
TITLE OF CLASS AUTHORIZED OUTSTANDING
- -------------- ---------- -----------
<S> <C> <C>
Convertible Junior Subordinated Debentures due --
2030.............................................. $54,000,000
aggregate principal amount
Guarantee of Convertible Trust Preferred Securities --
of Chemed Capital Trust............................. $54,000,000
</TABLE>
Upon the consummation of the Exchange Offer, the Trust will have the
following authorized classes of securities:
<TABLE>
<CAPTION>
AMOUNT AMOUNT
TITLE OF CLASS AUTHORIZED OUTSTANDING
- -------------- ---------- -----------
<S> <C> <C>
Convertible Common Securities............................... 61,856 --
Convertible Trust Preferred Securities...................... 2,000,000 --
</TABLE>
(b) Give a brief outline of the voting rights of each class of voting
securities referred to in paragraph (a) above.
5
<PAGE> 6
The holders of the Capital Stock are entitled to one vote for each Share on
all matters on which the holders of Capital Stock are entitled to vote and do
not have any cumulative voting rights. The Junior Subordinated Debentures, the
Guarantee and the Convertible Common Securities do not have any voting rights.
Holders of Preferred Securities do not have any voting rights in the
Company although they may appoint the Special Trustee of the Trust upon the
occurrence of certain events described in the Declaration.
Without the consent of each holder of Securities (as defined in the
Declaration), the Declaration may not be amended to (i) change the amount or
timing of any Distribution on the Securities or otherwise adversely affect the
amount of any Distribution required to be made in respect of the Securities of a
specified date or (ii) restrict the right of a holder of Securities to institute
suit for the enforcement of any such payment on or after such date.
The Declaration may be amended by the Trustees and the Company with (i) the
consent of holders representing not less than a majority in liquidation amount
of the outstanding Preferred Securities, and (ii) receipt by the Trustees of an
opinion of counsel to the effect that such amendment or the exercise of any
power granted to the Trustees in accordance with such amendment will not affect
the Trust's status as a grantor trust for United States federal income tax
purposes or the Trust's exemption from status as an "investment company" under
the Investment Company Act.
INDENTURE SECURITIES
ITEM 8. ANALYSIS OF INDENTURE PROVISIONS.
Insert at this point the analysis of indenture provisions required under
section 305(a)(2) of the Act.
1. The following is an analysis of the provisions of the Amended and
Restated Declaration of Trust (the "Declaration") relating to the Preferred
Securities. Capitalized terms are defined in the Declaration or the Offering
Circular.
(A) EVENTS OF DEFAULT
The following are Events of Default under the Declaration with respect to
the Preferred Securities:
(i) an Event of Default under the Junior Subordinated Debentures; (ii)
default by the Trust in the payment of any Distribution when it becomes due
and payable, and continuation of such default for a period of 30 days
(subject to the deferral of any due date in the case of a Deferral Period);
(iii) default by the Trust in the payment of any Redemption Price of any
Trust Security when it becomes due and payable; (iv) default in the
performance, or breach, in any material respect, of any covenant or
warranty of the Trustees in the Declaration (other than a covenant or
warranty, a default in the performance of which or the breach of which is
addressed in clause (ii) or (iii)), and continuation of such default or
breach for a period of 60 days after there has been given, by registered or
certified mail, to the defaulting Issuer Trustee or Issuer Trustees by the
holders of at least 25% in aggregate liquidation amount of the outstanding
Preferred Securities, a written notice specifying such default or breach
and requiring it to be remedied and stating that such notice is a "Notice
of Default" under the Declaration; or (v) the failure of the Company to
appoint a successor Property Trustee in the manner required by Section
5.06(c) of the Declaration.
(B) AUTHENTICATION AND DELIVERY
The Preferred Securities will be signed on behalf of the Trust by one
Administrative Trustee. In case any Administrative Trustee of the Trust who will
have signed any of the Securities will cease to be such Administrative Trustee
before the Securities so signed will be delivered by the Trust, such Preferred
Securities nevertheless may be delivered as though the person who signed such
Preferred Securities had not ceased to be such Administrative Trustee; and any
Preferred Securities may be signed on behalf of the Trust by such persons who,
at the actual date of execution of such Security, will be the Administrative
Trustees of the Trust, although at the date of the execution and delivery of the
Declaration any such person was not such a Administrative Trustee. One
Administrative Trustee will sign the Preferred Securities for the Trust by
manual or facsimile signature.
6
<PAGE> 7
A Preferred Security will not be valid until authenticated by the manual
signature of an authorized signatory of the Property Trustee. The signature will
be conclusive evidence that the Preferred Security has been authenticated under
the Declaration.
Upon a written order of the Trust signed by one Administrative Trustee, the
Property Trustee will authenticate the Preferred Securities for original issue
by executing the Property Trustee's certificate of authentication contained in
the form of Preferred Securities attached to the Declaration.
The Property Trustee may appoint an authenticating agent acceptable to the
Trust to authenticate Preferred Securities. An authenticating agent may
authenticate Preferred Securities whenever the Property Trustee may do so.
(C) RELEASE OF PROPERTY SUBJECT TO LIEN
The Trust's obligations under the Preferred Securities are not secured by
any liens or security interests on any assets of the Company or the Trust.
Therefore, the Declaration does not contain any provisions with respect to the
release or the release and substitution of any property subject to such a lien.
(D) SATISFACTION AND DISCHARGE
The Trust will terminate upon the earliest to occur of the following:
(i) the bankruptcy of the Holder of the Common Securities or the
Company; (ii) the filing of a certificate of dissolution or its equivalent
with respect to the Holder of the Common Securities or the Company; the
filing of a certificate of cancellation with respect to the Trust or the
revocation of the charter of the Holder of the Common Securities or the
Company and the expiration of 90 days after the date of revocation without
a reinstatement thereof; (iii) the distribution of a Like Amount of
Debentures to Holders of the Securities in accordance with the terms of the
Securities; (iv) all the Securities shall have been called for redemption
and the amounts necessary for redemption thereof shall have been paid to
the Holders in accordance with the terms of the Securities; (v) the
expiration of the term of the Trust on [ ], 20[ ]; (vi) the entry
of a decree of judicial dissolution of the Holder of the Common Securities,
the Company or the Trust; (vii) when all of the Securities shall have been
called for redemption and the amounts necessary for redemption thereof
shall have been paid to the Holders in accordance with the terms of the
Securities; (viii) upon the distribution of the Capital Stock of the
Company to Holders of all outstanding Securities upon conversion of all
such Securities; or (ix) before the issuance of any Securities, with the
consent of all the Administrative Trustees and the Sponsor.
(E) EVIDENCE OF COMPLIANCE WITH CONDITIONS AND COVENANTS
Each of the Company and the Administrative Trustees on behalf of the Trust
are obligated to provide to the Property Trustee such documents, reports and
information as required by sec. 314 of the Trust Indenture Act (if any) and the
compliance certificate required by sec. 314 of the Trust Indenture Act in the
form, in the manner and at the times required by sec. 314 of the Trust Indenture
Act. Each of the Company and the Administrative Trustees on behalf of the Trust
are obligated to provide to the Property Trustee such evidence of compliance
with any conditions precedent, if any, provided for in the Declaration that
relate to any of the matters set forth in sec. 314(c) of the Trust Indenture
Act. Any certificate or opinion required to be given by an officer pursuant to
sec. 314(c)(1) may be given in the form of an Officers' Certificate.
2. The following is an analysis of the provisions of the Indenture between
the Company and Firstar Bank, N.A., as Debenture Trustee. Capitalized terms are
described in the Indenture or the Offering Circular.
(A) EVENTS OF DEFAULT
The following are Events of Default under the Indenture:
(i) default in the payment of any interest upon any Junior
Subordinated Debenture, including any Additional Payments, when it becomes
due and payable, and continuance of such default for a period of 30 days
(subject to the deferral of any due date in the case of a Deferral Period);
(ii) default in the payment
7
<PAGE> 8
of the principal of any Junior Subordinated Debenture when due, whether at
its Maturity, upon redemption, by declaration of acceleration or otherwise;
(iii) default in the observation or performance, in any material respect,
of any covenant of the Company in the Indenture, and continuance of such
default for a period of 90 days after there has been given, by registered
or certified mail, to the Company by the Debenture Trustee or to the
Company and the Debenture Trustee by the Holders of at least 25% in
aggregate outstanding principal amount of the Junior Subordinated
Debentures a written notice specifying such default and requiring it to be
remedied; (iv) failure by the Company to issue and deliver Capital Stock
upon an election to convert the Junior Subordinated Debentures into Capital
Stock; (v) the entry or a decree or order by a court having jurisdiction in
the premises adjudging the Company as bankrupt or insolvent, or approving
as properly filed a petition seeking reorganization, arrangement,
adjustment or composition of or in respect of the Company under any
applicable federal or state bankruptcy, insolvency, reorganization or other
similar law, or appointing a receiver, liquidator, assignee, trustee,
sequestrator (or other similar official) of the Company or of any
substantial part of its property or ordering the winding up or liquidation
of its affairs, and the continuance of any such decree or order unstayed
and in effect for a period of 60 consecutive days; (vi) the institution by
the Company of proceedings to be adjudicated a bankrupt or insolvent, or
the consent by it to the institution of bankruptcy or insolvency
proceedings against it, or the filing by it of a petition or answer or
consent seeking reorganization or relief under any applicable federal or
state bankruptcy, insolvency, reorganization or other similar law, or the
consent by it to the filing of any such petition or to the appointment of a
receiver, liquidator, assignee, trustee, sequestrator (or other similar
official) of the Company or of any substantial part of its property, or the
making by it of an assignment for the benefit of creditors, or the
admission by it in writing of its inability to pay its debts generally as
they become due and its willingness to be adjudicated a bankrupt, or the
taking of corporate action by the Company in furtherance of any such
action; (vii) the voluntary or involuntary dissolution, winding up or
termination of the Trust, except in connection with (i) the distribution of
Junior Subordinated Debentures to holders of Preferred Securities in
liquidation or redemption of their interests in the Trust, (ii) the
redemption of all of the outstanding Preferred Securities of the Trust or
(iii) certain mergers, consolidations or amalgamations, each as permitted
by the Declaration.
(B) AUTHENTICATION AND DELIVERY
The Junior Subordinated Debentures will be executed on behalf of the
Company by its Chairman, its President or one of its Vice Presidents, under its
corporate seal reproduced thereon attested by its Secretary or one of its
Assistant Secretaries. The signature of any of these officers on the Junior
Subordinated Debentures may be manual or facsimile.
Junior Subordinated Debentures bearing the manual or facsimile signatures
of individuals who were at any time the proper officers of the Company shall
bind the Company, notwithstanding that such individuals or any of them have
ceased to hold such offices prior to the authentication and delivery of such
Junior Subordinated Debentures or did not hold such offices at the date of such
Junior Subordinated Debentures.
At any time and from time to time after the execution and delivery of the
Indenture, the Company may deliver Junior Subordinated Debentures executed by
the Company to the Debenture Trustee for authentication, together with a Company
Order for the authentication and delivery of such Junior Subordinated
Debentures; and the Debenture Trustee in accordance with such Company Order will
manually authenticate and make available for delivery such Junior Subordinated
Debentures as in the Indenture provided and not otherwise.
No Junior Subordinated Debenture will be entitled to any benefit under the
Indenture or be valid or obligatory for any purpose unless there appears on such
Junior Subordinated Debentures a certificate of authentication substantially in
the form provided for in the Indenture executed by the Debenture Trustee by
manual signature, and such certificate upon any Junior Subordinated Debenture
will be conclusive evidence, and the only evidence, that such Junior
Subordinated Debentures has been duly authenticated and delivered under the
Indenture.
8
<PAGE> 9
(C) RELEASE OF PROPERTY SUBJECT TO LIEN
The Company's obligations under the Junior Subordinated Debentures are not
secured by any liens or security interests on any assets of the Company.
Therefore, the Indenture does not contain any provisions with respect to the
release or the release and substitution of any property subject to such a lien.
(D) SATISFACTION AND DISCHARGE
The Indenture will cease to be of effect (except as to any surviving rights
of conversion, registration of transfer or exchange of Securities expressly
provided for in the Indenture), and the Debenture Trustee, on demand of and at
the expense of the Company, will execute proper instruments acknowledging
satisfaction and discharge of the Indenture, when
(1) either (A) all Junior Subordinated Debentures theretofore
authenticated and delivered under the Indenture (other than (i) Junior
Subordinated Debentures which have been destroyed, lost or stolen and which
have been replaced or paid as provided in Section 3.06 of the Indenture and
(ii) Junior Subordinated Debentures for whose payment money has theretofore
been deposited in trust or segregated and held in trust by the Company and
thereafter repaid to the Company or discharged from such trust, as provided
in Section 10.03 of the Indenture) have been delivered to the Debenture
Trustee for cancelation; or (B) all such Junior Subordinated Debentures not
theretofore delivered to the Debenture Trustee for cancelation (i) have
become due and payable, (ii) will become due and payable at their Stated
Maturity within one year, or (iii) are to be called for redemption within
one year under arrangements satisfactory to the Debenture Trustee for the
giving of notice of redemption by the Debenture Trustee in the name, and at
the expense, of the Company and the Company, in the case of (B)(i), (B)(ii)
or (B)(iii), has deposited or caused to be deposited with the Debenture
Trustee as trust funds in trust for the purpose an amount sufficient to pay
and discharge the entire indebtedness on such Junior Subordinated
Debentures not theretofore delivered to the Debenture Trustee for
cancelation, for principal and interest (including Compounded Interest) to
the date of such deposit (in the case of Junior Subordinated Debentures
which have become due and payable) or to the Stated Maturity or Redemption
Date, as the case may be;
(2) the Company has paid or caused to be paid all other sums payable
under the Indenture by the Company; and
(3) the Company has delivered to the Debenture Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for in the Indenture relating to the satisfaction and
discharge of the Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Debenture Trustee under Section 6.07 of the
Indenture and, if money shall have been deposited with the Debenture Trustee
pursuant to subclause (B) of clause (1) above, the obligations of the Debenture
Trustee under Section 4.02 and the last paragraph of Section 10.03 of the
Indenture will survive.
(E) EVIDENCE OF COMPLIANCE WITH CONDITIONS AND COVENANTS
Upon any application or request by the Company to the Debenture Trustee to
take any action under any provision of the Indenture, the Company is required to
furnish to the Debenture Trustee such certificates and opinions as may be
required under the Trust Indenture Act or reasonably requested by the Debenture
Trustee in connection with such application or request. Each such certificate or
opinion will be given in the form of an Officers' Certificate, if to be given by
an officer of the Company, or an Opinion of Counsel, if to be given by counsel,
and will comply with the applicable requirements of the Trust Indenture Act and
any other applicable requirement set forth in the Indenture.
Every certificate or opinion with respect to compliance with a condition or
covenant provided for in the Indenture is required to include:
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions in the
Indenture relating thereto; (2) a brief statement as to the nature and
scope
9
<PAGE> 10
of the examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based; (3) a statement that,
in the opinion of each such individual, he or she has made or caused to be
made such examination or investigation as is necessary to enable him or her
to express an informed opinion as to whether or not such covenant or
condition has been complied with; and (4) a statement as to whether, in the
opinion of each such individual, such condition or covenant has been
complied with.
3. The following is an analysis of the provisions of the Preferred
Securities Guarantee Agreement between the Company and the Guarantee Trustee
(the "Guarantee"). Capitalized terms are described in the Guarantee or the
Offering Circular.
(A) EVENTS OF DEFAULT
The following are Events of Default under the Guarantee:
A default by the Company on any of its payments or other obligations under
the Guarantee; provided, however, that except with respect to a default in
payment of any Guarantee Payment, the Company shall have received notice of
default and shall not have cured such default within 60 days after receipt of
such notice.
(B) AUTHENTICATION AND DELIVERY
The Guarantee will be executed on behalf of the Company by its Chairman,
President or a Vice-President, and delivered to the Guarantee Trustee.
(C) RELEASE OF PROPERTY SUBJECT TO LIEN
The Company's obligations under the Guarantee are not secured by any liens
or security interests on any assets of the Company. Therefore, the Guarantee
does not contain any provisions with respect to the release or the release and
substitution of any property subject to such a lien.
(D) SATISFACTION AND DISCHARGE
The Guarantee will terminate upon (i) full payment of the amount payable
upon redemption of all Preferred Securities, (ii) the distribution of the
Capital Stock to the Holders in respect of the conversion of the Preferred
Securities into the Capital Stock or the distribution of the Debentures to the
Holders of all of the Preferred Securities or (iii) full payment of the amounts
payable in accordance with the Declaration upon liquidation of the Trust.
Notwithstanding the foregoing, the Guarantee will continue to be effective or
will be reinstated, as the case may be, if at any time any Holder must restore
payment of any sums paid under the Preferred Securities or under the Guarantee.
(E) EVIDENCE OF COMPLIANCE WITH CONDITIONS AND COVENANTS
The Company is required to provide to the Guarantee Trustee such evidence
of compliance with any conditions precedent, if any, provided for in the
Guarantee which relate to any of the matters set forth in Section 314(c) of the
Trust Indenture Act. Any certificate or opinion required to be given by an
officer pursuant to Section 314(c)(1) may be given in the form of an Officers'
Certificate.
ITEM 9. OTHER OBLIGORS.
Give the name and complete mailing address of any person, other than the
Applicants, who is an obligor upon the indenture securities.
There are no obligors under the indenture securities other than the Company
and the Trust.
* * *
Contents of application for qualification. This application for
qualification comprises --
(a) Pages numbered 1 to 12, consecutively.
10
<PAGE> 11
(b) The statement of eligibility and qualification of each trustee under
the Declaration, the Indenture and the Guarantee to be qualified
(previously filed).
(c) The following exhibits in addition to those filed as a part of the
statement of eligibility and qualification of each trustee (all of the
following exhibits have been previously filed).
<TABLE>
<CAPTION>
<S> <C>
Exhibit T3A Certificate of Incorporation of the Company, incorporated by
reference to Exhibit 3.1 to the Company's Annual Report on
Form 10-K for the year ended December 31, 1998 (SEC File No.
1-8351).
Exhibit T3B By-Laws of the Company, incorporated by reference to Exhibit
3.2 to the Company's Annual Report on Form 10-K for the year
ended December 31, 1998 (SEC File No. 1-8351).
Exhibit T3C.1 Declaration of Trust dated as of December 21, 1999, of the
Trust.
Exhibit T3C.2 Form of Amended and Restated Declaration of Trust dated as
of January --, 1999, of the Trust.
Exhibit T3C.3 Form of Indenture between Chemed Corporation and Firstar
Bank, N.A., as Debenture Trustee, dated as of January --,
1999.
Exhibit T3C.4 Form of Guarantee Agreement between Chemed Corporation and
First Union Trust Company, N.A., as Guarantee Trustee, dated
as of January --, 1999.
Exhibit T3E.1 Offering Circular dated December 23, 1999.
Exhibit T3E.2 Letter of Transmittal (together with Guidelines for
Certification of Taxpayer Identification Number on
Substitute Form W-9).
Exhibit T3E.3 Notice of Guaranteed Delivery.
Exhibit T3E.4 Press Release dated December 23, 1999.
Exhibit T3E.5 Form of Letter to Brokers, Dealers, Commercial Banks, Trust
Companies and Nominees.
Exhibit T3E.6 Form of Letter from Brokers, Dealers, Commercial Banks,
Trust Companies and Other Nominees to their clients.
Exhibit T3F The cross reference sheet showing the location in the
Indenture of the provisions inserted therein pursuant to
Section 310 through 318(a), inclusive, of the Trust
Indenture Act, is contained in the Form of Indenture between
Chemed Corporation and Firstar Bank, N.A., as Debenture
Trustee, dated as of January --, 1999, which is filed as
Exhibit T3C.3.
Exhibit 99.1 Form T-1, Statement of Eligibility and Qualification on Form
T-1 of Firstar Bank, N.A., as Property Trustee, Debenture
Trustee and Guarantee Trustee.
Exhibit 99.2 Form T-1, Statement of Eligibility and Qualification on Form
T-1 of First Union Trust Company, N.A., as Delaware Trustee.
</TABLE>
11
<PAGE> 12
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, the
Applicants, Chemed Corporation, a corporation organized and existing under the
laws of Delaware, and Chemed Capital Trust, a statutory business trust organized
under the laws of Delaware, have duly caused this amendment to be signed on
their behalf by the undersigned, thereunto duly authorized, and their seal to be
hereunto affixed and attested, all in the city of Cincinnati, in the State of
Ohio, on the 12th day of January, 2000.
(SEAL)
CHEMED CORPORATION
By: /s/ NAOMI C. DALLOB
------------------------------------
Name: Naomi C. Dallob
Title: Vice President and Secretary
CHEMED CAPITAL TRUST
By: Chemed Corporation
as sponsor
By: /s/ NAOMI C. DALLOB
------------------------------------
Name: Naomi C. Dallob
Title: Vice President and Secretary
12
