<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION
ON FEBRUARY 7, 2000
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
AMENDMENT NO. 2
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........ $55,670,112
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>
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE> 2
This amendment amends Amendment No. 1 to the Application for Qualification
of Indentures under the Trust Indenture Act of 1939 filed by Chemed Corporation
and Chemed Capital Trust on January 12, 2000 (the "Form T-3") by removing the
amending language on the cover page of the Form T-3.
ITEM 7. CAPITALIZATION.
Item 7 is hereby amended as follows:
(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.............................................. $55,670,112
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.
2
<PAGE> 3
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.
* * *
Contents of application for qualification. This application for
qualification comprises --
(a) Pages numbered 1 to 5, consecutively.
3
<PAGE> 4
(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 Amended and Restated Declaration of Trust dated as of
February 7, 2000, of the Trust.
Exhibit T3C.3 Indenture between Chemed Corporation and Firstar
Bank, N.A., as Debenture Trustee, dated as of
February 7, 2000.
Exhibit T3C.4 Guarantee Agreement between Chemed Corporation and
First Union Trust Company, N.A., as Guarantee Trustee, dated
as of February 7, 2000.
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 T3E.7 Press Release dated January 25, 2000.
Exhibit T3E.8 Press Release dated February 1, 2000.
Exhibit T3E.9 Press Release dated February 7, 2000.
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>
- -------------------
* Incorporated by reference
+ Previously filed
4
<PAGE> 5
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 7th day of February, 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
5
<PAGE> 1
Exhibit T3C.2
================================================================================
AMENDED AND RESTATED
DECLARATION OF TRUST
Of
CHEMED CAPITAL TRUST
Dated as of February 7, 2000
================================================================================
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
<S> <C>
ARTICLE I
INTERPRETATION AND DEFINITIONS
------------------------------
SECTION 1.01. Definitions.............................................................................2
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.01. Trust Indenture Act; Application.......................................................11
SECTION 2.02. Lists of Holders of Securities.........................................................12
SECTION 2.03. Reports by the Property Trustee........................................................12
SECTION 2.04. Periodic Reports to Property Trustee...................................................12
SECTION 2.05. Evidence of Compliance with
Conditions Precedent........................................................13
SECTION 2.06. Events of Default; Waiver..............................................................13
SECTION 2.07. Event of Default; Notice...............................................................15
ARTICLE III
ORGANIZATION
------------
SECTION 3.01. Name...................................................................................16
SECTION 3.02. Office.................................................................................16
SECTION 3.03. Purpose................................................................................16
SECTION 3.04. Authority .....................................................................16
SECTION 3.05. Title to Property of the Trust.........................................................17
SECTION 3.06. Powers and Duties of the
Administrative Trustees.....................................................17
SECTION 3.07. Prohibition of Actions by the Trust
and the Trustees............................................................20
SECTION 3.08. Powers and Duties of the Property
Trustee.....................................................................21
SECTION 3.09. Certain Duties and Responsibilities of
the Property Trustee........................................................24
SECTION 3.10. Certain Rights of Property Trustee.....................................................26
SECTION 3.11. Delaware Trustee.......................................................................28
SECTION 3.12. Execution of Documents.................................................................29
SECTION 3.13. Not Responsible for Recitals or
Issuance of Securities......................................................29
SECTION 3.14. Duration of Trust......................................................................29
SECTION 3.15. Mergers................................................................................29
</TABLE>
<PAGE> 3
<TABLE>
<CAPTION>
2
ARTICLE IV
SPONSOR
-------
<S> <C>
SECTION 4.01. Sponsor's Purchase of Common
Securities.................................................................31
SECTION 4.02. Responsibilities of the Sponsor.......................................................31
SECTION 4.03. Guarantee of Payment of Trust
Obligations................................................................32
ARTICLE V
TRUSTEES
--------
SECTION 5.01. Number of Trustees....................................................................32
SECTION 5.02. Delaware Trustee......................................................................33
SECTION 5.03. Property Trustee; Eligibility.........................................................33
SECTION 5.04. Qualifications of Administrative
Trustees and Delaware Trustee
Generally..................................................................34
SECTION 5.05. Initial Trustees......................................................................34
SECTION 5.06. Appointment, Removal and Resignation
of Trustees................................................................35
SECTION 5.07. Vacancies among Trustees..............................................................38
SECTION 5.08. Effect of Vacancies...................................................................38
SECTION 5.09. Meetings..............................................................................38
SECTION 5.10. Delegation of Power...................................................................39
SECTION 5.11. Merger, Conversion, Consolidation or
Succession to Business.....................................................39
ARTICLE VI
DISTRIBUTIONS
-------------
SECTION 6.01. Distributions.........................................................................40
ARTICLE VII
ISSUANCE OF SECURITIES
----------------------
SECTION 7.01. General Provisions Regarding
Securities.................................................................40
SECTION 7.02. Execution and Authentication..........................................................41
SECTION 7.03. Form and Dating.......................................................................42
SECTION 7.04. Registrar, Paying Agent and Conversion
Agent......................................................................43
SECTION 7.05. Paying Agent to Hold Money in Trust...................................................44
SECTION 7.06. Outstanding Preferred Securities......................................................44
</TABLE>
<PAGE> 4
3
<TABLE>
<CAPTION>
<S> <C>
SECTION 7.07. Preferred Securities in Treasury......................................................44
SECTION 7.08. Temporary Securities..................................................................45
SECTION 7.09. Cancelation...........................................................................45
SECTION 7.10. Definitive Securities.................................................................45
ARTICLE VIII
TERMINATION OF TRUST
--------------------
SECTION 8.01. Termination of Trust..................................................................46
ARTICLE IX
TRANSFER AND EXCHANGE
---------------------
SECTION 9.01. General...............................................................................47
SECTION 9.02. Transfer Procedures and Restrictions..................................................49
SECTION 9.03. Deemed Security Holders...............................................................50
SECTION 9.04. Notices to Clearing Agency............................................................50
SECTION 9.05. Appointment of Successor Clearing
Agency.....................................................................51
ARTICLE X
LIMITATION OF LIABILITY OF
--------------------------
HOLDERS OF SECURITIES, TRUSTEES OR OTHERS
-----------------------------------------
SECTION 10.01. Liability....................................................................51
SECTION 10.02. Exculpation..................................................................51
SECTION 10.03. Fiduciary Duty...............................................................52
SECTION 10.04. Indemnification..............................................................53
SECTION 10.05. Outside Businesses...........................................................53
ARTICLE XI
ACCOUNTING
----------
SECTION 11.01. Fiscal Year..................................................................54
SECTION 11.02. Certain Accounting Matters...................................................54
SECTION 11.03. Banking......................................................................55
SECTION 11.04. Withholding..................................................................55
</TABLE>
<PAGE> 5
4
ARTICLE XII
AMENDMENTS AND MEETINGS
-----------------------
<TABLE>
<CAPTION>
<S> <C>
SECTION 12.01. Amendments...................................................................56
SECTION 12.02. Meetings of the Holders of Securities;
Action by Written Consent..................................................57
ARTICLE XIII
REPRESENTATIONS OF PROPERTY TRUSTEE
-----------------------------------
AND DELAWARE TRUSTEE
--------------------
SECTION 13.01. Representations and Warranties of
Property Trustee...........................................................58
SECTION 13.02. Representations and Warranties of
Delaware Trustee...........................................................59
ARTICLE XIV
MISCELLANEOUS
-------------
SECTION 14.01. Notices......................................................................60
SECTION 14.02. Governing Law................................................................61
SECTION 14.03. Intention of the Parties.....................................................62
SECTION 14.04. Headings.....................................................................62
SECTION 14.05. Successors and Assigns.......................................................62
SECTION 14.06. Partial Enforceability.......................................................62
SECTION 14.07. Counterparts.................................................................62
ANNEX I Terms of Convertible Preferred Trust
Securities and Convertible Common
Securities
Exhibit A-1 Form of Preferred Security
Exhibit A-2 Form of Common Security
</TABLE>
<PAGE> 6
5
CROSS-REFERENCE TABLE*
Section of
Trust Indenture Section of
Act of 1939 Declaration
- ----------- -----------
310(a)............................................. 5.03(a)
310(c)............................................. Inapplicable
311(c)............................................. Inapplicable
312(a)............................................. 2.02(a)
312(b)............................................. 2.02(b)
313................................................ 2.03
314(a)............................................. 2.04
314(b)............................................. Inapplicable
314(c)............................................. 2.05
314(d)............................................. Inapplicable
314(f)............................................. Inapplicable
315(a)............................................. 3.09(a)
3.09(b)
315(c)............................................. 3.09(a)
315(d)............................................. 3.09(b)
316(a)............................................. Annex I
316(c)............................................. 3.06(e)
- ------------
* This Cross-Reference Table does not constitute part of the Declaration
and shall not affect the interpretation of any of its terms or
provisions.
<PAGE> 7
AMENDED AND RESTATED
DECLARATION OF TRUST
OF
CHEMED CAPITAL TRUST
FEBRUARY 7, 2000
AMENDED AND RESTATED DECLARATION OF TRUST ("Declaration")
dated and effective as of February 7, 2000, by the undersigned trustees
(together with all other Persons from time to time duly appointed and serving as
trustees in accordance with the provisions of this Declaration, the "Trustees"),
Chemed Corporation, a Delaware corporation, as trust sponsor (the "Sponsor"),
and by the holders, from time to time, of undivided beneficial interests in the
Trust (as defined below) issued pursuant to this Declaration;
WHEREAS, the Trustees and the Sponsor established Chemed
Capital Trust (the "Trust") under the Business Trust Act (as hereinafter
defined) pursuant to a Declaration of Trust dated as of December 21, 1999 (the
"Original Declaration"), and a Certificate of Trust filed with the Secretary of
State of the State of Delaware on December 21, 1999, for the sole purpose of
issuing and offering to exchange Preferred Securities representing undivided
beneficial interests in the assets of the Trust for outstanding shares of
capital stock, $1.00 par value, of the Parent ("Parent Stock"), and exchanging
the Parent Stock and Common Securities (as defined herein) for certain
Debentures of the Debenture Issuer (as hereinafter defined); and
WHEREAS, as of the date hereof, no interests in
the Trust have been issued;
WHEREAS, all of the Trustees and the Sponsor, by this
Declaration, amend and restate each and every term and provision of the Original
Declaration for the purpose of issuing and offering to exchange Preferred
Securities representing undivided beneficial interests in the assets of the
Trust for outstanding shares of Parent Stock and exchanging the Parent Stock and
the Common Securities for certain Debentures of the Debenture Issuer; and
NOW, THEREFORE, it being the intention of the parties hereto
to continue the Trust as a business trust under the Business Trust Act and that
this Declaration constitute the governing instrument of such business trust, the
Trustees declare that all assets contributed to the Trust will be held in trust
for the benefit of the holders,
<PAGE> 8
2
from time to time, of the securities representing undivided beneficial interests
in the assets of the Trust issued hereunder, subject to the provisions of this
Declaration.
ARTICLE I
INTERPRETATION AND DEFINITIONS
SECTION 1.01. DEFINITIONS. Unless the context otherwise
requires:
(a) Capitalized terms used in this Declaration but not defined
in the preamble above have the respective meanings assigned to them in this
Declaration, and any capitalized term not defined in this Declaration shall have
the meaning assigned thereto in the Indenture;
(b) a term defined anywhere in this Declaration or the
Indenture has the same meaning throughout;
(c) all references to "the Declaration" or "this Declaration"
are to this Declaration as modified, supplemented or amended from time to time;
(d) all references in this Declaration to Articles, Sections,
Annexes and Exhibits are to Articles and Sections of and Annexes and Exhibits to
this Declaration unless otherwise specified;
(e) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles;
(f) a term defined in the Trust Indenture Act has the same
meaning when used in this Declaration unless otherwise defined in this
Declaration or unless the context otherwise requires; and
(g) a reference to the singular includes the
plural and vice versa.
"ADMINISTRATIVE ACTION" has the meaning set forth in the
definition of "Tax Event".
"ADMINISTRATIVE TRUSTEE" means any Trustee other than the
Property Trustee and the Delaware Trustee.
"AFFILIATE" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or indirect
common control
<PAGE> 9
3
with such specified Person. For the purposes of this definition, "control" when
used with respect to any specified Person means the power to direct the
management and policies of such Person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise; the terms
"controlling" and "controlled" have meanings correlative to the foregoing.
"AGENT" means any Registrar, Paying Agent, Conversion Agent or
co-registrar.
"APPOINTMENT EVENT" means an event defined in the terms of the
Preferred Securities, as set forth in Annex I, which entitles the Holders of a
Majority in liquidation amount of the Preferred Securities to appoint a Special
Trustee.
"AUTHORIZED OFFICER" of a Person means any Person that is
authorized to bind such Person.
"BENEFICIARIES" has the meaning set forth in Section 4.03(a).
"BOOK ENTRY INTEREST" means a beneficial interest in a global
certificate, ownership and transfers of which shall be maintained and made
through book entries by a Depositary.
"BUSINESS DAY" means any day other than a Saturday or a
Sunday, a day on which banking institutions in New York, New York and
Wilmington, Delaware are authorized or required by law to close.
"BUSINESS TRUST ACT" means Chapter 38 of Title 12 of the
Delaware Code, 12 DEL. CODE Section 3801 ET SEQ., as it may be amended from time
to time, or any successor legislation.
"CERTIFICATE" means a certificate in global or definitive form
representing a Common Security or a Preferred Security.
"CERTIFICATE OF TRUST" means the Certificate of Trust of
Chemed Capital Trust, substantially in the form attached hereto as Exhibit A, to
be filed pursuant to Section 3810 of the Business Trust Act.
"CLEARING AGENCY" means an organization registered as a
"Clearing Agency" pursuant to Section 17A of the Exchange Act that is acting as
depositary for the Preferred Securities and in whose name or in the name of a
nominee of that organization shall be registered a global certificate
<PAGE> 10
4
and which shall undertake to effect book entry transfers and pledges of the
Preferred Securities.
"CLOSING DATE" means February 7, 2000.
"CODE" means the Internal Revenue Code of 1986, or any
successor legislation.
"COMMISSION" means the Securities and Exchange Commission.
"COMMON SECURITIES" has the meaning specified in Section
7.01(a).
"COMMON SECURITIES GUARANTEE" means the guarantee agreement to
be dated as of February 7, 2000, of the Sponsor in respect of the Common
Securities.
"CONVERSION AGENT" has the meaning set forth in Section 7.04.
"COVERED PERSON" means: (a) any officer, director,
shareholder, partner, member, representative, employee or agent of (i) the Trust
or (ii) the Trust's Affiliates; and (b) any Holder of Securities.
"DEBENTURE EVENT OF DEFAULT" in respect of the Securities
means an Event of Default (as defined in the Indenture) has occurred and is
continuing in respect of the Debentures.
"DEBENTURE ISSUER" means the Sponsor in its capacity as issuer
of the Debentures.
"DEBENTURE TRUSTEE" means Firstar Bank, National Association,
a United States banking corporation, as trustee under the Indenture until a
successor is appointed thereunder, and thereafter means such successor trustee.
"DEBENTURES" means the series of Debentures to be issued by
the Debenture Issuer under the Indenture to be held by the Property Trustee, in
the form attached to the Indenture as Exhibit A.
"DEFERRAL PERIOD" has the meaning set forth in the Indenture.
"DEFINITIVE PREFERRED SECURITIES" has the meaning set forth in
Section 7.03(c).
<PAGE> 11
5
"DELAWARE SECRETARY OF STATE" means the officer of the
Secretary of the State of Delaware.
"DELAWARE TRUSTEE" has the meaning set forth in Section 5.02.
"DEPOSITARY" means The Depository Trust Company, the initial
clearing agency, until a successor shall be appointed pursuant to Section 9.06,
and thereafter means such successor Depositary.
"DISTRIBUTION" means a distribution payable to Holders of
Securities in accordance with Section 6.01.
"EVENT OF DEFAULT" means:
(i) a Debenture Event of Default; or
(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); or
(iii) default by the Trust in the payment of any Redemption
Price of any Security when it becomes due and payable; or
(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)
above), 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 Sponsor to appoint a successor Property
Trustee in the manner required by Section 5.06(c).
"EXCHANGE ACT" means the Securities Exchange Act of 1934 as
amended from time to time, or any successor legislation.
<PAGE> 12
6
"GLOBAL PREFERRED SECURITIES" has the meaning set forth in
Section 7.03(a).
"HOLDER" means a Person in whose name a Certificate
representing a Security is registered, such Person being a beneficial owner
within the meaning of the Business Trust Act.
"INDEMNIFIED PERSON" means (a) any Trustee; (b) any Affiliate
of any Trustee; (c) any officers, directors, shareholders, members, partners,
employees, representatives or agents of any Trustee; or (d) any employee or
agent of the Trust or its Affiliates.
"INDENTURE" means the Indenture dated as of February 7, 2000,
between the Debenture Issuer and the Debenture Trustee, as it may be amended
from time to time.
"INVESTMENT COMPANY" means an investment company as defined in
the Investment Company Act.
"INVESTMENT COMPANY ACT" means the Investment Company Act of
1940 as amended from time to time, or any successor legislation.
"LEGAL ACTION" has the meaning set forth in Section 3.06(g).
"LIKE AMOUNT" means (i) with respect to a redemption of
Preferred Securities, Preferred Securities having an aggregate liquidation
amount equal to that portion of the principal amount of Debentures to be
contemporaneously redeemed in accordance with the Indenture, allocated to the
Common Securities and to the Preferred Securities based upon the relative
liquidation amounts of such classes and the proceeds of which will be used to
pay the applicable Redemption Price of the Preferred Securities and (ii) with
respect to a distribution of Debentures to holders of Preferred Securities in
connection with a dissolution or liquidation of the Trust, Debentures having a
principal amount equal to the aggregate liquidation amount of the Securities of
the Holder to whom such Debentures are distributed.
"LIST OF HOLDERS" has the meaning set forth in Section
2.02(a).
"MAJORITY IN LIQUIDATION AMOUNT OF THE SECURITIES" means,
except as provided in the terms of the Preferred Securities and by the Trust
Indenture Act, Holder(s) of outstanding Securities voting together as a single
class or,
<PAGE> 13
7
as the context may require, Holders of outstanding Preferred Securities or
Holders of outstanding Common Securities voting separately as a class, who are
the record owners of more than 50% of the aggregate liquidation amount
(including the stated amount that would be paid on redemption, liquidation or
otherwise, plus accrued and unpaid Distributions to the date upon which the
voting percentages are determined) of all outstanding Securities of the relevant
class.
"MINISTERIAL ACTION" has the meaning set forth in the terms of
the Securities as set forth in Annex I.
"OBLIGATIONS" means any costs, expenses or liabilities of the
Trust, other than obligations of the Trust to pay to Holders of any Securities
or other similar interests in the Trust the amounts due such Holders pursuant to
the terms of the Securities or such other similar interests, as the case may be.
"OFFERING CIRCULAR" means the Offering Circular, dated as of
December 23, 1999, relating to the issuance by the Trust of Preferred Securities
in exchange for Parent Stock.
"OFFICERS' CERTIFICATE" means, with respect to any Person, a
certificate signed by two Authorized Officers of such Person. Any Officers'
Certificate delivered with respect to compliance with a condition or covenant
provided for in this Declaration (other than pursuant to Section 314(a)(4) of
the Trust Indenture Act) shall include:
(a) a statement that each officer signing
the Certificate has read the covenant or
condition and the definition relating
thereto;
(b) a brief statement of the nature and
scope of the examination or
investigation undertaken by each officer
in rendering the Certificate;
(c) a statement that each such officer has made
such examination or investigation as, in
such officer's opinion, is necessary to
enable such officer to express an informed
opinion as to whether or not such covenant
or condition has been complied with; and
<PAGE> 14
8
(d) a statement as to whether, in the
opinion of each such officer, such
condition or covenant has been complied
with.
"PARENT STOCK" has the meaning set forth in the recitals.
"PARTICIPANTS" has the meaning set forth in Section 7.03(b).
"PAYING AGENT" has the meaning specified in Section 7.04.
"PERSON" means a legal person, including any individual,
corporation, estate, partnership, joint venture, association, joint stock
company, limited liability company, trust, unincorporated association, or
government or any agency or political subdivision thereof, or any other entity
of whatever nature.
"PREFERRED SECURITIES" has the meaning specified in Section
7.01(a).
"PREFERRED SECURITIES GUARANTEE" means the guarantee agreement
to be dated as of February 7, 2000, of the Sponsor in respect of the Preferred
Securities.
"PREFERRED SECURITY BENEFICIAL OWNER" means, with respect to a
Book Entry Interest, a Person who is the beneficial owner of such Book Entry
Interest, as reflected on the books of the Depositary, or on the books of a
Person maintaining an account with such Depositary (directly as a Participant or
as an indirect participant, in each case in accordance with the rules of such
Depositary).
"PROPERTY TRUSTEE" means the Trustee meeting the eligibility
requirements set forth in Section 5.03.
"PROPERTY TRUSTEE ACCOUNT" has the meaning set forth in
Section 3.08(c).
"QUORUM" means a majority of the Administrative Trustees or,
if there are only two Administrative Trustees, both of them.
"REDEMPTION PRICE" has the meaning set forth in Annex I.
"REGISTRAR" has the meaning set forth in Section 7.04.
<PAGE> 15
9
"RELATED PARTY" means, with respect to the Sponsor, any direct
or indirect wholly owned subsidiary of the Sponsor or any other Person that
owns, directly or indirectly, 100% of the outstanding voting securities of the
Sponsor.
"RESPONSIBLE OFFICER" means, with respect to the Property
Trustee, any vice-president, any assistant vice- president, the treasurer, any
assistant treasurer, any trust officer or assistant trust officer or any other
officer in the Corporate Trust Department of the Property Trustee customarily
performing functions similar to those performed by any of the above designated
officers and also means, with respect to a particular corporate trust matter,
any other officer to whom such matter is referred because of that officer's
knowledge of and familiarity with the particular subject.
"SECURITIES" means the Common Securities and the Preferred
Securities.
"SECURITIES ACT" means the Securities Act of 1933 as amended
from time to time, or any successor legislation.
"SECURITIES CUSTODIAN" means the custodian with respect to any
Preferred Security in global form.
"SECURITIES GUARANTEES" means the Preferred Securities
Guarantee and the Common Securities Guarantee.
"SPECIAL TRUSTEE" means a trustee appointed by the Holders of
a Majority in liquidation amount of the Preferred Securities in accordance with
Section 5.06(a)(ii)(B).
"SPONSOR" means Chemed Corporation, a Delaware corporation, or
any successor entity in a merger, consolidation or amalgamation, in its capacity
as sponsor of the Trust.
"SUCCESSOR DELAWARE TRUSTEE" has the meaning set forth in
Section 5.06(d).
"SUCCESSOR ENTITY" has the meaning set forth in Section
3.15(b).
"SUCCESSOR PROPERTY TRUSTEE" has the meaning set forth in
Section 5.06(b).
"SUCCESSOR SECURITIES" has the meaning set forth in Section
3.15(b).
<PAGE> 16
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"SUPER MAJORITY" has the meaning set forth in Section
2.06(a)(ii).
"TAX EVENT" means the Property Trustee shall have received an
opinion of nationally recognized independent tax counsel to the Sponsor
(reasonably acceptable to the Trustees) experienced in such matters (a
"DISSOLUTION TAX OPINION") to the effect that, as a result of (i) any amendment
to or change (including any announced prospective change (which shall not
include a proposed change), provided that a Tax Event shall not occur more than
90 days before the effective date of any such prospective change) in the laws
(or any regulations thereunder) of the United States or any political
subdivision or taxing authority thereof or therein, (ii) any judicial decision
or official administrative pronouncement, ruling, regulatory procedure, notice
or announcement, including any notice or announcement of intent to adopt such
procedures or regulations (an "ADMINISTRATIVE ACTION") or (iii) any amendment to
or change in the administrative position or interpretation of any Administrative
Action or judicial decision that differs from the theretofore generally accepted
position, in each case, by any legislative body, court, governmental agency or
regulatory body, irrespective of the manner in which such amendment or change is
made known, which amendment or change is effective or such Administrative Action
or decision is announced, in each case, on or after the date of original
issuance of the Debentures or the issue date of the Preferred Securities issued
by the Trust, there is more than an insubstantial risk that (a) if the
Debentures are held by the Property Trustee, (I) the Trust is, or will be within
90 days of the date of such opinion, subject to United States Federal income tax
with respect to interest accrued or received on the Debentures or subject to
more than a DE MINIMIS amount of other taxes, duties or other governmental
charges as determined by such counsel, or (II) any portion of interest payable
by the Sponsor to the Trust on the Debentures is not, or within 90 days of the
date of such opinion will not be, deductible by the Sponsor in whole or in part
for United States Federal income tax purposes or (b) with respect to Debentures
which are no longer held by the Property Trustee, any portion of interest
payable by the Sponsor on the Debentures is not, or within 90 days of the date
of such opinion will not be, deductible by the Sponsor in whole or in part for
United States Federal income tax purposes.
"10% IN LIQUIDATION AMOUNT OF THE SECURITIES" means, except as
provided in the terms of the Preferred Securities or by the Trust Indenture Act,
Holders of outstanding Securities voting together as a single class or,
<PAGE> 17
11
as the context may require, Holders of outstanding Preferred Securities or
Holders of outstanding Common Securities, voting separately as a class,
representing 10% of the aggregate liquidation amount (including the stated
amount that would be paid on redemption, liquidation or otherwise, plus accrued
and unpaid Distributions to the date upon which the voting percentages are
determined) of all outstanding Securities of the relevant class.
"TREASURY REGULATIONS" means the income tax regulations,
including temporary and proposed regulations, promulgated under the Code by the
United States Treasury, as such regulations may be amended from time to time
(including corresponding provisions of succeeding regulations).
"TRUST INDENTURE ACT" means the Trust Indenture Act of 1939 as
amended from time to time, or any successor legislation.
"TRUSTEE" or "TRUSTEES" means each Person who has signed this
Declaration as a trustee, so long as such Person shall continue in office in
accordance with the terms hereof, and all other Persons who may from time to
time be duly appointed, qualified and serving as Trustees in accordance with the
provisions hereof, and references herein to a Trustee or the Trustees shall
refer to such Person or Persons solely in their capacity as trustees hereunder.
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.01. TRUST INDENTURE ACT; APPLICATION. (a) This
Declaration is subject to the provisions of the Trust Indenture Act that are
required to be part of this Declaration, which are incorporated by reference in
and made part of this Declaration and shall, to the extent applicable, be
governed by such provisions.
(b) The Property Trustee shall be the only Trustee which is a
Trustee for the purposes of the Trust Indenture Act.
(c) If and to the extent that any provision of this
Declaration limits, qualifies or conflicts with the duties imposed by ss.ss. 310
to 317, inclusive, of the Trust Indenture Act, such imposed duties shall
control.
(d) The application of the Trust Indenture Act to
this Declaration shall not affect the nature of the
<PAGE> 18
12
Securities as equity securities representing undivided beneficial interests in
the assets of the Trust.
SECTION 2.02. LISTS OF HOLDERS OF SECURITIES. (a) Each of the
Sponsor and the Administrative Trustees on behalf of the Trust shall provide the
Property Trustee (i) within 14 days after each record date for payment of
Distributions, a list, in such form as the Property Trustee may reasonably
require, of the names and addresses of the Holders of the Securities ("List of
Holders") as of such record date, PROVIDED that neither the Sponsor nor the
Administrative Trustees on behalf of the Trust shall be obligated to provide
such List of Holders at any time the List of Holders does not differ from the
most recent List of Holders given to the Property Trustee by the Sponsor and the
Administrative Trustees on behalf of the Trust, and (ii) at any other time,
within 30 days of receipt by the Trust of a written request for a List of
Holders as of a date no more than 14 days before such List of Holders is given
to the Property Trustee. The Property Trustee shall preserve, in as current a
form as is reasonably practicable, all information contained in Lists of Holders
given to it or which it receives in its capacity as Paying Agent (if acting in
such capacity), PROVIDED that the Property Trustee may destroy any List of
Holders previously given to it on receipt of a new List of Holders.
(b) The Property Trustee shall comply with its obligations
under Sections 311(a), 311(b) and 312(b) of the Trust Indenture Act.
SECTION 2.03. REPORTS BY THE PROPERTY TRUSTEE. Within 60 days
after March 15 of each year, commencing March 15, 2000, the Property Trustee
shall provide to the Holders of the Preferred Securities such reports as are
required by ss. 313(a) of the Trust Indenture Act, if any, in the form and in
the manner provided by ss. 313 of the Trust Indenture Act. The Property Trustee
shall also comply with the other requirements of Section 313 of the Trust
Indenture Act.
SECTION 2.04. PERIODIC REPORTS TO PROPERTY TRUSTEE. Each of
the Sponsor and the Administrative Trustees on behalf of the Trust shall provide
to the Property Trustee such documents, reports and information as required by
Section 314(a)(4) of the Trust Indenture Act (if any) and the compliance
certificate required by Section 314 of the Trust Indenture Act in the form, in
the manner and at the times required by Section 314 of the Trust Indenture Act,
provided that such compliance certificate shall be delivered on or before 120
days after the end of each fiscal year of the Sponsor.
<PAGE> 19
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SECTION 2.05. EVIDENCE OF COMPLIANCE WITH CONDITIONS
PRECEDENT. Each of the Sponsor and the Administrative Trustees on behalf of the
Trust shall provide to the Property Trustee such evidence of compliance with any
conditions precedent, if any, provided for in this Declaration that 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.
SECTION 2.06. EVENTS OF DEFAULT; WAIVER. (a) The Holders of a
Majority in liquidation amount of Preferred Securities may, by vote, on behalf
of the Holders of all of the Preferred Securities, waive any past Event of
Default in respect of the Preferred Securities and its consequences, PROVIDED
that, if the Event of Default:
(i) is caused by a Debenture Event of Default that is not
waivable under the Indenture, the Event of Default under the
Declaration shall also not be waivable;
(ii) is caused by a Debenture Event of Default that requires
the consent or vote of greater than a majority in principal amount of
the holders of the Debentures (a "Super Majority") to be waived under
the Indenture, the Event of Default under the Declaration may only be
waived by the vote of the Holders of at least the proportion in
liquidation amount of the Preferred Securities that the relevant Super
Majority represents of the aggregate principal amount of the Debentures
outstanding;
(iii) is the result of a default by the Trust in the payment of any
Distribution when it becomes due and payable, which default has
continued for 30 days (subject to the deferral of any due date in the
case of a Default Period), the Event of Default shall not be waivable;
or
(iv) is the result of a default by the Trust in the payment of any
Redemption Price of any preferred Security when it becomes due and
payable, the Event of Default shall not be waivable.
The foregoing provisions of this Section 2.06(a) shall be in
lieu of Section 316(a)(1)(B) of the Trust Indenture Act and such Section 316(a)
(1)(B) of the Trust Indenture Act is hereby expressly excluded from this
Declaration and the Securities, as permitted by the Trust Indenture Act.
<PAGE> 20
14
Upon such waiver, any such default shall cease to exist, and
any Event of Default with respect to the Preferred Securities arising therefrom
shall be deemed to have been cured for every purpose of this Declaration, but no
such waiver shall extend to any subsequent or other default or an Event of
Default with respect to the Preferred Securities or impair any right consequent
thereon. Any waiver by the Holders of the Preferred Securities of an Event of
Default with respect to the Preferred Securities shall also be deemed to
constitute a waiver by the Holders of the Common Securities of any such Event of
Default with respect to the Common Securities for all purposes of this
Declaration without any further act, vote, or consent of the Holders of the
Common Securities.
(b) The Holders of a Majority in liquidation amount of the
Common Securities may, by vote, on behalf of the Holders of all of the Common
Securities, waive any past Event of Default with respect to the Common
Securities and its consequences, PROVIDED that, if the Event of Default is
caused by a Debenture Event of Default that:
(i) is not waivable under the Indenture, except where the
Holders of the Common Securities are deemed to have waived such Event
of Default under the Declaration as provided below in this Section
2.06(b), the Event of Default under the Declaration shall also not be
waivable; or
(ii) requires the consent or vote of a Super Majority to be
waived, except where the Holders of the Common Securities are deemed to
have waived such Event of Default under the Declaration as provided
below in this Section 2.06(b), the Event of Default under the
Declaration may only be waived by the vote of the Holders of at least
the proportion in liquidation amount of the Preferred Securities that
the relevant Super Majority represents of the aggregate principal
amount of the Debentures outstanding;
PROVIDED FURTHER, each Holder of Common Securities will be deemed to have waived
any such Event of Default and all Events of Default with respect to the Common
Securities and its consequences until the effects of all Events of Default with
respect to the Preferred Securities have been cured, waived or otherwise
eliminated, and until such Events of Default have been so cured, waived or
otherwise eliminated, the Property Trustee will be deemed to be acting solely on
behalf of the Holders of the Preferred Securities and only the Holders of the
Preferred Securities will have the right to direct the Property Trustee in
accordance with the terms
<PAGE> 21
15
of the Securities. The foregoing provisions of this Section 2.06(b) shall be in
lieu of Sections 316(a)(1)(A) and 316(a)(1)(B) of the Trust Indenture Act and
such Section 316(a)(1)(A) and 316(a)(1)(B) of the Trust Indenture Act are hereby
expressly excluded from this Declaration and the Securities, as permitted by the
Trust Indenture Act. Subject to the foregoing provisions of this Section
2.06(b), upon such waiver, any such default shall cease to exist and any Event
of Default with respect to the Common Securities arising therefrom shall be
deemed to have been cured for every purpose of this Declaration, but no such
waiver shall extend to any subsequent or other default or Event of Default with
respect to the Common Securities or impair any right consequent thereon.
(c) A waiver of an Event of Default under the Indenture by the
Property Trustee at the direction of the Holders of the Preferred Securities,
constitutes a waiver of the corresponding Event of Default under this
Declaration. The foregoing provisions of this Section 2.06(c) shall be in lieu
of Section 316(a)(1)(B) of the Trust Indenture Act and such Section 316(a)(1)(B)
of the Trust Indenture Act is hereby expressly excluded from this Declaration
and the Securities, as permitted by the Trust Indenture Act.
SECTION 2.07. EVENT OF DEFAULT; NOTICE. (a) The Property
Trustee shall, within 90 days after the occurrence of an Event of Default
actually known to the Trustee, (i) transmit by mail, first-class postage
prepaid, to the Holders of the Securities, and (ii) transmit by any means
provided for in this Declaration to the Administrative Trustees and the Sponsor,
notices of all defaults actually known to the Property Trustee, unless such
defaults have been cured before the giving of such notice (the term "defaults"
for the purposes of this Section 2.07(a) being hereby defined to be an Event of
Default, not including any periods of grace and irrespective of the giving of
any notice); PROVIDED that, except for a default in the payment of principal of
(or premium, if any) or interest on any of the Debentures or in the payment of
any sinking fund installment established for the Debentures, the Property
Trustee shall be protected in withholding such notice if and so long as the
board of directors, the executive committee, or a trust committee of directors
and/or Responsible Officers of the Property Trustee in good faith determines
that the withholding of such notice is in the interests of the Holders of the
Securities.
(b) The Property Trustee shall not be deemed to have knowledge
of any default except:
<PAGE> 22
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(i) a default under Sections 5.01(1) and 5.01(2) of the
Indenture; or
(ii) any default as to which the Property Trustee shall have
received written notice.
ARTICLE III
ORGANIZATION
SECTION 3.01. NAME. The Trust is named "Chemed Capital Trust,"
as such name may be modified from time to time by the Administrative Trustees
following written notice to the Holders of Securities. The Trust's activities
may be conducted under the name of the Trust or any other name deemed advisable
by the Administrative Trustees.
SECTION 3.02. OFFICE. The address of the principal office of
the Trust is c/o Chemed Corporation, 2600 Chemed Center, 255 East Fifth Street,
Cincinnati, Ohio 45202-4726. Attention: Chief Financial Officer. On ten
Business Days written notice to the Holders of Securities, the Administrative
Trustees may designate another principal office.
SECTION 3.03. PURPOSE. The exclusive purposes and functions of
the Trust are (a) to issue and to offer to exchange Preferred Securities for
outstanding shares of Parent Stock and to exchange the Parent Stock and the
Common Securities for certain Debentures of the Debenture Issuer and (b) except
as otherwise limited herein, to engage in only those other activities necessary
or incidental thereto. The Trust shall not borrow money, issue debt or reinvest
proceeds derived from investments, pledge any of its assets, or otherwise
undertake (or permit to be undertaken) any activity that would cause the Trust
not to be classified for United States Federal income tax purposes as a grantor
trust.
SECTION 3.04. AUTHORITY. (a) Subject to the limitations
provided in this Declaration and to the specific duties of the Property Trustee,
the Administrative Trustees shall have exclusive and complete authority to carry
out the purposes of the Trust. An action taken by the Administrative Trustees in
accordance with their powers shall constitute the act of and serve to bind the
Trust and an action taken by the Property Trustee in accordance with its powers
shall constitute the act of and serve to bind the Trust. In dealing with the
Trustees acting on behalf of the Trust, no person shall be required to inquire
into the
<PAGE> 23
17
authority of the Trustees to bind the Trust. Persons dealing with the Trust are
entitled to rely conclusively on the power and authority of the Trustees as set
forth in this Declaration.
(b) Except as expressly set forth in this Declaration and
except if a meeting of the Administrative Trustees is called with respect to any
matter over which the Administrative Trustees have power to act, any power of
the Administrative Trustees may be exercised by, or with the consent of, any one
such Administrative Trustee.
(c) An Administrative Trustee may, by power of attorney
consistent with applicable law, delegate to any other natural person over the
age of 21 his or her power for the purposes of signing any documents which the
Administrative Trustees have power and authority to cause the Trust to execute
pursuant to Section 3.06.
SECTION 3.05. TITLE TO PROPERTY OF THE TRUST. Except as
provided in Section 3.08 with respect to the Debentures and the Property Trustee
Account or as otherwise provided in this Declaration, legal title to all assets
of the Trust shall be vested in the Trust. The Holders shall not have legal
title to any part of the assets of the Trust, but shall have an undivided
beneficial interest in the assets of the Trust.
SECTION 3.06. POWERS AND DUTIES OF THE ADMINISTRATIVE
TRUSTEES. The Administrative Trustees shall have, together (except in the case
of paragraphs (a), (b) and (c) of this Section 3.06) with any Special Trustee
holding office pursuant to Section 5.06, if any, the exclusive power, duty and
authority to cause the Trust to engage in the following activities:
(a) to issue and offer to exchange the Preferred Securities
and the Common Securities in accordance with this Declaration; PROVIDED,
HOWEVER, that the Trust may issue no more than one series of Preferred
Securities and no more than one series of Common Securities, and, PROVIDED
FURTHER, that there shall be no interests in the Trust other than the
Securities, and the issuance of Securities shall be limited to simultaneous
issuances of both Preferred Securities and Common Securities on the Closing
Date;
(b) in connection with the issue and offer to exchange
pursuant to the Offering Circular of the Preferred Securities, at the direction
of the Sponsor, to:
<PAGE> 24
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(i) assist in the preparation of the Issuer Tender Offer
Statement on Schedule 13E-4 under the Exchange Act and the related
Offering Circular, prepared by the Sponsor and the Trust, relating to
the offer to holders of Parent Stock to exchange the Preferred
Securities for shares of Parent Stock;
(ii) execute and file any documents prepared by the Sponsor,
or take any acts as determined by the Sponsor to be necessary in order
to qualify or register all or part of the Preferred Securities in any
State or foreign jurisdiction in which the Sponsor has determined to
qualify or register such Preferred Securities for sale;
(iii) execute and file an application, prepared by the
Sponsor, to the New York Stock Exchange or any other national stock
exchange, the Nasdaq National Market or the Nasdaq SmallCap Market for
listing or quotation of the Preferred Securities;
(iv) to execute and deliver letters, documents, or instruments
with The Depository Trust Company relating the Preferred Securities;
and
(v) execute and file with the Commission, at such time as
determined by the Sponsor, a registration statement on Form 8-A,
including any amendments thereto, prepared by the Sponsor relating to
the registration of the Preferred Securities under Section 12 of the
Exchange Act.
(c) to exchange the Parent Stock and the Common Securities for
the Debentures of the Debenture Issuer; PROVIDED, HOWEVER, that the
Administrative Trustees shall cause legal title to the Debentures to be held of
record in the name of the Property Trustee in trust for the benefit of the
Holders of the Securities;
(d) to give the Sponsor and the Property Trustee prompt
written notice of the occurrence of a Tax Event; PROVIDED that the
Administrative Trustees (and Special Trustee, if any) shall consult with the
Sponsor and the Property Trustee before taking or refraining from taking any
Ministerial Action in relation to a Tax Event;
(e) to establish a record date with respect to all actions to
be taken hereunder that require a record date be established, including and with
respect to, for the purposes of ss.316(c) of the Trust Indenture Act,
Distributions, voting rights, redemptions and exchanges, and to issue relevant
notices to the Holders of Preferred Securities and Holders of
<PAGE> 25
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Common Securities as to such actions and applicable record dates;
(f) to take all actions and perform such duties as
may be required of the Administrative Trustees pursuant to the
terms of the Securities;
(g) to bring or defend, pay, collect, compromise, arbitrate,
resort to legal action, or otherwise adjust claims or demands of or against the
Trust ("Legal Action"), unless pursuant to Section 3.08(e), the Property Trustee
has the exclusive power to bring such Legal Action;
(h) to employ or otherwise engage employees and agents (who
may be designated as officers with titles) and managers, contractors, advisors,
and consultants and pay reasonable compensation for such services;
(i) to cause the Trust to comply with the Trust's
obligations under the Trust Indenture Act;
(j) to give the certificate required by Section 314(a)(4) of
the Trust Indenture Act to the Property Trustee, which certificate may be
executed by any Administrative Trustee;
(k) to incur expenses that are necessary or incidental to
carry out any of the purposes of the Trust;
(l) to act as, or appoint another Person to act as, registrar
and transfer agent for the Securities;
(m) to give prompt written notice to the Holders of the
Securities of any notice received from the Debenture Issuer of its election to
defer payments of interest on the Debentures by extending the interest payment
period under the Indenture;
(n) to execute all documents or instruments, perform all
duties and powers, and do all things for and on behalf of the Trust in all
matters necessary or incidental to the foregoing;
(o) to take all action that may be necessary or appropriate
for the preservation and the continuation of the Trust's valid existence,
rights, franchises and privileges as a statutory business trust under the laws
of the State of Delaware and of each other jurisdiction in which such existence
is necessary to protect the limited liability of the Holders of the Preferred
Securities or to enable the Trust to effect the purposes for which the Trust was
created;
<PAGE> 26
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(p) to take any action, not inconsistent with this Declaration
or with applicable law, that the Administrative Trustees determine in their
discretion to be necessary or desirable in carrying out the activities of the
Trust as set out in this Section 3.06, including, but not limited to:
(i) causing the Trust not to be deemed to be an Investment
Company required to be registered under the Investment Company Act;
(ii) causing the Trust to be classified for United States
federal income tax purposes as a grantor trust; and
(iii) cooperating with the Debenture Issuer to ensure that the
Debentures will be treated as indebtedness of the Debenture Issuer for
United States federal income tax purposes, PROVIDED that such action
does not adversely affect the interests of Holders; and
(q) to take all action necessary to cause all applicable tax
returns and tax information reports that are required to be filed with respect
to the Trust to be duly prepared and filed by the Administrative Trustees, on
behalf of the Trust.
The Administrative Trustees must exercise the powers set forth
in this Section 3.06 in a manner that is consistent with the purposes and
functions of the Trust set out in Section 3.03, and the Administrative Trustees
shall not take any action that is inconsistent with the purposes and functions
of the Trust set forth in Section 3.03.
Subject to this Section 3.06, the Administrative Trustees
shall have none of the powers or the authority of the Property Trustee set forth
in Section 3.08.
Any expenses incurred by the Administrative Trustee (or the
Special Trustee, if any) pursuant to this Section 3.06 shall be reimbursed by
the Debenture Issuer.
SECTION 3.07. PROHIBITION OF ACTIONS BY THE TRUST AND THE
TRUSTEES. (a) The Trust shall not, and the Trustees (including the Property
Trustee) on behalf of the Trust shall not, engage in any activity other than as
required or authorized by this Declaration. In particular, the Trust shall not
and the Trustees (including the Property Trustee) shall cause the Trust not to:
<PAGE> 27
21
(i) invest any proceeds received by the Trust from holding the
Debentures, but shall distribute all such proceeds to Holders of
Securities pursuant to the terms of this Declaration and of the
Securities;
(ii) acquire any assets other than as expressly provided
herein;
(iii) possess Trust property for other than a Trust purpose;
(iv) make any loans or incur any indebtedness other
than loans represented by the Debentures;
(v) possess any power or otherwise act in such a way as to
vary the Trust assets or the terms of the Securities in any way
whatsoever;
(vi) issue any securities or other evidences of beneficial
ownership of, or beneficial interest in, the Trust other than the
Securities; or
(vii) other than as provided in the Declaration or Annex I
hereto, (A) direct the time, method and place of exercising any trust
or power conferred upon the Debenture Trustee with respect to the
Debentures, (B) waive any past default that is waivable under Section
5.13 of the Indenture, (C) exercise any right to rescind or annul any
declaration that the principal of all the Debentures shall be due and
payable, or (D) consent to any amendment, modification or termination
of the Indenture or the Debentures where such consent shall be required
unless, in the case of each action described in clause (A), (B), (C) or
(D), the Trust shall have received an opinion of counsel to the effect
that such modification will not cause more than an insubstantial risk
that for United States federal income tax purposes the Trust will not
be classified as a grantor trust.
SECTION 3.08. POWERS AND DUTIES OF THE PROPERTY TRUSTEE. (a)
The legal title to the Debentures shall be owned by and held of record in the
name of the Property Trustee in trust for the benefit of the Holders of the
Securities. The right, title and interest of the Property Trustee to the
Debentures shall vest automatically in each Person who may hereafter be
appointed as Property Trustee in accordance with Section 5.06. Such vesting and
cessation of title shall be effective whether or not conveyancing documents with
regard to the Debentures have been executed and delivered.
<PAGE> 28
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(b) The Property Trustee shall not transfer its right, title
and interest in the Debentures to the Administrative Trustees or to the Delaware
Trustee (if the Property Trustee does not also act as Delaware Trustee).
(c) The Property Trustee shall:
(i) establish and maintain a segregated non-interest bearing
trust account (the "Property Trustee Account") in the name of and under
the exclusive control of the Property Trustee on behalf of the Holders
of the Securities and, upon the receipt of payments of funds made in
respect of the Debentures held by the Property Trustee, deposit such
funds into the Property Trustee Account and make payments to the
Holders of the Preferred Securities and Holders of the Common
Securities from the Property Trustee Account in accordance with Section
6.01. Funds in the Property Trustee Account shall be held uninvested
until disbursed in accordance with this Declaration.
(ii) engage in such ministerial activities as so directed and
as shall be necessary or appropriate to effect the redemption of the
Preferred Securities and the Common Securities to the extent the
Debentures are redeemed or mature; and
(iii) upon written notice of distribution issued by the
Administrative Trustees in accordance with the terms of the Securities,
engage in such ministerial activities as so directed as shall be
necessary or appropriate to effect the distribution of the Debentures
to Holders of Securities upon the occurrence of certain special events
(as may be defined in the terms of the Securities) arising from a
change in law or a change in legal interpretation or other specified
circumstances pursuant to the terms of the Securities.
(d) The Property Trustee shall take all actions and perform
such duties as may be specifically required of the Property Trustee pursuant to
the terms of the Securities.
(e) The Property Trustee shall take any Legal Action which
arises out of or in connection with an Event of Default or the Property
Trustee's duties and obligations under this Declaration or the Trust Indenture
Act; PROVIDED, HOWEVER, that if a Debenture Event of Default has occurred and is
continuing and such event is attributable to the failure of the Sponsor to pay
interest or principal on the Debentures on the date such interest or principal
is otherwise payable (or in the case of redemption, on the redemption date),
then a
<PAGE> 29
23
holder of Preferred Securities may, to the extent permitted by applicable law,
institute a legal proceeding directly for enforcement of payment to such Holder
of the principal of or interest on the Debentures having a principal amount
equal to the aggregate liquidation amount of the Preferred Securities of such
Holder (a "DIRECT ACTION") on or after the respective due date specified in the
Securities. In connection with such Direct Action, the rights of the Holders of
the Common Securities will be subrogated to the rights of such Holder of
Preferred Securities to the extent of any payment made by the Sponsor to such
Holder of Preferred Securities in such Direct Action. In addition, if the
Property Trustee fails to enforce its rights under the Debentures (other than
rights arising from an Event of Default described in the immediately preceding
sentence) after any Holder of Preferred Securities shall have made a written
request to the Property Trustee to enforce such rights, such Holder of Preferred
Securities may, to the fullest extent permitted by law, institute a Direct
Action to enforce the Property Trustee or any other Person. Except as provided
in the preceding sentences, the Holders of Preferred Securities will not be able
to exercise directly any other remedy available to the holders of the
Debentures.
(f) The Property Trustee shall not resign as a Trustee unless
either:
(i) the Trust has been completely liquidated and the proceeds
of the liquidation distributed to the Holders of Securities pursuant to
the terms of the Securities; or
(ii) a Successor Property Trustee has been appointed and has
accepted that appointment in accordance with Section 5.06.
(g) The Property Trustee shall have the legal power to
exercise all of the rights, powers and privileges of a holder of Debentures
under the Indenture and, if an Event of Default occurs and is continuing, the
Property Trustee shall, for the benefit of Holders of the Securities, enforce
its rights as holder of the Debentures subject to the rights of the Holders
pursuant to the terms of such Securities.
(h) The Property Trustee will act as Paying Agent and
Registrar to pay Distributions, redemption payments or liquidation payments on
behalf of the Trust with respect to all securities and any such Paying Agent
shall comply with Section 317(b) of the Trust Indenture Act. Any Paying Agent
may be removed by the Property Trustee at any time and a successor Paying Agent
or additional Paying Agents may be appointed at any time by the Property
Trustee.
<PAGE> 30
24
(i) Subject to this Section 3.08, the Property Trustee shall
have none of the duties, liabilities, powers or the authority of the
Administrative Trustees set forth in Section 3.06.
The Property Trustee must exercise the powers set forth in
this Section 3.08 in a manner that is consistent with the purposes and functions
of the Trust set out in Section 3.03, and the Property Trustee shall not take
any action that is inconsistent with the purposes and functions of the Trust set
out in Section 3.03.
SECTION 3.09. CERTAIN DUTIES AND RESPONSIBILITIES OF THE
PROPERTY TRUSTEE. (a) The Property Trustee, before the occurrence of any Event
of Default and after the curing of all Events of Default that may have occurred,
shall undertake to perform only such duties as are specifically set forth in
this Declaration and no implied covenants shall be read into this Declaration
against the Property Trustee. In case an Event of Default has occurred (that has
not been cured or waived pursuant to Section 2.06), the Property Trustee shall
exercise such of the rights and powers vested in it by this Declaration, and use
the same degree of care and skill in their exercise, as a prudent person would
exercise or use under the circumstances in the conduct of his or her own
affairs.
(b) No provision of this Declaration shall be construed to
relieve the Property Trustee from liability for its own negligent action, its
own negligent failure to act, or its own willful misconduct, except that:
(i) prior to the occurrence of an Event of Default and after
the curing or waiving of all such Events of Default that may have
occurred:
(A) the duties and obligations of the Property
Trustee shall be determined solely by the express provisions
of this Declaration and the Property Trustee shall not be
liable except for the performance of such duties and
obligations as are specifically set forth in this Declaration,
and no implied covenants or obligations shall be read into
this Declaration against the Property Trustee; and
(B) in the absence of bad faith on the part of the
Property Trustee, the Property Trustee may conclusively rely,
as to the truth of the statements and the correctness of the
opinions expressed therein, upon any certificates or opinions
furnished to the Property Trustee and conforming to the
<PAGE> 31
25
requirements of this Declaration; but in the case of any such
certificates or opinions that by any provision hereof are
specifically required to be furnished to the Property Trustee,
the Property Trustee shall be under a duty to examine the same
to determine whether or not they conform to the requirements
of this Declaration;
(ii) the Property Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer of the Property
Trustee, unless it shall be proved that the Property Trustee was
negligent in ascertaining the pertinent facts;
(iii) the Property Trustee shall not be liable with respect to
any action taken or omitted to be taken by it in good faith in
accordance with the direction of the Holders of not less than a
Majority in liquidation amount of the Securities relating to the time,
method and place of conducting any proceeding for any remedy available
to the Property Trustee, or exercising any trust or power conferred
upon the Property Trustee under this Declaration;
(iv) no provision of this Declaration shall require the
Property Trustee to expend or risk its own funds or otherwise incur
personal financial liability in the performance of any of its duties or
in the exercise of any of its rights or powers;
(v) the Property Trustee's sole duty with respect to the
custody, safe keeping and physical preservation of the Debentures and
the Property Trustee Account shall be to deal with such property in a
similar manner as the Property Trustee deals with similar property for
its own account, subject to the protections and limitations on
liability afforded to the Property Trustee under this Declaration and
the Trust Indenture Act;
(vi) the Property Trustee shall have no duty or liability for
or with respect to the value, genuineness, existence or sufficiency of
the Debentures or the payment of any taxes or assessments levied
thereon or in connection therewith;
(vii) the Property Trustee shall not be liable for any
interest on any money received by it except as it may otherwise agree
with the Sponsor. Money held by the Property Trustee need not be
segregated from other funds held by it except in relation to the
Property Trustee Account maintained by the Property Trustee pursuant to
<PAGE> 32
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Section 3.08(c)(i) and except to the extent otherwise required by
law; and
(viii) the Property Trustee shall not be responsible for
monitoring the compliance by the Administrative Trustees or the Sponsor
with their respective duties under this Declaration, nor shall the
Property Trustee be liable for the default or misconduct of the
Administrative Trustees or the Sponsor.
SECTION 3.10. CERTAIN RIGHTS OF PROPERTY TRUSTEE.
(a) Subject to the provisions of Section 3.09:
(i) the Property Trustee may rely conclusively and shall be
fully protected in acting or refraining from acting upon any
resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, bond, debenture, note,
other evidence of indebtedness or other paper or document believed by
it to be genuine and to have been signed, sent or presented by the
proper party or parties;
(ii) any direction or act of the Sponsor or the
Administrative Trustees contemplated by this Declaration shall be
sufficiently evidenced by an Officers' Certificate;
(iii) whenever in the administration of this Declaration, the
Property Trustee shall deem it desirable that a matter be proved or
established before taking, suffering or omitting any action hereunder,
the Property Trustee (unless other evidence is herein specifically
prescribed) may, in the absence of bad faith on its part, request and
rely upon an Officers' Certificate which, upon receipt of such request,
shall be promptly delivered by the Sponsor or the Administrative
Trustees;
(iv) the Property Trustee shall have no duty to see to any
recording, filing or registration of any instrument (including any
financing or continuation statement or any filing under tax or
securities laws) or any rerecording, refiling or registration thereof;
(v) the Property Trustee may consult with counsel of its
choice or other experts and the advice or opinion of such counsel and
experts with respect to legal matters or advice within the scope of
such experts' area of expertise shall be full and complete
authorization and protection in respect of any action taken, suffered
or omitted by it hereunder in good faith and in accordance with such
advice or opinion, such counsel may be counsel
<PAGE> 33
27
to the Sponsor or any of its Affiliates, and may include any of its
employees. The Property Trustee shall have the right at any time to
seek instructions concerning the administration of this Declaration
from any court of competent jurisdiction;
(vi) the Property Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Declaration
at the request or direction of any Holder, unless such Holder shall
have provided to the Property Trustee security satisfactory to the
Property Trustee, against the costs, expenses (including its attorneys'
fees and expenses) and liabilities that might be incurred by it in
complying with such request or direction, including such reasonable
advances as may be requested in writing by the Property Trustee,
PROVIDED, that, nothing contained in this Section 3.10(a)(vi) shall be
taken to relieve the Property Trustee, upon the occurrence of an Event
of Default, of its obligation to exercise the rights and powers vested
in it by this Declaration;
(vii) the Property Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, security, bond, debenture, note, other
evidence of indebtedness or other paper or document, but the Property
Trustee, in its discretion, may make such further inquiry or
investigation into such facts or matters as it may see fit;
(viii) the Property Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly or by
or through agents or attorneys and the Property Trustee shall not be
responsible for any misconduct or negligence on the part of any agent
or attorney appointed with due care by it hereunder;
(ix) any action taken by the Property Trustee or its agents
hereunder shall bind the Trust and the Holders of the Securities, and
the signature of the Property Trustee or its agents alone shall be
sufficient and effective to perform any such action and no third party
shall be required to inquire as to the authority of the Property
Trustee to so act or as to its compliance with any of the terms and
provisions of this Declaration, both of which shall be conclusively
evidenced by the Property Trustee's or its agent's taking such action;
<PAGE> 34
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(x) whenever in the administration of this Declaration the
Property Trustee shall deem it desirable to receive instructions with
respect to enforcing any remedy or right or taking any other action
hereunder the Property Trustee (i) may request instructions from the
Holders of the Securities which instructions may only be given by the
Holders of the same proportion in liquidation amount of the Securities
as would be entitled to direct the Property Trustee under the terms of
the Securities in respect of such remedy, right or action, (ii) may
refrain from enforcing such remedy or right or taking such other action
until such instructions are received, and (iii) shall be protected in
acting in accordance with such instructions;
(xi) except as otherwise expressly provided by this
Declaration, the Property Trustee shall not be under any obligation to
take any action that is discretionary under the provisions of this
Declaration; and
(xii) the Property Trustee shall not be liable for any action
taken, suffered, or omitted to be taken by it in good faith and
reasonably believed by it to be authorized or within the discretion or
rights or powers conferred upon it by this Declaration.
(b) No provision of this Declaration shall be deemed to impose
any duty or obligation on the Property Trustee to perform any act or acts or
exercise any right, power, duty or obligation conferred or imposed on it, in any
jurisdiction in which it shall be illegal, or in which the Property Trustee
shall be unqualified or incompetent in accordance with applicable law, to
perform any such act or acts, or to exercise any such right, power, duty or
obligation. No permissive power or authority available to the Property Trustee
shall be construed to be a duty.
SECTION 3.11. DELAWARE TRUSTEE. Notwithstanding any other
provision of this Declaration other than Section 5.02, the Delaware Trustee
shall not be entitled to exercise any powers, nor shall the Delaware Trustee
have any of the duties and responsibilities of the Administrative Trustees or
the Property Trustee described in this Declaration. Except as set forth in
Section 5.02, the Delaware Trustee shall be a Trustee for the sole and limited
purpose of fulfilling the requirements of ss. 3807 of the Business Trust Act.
<PAGE> 35
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SECTION 3.12. EXECUTION OF DOCUMENTS. Unless otherwise
determined by the Administrative Trustees, and except as otherwise required by
the Business Trust Act, any Administrative Trustee is authorized to execute on
behalf of the Trust any documents that the Administrative Trustees have the
power and authority to execute pursuant to Section 3.06; PROVIDED that, the
registration statement referred to in Section 3.06(b)(i), including any
amendments thereto, shall be signed by a majority of the Administrative
Trustees.
SECTION 3.13. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF
SECURITIES. The recitals contained in this Declaration and the Securities shall
be taken as the statements of the Sponsor, and the Trustees do not assume any
responsibility for their correctness. The Trustees make no representations as to
the value or condition of the property of the Trust or any part thereof. The
Trustees make no representations as to the validity or sufficiency of this
Declaration or the Securities.
SECTION 3.14. DURATION OF TRUST. The Trust, unless terminated
pursuant to the provisions of Article VIII hereof, shall exist until December
21, 2035.
SECTION 3.15. MERGERS. (a) The Trust may not consolidate,
amalgamate, merge with or into, or be replaced by, or convey, transfer or lease
its properties and assets substantially as an entirety to any corporation or
other entity or person, except as described in Section 3.15(b) and (c).
(b) The Trust may, with the consent of a majority of the
Administrative Trustees and without the consent of the Holders of the
Securities, the Delaware Trustee or the Property Trustee, consolidate,
amalgamate, merge with or into, or be replaced by a trust organized as such
under the laws of any State or the District of Columbia; PROVIDED that:
(i) if the Trust is not the surviving entity, the successor
entity (the "Successor Entity") either:
(A) expressly assumes all of the obligations of
the Trust under the Securities; or
(B) substitutes for the Securities other securities
having substantially the same terms as the Preferred
Securities (the "Successor Securities") as long as the
Successor Securities rank, with respect to participation in
the profits and distributions or in the assets of the
Successor
<PAGE> 36
30
Entity at least as high as the Preferred Securities rank with
respect to participation in the profits and dividends or in
the assets of the Trust;
(ii) the Debenture Issuer expressly acknowledges such
Successor Entity as the Holder of the Debentures;
(iii) the Preferred Securities or any Successor Securities are
listed, or any Successor Securities will be listed upon notification of
issuance, on any national securities exchange or with any other
organization on which the Preferred Securities are then listed or
quoted;
(iv) such merger, consolidation, amalgamation or replacement
does not cause the Preferred Securities (including any Successor
Securities) to be downgraded by any nationally recognized statistical
rating organization;
(v) such merger, consolidation, amalgamation or replacement
does not adversely affect the powers, preferences and other special
rights of the Holders of the Preferred Securities (including any
Successor Securities) in any material respect;
(vi) such Successor Entity has a purpose substantially
identical to that of the Trust;
(vii) prior to such merger, consolidation, amalgamation or
replacement, the Sponsor has received an opinion of a nationally
recognized independent counsel (reasonably acceptable to the Property
Trustee) to the Trust experienced in such matters to the effect that:
(A) the Successor Entity will be treated as a grantor trust
for United States federal income tax purposes;
(B) following such merger, consolidation, amalgamation or
replacement, neither the Sponsor nor the Successor Entity will be
required to register as an Investment Company; and
(C) such merger, consolidation, amalgamation or replacement
will not adversely affect the limited liability of the Holders of the
Securities (including any Successor Securities); and
(viii) the Sponsor provides a guarantee to the Holders
of the Successor Securities with respect to the Successor
<PAGE> 37
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Entity having substantially the same terms as the Preferred Securities
Guarantee.
(c) Notwithstanding Section 3.15(b), the Trust shall not,
except with the consent of Holders of 100% in liquidation amount of the Common
Securities, consolidate, amalgamate, merge with or into, or be replaced by any
other entity or permit any other entity to consolidate, amalgamate, merge with
or into, or replace it if such consolidation, amalgamation, merger or
replacement would cause the Trust or Successor Entity to be classified as other
than a grantor trust for United States federal income tax purposes.
ARTICLE IV
SPONSOR
SECTION 4.01. SPONSOR'S PURCHASE OF COMMON SECURITIES. On the
Closing Date the Sponsor will purchase an amount of Common Securities issued by
the Trust such that the aggregate liquidation amount of such Common Securities
purchased by the Sponsor shall at such date equal 3% of the total capital of the
Trust.
SECTION 4.02. RESPONSIBILITIES OF THE SPONSOR. In connection
with the issue and offer to exchange of the Preferred Securities, the Sponsor
shall have the exclusive right and responsibility to engage in the following
activities:
(a) to prepare the Offering Circular;
(b) to determine the states and foreign jurisdictions in which
to take appropriate action to qualify or register for sale all or part of the
Preferred Securities and to do any and all such acts, other than actions which
must be taken by the Trust, and advise the Trust of actions it must take, and
prepare for execution and filing any documents to be executed and filed by the
Trust, as the Sponsor deems necessary or advisable in order to comply with the
applicable laws of any such States and foreign jurisdictions;
(c) to prepare for filing by the Trust an application to the
New York Stock Exchange or any other national stock exchange or the Nasdaq
National Market for listing or quotation of the Preferred Securities; and
(d) to prepare for filing by the Trust with the Commission
a registration statement on Form 8-A relating to
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the registration of the Preferred Securities under Section 12 of the Exchange
Act, including any amendments thereto.
SECTION 4.03. GUARANTEE OF PAYMENT OF TRUST OBLIGATIONS. (a)
Subject to the terms and conditions of this Section 4.03, the Sponsor hereby
irrevocably and unconditionally guarantees to each Person to whom the Trust is
now or hereafter becomes indebted or liable (the "Beneficiaries") the full
payment, when and as due, of any and all Obligations to such Beneficiaries.
(b) The agreement of the Sponsor in Section 4.03(a) is
intended to be for the benefit of, and to be enforceable by, all such
Beneficiaries, whether or not such Beneficiaries have received notice hereof.
(c) The agreement of the Sponsor set forth in Section 4.03(a)
shall terminate and be of no further force and effect upon the later of (a) the
date on which full payment has been made of all amounts payable to all Holders
of all the Preferred Securities (whether upon redemption, liquidation, exchange
or otherwise) and (b) the date on which there are no Beneficiaries remaining;
PROVIDED, however, that such agreement shall continue to be effective or shall
be reinstated, as the case may be, if at any time any Holder of Preferred
Securities or any Beneficiary must restore payment of any sums paid under the
Preferred Securities, under any Obligation, under the Preferred Securities
Guarantee or under this Agreement for any reason whatsoever. Such agreement is
continuing, irrevocable, unconditional and absolute.
ARTICLE V
TRUSTEES
SECTION 5.01. NUMBER OF TRUSTEES. The number of Trustees shall
initially be five (5), and:
(a) at any time before the issuance of any Securities, the
Sponsor may, by written instrument, increase or decrease the number of
Trustees; and
(b) after the issuance of any Securities:
(i) the number of Trustees may be increased or decreased,
except as provided in Sections 5.01(b)(ii) and 5.06(a)(ii)(B) with
respect to the Special Trustee, by vote of the Holders of a Majority in
liquidation amount of the Common Securities voting as a class at a
meeting of the Holders of the Common Securities; and
<PAGE> 39
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(ii) the number of Trustees shall be increased automatically
by one (1) if an Appointment Event has occurred and is continuing and
the Holders of a Majority in liquidation amount of the Preferred
Securities appoint a Special Trustee in accordance with Section
5.06(a)(ii).
SECTION 5.02. DELAWARE TRUSTEE. If required by the Business
Trust Act, one Trustee (the "Delaware Trustee") shall be an entity which has its
principal place of business in the State of Delaware, and otherwise meets the
requirements of applicable law, PROVIDED that, if the Property Trustee has its
principal place of business in the State of Delaware and otherwise meets the
requirements of applicable law, then the Property Trustee shall also be the
Delaware Trustee and Section 3.11 shall have no application.
SECTION 5.03. PROPERTY TRUSTEE; ELIGIBILITY.
(a) There shall at all times be one Trustee which shall act as Property Trustee
which shall:
(i) not be an Affiliate of the Sponsor; and
(ii) be a corporation organized and doing business under the
laws of the United States of America or any State or Territory thereof
or of the District of Columbia, or a corporation or Person permitted by
the Commission to act as an institutional trustee under the Trust
Indenture Act, authorized under such laws to exercise corporate trust
powers, having a combined capital and surplus of at least 50 million
U.S. dollars ($50,000,000), and subject to supervision or examination
by Federal, State, Territorial or District of Columbia authority. If
such corporation publishes reports of condition at least annually,
pursuant to law or to the requirements of the supervising or examining
authority referred to above, then for the purposes of this Section
5.03(a)(ii), the combined capital and surplus of such corporation shall
be deemed to be its combined capital and surplus as set forth in its
most recent report of condition so published. Neither the Sponsor nor
any Person directly or indirectly controlling, controlled by or under
common control with the Sponsor shall serve as Trustee hereunder.
(b) If at any time the Property Trustee shall cease to be
eligible to so act under Section 5.03(a), the Property Trustee shall immediately
resign in the manner and with the effect set forth in Section 5.06(e).
(c) If the Property Trustee has or shall acquire any
"conflicting interest" within the meaning of Section 310(b) of
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34
the Trust Indenture Act, the Property Trustee and the Holder of the Common
Securities (as if it were the obligor referred to in Section 310(b) of the Trust
Indenture Act) shall in all respects comply with the proviso of Section 310(b)
of the Trust Indenture Act, subject to the penultimate paragraph thereof.
(d) The Preferred Securities Guarantee shall be deemed to be
specifically described in this Declaration for purposes of clause (i) of the
first provision contained in Section 310(b) of the Trust Indenture Act.
SECTION 5.04. QUALIFICATIONS OF ADMINISTRATIVE TRUSTEES AND
DELAWARE TRUSTEE GENERALLY. Each Administrative Trustee and the Delaware Trustee
(unless the Property Trustee also acts as Delaware Trustee) shall be either a
natural person who is at least 21 years of age or a legal entity that shall act
through one or more Authorized Officers.
SECTION 5.05. INITIAL TRUSTEES. The initial Administrative
Trustees shall be:
Kevin J. McNamara
c/o Chemed Corporation
2600 Chemed Center
255 East Fifth Street
Cincinnati, Ohio 45202-4726
Timothy S. O'Toole
c/o Chemed Corporation
2600 Chemed Center
255 East Fifth Street
Cincinnati, Ohio 45202-4726
Sandra E. Laney
c/o Chemed Corporation
2600 Chemed Center
255 East Fifth Street
Cincinnati, Ohio 45202-4726
The initial Delaware Trustee shall be:
First Union Trust Company, National Association
One Rodney Square
920 King Street
1st Floor
Wilmington, Delaware 19810
ATTENTION: Corporate Trust Administration
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The initial Property Trustee shall be:
Firstar Bank, National Association
425 Walnut Street
6th Floor
Cincinnati, Ohio 45202
ATTENTION: Corporate Trust Administration
SECTION 5.06. APPOINTMENT, REMOVAL AND RESIGNATION OF
TRUSTEES. (a) Except as provided otherwise in this Section 5.06(b), Trustees may
be appointed or removed without cause at any time:
(i) until the issuance of any Securities, by written
instrument executed by the Sponsor; and
(ii) after the issuance of any Securities:
(A) other than in respect to a Special Trustee, by
vote of the Holders of a Majority in liquidation amount of the
Common Securities voting as a class at a meeting of the
Holders of the Common Securities, unless a Debenture Event of
Default shall have occurred and be continuing, in which event
the Property Trustee and the Delaware Trustee may only be
removed by the Holders of a Majority in liquidation amount of
the Preferred Securities, voting as a class at a meeting of
the Holders of the Preferred Securities; and
(B) if an Appointment Event has occurred and is
continuing, one (1) additional trustee (the "SPECIAL
TRUSTEE"), who shall have the same rights, powers and
privileges as an Administrative Trustee, may be appointed by
vote of the Holders of a Majority in liquidation amount of the
Preferred Securities, voting as a class at a meeting of the
Holders of the Preferred Securities, and such Special Trustee
may only be removed (otherwise than by the operation of
Section 5.06(e)), by vote of the Holders of a Majority in
liquidation amount of the Preferred Securities voting as a
class at a meeting of the Holders of the Preferred Securities.
(b) The Trustee that acts as Property Trustee shall not be
removed in accordance with Section 5.06(a) until a successor Property Trustee
meeting the requirements of Section 5.03 (a "SUCCESSOR PROPERTY TRUSTEE") has
been appointed and has accepted such appointment by written instrument executed
by such Successor Property Trustee and delivered to the Administrative Trustees
and the Sponsor.
<PAGE> 42
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(c) The Sponsor shall remove the Property Trustee by written
instrument upon:
(i) the entry or a decree or order by a court having
jurisdiction in the premises adjudging the Property Trustee as bankrupt
or insolvent, or approving as properly filed a petition seeking
reorganization, arrangement, adjustment or composition of or in respect
of the Property Trustee 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 Property Trustee 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; or
(ii) the institution by the Property Trustee 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
Property Trustee 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 Property Trustee in furtherance
of any such action; or
The Sponsor shall appoint a Successor Property Trustee within 60 days of such an
event.
(d) The Trustee that acts as Delaware Trustee shall not be
removed in accordance with Section 5.06(a) until a successor Trustee possessing
the qualifications to act as Delaware Trustee under Sections 5.02 and 5.04 (a
"SUCCESSOR DELAWARE TRUSTEE") has been appointed and has accepted such
appointment by written instrument executed by such Successor Delaware Trustee
and delivered to the Trustees and the Sponsor.
(e) A Trustee appointed to office shall hold office until his
successor shall have been appointed or until his death, removal or resignation,
PROVIDED that a Special Trustee
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37
shall only hold office while an Appointment Event is continuing and shall cease
to hold office immediately after the Appointment Event pursuant to which the
Special Trustee was appointed and all other Appointment Events cease to be
continuing. Any Trustee may resign from office (without need for prior or
subsequent accounting) by an instrument in writing signed by the Trustee and
delivered to the Sponsor and the Trust, which resignation shall take effect upon
such delivery or upon such later date as is specified therein; PROVIDED,
HOWEVER, that:
(i) No such resignation of the Trustee that acts as the
Property Trustee shall be effective:
(A) until a Successor Property Trustee has been
appointed and has accepted such appointment by instrument
executed by such Successor Property Trustee and delivered to
the Trust, the Sponsor and the resigning Property Trustee; or
(B) until the assets of the Trust have been
completely liquidated and the proceeds thereof distributed to
the holders of the Securities;
(ii) no such resignation of the Trustee that acts as the
Delaware Trustee shall be effective until a Successor Delaware Trustee
has been appointed and has accepted such appointment by instrument
executed by such Successor Delaware Trustee and delivered to the Trust,
the Sponsor and the resigning Delaware Trustee; and
(iii) no such resignation of a Special Trustee shall be
effective until the 60th day following delivery of the instrument of
resignation of the Special Trustee to the Sponsor and the Trust or such
later date specified in such instrument during which period the Holders
of the Preferred Securities shall have the right to appoint a successor
Special Trustee as provided in this Section 5.06.
(f) The Holders of the Common Securities shall use their best
efforts to promptly appoint a Successor Property Trustee or Successor Delaware
Trustee, as the case may be, if the Property Trustee or the Delaware Trustee
delivers an instrument of resignation in accordance with this Section 5.06.
(g) If no Successor Property Trustee or Successor Delaware
Trustee shall have been appointed and accepted appointment as provided in this
Section 5.06 within 60 days after delivery to the Sponsor and the Trust of an
instrument
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of resignation or removal, the resigning Property Trustee or Delaware Trustee,
resigning or being removed as applicable, may petition any court of competent
jurisdiction for appointment of a Successor Property Trustee or Successor
Delaware Trustee. Such court may thereupon, after prescribing such notice, if
any, as it may deem proper and prescribe, appoint a Successor Property Trustee
or Successor Delaware Trustee, as the case may be.
(h) No Property Trustee or Delaware Trustee shall be liable
for the acts or omissions to act of any Successor Property Trustee or Successor
Delaware Trustee, as the case may be.
SECTION 5.07. VACANCIES AMONG TRUSTEES. If a Trustee ceases to
hold office for any reason and the number of Trustees is not reduced pursuant to
Section 5.01, or if the number of Trustees is increased pursuant to Section
5.01, a vacancy shall occur. A resolution certifying the existence of such
vacancy by a majority of the Administrative Trustees shall be conclusive
evidence of the existence of such vacancy. The vacancy shall be filled with a
Trustee appointed in accordance with Section 5.06.
SECTION 5.08. EFFECT OF VACANCIES. The death, resignation,
retirement, removal, bankruptcy, dissolution, liquidation, incompetence or
incapacity to perform the duties of a Trustee shall not operate to annul the
Trust. Whenever a vacancy in the number of Administrative Trustees shall occur,
until such vacancy is filled by the appointment of a Administrative Trustee in
accordance with Section 5.06, the Administrative Trustees in office, regardless
of their number, shall have all the powers granted to the Administrative
Trustees and shall discharge all the duties imposed upon the Administrative
Trustees by this Declaration.
SECTION 5.09. MEETINGS. Meetings of the Administrative
Trustees shall be held from time to time upon the call of any Administrative
Trustee. Regular meetings of the Administrative Trustees may be held at a time
and place fixed by resolution of the Administrative Trustees. Notice of any
meetings of the Administrative Trustees shall be hand delivered or otherwise
delivered in writing (including by facsimile or overnight courier) not less than
24 hours before such meeting. Notices shall contain a brief statement of the
time, place and anticipated purposes of the meeting. The presence (whether in
person or by telephone) of a Administrative Trustee at a meeting shall
constitute a waiver of notice of such meeting except where a Administrative
Trustee attends a meeting for the express purpose of objecting to the
transaction of any activity on the ground that the
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meeting has not been lawfully called or convened. Unless provided otherwise in
this Declaration, any action of the Administrative Trustees may be taken at a
meeting by vote of a majority of the Administrative Trustees present (whether in
person or by telephone) and eligible to vote with respect to such matter,
PROVIDED that a Quorum is present, or without a meeting by the unanimous written
consent of the Administrative Trustees.
In the event there is only one Administrative Trustee, any and
all action of such Administrative Trustee shall be evidenced by a written
consent of such Administrative Trustee. In the event a Special Trustee is
holding office pursuant to Section 5.06, such Special Trustee shall have the
same rights as an Administrative Trustee with respect to participation in a
meeting of the Administrative Trustees.
SECTION 5.10. DELEGATION OF POWER. (a) Any Administrative
Trustee may, by power of attorney consistent with applicable law, delegate to
any other natural person over the age of 21 his or her power for the purpose of
executing any documents contemplated in Section 3.06, including any registration
statement or amendment thereto filed with the Commission, or making any other
governmental filing; and
(b) the Administrative Trustees shall have power to delegate
from time to time to such of their number or to officers of the Trust the doing
of such things and the execution of such instruments either in the name of the
Trust or the names of the Administrative Trustees or otherwise as the
Administrative Trustees may deem expedient, to the extent such delegation is not
prohibited by applicable law or contrary to the provisions of the Trust, as set
forth herein.
SECTION 5.11. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION
TO BUSINESS. Any Person into which the Property Trustee or the Delaware Trustee,
as the case may be, may be merged or converted or with which either may be
consolidated, or any Person resulting from any merger, conversion or
consolidation to which the Property Trustee or the Delaware Trustee, as the case
may be, shall be a party, or any Person succeeding to all or substantially all
the corporate trust business of the Property Trustee or the Delaware Trustee, as
the case may be, shall be the successor of the Property Trustee or the Delaware
Trustee, as the case may be, hereunder, PROVIDED such Person shall be otherwise
qualified and eligible under this Article, without the execution or filing of
any paper or any further act on the part of any of the parties hereto; PROVIDES
FURTHER, however that the Delaware Trustee shall file amendments to the
Certificate of Trust as may be required by the Business Trust Act.
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ARTICLE VI
DISTRIBUTIONS
SECTION 6.01. DISTRIBUTIONS. Holders shall receive
Distributions (as defined herein) in accordance with the applicable terms of the
relevant Holder's Securities. Distributions shall be made on the Preferred
Securities and the Common Securities in accordance with the preferences set
forth in their respective terms. If and to the extent that the Debenture Issuer
makes a payment of interest (including Compounded Interest (as defined in the
Indenture) and Additional Sums (as defined in the Indenture)) premium and
principal on the Debentures held by the Property Trustee (the amount of any such
payment being a "PAYMENT AMOUNT"), the Property Trustee shall and is directed,
to the extent funds are available for that purpose, to make a distribution (a
"Distribution") of the Payment Amount to Holders.
ARTICLE VII
ISSUANCE OF SECURITIES
SECTION 7.01. GENERAL PROVISIONS REGARDING SECURITIES. (a) The
Administrative Trustees shall on behalf of the Trust issue one class of
convertible preferred securities, designated as Convertible Trust Preferred
Securities, liquidation amount $27, representing undivided beneficial interests
in the assets of the Trust (the "PREFERRED SECURITIES"), having such terms as
are set forth in Annex I and one class of convertible common securities,
liquidation amount $27, representing undivided beneficial interests in the
assets of the Trust (the "COMMON SECURITIES"), having such terms as are set
forth in Annex I. The Trust shall have no securities or other interests in the
assets of the Trust other than the Preferred Securities and the Common
Securities.
(b) The consideration received by the Trust for the issuance
of the Securities shall constitute a contribution to the capital of the Trust
and shall not constitute a loan to the Trust.
(c) Upon issuance of the Securities as provided in this
Declaration, the Securities so issued shall be deemed to be validly issued,
fully paid and non-assessable, subject to Section 10.01 with respect to the
Common Securities.
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(d) Every Person, by virtue of having become a Holder or a
Preferred Security Beneficial Owner in accordance with the terms of this
Declaration, shall be deemed to have expressly assented and agreed to the terms
of, and shall be bound by, this Declaration.
SECTION 7.02. EXECUTION AND AUTHENTICATION. (a) The Securities
shall be signed on behalf of the Trust by one or more Administrative Trustees.
In case any Administrative Trustee of the Trust who shall have signed any of the
Securities shall cease to be such Administrative Trustee before the Securities
so signed shall be delivered by the Trust, such Securities nevertheless may be
delivered as though the person who signed such Securities had not ceased to be
such Administrative Trustee; and any Securities may be signed on behalf of the
Trust by such persons who, at the actual date of execution of such Security,
shall 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.
(b) One or more Administrative Trustees shall sign the
Preferred Securities for the Trust by manual or facsimile signature. Unless
otherwise determined by the Trust, such signature shall, in the case of Common
Securities, be a manual signature.
A Preferred Security shall not be valid until authenticated by
the manual signature of an authorized signatory of the Property Trustee. The
signature shall be conclusive evidence that the Preferred Security has been
authenticated under this Declaration.
The aggregate number of Preferred Securities outstanding at
any time shall not exceed the number set forth in the terms in Annex I hereto
except as provided in Section 7.06.
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. Each reference in this Declaration to authentication by the Property Trustee
includes authentication by such agent. An authenticating agent has the same
rights as the Property Trustee to deal with the Company or an Affiliate.
SECTION 7.03. FORM AND DATING. The Preferred
Securities and the Property Trustee's certificate of authentication shall be
substantially in the form of Exhibit A-1 or such form as is reasonably
acceptable to the
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Administrative Trustees, as evidenced by their execution thereof, and the Common
Securities shall be substantially in the form of Exhibit A-2, each of which
exhibits is hereby incorporated in and expressly made a part of this
Declaration. Certificates representing the Securities may be printed,
lithographed or engraved or may be produced in any other manner as is reasonably
acceptable to the Administrative Trustees, as evidenced by their execution
thereof. The Securities may have letters, CUSIP or other numbers, notations or
other marks of identification or designation and such legends or endorsements
required by law, stock exchange rule, agreements to which the Trust is subject,
if any, or usage (provided that any such notation, legend or endorsement is in a
form acceptable to the Trust). The Trust at the direction of the Sponsor shall
furnish any such legend to the Property Trustee in writing. Each Preferred
Security shall be dated the date of its authentication. The terms and provisions
of the Securities set forth in Annex I and the forms of Securities set forth in
Exhibits A-1 and A-2 are part of the terms of this Declaration and to the extent
applicable, the Property Trustee and the Sponsor, by their execution and
delivery of this Declaration, expressly agree to such terms and provisions and
to be bound thereby.
(a) The Preferred Securities shall initially be issued in the
form of duly signed and authenticated certificated Preferred Securities
("Definitive Preferred Securities") and/or in the form of one or more permanent
global Securities in definitive, fully registered form without distribution
coupons as set forth in Exhibit A-1 hereto (a "Global Preferred Security"),
which shall be deposited on behalf of the Holders of the Preferred Securities
represented thereby with the Property Trustee, as custodian for the Clearing
Agency, and registered in the name of the Clearing Agency or a nominee of the
Clearing Agency, duly executed by the Trust and authenticated by the Property
Trustee as hereinafter provided. The number of Preferred Securities represented
by a Global Preferred Security may from time to time be increased or decreased
by adjustments made on the records of the Property Trustee and the Clearing
Agency or its nominee as hereinafter provided.
(b) This Section 7.03(b) shall apply only to the Global
Preferred Securities and such other Preferred Securities in global form as may
be authorized by the Trust to be deposited with or on behalf of the Clearing
Agency.
The Trust shall execute and the Property Trustee shall, in
accordance with this Section 7.03, authenticate and make available for delivery
initially one or more Global Preferred Securities that (i) shall be registered
in the name
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of Cede & Co. or other nominee of such Clearing Agency and (ii) shall be
delivered by the Property Trustee to such Clearing Agency or pursuant to such
Clearing Agency's written instructions or held by the Property Trustee as
custodian for the Clearing Agency. Members of, or participants in, the Clearing
Agency ("Participants") shall have no rights under this Declaration with respect
to any Global Preferred Security held on their behalf by the Clearing Agency or
by the Property Trustee as the custodian of the Clearing Agency or under such
Global Preferred Security, and the Clearing Agency may be treated by the Trust,
the Property Trustee and any agent of the Trust or the Property Trustee as the
absolute owner of such Global Preferred Security for all purposes whatsoever.
Notwithstanding the foregoing, nothing herein shall prevent the Trust, the
Property Trustee or any agent of the Trust or the Property Trustee from giving
effect to any written certification, proxy or other authorization furnished by
the Clearing Agency or impair, as between the Clearing Agency and its
Participants, the operation of customary practices of such Clearing Agency
governing the exercise of the rights of a holder of a beneficial interest in any
Global Preferred Security.
(c) Except as provided in Section 7.10, 9.01 and Section 9.02,
owners of beneficial interests in a Global Preferred Security will not be
entitled to receive physical delivery of Definitive Preferred Securities.
SECTION 7.04. REGISTRAR, PAYING AGENT AND CONVERSION AGENT.
The Trust shall maintain in (i) an office or agency where Preferred Securities
may be presented for registration of transfer or for exchange ("Registrar"),
(ii) an office or agency where Preferred Securities may be presented for payment
("Paying Agent") and (iii) an office or agency where Securities may be presented
for conversion ("Conversion Agent"). The Registrar shall keep a register of the
Preferred Securities and of their transfer and exchange. The Trust may appoint
the Registrar, the Paying Agent and the Conversion Agent and may appoint one or
more co-registrars, one or more additional paying agents and one or more
additional conversion agents in such locations as it shall determine. The term
"Paying Agent" includes any additional paying agent and the term "Conversion
Agent" includes any additional conversion agent. The Trust may change any Paying
Agent, Registrar, co-registrar or Conversion Agent without prior notice to any
Holder. The Trust shall notify the Property Trustee of the name and address of
any Agent not a party to this Declaration. If the Trust fails to appoint or
maintain another entity as Registrar, Paying Agent or Conversion Agent, the
Property Trustee shall act as such. The Trust or any of its Affiliates may act
as Paying Agent,
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Registrar, or Conversion Agent. The Trust shall act as Paying Agent, Registrar,
co-registrar, and Conversion Agent for the Common Securities.
The Trust initially appoints the Property Trustee as
Registrar, Paying Agent, and Conversion Agent for the Preferred Securities.
SECTION 7.05. PAYING AGENT TO HOLD MONEY IN TRUST. The Trust
shall require each Paying Agent other than the Property Trustee to agree in
writing that the Paying Agent will hold in trust for the benefit of Holders or
the Property Trustee all money held by the Paying Agent for the payment of
principal or distribution on the Securities, and will notify the Property
Trustee if there are insufficient funds.
SECTION 7.06. OUTSTANDING PREFERRED SECURITIES. The Preferred
Securities outstanding at any time are all the Preferred Securities
authenticated by the Property Trustee except for those canceled by it, those
delivered to it for cancelation, and those described in this Section as not
outstanding.
If a Preferred Security is replaced, paid or purchased
pursuant to Section 7.06 hereof, it ceases to be outstanding unless the Property
Trustee receives proof satisfactory to it that the replaced, paid or purchased
Preferred Security is held by a bona fide purchaser.
If Preferred Securities are considered paid in accordance with
the terms of this Declaration, they cease to be outstanding and interest on them
ceases to accrue.
A Preferred Security does not cease to be outstanding because
one of the Trust, the Sponsor or an Affiliate of the Sponsor holds the Security.
SECTION 7.07. PREFERRED SECURITIES IN TREASURY. In determining
whether the Holders of the required amount of Securities have concurred in any
direction, waiver or consent, Preferred Securities owned by the Trust, the
Sponsor or an Affiliate of the Sponsor, as the case may be, shall be disregarded
and deemed not to be outstanding, except that for the purposes of determining
whether the Property Trustee shall be fully protected in relying on any such
direction, waiver or consent, only Securities which the Property Trustee knows
are so owned shall be so disregarded.
SECTION 7.08. TEMPORARY SECURITIES. Until definitive
Securities are ready for delivery, the Trust may prepare and, in the case of the
Preferred Securities, the
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Property Trustee shall authenticate temporary Securities. Temporary Securities
shall be substantially in the form of definitive Securities but may have
variations that the Trust considers appropriate for temporary Securities.
Without unreasonable delay, the Trust shall prepare and deliver to the Property
Trustee Preferred Securities in certificated form (other than in the case of
Preferred Securities in global form) and thereupon any or all temporary
Preferred Securities (other than any such Preferred Securities in global form)
may be surrendered in exchange therefor, at the office of the Registrar, and the
Property Trustee shall authenticate and deliver an equal aggregate liquidation
amount of definitive Preferred Securities in certificated form in exchange for
temporary Preferred Securities (other than any such Preferred Securities in
global form).
SECTION 7.09. CANCELATION. The Trust at any time may deliver
Preferred Securities to the Property Trustee for cancelation. The Registrar,
Paying Agent and Conversion Agent shall forward to the Property Trustee any
Preferred Securities surrendered to them for registration of transfer,
redemption, conversion, exchange or payment. The Property Trustee shall promptly
cancel all Preferred Securities, surrendered for registration of transfer,
redemption, conversion, exchange, payment, replacement or cancelation and shall
return such canceled Preferred Securities to the Administrative Trustees. The
Trust may not issue new Preferred Securities to replace Preferred Securities
that it has paid or that have been delivered to the Property Trustee for
cancelation or that any holder has converted.
SECTION 7.10. DEFINITIVE SECURITIES. (a) A Global Preferred
Security deposited with the Clearing Agency or with the Property Trustee as
custodian for the Clearing Agency pursuant to Section 7.03 shall be transferred
to the beneficial owners thereof in the form of Definitive Preferred Securities
only if such transfer complies with Section 9.01 or with Section 9.02 or (i) the
Clearing Agency notifies the Sponsor that it is unwilling or unable to continue
as Clearing Agency for such Global Preferred Security or if at any time such
Clearing Agency ceases to be a "clearing agency" registered under the Exchange
Act and a clearing agency is not appointed by the Sponsor within 90 days of such
notice or of its becoming aware of such cessation, (ii) an Event of Default has
occurred and is continuing or (iii) the Trust at its sole discretion elects to
cause the issuance of Definitive Preferred Securities.
(b) Any Global Preferred Security that is transferable to the
beneficial owners thereof in the form of Definitive Preferred Securities
pursuant to this Section 7.10
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shall be surrendered by the Clearing Agency to the Property Trustee, to be so
transferred, in whole or from time to time in part, without charge, and the
Property Trustee shall authenticate and make available for delivery, upon such
transfer of each portion of such Global Preferred Security, an equal aggregate
liquidation amount of Preferred Securities of authorized denominations in the
form of certificated Preferred Securities. Any portion of a Global Preferred
Security so transferred pursuant to this Section 7.10(b) shall be registered in
such names as the Clearing Agency shall direct.
(c) Subject to the provisions of Section 7.09(b), the Holder
of a Global Preferred Security may grant proxies and otherwise authorize any
Person, including Participants and persons that may hold interests through
Participants, to take any action which such Holder is entitled to take under
this Declaration or the Securities.
(d) In the event of the occurrence of any of the events
specified in Section 7.10(a), the Trust will promptly make available to the
Property Trustee a reasonable supply of certificated Preferred Securities in
fully registered form without distribution coupons.
(e) Payments on the Preferred Securities that are not held by
the Depositary will be made by check mailed to the address of the Holder
entitled thereto at the address which appears on the register.
ARTICLE VIII
TERMINATION OF TRUST
SECTION 8.01. TERMINATION OF TRUST. (a) The Trust shall
terminate upon the earliest to occur of the following:
(i) the bankruptcy of the Holder of the Common Securities or
the Sponsor;
(ii) the filing of a certificate of dissolution or its
equivalent with respect to the Holder of the Common Securities or the
Sponsor; the filing of a certificate of cancelation with respect to the
Trust or the revocation of the charter of the Holder of the Common
Securities or the Sponsor 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;
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(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 December 21,
2035;
(vi) the entry of a decree of judicial dissolution of the Holder
of the Common Securities, the Sponsor 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 Common Stock (as defined in the
Indenture) of the Sponsor 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.
(b) As soon as is practicable after the occurrence of an event
referred to in Section 8.01(a), the Trustees shall file a certificate of
cancelation with the Secretary of State of the State of Delaware.
(c) The provisions of Section 3.09 and Article X shall survive
the termination of the Trust.
ARTICLE IX
TRANSFER AND EXCHANGE
SECTION 9.01. GENERAL. (a) Where Preferred Securities are
presented to the Registrar or a co-registrar with a request to register a
transfer or to exchange them for an equal number of Preferred Securities
represented by different certificates, the Registrar shall register the transfer
or make the exchange if its requirements for such transactions are met. To
permit registrations of transfers and exchanges, the Trust shall issue and the
Property Trustee shall authenticate Preferred Securities at the Registrar's
request.
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(b) Securities may only be transferred, in whole or in part,
in accordance with the terms and conditions set forth in this Declaration and in
the terms of the Securities. Any transfer or purported transfer of any Security
not made in accordance with this Declaration shall be null and void.
Subject to this Article IX, the Sponsor and any Related Party
may only transfer Common Securities to the Sponsor or a Related Party of the
Sponsor; PROVIDED that, any such transfer is subject to the condition precedent
that the transferor obtain the written opinion of nationally recognized
independent counsel experienced in such matters that such transfer would not
cause more than an insubstantial risk that:
(i) the Trust would not be classified for United
States federal income tax purposes as a grantor trust;
and
(ii) the Trust would be an Investment Company or the
transferee would become an Investment Company.
(c) At the option of the Holder, Preferred Securities may be
exchanged for other Preferred Securities of the same class, of any authorized
denominations and of a like aggregate principal amount, upon surrender of the
Preferred Securities to be exchanged at such office or agency. Whenever any
Preferred Securities are so surrendered for exchange, the Trust shall execute,
and the Property Trustee shall authenticate and deliver, the Preferred
Securities which the Holder making the exchange is entitled to receive.
(d) The Administrative Trustees shall provide for the
registration of Securities and of transfers of Securities, which will be
effected without charge but only upon payment (with such indemnity as the
Administrative Trustees may require) in respect of any tax or other governmental
charges that may be imposed in relation to it. Upon surrender for registration
of transfer of any Securities, the Administrative Trustees shall cause one or
more new Securities to be issued in the name of the designated transferee or
transferees. Every Security surrendered for registration of transfer shall be
accompanied by a written instrument of transfer in form satisfactory to the
Administrative Trustees duly executed by the Holder or such Holder's attorney
duly authorized in writing. Each Security surrendered for registration of
transfer shall be canceled in accordance with Section 7.09. A transferee of a
Security shall be entitled to the rights and subject to the obligations of a
Holder hereunder upon the receipt by such transferee of a Security. By
acceptance of a Security, each transferee shall be deemed to have agreed to be
bound by this Declaration.
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(e) The Trust shall not be required (i) to issue, register the
transfer of, or exchange, Preferred Securities during a period beginning at the
opening of business 15 days before the day of any selection of Preferred
Securities for redemption set forth in the terms of the Securities as set forth
in Annex I hereto and ending at the close of business on the day of selection,
or (ii) to register the transfer or exchange of any Preferred Security so
selected for redemption in whole or in part, except the unredeemed portion of
any Preferred Security being redeemed in part.
(f) All Preferred Securities issued upon any transfer or
exchange pursuant to the terms of this Declaration shall evidence the same
security and shall be entitled to the same benefits under this Declaration as
the Preferred Securities surrendered upon such transfer or exchange.
SECTION 9.02. TRANSFER PROCEDURES AND RESTRICTIONS. (a) The
transfer and exchange of Global Preferred Securities or beneficial interests
therein shall be effected through the Clearing Agency, in accordance with this
Declaration (including applicable restrictions on transfer set forth herein, if
any) and the procedures of the Clearing Agency therefor.
(b) Notwithstanding any other provisions of this Declaration
(other than the provisions set forth in this Section 9.02, Section 7.10 and
Section 9.01, a Global Preferred Security may not be transferred as a whole
except by the Clearing Agency to a nominee of the Clearing Agency or another
nominee of the Clearing Agency or by the Clearing Agency or any such nominee to
a successor Clearing Agency or a nominee of such successor Clearing Agency.
(c) At such time as all beneficial interests in a Global
Preferred Security have been exchanged for Definitive Preferred Securities to
the extent permitted by this Declaration or canceled in accordance with the
terms of this Declaration, such Global Preferred Security shall be canceled by
the Property Trustee. At any time prior to such cancelation, if any beneficial
interest in a Global Preferred Security is exchanged for Definitive Preferred
Securities, Preferred Securities represented by such Global Preferred Security
shall be reduced and an adjustment shall be made on the books and records of the
Clearing Agency and the Registrar, to reflect such reduction.
(d) The Property Trustee shall have no responsibility or
obligation to any beneficial owner of a Preferred Security, a Participant in the
Depositary or other Person with respect to the accuracy of the records of the
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Depositary or its nominee or of any Participant thereof, with respect to any
ownership interest in the Preferred Securities or with respect to the delivery
to any Participant, beneficial owner or other Person (other than the Depositary)
of any notice (including any notice of redemption) or the payment of any amount,
under or with respect to such Preferred Securities. All notices and
communications to be given to the Holders and all payments to be made to Holders
under the Preferred Securities shall be given or made only to or upon the order
of the registered Holders (which shall be the Depositary or its nominee in the
case of a Global Preferred Security). The rights of beneficial owners in any
Global Preferred Security shall be exercised only through the Depositary subject
to the applicable rules and procedures of the Depositary. The Property Trustee
may conclusively rely and shall be fully protected in relying upon information
furnished by the Depositary or agent thereof with respect to its Participants
and any beneficial owners.
SECTION 9.03. DEEMED SECURITY HOLDERS. The Trustees may treat
the Person in whose name any Certificate shall be registered on the books and
records of the Trust as the sole holder of such Certificate and of the
Securities represented by such Certificate for purposes of receiving
Distributions and for all other purposes whatsoever and, accordingly, shall not
be bound to recognize any equitable or other claim to or interest in such
Certificate or in the Securities represented by such Certificate on the part of
any Person, whether or not the Trust, the Property Trustee, the Registrar or a
co-registrar shall have actual or other notice thereof.
SECTION 9.04. NOTICES TO CLEARING AGENCY. Whenever a notice or
other communication to the Preferred Security Holders is required under this
Declaration, the Administrative Trustees shall, in the case of any Global
Preferred Security, give all such notices and communications specified herein to
be given to the Preferred Security Holders to the Depositary, and shall have no
notice obligations to the Preferred Security Beneficial Owners.
SECTION 9.05. APPOINTMENT OF SUCCESSOR CLEARING AGENCY. If the
Depository elects to discontinue its services as securities depositary with
respect to the Preferred Securities, the Administrative Trustees may, in their
sole discretion, appoint a successor Clearing Agency with respect to such
Preferred Securities.
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ARTICLE X
LIMITATION OF LIABILITY OF
HOLDERS OF SECURITIES, TRUSTEES OR OTHERS
SECTION 10.01. LIABILITY. (a) Except as expressly set forth in
this Declaration, the Securities Guarantees and the terms of the Securities the
Sponsor shall not be:
(i) personally liable for the return of any portion of the
capital contributions (or any return thereon) of the Holders of the
Securities which shall be made solely from assets of the Trust; or
(ii) required to pay to the Trust or to any Holder of
Securities any deficit upon dissolution of the Trust or otherwise.
(b) The Holder of the Common Securities shall be liable for
all of the debts and obligations of the Trust (other than with respect to the
Securities) to the extent not satisfied out of the Trust's assets.
(c) Pursuant to ss. 3803(a) of the Business Trust Act, the
Holders of the Preferred Securities shall be entitled to the same limitation of
personal liability extended to stockholders of private corporations for profit
organized under the General Corporation Law of the State of Delaware.
SECTION 10.02. EXCULPATION. (a) No Indemnified Person shall be
liable, responsible or accountable in damages or otherwise to the Trust or any
Covered Person for any loss, damage or claim incurred by reason of any act or
omission performed or omitted by such Indemnified Person in good faith on behalf
of the Trust and in a manner such Indemnified Person reasonably believed to be
within the scope of the authority conferred on such Indemnified Person by this
Declaration or by law, except that an Indemnified Person shall be liable for any
such loss, damage or claim incurred by reason of such Indemnified Person's gross
negligence (or, in the case of the Property Trustee, negligence) or willful
misconduct with respect to such acts or omissions.
(b) An Indemnified Person shall be fully protected in relying
in good faith upon the records of the Trust and upon such information, opinions,
reports or statements presented to the Trust by any Person as to matters the
Indemnified Person reasonably believes are within such other Person's
professional or expert competence and who has been selected with reasonable care
by or on behalf of the Trust, including information, opinions, reports or
statements as to
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the value and amount of the assets, liabilities, profits, losses, or any other
facts pertinent to the existence and amount of assets from which Distributions
to Holders of Securities might properly be paid.
SECTION 10.03. FIDUCIARY DUTY. (a) To the extent that, at law
or in equity, an Indemnified Person has duties (including fiduciary duties) and
liabilities relating thereto to the Trust or to any other Covered Person, an
Indemnified Person acting under this Declaration shall not be liable to the
Trust or to any other Covered Person for its good faith reliance on the
provisions of this Declaration. The provisions of this Declaration, to the
extent that they restrict the duties and liabilities of an Indemnified Person
otherwise existing at law or in equity (other than the duties imposed on the
Property Trustee under the Trust Indenture Act), are agreed by the parties
hereto to replace such other duties and liabilities of such Indemnified Person.
(b) Unless otherwise expressly provided herein:
(i) whenever a conflict of interest exists or arises
between an Indemnified Person and any Covered Person; or
(ii) whenever this Declaration or any other agreement
contemplated herein or therein provides that an Indemnified Person
shall act in a manner that is, or provides terms that are, fair and
reasonable to the Trust or any Holder of Securities,
the Indemnified Person shall resolve such conflict of interest, take such action
or provide such terms, considering in each case the relative interest of each
party (including its own interest) to such conflict, agreement, transaction or
situation and the benefits and burdens relating to such interests, any customary
or accepted industry practices, and any applicable generally accepted accounting
practices or principles. In the absence of bad faith by the Indemnified Person,
the resolution, action or term so made, taken or provided by the Indemnified
Person shall not constitute a breach of this Declaration or any other agreement
contemplated herein or of any duty or obligation of the Indemnified Person at
law or in equity or otherwise.
(c) Whenever in this Declaration an Indemnified
Person is permitted or required to make a decision
(i) in its "discretion" or under a grant of similar authority,
the Indemnified Person shall be entitled to consider such interests and
factors as it desires, including its own interests, and shall have no
duty or
<PAGE> 59
53
obligation to give any consideration to any interest of
or factors affecting the Trust or any other Person; or
(ii) in its "good faith" or under another express standard,
the Indemnified Person shall act under such express standard and shall
not be subject to any other or different standard imposed by this
Declaration or by applicable law.
SECTION 10.04. INDEMNIFICATION. (a) To the fullest extent
permitted by applicable law, the Debenture Issuer shall indemnify and hold
harmless each Indemnified Person from and against any loss, damage, liability,
tax, penalty, expense or claim of any kind or nature whatsoever incurred by such
Indemnified Person by reason of the creation, operation or termination of the
Trust or any act or omission performed or omitted by such Indemnified Person in
good faith on behalf of the Trust and in a manner such Indemnified Person
reasonably believed to be within the scope of authority conferred on such
Indemnified Person by this Declaration, except that no Indemnified Person shall
be entitled to be indemnified in respect of any loss, damage or claim incurred
by such Indemnified Person by reason of gross negligence (or, in the case of the
Property Trustee, negligence) or willful misconduct with respect to such acts or
omissions.
(b) To the fullest extent permitted by applicable law,
expenses (including legal fees and expenses) incurred by an Indemnified Person
in defending any claim, demand, action, suit or proceeding shall, from time to
time, be advanced by the Debenture Issuer prior to the final disposition of such
claim, demand, action, suit or proceeding upon receipt by the Debenture Issuer
of an undertaking by or on behalf of the Indemnified Person to repay such amount
if it shall be determined that the Indemnified Person is not entitled to be
indemnified as authorized in Section 10.4(a). The indemnification shall survive
the termination of this Declaration.
SECTION 10.05. OUTSIDE BUSINESSES. Any Covered Person, the
Sponsor, the Delaware Trustee and the Property Trustee may engage in or possess
an interest in other business ventures of any nature or description,
independently or with others, similar or dissimilar to the business of the
Trust, and the Trust and the Holders of Securities shall have no rights by
virtue of this Declaration in and to such independent ventures or the income or
profits derived therefrom and the pursuit of any such venture, even if
competitive with the business of the Trust, shall not be deemed wrongful or
improper. None of the Sponsor, any Covered Person, the Delaware Trustee, or the
Property Trustee shall be
<PAGE> 60
54
obligated to present any particular investment or other opportunity to the Trust
even if such opportunity is of a character that, if presented to the Trust,
could be taken by the Trust, and any Covered Person, the Sponsor, the Delaware
Trustee and the Property Trustee shall have the right to take for its own
account (individually or as a partner or fiduciary) or to recommend to others
any such particular investment or other opportunity. Any Covered Person, the
Delaware Trustee and the Property Trustee may engage or be interested in any
financial or other transaction with the Sponsor or any Affiliate of the Sponsor,
or may act as depositary for, trustee or agent for, or act on any committee or
body of holders of, securities or other obligations of the Sponsor or its
Affiliates.
ARTICLE XI
ACCOUNTING
SECTION 11.01. FISCAL YEAR. The fiscal year ("FISCAL YEAR") of
the Trust shall be the calendar year, or such other year as is required by the
Code.
SECTION 11.02. CERTAIN ACCOUNTING MATTERS. (a) At all times
during the existence of the Trust, the Administrative Trustees shall keep, or
cause to be kept, full books of account, records and supporting documents, which
shall reflect in reasonable detail, each transaction of the Trust. The books of
account shall be maintained on the accrual method of accounting, in accordance
with generally accepted accounting principles, consistently applied. The Trust
shall use the accrual method of accounting for United States federal income tax
purposes. The books of account and the records of the Trust shall be examined by
and reported upon as of the end of each Fiscal Year by a firm of independent
certified public accountants selected by the Administrative Trustees.
(b) The Administrative Trustees shall cause to be prepared and
delivered to each of the Holders of Securities, within 90 days after the end of
each Fiscal Year of the Trust, annual financial statements of the Trust,
including a balance sheet of the Trust as of the end of such Fiscal Year, and
the related statements of income or loss;
(c) The Administrative Trustees shall cause to be duly
prepared and delivered to each of the Holders of Securities, any annual United
States federal income tax information statement, required by the Code,
containing such information with regard to the Securities held by each Holder
<PAGE> 61
55
as is required by the Code and the Treasury Regulations. Notwithstanding any
right under the Code to deliver any such statement at a later date, the
Administrative Trustees shall endeavor to deliver all such statements within 30
days after the end of each Fiscal Year of the Trust.
(d) The Administrative Trustees shall cause to be duly
prepared and filed with the appropriate taxing authority, an annual United
States federal income tax return, on a Form 1041 or such other form required by
United States federal income tax law, and any other annual income tax returns
required to be filed by the Administrative Trustees on behalf of the Trust with
any state or local taxing authority.
SECTION 11.03. BANKING. The Trust shall maintain one or more
bank accounts in the name and for the sole benefit of the Trust; PROVIDED,
HOWEVER, that all payments of funds in respect of the Debentures held by the
Property Trustee shall be made directly to the Property Trustee Account and no
other funds of the Trust shall be deposited in the Property Trustee Account. The
sole signatories for such accounts shall be designated by the Administrative
Trustees; PROVIDED, HOWEVER, that the Property Trustee shall designate the
signatories for the Property Trustee Account.
SECTION 11.04. WITHHOLDING. The Trust and the Administrative
Trustees shall comply with all withholding requirements under United States
federal, state and local law. The Trust shall request, and the Holders shall
provide to the Trust, such forms or certificates as are necessary to establish
an exemption from withholding with respect to each Holder, and any
representations and forms as shall reasonably be requested by the Trust to
assist it in determining the extent of, and in fulfilling, its withholding
obligations. The Administrative Trustee shall file required forms with
applicable jurisdictions and, unless an exemption from withholding is properly
established by a Holder, shall remit amounts withheld with respect to the Holder
to applicable jurisdictions. To the extent that the Trust is required to
withhold and pay over any amounts to any authority with respect to distributions
or allocations to any Holder, the amount withheld shall be deemed to be a
distribution in the amount of the withholding to the Holder. In the event of any
claimed overwithholding, Holders shall be limited to an action against the
applicable jurisdiction. If the amount required to be withheld was not withheld
from actual Distributions made, the Trust may reduce subsequent Distributions by
the amount of such withholding.
<PAGE> 62
56
ARTICLE XII
AMENDMENTS AND MEETINGS
SECTION 12.01. AMENDMENTS. (a) This Declaration may be amended
from time to time by the Sponsor, the Property Trustee and the Administrative
Trustees, without the consent of the Holders of the Securities, (i) to cure any
ambiguity, correct or supplement any provision in the Declaration that may be
inconsistent with any other provision, or to make any other provisions with
respect to ministerial matters or questions arising under the Declaration, which
shall not be inconsistent with the other provisions of the Declaration, or (ii)
to modify, eliminate or add to any provisions of the Declaration to such extent
as shall be necessary to ensure that the Trust will not be taxable as a
corporation or will be classified for United States federal income tax purposes
as a grantor trust at all times that any Securities are outstanding or to ensure
that the Trust will not be required to register as an "investment company" under
the Investment Company Act; PROVIDED, HOWEVER, that in the case of clause (i),
such action shall not adversely affect in any material respect the interests of
any Holder of Securities, and any amendments of the Declaration shall become
effective when notice thereof is given to the Holders of the Securities.
(b) Except as provided in (c) below, this 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.
(c) Without the consent of each holder of Securities, 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.
SECTION 12.02. MEETINGS OF THE HOLDERS OF SECURITIES; ACTION
BY WRITTEN CONSENT. (a) Meetings of the Holders of any class of Securities may
be called at any time by the Administrative Trustees (or as provided in the
terms of
<PAGE> 63
57
the Securities) to consider and act on any matter on which Holders of such class
of Securities are entitled to act under the terms of this Declaration, the terms
of the Securities or the rules of any stock exchange on which the Preferred
Securities are listed or admitted for trading. The Administrative Trustees shall
call a meeting of the Holders of such class if directed to do so by the Holders
of at least 25% in liquidation amount of such class of Securities. Such
direction shall be given by delivering to the Administrative Trustees one or
more requests in a writing stating that the signing Holders of Securities wish
to call a meeting and indicating the general or specific purpose for which the
meeting is to be called. Any Holders of Securities calling a meeting shall
specify in writing the Certificates held by the Holders of Securities exercising
the right to call a meeting and only those Securities represented by the
Certificates so specified shall be counted for purposes of determining whether
the required percentage set forth in the second sentence of this paragraph has
been met.
(b) Except to the extent otherwise provided in the terms of
the Securities, the following provisions shall apply to meetings of Holders of
Securities:
(i) notice of any such meeting shall be given to all the
Holders of Securities having a right to vote thereat at least 7 days
and not more than 60 days before the date of such meeting. Whenever a
vote, consent or approval of the Holders of Securities is permitted or
required under this Declaration or the rules of any stock exchange on
which the Preferred Securities are listed or admitted for trading, such
vote, consent or approval may be given at a meeting of the Holders of
Securities. Any action that may be taken at a meeting of the Holders of
Securities may be taken without a meeting if a consent in writing
setting forth the action so taken is signed by the Holders of
Securities owning not less than the minimum aggregate liquidation
amount of Securities that would be necessary to authorize or take such
action at a meeting at which all Holders of Securities having a right
to vote thereon were present and voting. Prompt notice of the taking of
action without a meeting shall be given to the Holders of Securities
entitled to vote who have not consented in writing. The Administrative
Trustees may specify that any written ballot submitted to the Holders
for the purpose of taking any action without a meeting shall be
returned to the Trust within the time specified by the Administrative
Trustees;
(ii) each Holder of a Security may authorize any Person to
act for it by proxy on all matters in which a
<PAGE> 64
58
Holder of Securities is entitled to participate, including waiving
notice of any meeting, or voting or participating at a meeting. No
proxy shall be valid after the expiration of 11 months from the date
thereof unless otherwise provided in the proxy. Every proxy shall be
revocable at the pleasure of the Holder of Securities executing it.
Except as otherwise provided herein, all matters relating to the
giving, voting or validity of proxies shall be governed by the General
Corporation Law of the State of Delaware relating to proxies, and
judicial interpretations thereunder, as if the Trust were a Delaware
corporation and the Holders of the Securities were stockholders of a
Delaware corporation;
(iii) each meeting of the Holders of the Securities shall be
conducted by the Administrative Trustees or by such other Person that
the Administrative Trustees may designate; and
(iv) unless the Business Trust Act, this Declaration, the
terms of the Securities, the Trust Indenture Act or the listing rules
of any stock exchange on which the Preferred Securities are then listed
or trading, provide otherwise, the Administrative Trustees, in their
sole discretion, shall establish all other provisions relating to
meetings of Holders of Securities, including notice of the time, place
or purpose of any meeting at which any matter is to be voted on by any
Holders of Securities, waiver of any such notice, action by consent
without a meeting, the establishment of a record date, quorum
requirements, voting in person or by proxy or any other matter with
respect to the exercise of any such right to vote.
ARTICLE XIII
REPRESENTATIONS OF PROPERTY TRUSTEE AND DELAWARE TRUSTEE
SECTION 13.01. REPRESENTATIONS AND WARRANTIES OF PROPERTY
TRUSTEE. The Trustee that acts as initial Property Trustee represents and
warrants to the Trust and to the Sponsor at the date of this Declaration, at the
Closing Date, if any, and each Successor Property Trustee represents and
warrants to the Trust and the Sponsor at the time of the Successor Property
Trustee's acceptance of its appointment as Property Trustee that:
(a) The Property Trustee is a banking corporation with trust
powers, duly organized, validly existing and in
<PAGE> 65
59
good standing under the laws of the jurisdiction of its organization, with
corporate power and authority to execute and deliver, and to carry out and
perform its obligations under the terms of, the Declaration.
(b) The execution, delivery and performance by the Property
Trustee of the Declaration has been duly authorized by all necessary corporate
action on the part of the Property Trustee. The Declaration has been duly
executed and delivered by the Property Trustee, and constitutes a legal, valid
and binding obligation of the Property Trustee, enforceable against it in
accordance with its terms, subject to applicable bankruptcy, reorganization,
moratorium, insolvency, and other similar laws affecting creditors' rights
generally and to general principles of equity and the discretion of the court
(regardless of whether the enforcement of such remedies is considered in a
proceeding in equity or at law).
(c) The execution, delivery and performance of the Declaration
by the Property Trustee does not conflict with or constitute a breach of the
certificate of incorporation or by-laws of the Property Trustee.
(d) No consent, approval or authorization of, or registration
with or notice to, any New York or Federal banking authority is required for the
execution, delivery or performance by the Property Trustee, of the Declaration.
SECTION 13.02. REPRESENTATIONS AND WARRANTIES OF DELAWARE
TRUSTEE. The Trustee that acts as initial Delaware Trustee represents and
warrants to the Trust and to the Sponsor at the date of this Declaration, at the
Closing Date, if any, and each Successor Delaware Trustee represents and
warrants to the Trust and the Sponsor at the time of the Successor Property
Trustee's acceptance of its appointment as Delaware Trustee that:
(a) The Delaware Trustee is a banking corporation with trust
powers, duly organized, validly existing and in good standing under the laws of
the United States with its principal place of business in the State of Delaware,
with corporate power and authority to execute and deliver, and to carry out and
perform its obligations under the terms of, the Declaration.
(b) The execution, delivery and performance by the Delaware
Trustee of the Declaration has been duly authorized by all necessary corporate
action on the part of the Delaware Trustee. The Declaration has been duly
executed and delivered by the Delaware Trustee, and constitutes a legal, valid
and binding obligation of the Delaware Trustee, enforceable
<PAGE> 66
60
against it in accordance with its terms, subject to applicable bankruptcy,
reorganization, moratorium, insolvency, and other similar laws affecting
creditors' rights generally and to general principles of equity and the
discretion of the court (regardless of whether the enforcement of such remedies
is considered in a proceeding in equity or at law).
(c) The execution, delivery and performance of the Declaration
by the Delaware Trustee does not conflict with or constitute a breach of the
articles of association or by-laws of the Delaware Trustee.
(d) No consent, approval or authorization of, or registration
with or notice to, any Delaware or Federal banking authority is required for the
execution, delivery or performance by the Delaware Trustee, of the Declaration,
other than the filing of the Certificate of Trust.
(e) The Delaware Trustee is an entity which has its principal
place of business in the State of Delaware.
(f) The Delaware Trustee has been authorized to perform its
obligations under the Certificate of Trust and the Declaration.
ARTICLE XIV
MISCELLANEOUS
SECTION 14.01. NOTICES. All notices provided for in this
Declaration shall be in writing, duly signed by the party giving such notice,
and shall be delivered, telecopied or mailed by registered or certified mail, as
follows:
(a) if given to the Trust, in care of the Administrative
Trustees at the Trust's mailing address set forth below (or such other address
as the Trust may give notice of to the Holders of the Securities):
c/o Chemed Corporation
2600 Chemed Center
255 East Fifth Street
Cincinnati, Ohio 45202-4726
Attention: Chief Financial Officer
<PAGE> 67
61
(b) if given to the Property Trustee, at the mailing address
set forth below (or such other address as the Property Trustee may give notice
of to the Holders of the Securities):
Firstar Bank, National Association
Corporate Trust Services
Sixth Floor (for overnight or hand delivery)
Mail Location CN-WNO6CT
425 Walnut Street
Cincinnati, Ohio 45202
Attention: Corporate Trust Administration
(c) if given to the Delaware Trustee, at the mailing address
set forth below (or such other address as the Delaware Trustee may give notice
of to the Holders of the Securities):
First Union Trust Company, National Association
One Rodney Square
920 King Street, 1st Floor
Wilmington, Delaware 19801
Attention: Corporate Trust Administration
(d) if given to the Holder of the Common Securities, at the
mailing address of the Sponsor set forth below (or such other address as the
Holder of the Common Securities may give notice to the Trust):
c/o Chemed Corporation
2600 Chemed Center
255 East Fifth Street
Cincinnati, Ohio 45202-4726
Attention: Chief Financial Officer
(e) if given to any other Holder, at the address set forth on
the books and records of the Trust or the Registrar, as applicable.
All such notices shall be deemed to have been given when
received in person, telecopied with receipt confirmed, or mailed by first class
mail, postage prepaid except that if a notice or other document is refused
delivery or cannot be delivered because of a changed address of which no notice
was given, such notice or other document shall be deemed to have been delivered
on the date of such refusal or inability to deliver.
SECTION 14.02. GOVERNING LAW. This Declaration and the rights
of the parties hereunder shall be governed by and interpreted in accordance with
the laws of the State of Delaware and all rights and remedies shall be governed
by such laws without regard to principles of conflict of laws. The
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62
parties hereto hereby irrevocably and unconditionally consent to submit to the
exclusive jurisdiction of the courts of the State of Delaware and of the United
States District Courts located in Delaware for any lawsuits, claims or other
proceedings arising out of or relating to this Agreement and agree not to
commence any such lawsuit, claim or other proceeding except in such courts. The
parties hereto hereby irrevocably and unconditionally waive any object to the
laying of venue of any lawsuit, claim, or other proceeding arising out of or
relating to this Agreement in the courts of the State of Delaware or the United
States District Courts Located in the City of Wilmington, and hereby further
irrevocably and unconditionally waive and agree not to plead or claim in any
such court that any such lawsuit, claim or other proceeding brought in any such
court has been brought in an inconvenient forum. Sections 3540 and 3561 of Title
12 of the Delaware Code shall not apply to the Trust.
SECTION 14.03. INTENTION OF THE PARTIES. It is the intention
of the parties hereto that the Trust be classified for United States federal
income tax purposes as a grantor trust. The provisions of this Declaration shall
be interpreted to further this intention of the parties.
SECTION 14.04. HEADINGS. Headings contained in this
Declaration are inserted for convenience of reference only and do not affect the
interpretation of this Declaration or any provision hereof.
SECTION 14.05. SUCCESSORS AND ASSIGNS. Whenever in this
Declaration any of the parties hereto is named or referred to, the successors
and assigns of such party shall be deemed to be included, and all covenants and
agreements in this Declaration by the Sponsor and the Trustees shall bind and
inure to the benefit of their respective successors and assigns, whether so
expressed.
SECTION 14.06. PARTIAL ENFORCEABILITY. If any provision of
this Declaration, or the application of such provision to any Person or
circumstance, shall be held invalid, the remainder of this Declaration, or the
application of such provision to persons or circumstances other than those to
which it is held invalid, shall not be affected thereby.
SECTION 14.07. COUNTERPARTS. This Declaration may contain
more than one counterpart of the signature page and this Declaration may be
executed by the affixing of the signature of each of the Trustees to one of
such counterpart
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63
signature pages. All of such counterpart signature pages shall be read as though
one, and they shall have the same force and effect as though all of the signers
had signed a single signature page.
<PAGE> 70
64
IN WITNESS WHEREOF, the undersigned have caused these presents
to be executed as of the day and year first above written.
KEVIN J. MCNAMARA, as Trustee
by
----------------------------------
Name: Kevin J. McNamara
Title: Administrative Trustee
TIMOTHY S. O'TOOLE, as Trustee
by
----------------------------------
Name: Timothy S. O'Toole
Title: Administrative Trustee
SANDRA E. LANEY, as Trustee
by
----------------------------------
Name: Sandra E. Laney
Title: Administrative Trustee
FIRST UNION TRUST COMPANY, NATIONAL
ASSOCIATION, as Delaware Trustee
by
----------------------------------
Name:
Title:
FIRSTAR BANK, NATIONAL ASSOCIATION, as
Property Trustee
by
----------------------------------
Name:
Title:
CHEMED CORPORATION, as Sponsor
by
----------------------------------
Name: Kevin J. McNamara
Title: President
<PAGE> 71
Annex I
TERMS OF
CONVERTIBLE PREFERRED TRUST SECURITIES
CONVERTIBLE COMMON SECURITIES
Pursuant to Section 7.01 of the Amended and Restated
Declaration of Trust, dated as of February 7, 2000 (as amended from time to
time, the "Declaration"), the designation, rights, privileges, restrictions,
preferences and other terms and provisions of the Preferred Securities and the
Common Securities are set out below (each capitalized term used but not defined
herein has the meaning set forth in the Declaration or the Indenture (as defined
in the Declaration) or, if not defined in the Declaration or Indenture, as
defined in the Offering Circular (as defined in the Declaration):
1. DESIGNATION AND NUMBER.
(a) "Preferred Securities." up to 2,000,000 Preferred
Securities of the Trust with an aggregate
liquidation preference with respect to the assets of
the Trust of up to Fifty-four million Dollars
($54,000,000), and a liquidation amount with respect
to the assets of the Trust of $27 per Preferred
Security, are hereby designated for the purposes of
identification only as "Convertible Preferred Trust
Securities" (the "Preferred Securities"). The
Preferred Security Certificates evidencing the
Preferred Securities shall be substantially in the
form attached hereto as Exhibit A-1 or in such form
as is reasonably acceptable to the Administrative
Trustees, as evidenced by their execution thereof,
with such changes and additions thereto or deletions
therefrom as may be required by ordinary usage,
custom or practice or to conform to the rules of any
stock exchange or other organization on which the
Preferred Securities are listed.
(b) "Common Securities." up to 61,856 Common Securities
of the Trust with an aggregate liquidation amount
with respect to the assets of the Trust of up to one
million six hundred seventy thousand one hundred
twelve Dollars ($1,670,112) and a liquidation amount
with respect to the assets of the Trust of $27 per
Common Security, are hereby designated for the
purposes of identification only as "Convertible
Common Securities" (the "Common Securities"). The
Common Security Certificates evidencing the Common
Securities shall be substantially in the form
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2
attached hereto as Exhibit A-2, with such changes and
additions thereto or deletions therefrom as may be required by
ordinary usage, custom or practice.
2. DISTRIBUTIONS.
(a) Distributions payable on each Security will be fixed
at a rate per annum of $2.00 for each Preferred
Security (the "Coupon Rate"), such rate being the
rate of interest payable on the Debentures to be
held by the Property Trustee. Distributions in
arrears for more than one quarter will bear interest
thereon compounded quarterly at the Coupon Rate (to
the extent permitted by applicable law). The term
"Distributions" as used herein includes such
quarterly distributions, additional distributions on
quarterly distributions not paid on the applicable
Distribution Date, Special Distributions and
Additional Sums, as applicable. A Distribution is
payable only to the extent that payments are made in
respect of the Debentures held by the Property
Trustee and to the extent the Property Trustee has
funds available therefor. Except for the
Distribution payable on March 15, 2000, the amount
of Distributions payable for any period will be
computed for any full quarterly Distribution period
on the basis of a 360-day year of twelve 30-day
months, and for any period shorter than a full
quarterly Distribution period for which
Distributions are computed, Distributions will be
computed on the basis of the actual number of days
elapsed per 30-day month.
(b) Distributions on the Securities will be cumulative,
will accrue from the date of their original issuance
and will be payable quarterly in arrears, on the
following dates, which dates correspond to the
interest payment dates on the Debentures: March 15,
June 15, September 15 and December 15 of each year,
commencing on March 15, 2000, except as otherwise
described below. The Sponsor has the right under the
Indenture to defer payments of interest after March
15, 2000, by extending the interest payment period
from time to time on the Debentures for a period not
exceeding 20 consecutive quarters (each a "Deferral
Period") and, as a consequence of such deferral,
Distributions will also be deferred. Despite such
deferral, quarterly Distributions will continue to
accrue with interest thereon (to the extent
permitted by applicable law) at the Coupon Rate
compounded quarterly during any such Deferral
<PAGE> 73
3
Period. Prior to three Business Days before a Regular Record
Date fixed for a Payment Resumption Date (as defined in the
Indenture), the Sponsor may further extend such Deferral
Period; PROVIDED that such Deferral Period together with all
such previous and further extensions thereof may not exceed 20
consecutive quarters or extend beyond the maturity (whether at
the stated maturity or by declaration of acceleration, call
for redemption or otherwise) of the Debentures under the
Indenture. Payments of accrued Distributions will be payable
to Holders as they appear on the books and records of the
Trust on the Regular Record Date for the relevant Payment
Resumption Date. Upon the termination of any Deferral Period
and the payment of all amounts then due, the Sponsor may
commence a new Deferral Period, subject to the above
requirements.
(c) Distributions on the Securities will be payable to
the Holders thereof as they appear on the books and
records of the Trust at the close of business on the
relevant record dates. The relevant record dates
shall be on the first day of the month of the
relevant payment dates, except as otherwise
described in this Annex I to the Declaration.
Subject to any applicable laws and regulations and
the provisions of the Declaration, each such payment
in respect of Preferred Securities being held in
book-entry form through The Depository Trust Company
(the "Depositary") will be made as described under
the heading "Description of the Preferred Securities
-- Form, Book-Entry Procedures and Transfer" in the
Offering Circular. The relevant record dates for
the Common Securities shall be the same record dates
as for the Preferred Securities. Distributions
payable on any Securities that are not punctually
paid on any Distribution payment date, as a result
of the Sponsor having failed to make a payment under
the Debentures, will cease to be payable to the
Person in whose name such Securities are registered
on the relevant record date, and such defaulted
Distribution will instead be payable to the Person
in whose name such Securities are registered on the
special record date or other specified date
determined in accordance with the Indenture. If any
date on which Distributions are payable on the
Securities is not a Business Day, then payment of
the Distribution payable on such date will be made
on the next succeeding day that is a Business Day
(and without any interest or other payment in
respect of any such delay) except that, with respect
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4
to any Redemption Date, if such Business Day is in the next
succeeding calendar year, such Redemption Date shall be the
immediately preceding Business Day, in each case with the same
force and effect as if made on such date.
(d) In the event of an election by the Holder to convert its
Securities through the Conversion Agent into Parent Stock
pursuant to the terms of the Securities as forth in this Annex
I to the Declaration, no payment, allowance or adjustment
shall be made with respect to accumulated and unpaid
Distributions on such Securities, or be required to be made;
PROVIDED that Holders of Securities at the close of business
on any record date for the payment of Distributions will be
entitled to receive the Distributions payable on such
Securities on the corresponding payment date notwithstanding
the conversion of such Securities into Parent Stock following
such record date.
(e) In the event that there is any money or other property held by
or for the Trust that is not accounted for hereunder, such
property shall be distributed Pro Rata (as defined herein)
among the Holders of the Securities.
3. LIQUIDATION DISTRIBUTION UPON DISSOLUTION.
In the event of any voluntary or involuntary dissolution,
winding-up or termination of the Trust, the Trust shall be liquidated by the
Trustees as expeditiously as the Trustees determine to be possible by
distributing, after satisfaction of liabilities to creditors of the Trust as
provided by applicable law, to the Holders of the Securities a Like Amount of
Debentures, unless such distribution would not be practical, in which event such
Holders will be entitled to receive out of the assets of the Trust available for
distribution to holders, after satisfaction of liabilities to creditors of the
Trust as provided by applicable law, an amount equal to, in the case of holders
of Preferred Securities, the aggregate liquidation amount thereof plus accrued
and unpaid Distributions thereon to the date of payment (such amount being the
"Liquidation Distribution"). If such Liquidation Distribution can be paid only
in part because the Trust has insufficient assets available to pay in full the
aggregate Liquidation Distribution, then the amounts payable directly by the
Trust on the Preferred Securities shall be paid on a Pro Rata (as defined below)
basis in accordance with paragraph 9. The Holder of the Common Securities will
be entitled to receive distributions upon any
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5
such liquidation Pro Rata with the holders of the Preferred Securities, except
as provided in paragraph 10.
4. REDEMPTION AND DISTRIBUTION.
(a) Upon the repayment or payment of the Debentures in
whole or in part, whether at maturity or upon
redemption or otherwise (other than following any
distribution of the Debentures to the Holders), the
proceeds from such repayment or redemption shall be
simultaneously applied to redeem, on a Pro Rata
basis, a Like Amount of Securities, on the
redemption date, in an amount per Security equal to
the applicable redemption price, which redemption
price will be equal to (i) the liquidation amount of
each of the Securities plus any accrued and unpaid
Distributions thereon (A) in the case of the
repayment of the Debentures at stated maturity, or
(B) in the case of a redemption of the Debentures in
certain limited circumstances set forth in the
Indenture upon the occurrence of a Tax Event or
(ii) in the case of an Optional Redemption on or
after March 15, 2003, the Optional Redemption Price
(as defined in the Indenture), payable in cash (as
applicable, the "Redemption Price"). Holders will
be given not less than 30 (or, in the case of a
redemption pursuant to subparagraph (d) below, 20)
nor more than 60 days' notice of such redemption.
Upon the repayment of the Debentures at maturity or
upon any acceleration, earlier redemption or
otherwise, the proceeds from such repayment will be
applied to redeem the Securities, in whole, upon not
less than 30 nor more than 60 days' notice.
(b) If fewer than all the outstanding Securities are to be so
redeemed, the Common Securities and the Preferred Securities
will be redeemed Pro Rata and the Preferred Securities to be
redeemed will be as described in Paragraph 4(f)(ii) below.
(c) The Sponsor, as the Holder of the outstanding Common
Securities, shall have the right at any time
(including, without limitation, upon the occurrence
of a Tax Event or Investment Company Act Event) to
terminate the Trust and, after satisfaction of the
creditors of the Trust, cause a Like Amount of the
Debentures to be distributed to the holders of the
Securities upon liquidation of the Trust, PROVIDED
that the Administrative Trustees shall have received a No
Recognition Opinion (as defined below) prior to the
liquidation of the Trust; and PROVIDED FURTHER
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6
that, following such distribution of the Debentures, the
Sponsor shall use its best efforts to maintain a rating of
such Debentures by any nationally recognized rating agency for
so long as any such Debentures are outstanding.
(d) If, at any time, a Tax Event shall occur and be
continuing the Sponsor shall cause the
Administrative Trustees to liquidate the Trust and,
after satisfaction of creditors of the Trust, cause
Debentures to be distributed to the Holders of the
Securities in liquidation of the Trust within
90 days following the occurrence of such Tax Event
(the "90 Day Period"); PROVIDED, HOWEVER, that such
liquidation and distribution shall be conditioned on (i) the
Trustees' receipt of an opinion of a nationally recognized
independent tax counsel (reasonably acceptable to the
Trustees) experienced in such matters (a "No Recognition
Opinion"), which opinion may rely on published revenue rulings
of the Internal Revenue Service, to the effect that the
Holders of the Securities will not recognize any income, gain
or loss for United States federal income tax purposes as a
result of such liquidation and distribution of Debentures, and
(ii) the Sponsor being unable to avoid such Tax Event within
the 90 Day Period by taking some ministerial action or
pursuing some other reasonable measure that, in the sole
judgment of the Sponsor, will have no adverse effect on the
Trust, the Sponsor or the Holders of the Securities and will
involve no material cost ("MINISTERIAL ACTION").
If (i) the Sponsor has received an opinion
(a "REDEMPTION TAX OPINION") of a nationally recognized
independent tax counsel (reasonably acceptable to the
Trustees) experienced in such matters that, as a result of a
Tax Event, there is more than an insubstantial risk that the
Sponsor would be precluded from deducting the interest on the
Debentures for United States federal income tax purposes, even
after the Debentures were distributed to the Holders of
Securities upon liquidation of the Trust as described in this
paragraph 4(d), or (ii) the Trustees shall have been informed
by such tax counsel that it cannot deliver a No Recognition
Opinion, the Sponsor shall have the right, upon not less than
20 nor more than 60 days' notice, and within 90 days following
the occurrence of such Tax Event, to redeem the Debentures in
whole (but not in part) for cash, for the principal amount
plus
<PAGE> 77
7
accrued and unpaid interest thereon and, following such
redemption, all the Securities will be redeemed by the Trust
at the liquidation amount of $27 per Security plus accrued and
unpaid Distributions thereon; PROVIDED, HOWEVER, that, if at
the time there is available to the Sponsor or the Trust the
opportunity to eliminate, within the 90 Day Period, the Tax
Event by taking some Ministerial Action, the Trust or the
Sponsor will pursue such Ministerial Action in lieu of
redemption.
In lieu of the foregoing options, the
Sponsor shall also have the option of causing the Securities
to remain outstanding and pay Additional Sums on the
Debentures.
"Tax Event" means that the Property Trustee
shall have received an opinion of a nationally recognized
independent tax counsel to the Sponsor (reasonably acceptable
to the Trustees) experienced in such matters (a "Dissolution
Tax Opinion") to the effect that, as a result of (a) any
amendment to, or change (including any announced prospective
change (which shall not include a proposed change), provided
that a Tax Event shall not occur more than 90 days before the
effective date of any such prospective change) in the laws (or
any regulations thereunder) of the United States or any
political subdivision or taxing authority therefor or therein,
(ii) any judicial decision or official administrative
pronouncement, ruling, regulatory procedure, notice or
announcement, including any notice or announcement of intent
to adopt such procedures or regulations (an "Administrative
Action") or (iii) any amendment to or change in the
administrative position or interpretation of any
Administrative Action or judicial decision that differs from
the theretofore generally accepted position, in each case, by
any legislative body, court, governmental agency or regulatory
body, irrespective of the manner in which such amendment or
change is made known, which amendment or change is effective
or such Administrative Action or decision is announced, in
each case, on or after the date of original issuance of the
Debentures or the issue date of the Preferred Securities
issued by the Trust, there is more than an insubstantial risk
that (a) if the Debentures are held by the Property Trustee,
(I) the Trust is, or will be within 90 days of the date of
such opinion, subject to United States federal income tax with
<PAGE> 78
8
respect to interest accrued or received on the Debentures or
subject to more than a DE MINIMIS amount of other taxes,
duties or other governmental charges as determined by such
counsel, or (II) any portion of interest payable by the
Sponsor to the Trust on the Debentures is not, or within 90
days of the date of such opinion will not be, deductible by
the Sponsor in whole or in part for United States federal
income tax purposes or (b) with respect to Debentures which
are no longer held by the Property Trustee, any portion of
interest payable by the Sponsor on the Debentures is not, or
within 90 days of the date of such opinion will not be,
deductible by the Sponsor in whole or in part for United
States federal income tax purposes.
If an Investment Company Event (as
hereinafter defined) shall occur and be continuing, the
Sponsor shall cause the Trustees to liquidate the Trust and
cause the Debentures to be distributed to the Holders of the
Securities in liquidation of the Trust within 90 days
following the occurrence of such Investment Company Event.
"Investment Company Event" means the
occurrence of a change in law or regulation or a written
change in interpretation or application of law or regulation
by any legislative body, court, governmental agency or
regulatory authority (a "Change in 1940 Act Law"), to the
effect that the Trust is or will be considered an Investment
Company which is required to be registered under the
Investment Company Act, which Change in 1940 Act Law becomes
effective on or after the date of the Offering Circular.
After the date fixed for any distribution of
Debentures: (i) the Securities will no longer be deemed to be
outstanding, (ii) the Depositary or its nominee (or any
successor Depositary or its nominee), as record Holder of
Preferred Securities represented by global certificates, will
receive a registered global certificate or certificates
representing the Debentures to be delivered upon such
distribution and (iii) any certificates representing
Securities, except for certificates representing Preferred
Securities held by the Depositary or its nominee (or any
successor Depositary or its nominee), will be deemed to
represent Debentures having an aggregate principal amount
equal to the aggregate stated liquidation
<PAGE> 79
9
amount of such Securities, with accrued and unpaid interest
equal to accrued and unpaid Distributions on such Securities
until such certificates are presented to the Sponsor or its
agent for transfer or reissuance.
(e) The Securities will not be redeemed unless all accrued and
unpaid Distributions have been paid on all Securities for all
quarterly Distribution periods terminating on or before the
date of redemption.
(f) Redemption or Distribution Procedures.
(i) Notice of any redemption of, or notice of
distribution of Debentures in exchange for the
Securities (a "Redemption/Distribution Notice")
will be given by the Trust by mail to each
Holder of Securities to be redeemed or
exchanged not fewer than 30 (or 20, in the case
of redemption or distribution upon the
occurrence of a Tax Event) nor more than
60 days before the date fixed for redemption or
exchange thereof which, in the case of a
redemption, will be the date fixed for
redemption of the Debentures. For purposes of
the calculation of the date of redemption or
exchange and the dates on which notices are
given pursuant to this paragraph 4(f)(i), a
Redemption/Distribution Notice shall be deemed
to be given on the day such notice is first
mailed by first-class mail, postage prepaid, to
Holders of Securities. Each
Redemption/Distribution Notice shall be
addressed to the Holders of Securities at the
address of each such Holder appearing in the
books and records of the Trust. No defect in
the Redemption/Distribution Notice or in the
mailing of either thereof with respect to any
Holder shall affect the validity of the
redemption or exchange proceedings with respect
to any other Holder.
(ii) In the event that fewer than all the
outstanding Securities are to be redeemed, the
Securities to be redeemed shall be redeemed Pro
Rata from each Holder of Preferred Securities,
it being understood that, in respect of
Preferred Securities registered in the name of
and held of record by the Depositary (or any
successor Depositary) or any nominee, the
<PAGE> 80
10
distribution of the proceeds of such redemption will
be made to each Participant (or Person on whose
behalf such nominee holds such securities) in
accordance with the procedures applied by such agency
or nominee.
(iii) If Securities are to be redeemed and the Trust
gives a Redemption/Distribution Notice, which
notice may only be issued if the Debentures are
redeemed as set out in this paragraph 4 (which
notice will be irrevocable), then (A) with
respect to Preferred Securities held in book-
entry form, by 12:00 noon, New York City time,
on the redemption date, to the extent funds are
available, with respect to Preferred Securities
held in global form, the Property Trustee will
deposit irrevocably with the Depositary (or
successor Depositary) funds sufficient to pay
the amount payable on redemption with respect
to such Preferred Securities and will give the
Depositary irrevocable instructions and
authority to pay the amount payable on
redemption to the Holders of such Preferred
Securities, and (B) with respect to Preferred
Securities issued in certificated form and
Common Securities, to the extent funds are
available, the Property Trustee will
irrevocably deposit with the Paying Agent funds
sufficient to pay the amount payable on
redemption to the Holders of such Securities
and will give the Paying Agent irrevocable
instructions and authority to pay the amount
payable on redemption to the Holders thereof
upon surrender of their certificates. If a
Redemption/Distribution Notice shall have been
given and funds deposited as required, then on
the date of such deposit, all rights of Holders
of such Securities so called for redemption
will cease, except the right of the Holders of
such Securities to receive the redemption
price, but without interest on such redemption
price, and such Securities will cease to be
outstanding. Neither the Administrative
Trustees nor the Trust shall be required to
register or cause to be registered the transfer
of any Securities that have been so called for
redemption. If any date fixed for redemption
of Securities is not a Business Day, then
payment of the amount payable on such date will
be made on the next succeeding day that is a
Business Day (without any interest or other
<PAGE> 81
11
payment in respect of any such delay) except that, if
such Business Day falls in the next calendar year,
such payment will be made on the immediately
preceding Business Day, in each case with the same
force and effect as if made on such date fixed for
redemption. If payment of the redemption price in
respect of any Securities is improperly withheld or
refused and not paid either by the Trust or by the
Sponsor as guarantor pursuant to the relevant
Securities Guarantee, Distributions on such
Securities will continue to accrue at the then
applicable rate, from the original redemption date to
the date of payment, in which case the actual payment
date will be considered the date fixed for redemption
for purposes of calculating the amount payable upon
redemption (other than for purposes of calculating
any premium).
(iv) Redemption/Distribution Notices shall be sent
by the Administrative Trustees on behalf of the
Trust to (A) in the case of Preferred
Securities held in book-entry form, the
Depositary and, in the case of Securities held
in certificated form, the Holders of such
certificates and (B) in respect of the Common
Securities, the Holder thereof.
(v) Subject to the foregoing and applicable law
(including, without limitation, United States federal
securities laws), the Sponsor or any of its
subsidiaries may at any time and from time to time
purchase outstanding Preferred Securities by tender,
in the open market or by private agreement.
5. CONVERSION RIGHTS.
The Holders of Securities shall have the right at any time, at their
option, to cause the Conversion Agent to convert Securities, on behalf
of the converting Holders, into shares of Parent Stock in the manner
described herein on and subject to the following terms and conditions:
(a) The Securities will be convertible at the office of the
Conversion Agent into fully paid and nonassessable shares of
Parent Stock pursuant to the Holder's direction to the
Conversion Agent to exchange such Securities for a portion of
the
<PAGE> 82
12
Debentures theretofore held by the Trust on the basis of one
Security per $27 principal amount of Debentures, and
immediately convert such amount of Debentures into fully paid
and nonassessable shares of Parent Stock at an initial rate of
0.73 shares of Parent Stock per $27 principal amount of
Debentures (which is equivalent to a conversion price of $37
per share of Parent Stock, subject to certain adjustments set
forth in the Indenture (as so adjusted, "Conversion Price")).
(b) In order to convert Securities into Parent Stock the
Holder shall submit to the Conversion Agent at the
office referred to above an irrevocable request to
convert Securities on behalf of such Holder (the
"Conversion Request"), together, if the Securities
are in certificated form, with such certificates.
The Conversion Request shall (i) set forth the
number of Securities to be converted and the name or
names, if other than the Holder, in which the shares
of Parent Stock should be issued and (ii) direct the
Conversion Agent (a) to exchange such Securities for
a portion of the Debentures held by the Trust (at
the rate of exchange specified in the preceding
paragraph) and (b) to immediately convert such
Debentures on behalf of such Holder, into Parent
Stock (at the conversion rate specified in the
preceding paragraph). The Conversion Agent shall
notify the Trust of the Holder's election to
exchange Securities for a portion of the Debentures
held by the Trust and the Trust shall, upon receipt
of such notice, deliver to the Conversion Agent the
appropriate principal amount of Debentures for
exchange in accordance with this Section. The
Conversion Agent shall thereupon notify the Sponsor
of the Holder's election to convert such Debentures
into shares of Parent Stock. Holders of Securities
at the close of business on a Distribution record
date will be entitled to receive the Distribution
payable on such Securities on the corresponding
Distribution payment date notwithstanding the
conversion of such Securities following such record
date but prior to such distribution payment date.
Except as provided above, neither the Trust nor the
Sponsor will make, or be required to make, any
payment, allowance or adjustment upon any conversion
on account of any accumulated and unpaid
Distributions accrued on the Securities, whether or
not in arrears, (including any Additional Amounts
accrued thereon) surrendered for conversion, or on
account of any accumulated and unpaid dividends on
<PAGE> 83
13
the shares of Parent Stock issued upon such conversion, except
to the extent that such shares are held of record on the
record date for any such distributions. Securities shall be
deemed to have been converted immediately prior to the close
of business on the day on which a Notice of Conversion
relating to such Securities is received by the Trust in
accordance with the foregoing provision (the "Conversion
Date"). The Person or Persons entitled to receive the Parent
Stock issuable upon conversion of the Debentures shall be
treated for all purposes as the record holder or holders of
such Parent Stock at such time. As promptly as practicable on
or after the Conversion Date, the Sponsor shall issue and
deliver at the office of the Conversion Agent a certificate or
certificates for the number of full shares of Parent Stock
issuable upon such conversion, together with the cash payment,
if any, in lieu of any fraction of any share to the Person or
Persons entitled to receive the same, unless otherwise
directed by the Holder in the notice of conversion and the
Conversion Agent shall distribute such certificate or
certificates to such Person or Persons.
(c) Each Holder of a Security by his acceptance thereof
appoints Firstar Bank, National Association.
"Conversion Agent" for the purpose of effecting the
conversion of Securities in accordance with this
Section. In effecting the conversion and
transactions described in this Section, the
Conversion Agent shall be acting as agent of the
Holders of Securities directing it to effect such
conversion transactions. The Conversion Agent is
hereby authorized (i) to exchange Securities from
time to time for Debentures held by the Trust in
connection with the conversion of such Securities in
accordance with this Section and (ii) to convert all
or a portion of the Debentures into Parent Stock and
thereupon to deliver such shares of Parent Stock in
accordance with the provisions of this Section and
to deliver to the Trust a new Debenture or
Debentures for any resulting unconverted principal
amount.
(d) No fractional shares of Parent Stock will be issued as a
result of conversion, but in lieu thereof, such fractional
interest will be paid in cash by the Sponsor to the Trust,
which in turn will make such payment to the Holder or Holders
of Securities so converted.
<PAGE> 84
14
(e) The Sponsor shall at all times reserve and keep
available out of its authorized and unissued Parent
Stock, solely for issuance upon the conversion of
the Debentures, free from any preemptive or other
similar rights, such number of shares of Parent
Stock as shall from time to time be issuable upon
the conversion of all the Debentures then
outstanding. Notwithstanding the foregoing, the
Sponsor shall be entitled to deliver upon conversion
of Debentures, shares of Parent Stock reacquired and
held in the treasury of the Sponsor (in lieu of the
issuance of authorized and unissued shares of Parent
Stock), so long as any such treasury shares are free
and clear of all liens, charges, security interests
or encumbrances. Any shares of Parent Stock issued
upon conversion of the Debentures shall be duly
authorized, validly issued and fully paid and
nonassessable. The Trust shall deliver the shares
of Parent Stock received upon conversion of the
Debentures to the converting Holder free and clear
of all liens, charges, security interests and
encumbrances, except for United States withholding
taxes. Each of the Sponsor and the Trust shall
prepare and shall use its best efforts to obtain and
keep in force such governmental or regulatory
permits or other authorizations as may be required
by law, and shall comply with all applicable
requirements as to registration or qualification of
the Parent Stock (and all requirements to list the
Parent Stock issuable upon conversion of Debentures
that are at the time applicable), in order to enable
the Sponsor to lawfully issue Parent Stock to the
Trust upon conversion of the Debentures and the
Trust to lawfully deliver the Parent Stock to each
Holder upon conversion of the Securities.
(f) The Sponsor will pay any and all taxes that may be
payable in respect of the issue or delivery of
shares of Parent Stock on conversion of Debentures
and the delivery of the shares of Parent Stock by
the Trust upon conversion of the Securities. The
Sponsor shall not, however, be required to pay any
tax which may be payable in respect of any transfer
involved in the issue and delivery of shares of
Parent Stock in a name other than that in which the
Securities so converted were registered, and no such
issue or delivery shall be made unless and until the
person requesting such issue has paid to the Trust
the amount of any such tax, or has established to
the satisfaction of the Trust that such tax has been
paid.
<PAGE> 85
15
(g) Nothing in the preceding Paragraph (f) shall limit the
requirement of the Trust to withhold taxes pursuant to the
terms of the Securities set forth in this Annex I to the
Declaration or in the Declaration itself or otherwise require
the Property Trustee or the Trust to pay any amounts on
account of such withholdings.
6. VOTING RIGHTS - PREFERRED SECURITIES.
(a) Except as provided under paragraphs 6(b) and 8, in the
Business Trust Act and as otherwise required by law, the
Declaration and the Indenture, the Holders of the Preferred
Securities will have no voting rights.
(b) In addition to the rights of the Holders of the Preferred
Securities with respect to the enforcement of payment of
principal and interest on the Debentures set forth herein, in
the Declaration or in the Indenture, if (i) a Debenture Event
of Default occurs and is continuing or (ii) the Company
defaults under the Guarantee (each of (i) and (ii) being an
"APPOINTMENT EVENT"), then the Holders of the Preferred
Securities, acting as a single class, will be entitled by the
vote of a Majority in liquidation amount of the Preferred
Securities to appoint a Special Trustee in accordance with
Section 5.06(a)(ii)(B) of the Declaration. Any Holder of
Preferred Securities (other than the Sponsor, or any entity
directly or indirectly controlling or controlled by or under
direct or indirect common control with the Sponsor) will be
entitled to nominate any person to be appointed as Special
Trustee. Not later than 30 days after such right to appoint a
Special Trustee arises, the Trustees will convene a meeting
for the purpose of appointing a Special Trustee. If the
Trustees fail to convene such meeting within such 30-day
period, the Holders of not less than 10% in aggregate
liquidation amount of the Preferred Securities will be
entitled to convene such meeting in accordance with Section
12.02 of the Declaration. The record date for such meeting
will be the close of business on the Business Day that is one
Business Day before the day on which notice of the meeting is
sent to the Holders. The provisions of the Declaration
relating to the convening and conduct of the meetings of the
Holders will apply with respect to any such meeting.
<PAGE> 86
16
Any Special Trustee so appointed shall cease to be a Special
Trustee if the Appointment Event pursuant to which the Special
Trustee was appointed and all other Appointment Events cease
to be continuing. A Special Trustee may be removed without
cause at any time by vote of the Holders of a Majority in
liquidation amount of the Preferred Securities at a meeting of
the Holders of the Preferred Securities in accordance with
Section 5.06(a)(ii)(B) of the Declaration. The Holders of 10%
in liquidation amount of the Preferred Securities will be
entitled to convene such a meeting in accordance with Section
12.02 of the Declaration. The record date for such meeting
will be the close of business on the Business Day which is one
Business Day before the day on which the notice of meeting is
sent to Holders. Notwithstanding the appointment of a Special
Trustee, the Sponsor shall retain all rights under the
Indenture, including the right to defer payments of interest
by extending the interest payment period on the Debentures.
Subject to the requirements set forth in this paragraph, the
Holders of a majority in liquidation amount of the Preferred
Securities, voting separately as a class may, and the Trustees
shall not, without obtaining the prior approval of the Holders
of a Majority in aggregate liquidation amount of all
outstanding Preferred Securities (i) direct the time, method,
and place of conducting any proceeding for any remedy
available to the Property Trustee under the Indenture, or
executing any trust or power conferred upon the Property
Trustee with respect to the Debentures, (ii) waive any past
default and its consequences that is waivable under Section
5.13 of the Indenture or otherwise, (iii) exercise any right
to rescind or annul a declaration that the principal of all
the Debentures shall be due and payable or (iv) consent to any
amendment, modification or termination of the Indenture or the
Debentures, where such consent shall be required, PROVIDED,
HOWEVER, that, where a consent under the Indenture would
require the consent or act of the Holders of greater than a
majority of the Holders in principal amount of Debentures
affected thereby (a "SUPER MAJORITY"), the Property Trustee
may only give such consent or take such action at the
direction of the Holders of at least the proportion in
liquidation preference of the Preferred Securities which the
relevant Super Majority represents of the aggregate principal
<PAGE> 87
17
amount of the Debentures outstanding. The Property Trustee
shall not, and none of the other Trustees shall in any event,
revoke any action previously authorized or approved by a vote
of the Holders of the Preferred Securities, except by a
subsequent vote of the Holders of the Preferred Securities.
Other than with respect to directing the time, method and
place of conducting any remedy available to the Property
Trustee or the Debenture Trustee as set forth above, the
Property Trustee shall not take any action in accordance with
the directions of the Holders of the Preferred Securities
under this paragraph unless the Property Trustee has obtained
an opinion of tax counsel to the effect that, as a result of
such action, the Trust will not fail to be classified as a
grantor trust for United States federal income tax purposes.
If a Declaration Event of Default has occurred and is
continuing and such event is attributable to the failure of
the Debenture Issuer to pay interest or principal on the
Debentures on the date such interest or principal is otherwise
payable (or in the case of redemption on the redemption date),
then a Holder of Preferred Securities may directly institute a
proceeding for enforcement of payment to such Holder (a
"Direct Action") of the principal of or interest on the
Debentures having a principal amount equal to the aggregate
liquidation amount of the Preferred Securities of such Holder
on or after the respective due date specified in the
Debentures. Except as provided in the preceding sentence, the
Holders of Preferred Securities will not be able to exercise
directly any other remedy available to the Holders of the
Debentures. In connection with any Direct Action, the
Debenture Issuer will be subrogated to the rights of such
Holder of Preferred Securities under the Declaration to the
extent of any payment made by the Debenture Issuer to such
Holder of Preferred Securities in such Direct Action. In
addition, the Holders of at least 25% in aggregate liquidation
preference of Preferred Securities outstanding shall have the
right to institute suit on behalf of the Trust for the
enforcement of the right to receive payment of the principal
of and interest on the Debentures on or after the Stated
Maturity (as defined in the Indenture) of such Debentures or,
in the case of redemption, on the Redemption Date (as defined
in the Indenture), in the event the Debenture Trustee
<PAGE> 88
18
or the Property Trustee fails to do so in accordance
with the terms of the Indenture.
Any approval or direction of Holders of Preferred Securities
may be given at a separate meeting of Holders of Preferred
Securities convened for such purpose, at a meeting of all of
the Holders of Securities in the Trust or pursuant to written
consent. The Administrative Trustees will cause a notice of
any meeting at which Holders of Preferred Securities are
entitled to vote, or of any matter upon which action by
written consent of such Holders is to be taken, to be mailed
to each Holder of record of Preferred Securities. Each such
notice will include a statement setting forth the following
information (i) the date of such meeting or the date by which
such action is to be taken, (ii) a description of any
resolution proposed for adoption at such meeting on which such
Holders are entitled to vote or of such matter upon which
written consent is sought and (iii) instructions for the
delivery of proxies or consents.
No vote or consent of the Holders of the Preferred Securities
will be required for the Trust to redeem and cancel Preferred
Securities or to distribute the Debentures in accordance with
the Declaration and the terms of the Securities.
Notwithstanding that Holders of Preferred Securities are
entitled to vote or consent under any of the circumstances
described above, any of the Preferred Securities that are
owned by the Sponsor or any Affiliate of the Sponsor shall not
be entitled to vote or consent and shall, for purposes of such
vote or consent, be treated as if they were not outstanding.
7. VOTING RIGHTS - COMMON SECURITIES.
(a) Except as provided under paragraphs 7(b), (c) and 8, in the
Business Trust Act and as otherwise required by law and the
Declaration, the Holders of the Common Securities will have no
voting rights.
(b) The Holders of the Common Securities are entitled, in
accordance with Article V of the Declaration, to vote to
appoint, remove or replace any Trustee, subject to the
exclusive right of the Holders of the Preferred Securities to
appoint, remove or replace a Special Trustee.
<PAGE> 89
19
(c) Subject to Section 2.06 of the Declaration and only after the
Event of Default with respect to the Preferred Securities has
been cured, waived, or otherwise eliminated and subject to the
requirements of the second to last sentence of this paragraph,
the Holders of a Majority in liquidation amount of the Common
Securities, voting separately as a class, may direct the time,
method, and place of conducting any proceeding for any remedy
available to the Property Trustee, or exercising any trust or
power conferred upon the Property Trustee under the
Declaration, including (i) directing the time, method, place
of conducting any proceeding for any remedy available to the
Debenture Trustee, or exercising any trust or power conferred
on the Debenture Trustee with respect to the Debentures, (ii)
waive any past default and its consequences that is waivable
under Section 5.13 of the Indenture, or (iii) exercise any
right to rescind or annul a declaration that the principal of
all the Debentures shall be due and payable, PROVIDED that,
where a consent or action under the Indenture would require a
Super Majority, the Property Trustee may only give such
consent or take such action at the direction of the Holders of
at least the proportion in liquidation amount of the Common
Securities which the relevant Super Majority represents of the
aggregate principal amount of the Debentures outstanding.
Pursuant to this paragraph 7(c), the Property Trustee shall
not revoke any action previously authorized or approved by a
vote of the Holders of the Preferred Securities, except by a
subsequent vote of the Holders of the Preferred Securities.
Other than with respect to directing the time, method and
place of conducting any remedy available to the Property
Trustee or the Debenture Trustee as set forth above, the
Property Trustee shall not take any action in accordance with
the directions of the Holders of the Common Securities under
this paragraph unless the Property Trustee has obtained an
opinion of tax counsel to the effect that, as a result of such
action the Trust will not fail to be classified as a grantor
trust for United States federal income tax purposes. If the
Property Trustee fails to enforce its rights, as holder of the
Debentures, under the Indenture, any Holder of Common
Securities may, after a period of 30 days has elapsed from
such Holder's written request to the Property Trustee to
enforce such rights, institute a legal proceeding directly
against the Sponsor, to enforce the Property Trustee's rights,
as holder of
<PAGE> 90
20
the Debentures, under the Indenture, without first instituting
any legal proceeding against the Property Trustee or any other
Person.
Any approval or direction of Holders of Common Securities may
be given at a separate meeting of Holders of Common Securities
convened for such purpose, at a meeting of all of the Holders
of Securities in the Trust or pursuant to written consent. The
Administrative Trustees will cause a notice of any meeting at
which Holders of Common Securities are entitled to vote, or of
any matter upon which action by written consent of such
Holders is to be taken, to be mailed to each Holder of record
of Common Securities. Each such notice will include a
statement setting forth (i) the date of such meeting or the
date by which such action is to be taken, (ii) a description
of any resolution proposed for adoption at such meeting on
which such Holders are entitled to vote or of such matter upon
which written consent is sought and (iii) instructions for the
delivery of proxies or consents.
No vote or consent of the Holders of the Common Securities
will be required for the Trust to redeem and cancel Common
Securities or to distribute the Debentures in accordance with
the Declaration and the terms of the Securities.
8. AMENDMENTS TO DECLARATION AND INDENTURE.
(a) In addition to any requirements under Section 12.01 of the
Declaration, if any proposed amendment to the Declaration
provides for, or the Administrative Trustees otherwise propose
to effect, (i) any action that would adversely affect the
powers, preferences or rights of the Securities, whether by
way of amendment to the Declaration or otherwise, or (ii) the
dissolution, winding-up or termination of the Trust, other
than as described in Section 8.01 of the Declaration, then the
Holders of outstanding Securities will be entitled to vote on
such amendment or proposal (but not on any other amendment or
proposal) and such amendment or proposal shall not be
effective except with the approval of the Holders of at least
a Majority in liquidation amount of the Securities, voting
together as a single class, PROVIDED, HOWEVER, that, the
rights of Holders of Preferred Securities under Article V of
the Declaration to appoint, remove or
<PAGE> 91
21
replace a Special Trustee shall not be amended without the
consent of each Holder of Preferred Securities; and PROVIDED
FURTHER that if any amendment or proposal referred to in
clause (i) above would adversely affect only the Preferred
Securities or only the Common Securities, then only the
affected class will be entitled to vote on such amendment or
proposal and such amendment or proposal shall not be effective
except with the approval of at least a Majority in liquidation
amount of such class of Securities.
(b) In the event the consent of the Property Trustee as the holder
of the Debentures is required under the Indenture with respect
to any amendment, modification or termination of the Indenture
or the Debentures, the Property Trustee shall request the
direction of the Holders of the Securities with respect to
such amendment, modification or termination and shall vote
with respect to such amendment, modification or termination as
directed by at least the same proportion in aggregate stated
liquidation preference of the Securities; PROVIDED, --------
HOWEVER, that the Property Trustee shall not take ------- any
action in accordance with the directions of the Holders of the
Securities under this paragraph 8(b) unless the Property
Trustee has obtained an opinion of tax counsel to the effect
that for the purposes of United States federal income tax the
Trust will not be classified as other than a grantor trust on
account of such action.
9. PRO RATA.
A reference in these terms of the Securities to any payment,
Distribution or treatment as being "Pro Rata" shall mean pro rata to each Holder
of Securities according to the aggregate liquidation amount of the Securities
held by the relevant Holder in relation to the aggregate liquidation amount of
all Securities outstanding unless, on any Distribution Date or redemption date
an Event of Default under the Declaration has occurred and is continuing, in
which case no payment of any Distribution on, or amount payable upon redemption
of, any Common Security, and no other payment on account of the redemption,
liquidation or other acquisition of Common Securities, shall be made unless
payment in full in cash of all accumulated and unpaid Distributions on all
outstanding Preferred Securities for all Distribution periods terminating on or
prior thereto, or in the case of payment of the amount payable upon redemption
of the Preferred Securities, the full amount of such amount in respect of all
<PAGE> 92
22
outstanding Preferred Securities shall have been made or provided for, and all
funds available to the Property Trustee shall first be applied to the payment in
full in cash of all Distributions on, or the amount payable upon redemption of
Preferred Securities then due and payable.
10. RANKING.
The Preferred Securities rank PARI PASSU and payment thereon
shall be made Pro Rata with the Common Securities except that, where an Event of
Default occurs and is continuing under the Indenture in respect of the
Debentures held by the Property Trustee, the rights of Holders of the Common
Securities to payment in respect of Distributions and payments upon liquidation,
redemption and otherwise are subordinated to the rights to payment of the
Holders of the Preferred Securities.
11. ACCEPTANCE OF SECURITIES GUARANTEES AND INDENTURE.
Each Holder of Preferred Securities and Common Securities, by
the acceptance thereof, agrees to the provisions of the Preferred Securities
Guarantee and the Common Securities Guarantee, respectively, including the
subordination provisions therein and to the provisions of the Indenture which
are incorporated by reference herein and which include, among other things,
provisions relating to certain rights of the Holders of the Preferred Securities
all as set forth therein.
12. NO PREEMPTIVE RIGHTS.
The Holders of the Securities shall have no preemptive rights
to subscribe for any additional securities.
13. MISCELLANEOUS.
These terms constitute a part of the Declaration.
The Sponsor will provide a copy of the Declaration, the
Preferred Securities Guarantee or the Common Securities Guarantee (as may be
appropriate), and the Indenture to a Holder without charge on written request to
the Sponsor at its principal place of business.
<PAGE> 93
23
EXHIBIT A-1
FORM OF
PREFERRED SECURITY
[FORM OF FACE OF SECURITY]
[Include if Preferred Security is in global form and the
Depository Trust Company is the Depository -- UNLESS THIS CERTIFICATE IS
PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW
YORK CORPORATION ("DTC"), NEW YORK, NEW YORK, TO THE COMPANY OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO., OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC) ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.]
[Include if Preferred Security is in global form -- TRANSFERS
OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART,
TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR'S NOMINEE AND
TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE
IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE DECLARATION REFERRED TO
BELOW.]
<PAGE> 94
Certificate Number Number of Preferred Securities
CUSIP NO. 16359P 20 6
Preferred Securities
of
Chemed Capital Trust
Convertible Preferred Trust Securities
(liquidation amount $27 per Convertible Preferred Security)
Chemed Capital Trust, a statutory business trust formed under
the laws of the State of Delaware (the "Trust"), hereby certifies that
- ----------------------------------------------------------
(the "Holder") is the registered owner of preferred securities of the Trust
representing undivided beneficial interests in the assets of the Trust
designated the Convertible Preferred Trust Securities (liquidation amount $27
per Convertible Preferred Security) (the "Preferred Securities"). The Preferred
Securities are transferable on the books and records of the Trust, in person or
by a duly authorized attorney, upon surrender of this certificate duly endorsed
and in proper form for transfer. The designation, rights, privileges,
restrictions, preferences and other terms and provisions of the Preferred
Securities represented hereby are issued and shall in all respects be subject to
the provisions of the Amended and Restated Declaration of Trust of the Trust
dated as of February 7, 2000, as the same may be amended from time to time (the
"Declaration"), including the designation of the terms of the Preferred
Securities as set forth in Annex I to the Declaration. Capitalized terms used
herein but not defined shall have the meaning given them in the Declaration. The
Holder is entitled to the benefits of the Preferred Securities Guarantee to the
extent provided therein. The Sponsor will provide a copy of the Declaration, the
Preferred Securities Guarantee and the Indenture to a Holder without charge upon
written request to the Trust at its principal place of business.
Reference is hereby made to select provisions of the Preferred
Securities set forth on the reverse hereof, which select provisions shall for
all purposes have the same effect as if set forth at this place.
Upon receipt of this certificate, the Holder is bound by the
Declaration and is entitled to the benefits thereunder.
By acceptance, the Holder agrees to treat, for United States
federal income tax purposes, the Debentures as indebtedness and the Preferred
Securities as evidence of indirect beneficial ownership in the Debentures.
Unless the Property Trustee's Certificate of Authentication
hereon has been properly executed, these Preferred Securities shall not be
entitled to any benefit under the Declaration or be valid or obligatory for any
purpose.
<PAGE> 95
2
IN WITNESS WHEREOF, the Trust has executed this certificate
this February 7, 2000.
Chemed Capital Trust
By:
-----------------------------------------
Name: Kevin J. McNamara
Title: Administrative Trustee
PROPERTY TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Preferred Securities referred to in the
within-mentioned Declaration.
Dated: February 7, 2000
Firstar Bank, National Association,
as Property Trustee
By:
------------------------------------
Authorized Signatory
<PAGE> 96
[FORM OF REVERSE OF SECURITY]
Distributions payable on each Preferred Security will be fixed
at a rate per annum of $2.00 for each Preferred Security (the "Coupon Rate"),
such rate being the rate of interest payable on the Debentures to be held by the
Property Trustee. Distributions in arrears for more than one quarter will bear
interest thereon compounded quarterly at the Coupon Rate (to the extent
permitted by applicable law). The term "Distributions" as used herein includes
such quarterly distributions, additional distributions on quarterly
distributions not paid on the applicable Distribution Date, Special
Distributions and Additional Sums, as applicable. A Distribution is payable only
to the extent that payments are made in respect of the Debentures held by the
Property Trustee and to the extent the Property Trustee has funds available
therefor. Except for the Distribution payable on March 15, 2000, the amount of
Distributions payable for any period will be computed for any full quarterly
Distribution period on the basis of a 360-day year of twelve 30-day months and
for any period shorter than a full quarterly Distribution period for which
Distributions are computed, Distributions will be computed on the basis of the
actual number of days elapsed per 30-day month.
Except as otherwise described below, Distributions on the
Preferred Securities will be cumulative, will accrue from the date of their
original issuance and will be payable quarterly in arrears, on March 15, June
15, September 15 and December 15 of each year, commencing on March 15, 2000, to
Holders of record at the close of business on the first day of the month next
preceding the applicable payment date, which payment dates shall correspond to
the interest payment dates (each an "Interest Payment Date") on the Debentures.
The Debenture Issuer has the right under the Indenture to defer payments of
interest after March 15, 2000, by extending the interest payment period from
time to time on the Debentures for a period not exceeding 20 consecutive
quarters (each a "Deferral Period") and, as a consequence of such deferral,
Distributions will also be deferred. Despite such deferral, quarterly
Distributions will continue to accrue with interest thereon (to the extent
permitted by applicable law) at the Coupon Rate compounded quarterly during any
such Deferral Period. Prior to the termination of any such Deferral Period, the
Debenture Issuer may further extend such Deferral Period; PROVIDED that such
Deferral Period together with all such previous and further deferrals thereof
may not exceed 20 consecutive quarters or extend beyond the maturity (whether at
the stated maturity or by declaration of acceleration, call for redemption or
otherwise) of the Debentures under the Indenture. Payments of accrued
Distributions will be payable on an Interest Payment Date elected by the Company
to Holders as they appear on the books and records of the Trust on the record
date fixed for such Interest Payment Date. Upon the termination of any Deferral
Period and the payment of all amounts then due, the Debenture Issuer may
commence a new Deferral Period, subject to the above requirements.
The Preferred Securities shall be redeemable as provided in
the Declaration.
The Preferred Securities shall be convertible into shares of
Parent Stock, through (i) the exchange of Preferred Securities for a portion of
the Debentures and (ii) the immediate conversion of such Debentures into Parent
Stock, in the manner and according to the terms set forth in the Declaration.
<PAGE> 97
CONVERSION REQUEST
To: Firstar Bank, National Association
as Property Trustee of
Chemed Capital Trust
The undersigned owner of these Preferred Securities hereby
irrevocably exercises the option to convert these Preferred Securities, or the
portion below designated, into capital stock, par value $1.00 per share, of
CHEMED CORPORATION (the "Parent Stock") in accordance with the terms of the
Amended and Restated Declaration of Trust (the "Declaration"), dated as of
February 7, 2000, by Kevin J. McNamara, Timothy S. O'Toole and Sandra E. Laney
as Administrative Trustees, First Union Trust Company, National Association, as
Delaware Trustee, Firstar Bank, National Association, as Property Trustee,
Chemed Corporation, as Sponsor, and by the Holders, from time to time, of
individual beneficial interests in the Trust to be issued pursuant to the
Declaration. Pursuant to the aforementioned exercise of the option to convert
these Preferred Securities, the undersigned hereby directs the Conversion Agent
(as that term is defined in the Declaration) to (i) exchange such Preferred
Securities for a portion of the Debentures (as that term is defined in the
Declaration) held by the Trust (at the rate of exchange specified in the terms
of the Preferred Securities set forth as Annex I to the Declaration) and (ii)
immediately convert such Debentures on behalf of the undersigned, into Parent
Stock (at the conversion rate specified in the terms of the Preferred Securities
set forth as Annex I to the Declaration).
The undersigned does also hereby direct the Conversion Agent
that the shares issuable and deliverable upon conversion, together with any
check in payment for fractional shares, be issued in the name of and delivered
to the undersigned, unless a different name has been indicated in the assignment
below. If shares are to be issued in the name of a person other than the
undersigned, the undersigned will pay all transfer taxes payable with respect
thereto.
<PAGE> 98
2
Date: ____________, ____
in whole __ in part ______
Number of Preferred Securities to be
converted:
--------------------------------
If a name or names other than the
undersigned, please indicate in the spaces
below the name or names in which the
shares of Parent Stock are to be issued,
along with the address or addresses of
such person or persons
Signature (for conversion only)
Please Print or Typewrite Name and
Address, Including Zip Code, and Social
Security or Other Identifying Number
Signature Guarantee:*
- ----------------------------
* (Signature must be guaranteed by an "eligible guarantor institution" that is,
a bank, stockbroker, savings and loan association or credit union meeting the
requirements of the Registrar, which requirements include membership or
participation in the Securities Transfer Agents Medallion Program ("STAMP") or
such other "signature guarantee program" as may be determined by the Registrar
in addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934.)
<PAGE> 99
---------------------
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this Preferred
Security to:
(Insert assignee's social security or tax identification number)
(Insert address and zip code of assignee)
and irrevocably appoints
agent to transfer this Preferred Security on the books of the Trust. The
agent may substitute another to act for him or her.
Date: _______________________
Signature: __________________
(Sign exactly as your name appears on the other side of this Preferred Security
Certificate)
Signature Guarantee:**
- --------------------
** (Signature must be guaranteed by an "eligible guarantor institution"
that is, a bank, stockbroker, savings and loan association or credit
union meeting the requirements of the Registrar, which requirements
include membership or participation in the Securities Transfer
Agents Medallion Program ("STAMP") or such other "signature
guarantee program" as may be determined by the Registrar in addition
to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934.)
<PAGE> 100
EXHIBIT A-2
FORM OF
COMMON SECURITY
[FORM OF FACE OF SECURITY]
[OTHER THAN AS PROVIDED IN THE DECLARATION (AS DEFINED HEREIN), THIS
SECURITY MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT TO A
RELATED PARTY (AS DEFINED IN THE DECLARATION) OF CHEMED CORPORATION.]
Certificate Number Number of Common Securities
Common Securities
of
Chemed Capital Trust
Convertible Common Securities
(liquidation amount $27 per Convertible Common Security)
Chemed Capital Trust, a statutory business trust formed under
the laws of the State of Delaware (the "Trust"), hereby certifies that
- --------------------------------------------------------
(the "Holder") is the registered owner of common securities of the Trust
representing undivided beneficial interests in the assets of the Trust
designated the Convertible Common Securities (liquidation amount $27 per
Convertible Common Security) (the "Common Securities"). The Common Securities
are transferable on the books and records of the Trust, in person or by a duly
authorized attorney, upon surrender of this certificate duly endorsed and in
proper form for transfer. The designation, rights, privileges, restrictions,
preferences and other terms and provisions of the Common Securities represented
hereby are issued and shall in all respects be subject to the provisions of the
Amended and Restated Declaration of Trust of the Trust dated as of February 7,
2000, as the same may be amended from time to time (the "Declaration"),
including the designation of the terms of the Common Securities as set forth in
Annex I to the Declaration. Capitalized terms used herein but not defined shall
have the meaning given them in the Declaration. The Holder is entitled to the
benefits of the Common Securities Guarantee to the extent provided therein. The
Sponsor will provide a copy of the Declaration, the Common Securities Guarantee
and the Indenture to a Holder without charge upon written request to the Sponsor
at its principal place of business.
Reference is hereby made to select provisions of the Common
Securities set forth on the reverse hereof, which select provisions shall for
all purposes have the same effect as if set forth at this place.
<PAGE> 101
2
Upon receipt of this certificate, the Sponsor is bound by the
Declaration and is entitled to the benefits thereunder.
By acceptance, the Holder agrees to treat for United States
federal income tax purposes the Debentures as indebtedness and the Common
Securities as evidence of indirect beneficial ownership in the Debentures.
IN WITNESS WHEREOF, the Trust has executed this certificate
this February 7, 2000.
Chemed Capital Trust
By:
---------------------------------
Name: Kevin J. McNamara
Title: Administrative Trustee
<PAGE> 102
[FORM OF REVERSE OF SECURITY]
Distributions payable on each Common Security will be fixed at
a rate per annum of $2.00 for each Common Security (the "Coupon Rate"), such
rate being the rate of interest payable on the Debentures to be held by the
Property Trustee. Distributions in arrears for more than one quarter will bear
interest thereon compounded quarterly at the Coupon Rate (to the extent
permitted by applicable law). The term "Distributions" as used herein includes
quarterly distributions, additional distributions on quarterly distributions not
paid on the applicable Distribution Date, Special Distributions and Additional
Sums, as applicable. A Distribution is payable only to the extent that payments
are made in respect of the Debentures held by the Property Trustee and to the
extent the Property Trustee has funds available therefor. Except for the
Distribution payable on March 15, 2000, the amount of Distributions payable for
any period will be computed for any full quarterly Distribution period on the
basis of a 360-day year of twelve 30-day months, and for any period shorter than
a full quarterly Distribution period for which Distributions are computed,
Distributions will be computed on the basis of the actual number of days elapsed
per 30-day month.
Except as otherwise described below, Distributions on the
Common Securities will be cumulative, will accrue from the date of their
original issuance and will be payable quarterly in arrears, on March 15, June
15, September 15 and December 15 of each year, commencing on March 15, 2000, to
Holders of record one (1) day prior to such payment dates, which payment dates
shall correspond to the interest payment dates (each, an "Interest Payment
Date") on the Debentures. The Debenture Issuer has the right under the Indenture
to defer payments of interest after, by extending the interest payment period
from time to time on the Debentures for a period not exceeding 20 consecutive
quarters (each a "Deferral Period") and, as a consequence of such deferral,
Distributions will also be deferred after March 15, 2000. Despite such deferral,
quarterly Distributions will continue to accrue with interest thereon (to the
extent permitted by applicable law) at the Coupon Rate compounded quarterly
during any such Deferral Period. Prior to the termination of any such Deferral
Period, the Debenture Issuer may further extend such Deferral Period; PROVIDED
that such Deferral Period together with all such previous and further deferrals
thereof may not exceed 20 consecutive quarters or extend beyond the maturity
(whether at the stated maturity or by declaration of acceleration, call for
redemption or otherwise) of the Debentures under the Indenture. Payments of
accrued Distributions will be payable on an Interest Payment Date elected by the
Company to Holders as they appear on the books and records of the Trust on the
record date fixed for such Interest Payment Date. Upon the termination of any
Deferral Period and the payment of all amounts then due, the Debenture Issuer
may commence a new Deferral Period, subject to the above requirements.
The Common Securities shall be redeemable as provided in the
Declaration.
The Common Securities shall be convertible into shares of
Parent Stock, through (i) the exchange of Common Securities for a portion of the
Debentures and (ii) the immediate conversion of such Debentures into Parent
Stock, in the manner and according to the terms set forth in the Declaration.
<PAGE> 103
CONVERSION REQUEST
To: Firstar Bank, National Association
as Property Trustee of
Chemed Capital Trust
The undersigned owner of these Common Securities hereby
irrevocably exercises the option to convert these Common Securities, or the
portion below designated, into capital stock, par value $1.00 per share, of
CHEMED CORPORATION (the "Parent Stock") in accordance with the terms of the
Amended and Restated Declaration of Trust (the "Declaration"), dated as of
February 7, 2000, by Kevin J. McNamara, Timothy S. O'Toole and Sandra E. Laney
as Administrative Trustees, First Union Trust Company, National Association, as
Delaware Trustee, Firstar Bank, National Association, as Property Trustee,
Chemed Corporation, as Sponsor, and by the Holders, from time to time, of
individual beneficial interests in the Trust to be issued pursuant to the
Declaration. Pursuant to the aforementioned exercise of the option to convert
these Common Securities, the undersigned hereby directs the Conversion Agent (as
that term is defined in the Declaration) to (i) exchange such Common Securities
for a portion of the Debentures (as that term is defined in the Declaration)
held by the Trust (at the rate of exchange specified in the terms of the Common
Securities set forth as Annex I to the Declaration) and (ii) immediately convert
such Debentures on behalf of the undersigned, into Parent Stock (at the
conversion rate specified in the terms of the Common Securities set forth as
Annex I to the Declaration).
The undersigned does also hereby direct the Conversion Agent
that the shares issuable and deliverable upon conversion, together with any
check in payment for fractional shares, be issued in the name of and delivered
to the undersigned, unless a different name has been indicated in the assignment
below. If shares are to be issued in the name of a person other than the
undersigned, the undersigned will pay all transfer taxes payable with respect
thereto.
<PAGE> 104
2
Date: ____________, ____
in whole __ in part __
Number of Common Securities to be
converted:
------------------------------
If a name or names other than the
undersigned, please indicate in the
spaces below the name or names in which
the shares of Parent Stock are to be
issued, along with the address or
addresses of such person or persons
-------------------------------------------
-------------------------------------------
-------------------------------------------
-------------------------------------------
-------------------------------------------
Signature (for conversion only)
Please Print or Typewrite Name and
Address, Including Zip Code, and
Social Security or Other
Identifying Number
-------------------------------------------
------------------------------------------
-------------------------------------------
Signature Guarantee:***
-----------------------
- ---------------------------
*** (Signature must be guaranteed by an "eligible guarantor institution" that
is, a bank, stockbroker, savings and loan association or credit union meeting
the requirements of the Registrar, which requirements include membership or
participation in the Securities Transfer Agents Medallion Program ("STAMP") or
such other "signature guarantee program" as may be determined by the Registrar
in addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934.)
<PAGE> 105
---------------------
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this Common Security
Certificate to:
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Insert assignee's social security or tax identification number)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Insert address and zip code of assignee)
and irrevocably appoints
--------------------------------------------------------
- --------------------------------------------------------------------------------
- -------------------------------- agent to transfer this Common Security
Certificate on the books of the Trust. The agent may substitute another to
act for him or her.
Date:
---------------
Signature:
--------------------------
(Sign exactly as your name appears on the other side of this Common Security
Certificate)
Signature Guarantee****:
--------------------------------------------------------
- -------------------------
**** (Signature must be guaranteed by an "eligible guarantor institution" that
is, a bank, stockbroker, savings and loan association or credit union meeting
the requirements of the Registrar, which requirements include membership or
participation in the Securities Transfer Agents Medallion Program ("STAMP") or
such other "signature guarantee program" as may be determined by the Registrar
in addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934.)
<PAGE> 1
Exhibit T3C.3
================================================================================
CHEMED CORPORATION
TO
FIRSTAR BANK,
NATIONAL ASSOCIATION
----------------
INDENTURE
DATED AS OF FEBRUARY 7, 2000
----------------
================================================================================
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
ARTICLE I
Definitions and Other
Provisions of General Application
---------------------------------
<S> <C> <C>
SECTION 1.01. Definitions........................................................................... 3
SECTION 1.02. Compliance Certificates and Opinions. ................................................14
SECTION 1.03. Form of Documents Delivered to Trustee. ..............................................14
SECTION 1.04. Acts of Holders; Record Dates. .......................................................15
SECTION 1.05. Notices, Etc., to Trustee and the
Company..................................................................17
SECTION 1.06. Notice to Holders; Waiver.............................................................18
SECTION 1.07. Conflict with Trust Indenture Act.....................................................19
SECTION 1.08. Effect of Headings and Table of
Contents.................................................................19
SECTION 1.09. Successors and Assigns................................................................19
SECTION 1.10. Separability Clause. .................................................................19
SECTION 1.11. Benefits of Indenture. ...............................................................19
SECTION 1.12. GOVERNING LAW; JURISDICTION. .........................................................19
SECTION 1.13. Legal Holidays........................................................................20
ARTICLE II
Security Forms
--------------
SECTION 2.01. Forms Generally. .....................................................................20
SECTION 2.02. Initial Issuance to Property Trustee. ...............................................21
SECTION 2.03. Provisions Required in Global Security. ..............................................21
SECTION 2.04. Issuance of Global Securities to
Holders..................................................................22
ARTICLE III
The Securities
--------------
SECTION 3.01. Title and Terms.......................................................................22
</TABLE>
<PAGE> 3
2
<TABLE>
<S> <C> <C>
SECTION 3.02. Denominations. .......................................................................24
SECTION 3.03. Execution, Authentication, Delivery and
Dating.......................................................................24
SECTION 3.04. Temporary Securities..................................................................24
SECTION 3.05. Global Securities.....................................................................25
SECTION 3.06. Registration, Transfer and Exchange
Generally; Certain Transfers and
Exchanges....................................................................26
SECTION 3.07. Mutilated, Destroyed, Lost and Stolen
Securities...................................................................28
SECTION 3.08. Payment of Interest; Interest Rights
Preserved....................................................................29
SECTION 3.09. Persons Deemed Owners.................................................................31
SECTION 3.10. Cancelation...........................................................................31
SECTION 3.11. Right of Set Off......................................................................32
SECTION 3.12. CUSIP Numbers.........................................................................32
SECTION 3.13. Extension of Interest Payment Period;
Notice of Extension..........................................................32
SECTION 3.14. Paying Agent, Security Registrar and
Conversion Agent.............................................................33
ARTICLE IV
Satisfaction and Discharge
--------------------------
SECTION 4.01. Satisfaction and Discharge of Indenture...............................................34
SECTION 4.02. Application of Trust Money............................................................35
ARTICLE V
Remedies
--------
SECTION 5.01. Events of Default.....................................................................35
SECTION 5.02. Acceleration of Maturity; Rescission and
Annulment....................................................................37
SECTION 5.03. Collection of Indebtedness and Suits for
Enforcement by Trustee.......................................................38
SECTION 5.04. Trustee May File Proofs of Claim. ....................................................39
SECTION 5.05. Trustee May Enforce Claims Without
Possession of Securities.....................................................40
SECTION 5.06. Application of Money Collected........................................................40
SECTION 5.07. Limitation on Suits...................................................................40
SECTION 5.08. Unconditional Right of Holders to Receive
Principal and Interest and to Convert........................................41
</TABLE>
<PAGE> 4
3
<TABLE>
<S> <C> <C>
SECTION 5.09. Restoration of Rights and Remedies. ..................................................41
SECTION 5.10. Rights and Remedies Cumulative. ......................................................42
SECTION 5.11. Delay or Omission Not Waiver..........................................................42
SECTION 5.12. Control by Holders....................................................................42
SECTION 5.13. Waiver of Past Defaults...............................................................42
SECTION 5.14. Undertaking for Costs.................................................................43
SECTION 5.15. Waiver of Stay or Extension Laws......................................................43
SECTION 5.16. Enforcement by Holders of Preferred
Securities...................................................................44
ARTICLE VI
The Trustee
-----------
SECTION 6.01. Certain Duties and Responsibilities...................................................44
SECTION 6.02. Notice of Defaults....................................................................45
SECTION 6.03. Certain Rights of Trustee.............................................................45
SECTION 6.04. Not Responsible for Recitals or Issuance
of Securities................................................................46
SECTION 6.05. May Hold Securities...................................................................47
SECTION 6.06. Money Held in Trust...................................................................47
SECTION 6.07. Compensation and Reimbursement........................................................47
SECTION 6.08. Disqualification; Conflicting Interests...............................................47
SECTION 6.09. Corporate Trustee Required; Eligibility...............................................48
SECTION 6.10. Resignation and Removal; Appointment of
Successor....................................................................48
SECTION 6.11. Acceptance of Appointment by Successor................................................49
SECTION 6.12. Merger, Conversion, Consolidation or
Succession to Business.......................................................50
SECTION 6.13. Preferential Collection of Claims Against
Company......................................................................50
ARTICLE VII
Holders' Lists and Reports by Trustee and Company
-------------------------------------------------
SECTION 7.01. Company to Furnish Trustee Names and
Addresses of Holders.........................................................51
SECTION 7.02. Preservation of Information;
Communications to Holders....................................................51
SECTION 7.03. Reports by Trustee....................................................................51
SECTION 7.04. Reports by Company....................................................................52
</TABLE>
<PAGE> 5
4
<TABLE>
<S> <C> <C>
SECTION 7.05. Tax Reporting.........................................................................52
ARTICLE VIII
Consolidation, Merger, Conveyance, Transfer or Lease
----------------------------------------------------
SECTION 8.01. Company May Consolidate, Etc., Only on
Certain Terms................................................................52
SECTION 8.02. Successor Substituted.................................................................54
ARTICLE IX
Supplemental Indentures
-----------------------
SECTION 9.01. Supplemental Indentures Without Consent
of Holders...................................................................54
SECTION 9.02. Supplemental Indentures with Consent
of Holders...................................................................55
SECTION 9.03. Execution of Supplemental Indentures..................................................56
SECTION 9.04. Effect of Supplemental Indentures.....................................................56
SECTION 9.05. Conformity with Trust Indenture Act...................................................57
SECTION 9.06. Reference in Securities to Supplemental
Indentures...................................................................57
ARTICLE X
Covenants; Representations and Warranties
-----------------------------------------
SECTION 10.01. Payment of Principal and Interest............................................57
SECTION 10.02. Maintenance of Office or Agency..............................................57
SECTION 10.03. Money for Security Payments to Be Held
in Trust.................................................................58
SECTION 10.04. Statement by Officers as to Default..........................................59
SECTION 10.05. Limitation on Dividends; Transactions
with Affiliates; Covenants as to the
Trust....................................................................59
SECTION 10.06. Payment of Expenses of the Trust.............................................60
ARTICLE XI
Redemption of Securities
------------------------
SECTION 11.01. Optional Redemption..........................................................61
SECTION 11.02. Tax Event Redemption.........................................................61
SECTION 11.03. Selection by Trustee of Securities to Be
Redeemed.................................................................62
SECTION 11.04. Notice of Redemption.........................................................63
SECTION 11.05. Deposit of Redemption Price..................................................63
SECTION 11.06. Securities Payable on Redemption Date........................................64
SECTION 11.07. Securities Redeemed in Part..................................................64
</TABLE>
<PAGE> 6
5
<TABLE>
<CAPTION>
ARTICLE XII
Subordination of Securities
---------------------------
<S> <C> <C>
SECTION 12.01. Agreement to Subordinate.....................................................65
SECTION 12.02. Default on Senior Debt.......................................................65
SECTION 12.03. Liquidation; Dissolution; Bankruptcy.........................................66
SECTION 12.04. Subrogation..................................................................68
SECTION 12.05. Trustee to Effectuate Subordination..........................................69
SECTION 12.06. Notice by the Company........................................................69
SECTION 12.07. Rights of the Trustee; Holders of Senior
Debt.....................................................................70
SECTION 12.08. Subordination May Not Be Impaired............................................70
ARTICLE XIII
Conversion of Securities
------------------------
SECTION 13.01. Conversion Rights............................................................71
SECTION 13.02. Conversion Procedures........................................................72
SECTION 13.03. Conversion Price Adjustments.................................................74
SECTION 13.04. Reclassification, Consolidation, Merger or
Sale of Assets...........................................................80
SECTION 13.05. Notice of Adjustments of Conversion
Price....................................................................81
SECTION 13.06. Prior Notice of Certain Events...............................................81
SECTION 13.07. Adjustments in Case of Fundamental
Changes..................................................................82
SECTION 13.08. Dividend or Interest Reinvestment Plans......................................86
SECTION 13.09. Certain Additional Rights....................................................86
SECTION 13.10. Trustee Not Responsible for Determining
Conversion Price or Adjustments..........................................87
ARTICLE XIV
Immunity of Incorporators,
Stockholders, Officers and Directors
------------------------------------
SECTION 14.01. No Recourse..................................................................87
</TABLE>
<PAGE> 7
6
Certain Sections of this Indenture relating to
Sections 310 through 318 of the
Trust Indenture Act of 1939:
<TABLE>
<CAPTION>
Trust Indenture Indenture
Act Section Section
----------- -------
<S> <C>
Section 310(a)(1)......................................................................................... 6.09
(a)(2)............................................................................................... 6.09
(a)(3)............................................................................................... Not Applicable
(a)(4)............................................................................................... Not Applicable
(b).................................................................................................. 6.08, 6.10
Section 311(a)............................................................................................ 6.13
(b).................................................................................................. 6.13
Section 312(a)............................................................................................ 7.01
7.02(a)
(b).................................................................................................. 7.02(b)
(c).................................................................................................. 7.02(c)
Section 313(a)............................................................................................ 7.03
(a)(4)............................................................................................... 7.03
(b).................................................................................................. 7.03
(c).............................................................................................. 7.03
(d).............................................................................................. 7.03
Section 314(a)............................................................................................ 7.04
(b).................................................................................................. Not Applicable
(c)(1)............................................................................................... 1.02
(c)(2)............................................................................................... 1.02
(c)(3)............................................................................................... Not Applicable
(d).................................................................................................. Not Applicable
(e).................................................................................................. 1.02
Section 315(a)............................................................................................ 6.01
(b).................................................................................................. 6.03
(c).................................................................................................. 6.02
(d).................................................................................................. 6.01
(e).................................................................................................. 6.01
Section 316(a)(1)(A)...................................................................................... 5.14
(a)(1)(B)............................................................................................ 5.02
(a)(2)............................................................................................... 5.12
(b).................................................................................................. 5.13
(c).................................................................................................. Not Applicable
Section 317(a)(1)......................................................................................... 5.08
(a)(2)............................................................................................... 1.04(c)
(b).................................................................................................. 5.03
Section 318(a)............................................................................................ 5.04
1.03
1.07
</TABLE>
Note: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Indenture.
<PAGE> 8
INDENTURE, dated as of February 7, 2000, between
Chemed Corporation, a corporation duly organized and
existing under the laws of the State of Delaware
(herein called the "Company"), and Firstar Bank,
National Association, a United States banking
corporation, as Trustee (herein called the
"Trustee").
RECITALS OF THE COMPANY
WHEREAS Chemed Capital Trust, a Delaware business trust (the
"Trust"), formed under the Amended and Restated Declaration of Trust among the
Company, as Sponsor, Firstar Bank, National Association, as property trustee
(the "Property Trustee"), and First Union Trust Company, National Association,
as Delaware trustee (the "Delaware Trustee"), and Kevin J. McNamara, Timothy S.
O'Toole and Sandra E. Laney, as trustees (together with the Property Trustee and
the Delaware Trustee, the "Issuer Trustees"), dated as of February 7, 2000, (the
"Declaration"), pursuant to the exchange offer dated December 23, 1999, of the
Company, will offer for exchange up to 2,000,000 of its Convertible Preferred
Trust Securities ("Preferred Securities") with a liquidation amount of $27 per
Preferred Security, having an aggregate liquidation amount with respect to the
assets of the Trust of up to $54,000,000 for outstanding shares of Capital
Stock, par value $1 per share, of the Company ("Capital Stock");
WHEREAS the Trust will use the Capital Stock acquired in the
exchange offer in exchange for the Preferred Securities to acquire from the
Company the Convertible Junior Subordinated Debentures Due 2030 (the
"Securities") in an aggregate principal amount of up to $54,000,000 on the basis
of one share of Capital Stock for each $27 principal amount of the Securities;
WHEREAS the trustees of the Trust, on behalf of the Trust,
will execute and deliver to the Company Common Securities evidencing an
ownership interest in the Trust, registered in the name of the Company, in an
aggregate amount equal to three percent of the capitalization of the Trust,
equivalent to up to 61,856 Common Securities (the "Common Securities" and,
together with the Preferred Securities, the "Trust Securities"), with a
liquidation amount of $27 per Common Security, having an aggregate liquidation
amount with respect to the assets of the Trust of up to $1,670,112, in exchange
for Securities on the basis
<PAGE> 9
2
of one Common Security for each $27 principal amount of the Securities;
WHEREAS the Company is guaranteeing the payment of
distributions on the Trust Securities and payment of the Redemption Price (as
defined herein) and payments on liquidation with respect to the Trust
Securities, to the extent provided in the Common Securities Guarantee Agreement,
dated February 7, 2000, between the Company and the Trust, and the Guarantee
Agreement, dated February 7, 2000, between the Company and Firstar Bank,
National Association, as Guarantee Trustee, for the benefit of the holders of
the Trust Securities from time to time (together, the "Guarantee");
WHEREAS the Company has duly authorized the creation of an
issue of the Securities of substantially the tenor and amount hereinafter set
forth and to provide therefor the Company has duly authorized the execution and
delivery of this Indenture;
WHEREAS, so long as the Trust is a Holder of Securities and
any Preferred Securities are outstanding, the Declaration provides that the
holders of Preferred Securities may cause the Conversion Agent (as defined
herein) to (i) exchange such Preferred Securities for Securities held by the
Trust and (ii) immediately convert such Securities into Capital Stock (as
defined herein); and
WHEREAS all things necessary to make the Securities, when
executed by the Company and authenticated and delivered hereunder and duly
issued by the Company, the valid obligations of the Company and to make this
Indenture a valid agreement of the Company, in accordance with their and its
terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of
the Securities by the Holders (as defined
<PAGE> 10
3
herein) thereof, it is mutually agreed, for the equal and proportionate benefit
of all Holders of the Securities, as follows:
ARTICLE I
Definitions and Other
Provisions of General Application
---------------------------------
SECTION 1.01. DEFINITIONS. For all purposes of this Indenture,
except as otherwise expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well as the
singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted
accounting principles; and
(4) the words "herein", "hereof" and "hereunder" and other
words of similar import refer to this Indenture as a whole and not to
any particular Article, Section or other subdivision.
"Act", when used with respect to any Holder, has the meaning
specified in Section 1.04.
"Additional Payments" means Compounded Interest
and Additional Sums, if any.
"Additional Sums" has the meaning specified in Section 3.01.
"Adjusted Reference Market Price" has the meaning specified in
Section 13.07(a)(i).
"Adjusted Relevant Price" has the meaning specified in Section
13.07(a)(i).
"Administrative Action" has the meaning specified in the
definition of Tax Event in this Section 1.01.
<PAGE> 11
4
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Agent" means any Registrar, Paying Agent, Conversion Agent or
co-registrar.
"Agent Member" means any member of, or participant in, the
Depositary.
"Applicable Conversion Price" has the meaning specified in
Section 13.01.
"Applicable Conversion Ratio" has the meaning specified in
Section 13.01.
"Applicable Rate" is equivalent to the rate of $2.00 per year
for each $27 principal amount.
"Board of Directors" means either the board of directors of
the Company or any duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by
the Secretary or an Assistant Secretary of the Company to have been duly adopted
by the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day" means any day other than a Saturday or a
Sunday, or a day on which banking institutions in The City of New York or
Wilmington, Delaware are authorized or required by law or executive order to
remain closed, or a day on which the corporate trust office of the Property
Trustee or the Trustee is closed for business.
"Closing Price" has the meaning specified in Section 13.07(b).
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Exchange Act, or, if at any
time after the execution of this instrument such Commission is not existing and
performing the duties now assigned to it under the Trust
<PAGE> 12
5
Indenture Act, then the body performing such duties at such time.
"Common Securities" has the meaning specified in the Third
Recital to this instrument.
"Capital Stock" includes any stock of any class of the Company
which has no preference in respect of dividends or of amounts payable in the
event of any voluntary or involuntary liquidation, dissolution or winding up of
the Company and which is not subject to redemption by the Company. However,
subject to the provisions of Article XIII, shares issuable on conversion of
Securities shall include only shares of the class designated as Capital Stock of
the Company at the date of this instrument or shares of any class or classes
resulting from any reclassification or reclassifications thereof and which have
no preference in respect of dividends or of amounts payable in the event of any
voluntary or involuntary liquidation, dissolution or winding up of the Company
and which are not subject to redemption by the Company; PROVIDED, that if at any
time there shall be more than one such resulting class, the shares of each such
class then so issuable on conversion shall be substantially in the proportion
which the total number of shares of such class resulting from all such
reclassifications bears to the total number of shares of all such classes
resulting from all such reclassifications.
"Capital Stock Fundamental Change" has the meaning specified
in Section 13.07(b).
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"Company Request" or "Company Order" means a written request
or order signed in the name of the Company by its Chairman of the Board, its
Vice Chairman of the Board, its President or a Vice President, and by its
Treasurer, an Assistant Treasurer, its Secretary or an Assistant Secretary, and
delivered to the Trustee.
"Company Transaction" has the meaning specified in Section
13.04.
"Compounded Interest" has the meaning specified in Section
3.13.
<PAGE> 13
6
"Conversion Agent" means the Person appointed to act on behalf
of the holders of Preferred Securities in effecting the conversion of Preferred
Securities as and in the manner set forth in the Declaration and Section 13.02
hereof.
"Conversion Date" has the meaning specified in Section 13.02.
"Corporate Trust Office" means the principal office of the
Trustee, at which at any particular time its corporate trust business shall be
administered and which at the date of this Indenture is 425 Walnut Street, 6th
Floor, Cincinnati, Ohio 45202.
"Declaration" has the meaning specified in the Recitals to
this instrument.
"Debt" means (i) the principal of and premium and interest, if
any, on indebtedness for money borrowed, (ii) purchase money and similar
obligations, (iii) obligations under capital leases, (iv) guarantees,
assumptions or purchase commitments relating to, or other transactions as a
result of which the Company is responsible for the payment of, such indebtedness
of others, (v) renewals, extensions and refunding of any such indebtedness, (vi)
interest or obligations in respect of any such indebtedness accruing after the
commencement of any insolvency or bankruptcy proceedings and (vii) obligations
associated with derivative products such as interest rate and currency exchange
contracts, foreign exchange contracts, commodity contracts and similar
arrangements.
"Defaulted Interest" has the meaning specified in Section
3.08.
"Deferral Period" has the meaning specified in Section 3.13.
"Deferral Notice" has the meaning specified in Section 3.13.
"Delaware Trustee" has the meaning given it in the first
recital of this instrument.
"Depositary" means The Depository Trust Company, or any
successor thereto.
"Dissolution Tax Opinion" has the meaning specified in the
definition of Tax Event in this Section 1.01.
<PAGE> 14
7
"Entitlement Date" has the meaning specified in Section
13.07(b).
"Event of Default" has the meaning specified in Section 5.01.
"Exchange Act" means the Securities Exchange Act
of 1934.
"Expiration Date" has the meaning specified in Section
1.04(d).
"Expiration Time" has the meaning specified in Section
13.03(vi).
"Fundamental Change" has the meaning specified in Section
13.07(b).
"Global Security" means a Security issued in the form
prescribed in Section 2.03, issued to the Depositary or its nominee, and
registered in the name of the Depositary or its nominee.
"Guarantee" has the meaning specified in the Fourth Recital to
this instrument.
"Holder" means a Person in whose name a Security is registered
in the Security Register.
"Indenture" means this instrument as originally executed or as
it may from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof,
including, for all purposes of this instrument and any such supplemental
indenture, the provisions of the Trust Indenture Act that are deemed to be a
part of and govern this instrument and any such supplemental indenture,
respectively.
"Initial Conversion Price" has the meaning specified in
Section 13.01.
"Initial Reference Market Rate" has the meaning specified in
Section 13.07(b).
"Initial Conversion Ratio" has the meaning specified in
Section 13.01.
"Interest Payment Date" has the meaning specified in Section
3.01.
<PAGE> 15
8
"Issuer Trustees" has the meaning specified in the First
Recital of this Indenture.
"Maturity", when used with respect to any Security, means the
date on which the principal of such Security becomes due and payable as therein
or herein provided, whether at the Stated Maturity or by declaration of
acceleration, call for redemption or otherwise.
"90 Day Period" has the meaning specified in Section 11.02.
"NNM" means the National Market System of the National
Association of Securities Dealers, Inc., or any successor national automated
interdealer quotation system.
"Non-Stock Fundamental Change" has the meaning specified in
Section 13.07(b).
"No Recognition Opinion" means an opinion of a nationally
recognized independent tax counsel (reasonably acceptable to the Issuer
Trustees) experienced in such matters, which opinion may rely on published
revenue rulings of the Internal Revenue Service, to the effect that the Holders
of the Securities will not recognize any income, gain or loss for United States
Federal income tax purposes as a result of the liquidation of the Trust and the
distribution of the Securities to the holders of the Preferred Securities.
"Notice of Conversion" means the notice to be given by a
Holder of Preferred Securities to the Conversion Agent directing the Conversion
Agent to exchange such Preferred Securities for Securities and to convert such
Securities into Capital Stock on behalf of such holder.
"Notice of Default" has the meaning specified in Section 5.01.
"Officers' Certificate" means a certificate signed by the
Chairman of the Board, the Vice Chairman of the Board, the President or a Vice
President, and by the Treasurer, an Assistant Treasurer, the Secretary or an
Assistant Secretary, of the Company, and delivered to the Trustee. One of the
officers signing an Officers' Certificate given pursuant to Section 10.04 shall
be the principal executive, financial or accounting officer of the Company.
<PAGE> 16
9
"Opinion of Counsel" means a written opinion of counsel, who
may be counsel for the Company, and who shall be reasonably acceptable to the
Trustee.
"Optional Redemption" has the meaning specified in Section
11.01.
"Optional Redemption Price" has the meaning specified in
Section 11.01.
"Optional Redemption Ratio" has the meaning specified in
Section 13.07(b).
"Outstanding", when used with respect to Securities, means, as
of the date of determination, all Securities theretofore authenticated and
delivered under this Indenture, EXCEPT: (i) Securities theretofore canceled by
the Trustee or delivered to the Trustee for cancelation; (ii) Securities for
whose payment or redemption money in the necessary amount has been theretofore
deposited with the Trustee or any Paying Agent (other than the Company) in trust
or set aside and segregated in trust by the Company (if the Company shall act as
its own Paying Agent) for the Holders of such Securities; PROVIDED, that if such
Securities are to be redeemed, notice of such redemption has been duly given
pursuant to this Indenture or provision therefor satisfactory to the Trustee has
been made; and (iii) Securities which have been paid pursuant to Section 3.08,
converted into Capital Stock pursuant to Section 13.01, or in exchange for or in
lieu of which other Securities have been authenticated and delivered pursuant to
this Indenture, other than any such Securities in respect of which there shall
have been presented to the Trustee proof satisfactory to it that such Securities
are held by a bona fide purchaser in whose hands such Securities are valid
obligations of the Company.
"Paying Agent" means any Person authorized by the Company to
pay the principal of or interest on any Securities on behalf of the Company.
"Payment Resumption Date" has the meaning set forth in Section
3.13.
"Person" means any individual, corporation, company, limited
liability company, partnership, joint venture, association, joint-stock company,
trust, unincorporated organization or government or any agency or political
subdivision thereof.
"Predecessor Security" of any particular Security means every
previous Security evidencing all or a portion of
<PAGE> 17
10
the same debt as that evidenced by such particular Security; and, for the
purposes of this definition, any Security authenticated and delivered under
Section 3.07 in exchange for or in lieu of a mutilated, destroyed, lost or
stolen Security shall be deemed to evidence the same debt as the mutilated,
destroyed, lost or stolen Security.
"Preferred Securities" has the meaning specified in the first
recital to this instrument.
"Property Trustee" has the meaning specified in the Recitals
to this instrument.
"Purchased Shares" has the meaning specified in Section
13.03(vi).
"Purchaser Stock Price" has the meaning specified in Section
13.07(b).
"Redemption Date", when used with respect to any Security to
be redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price", when used with respect to any Security to
be redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Redemption Tax Opinion" means an opinion of a nationally
recognized independent tax counsel (reasonably acceptable to the Issuer
Trustees) experienced in such matters that, as a result of a Tax Event, there is
more than an insubstantial risk that the Company would be precluded from
deducting the interest on the Securities for United States Federal income tax
purposes, even after the Trust was liquidated and the Securities were
distributed to the holders of the Preferred Securities.
"Reference Date" has the meaning specified in Section
13.03(iv).
"Reference Market Price" has the meaning specified in Section
13.07(b).
"Regular Record Date" has the meaning specified in Section
3.01.
"Relevant Price" has the meaning specified in Section
13.07(b).
"Responsible Officer", when used with respect to
the Trustee, means the chairman or any vice-chairman of the
<PAGE> 18
11
board of directors, the chairman or any vice-chairman of the executive committee
of the board of directors, the chairman of the trust committee, the president,
any vice president, any assistant vice president, the treasurer, any assistant
treasurer, any trust officer or assistant trust officer, the controller or any
assistant controller or any other officer of the Trustee customarily performing
functions similar to those performed by any of the above designated officers and
also means, with respect to a particular corporate trust matter, any other
officer to whom such matter is referred because of his knowledge of and
familiarity with the particular subject.
"Securities" has the meaning specified in the Fifth Recital to
this instrument.
"Securities Act" means the Securities Act of 1933.
"Security Register" and "Security Registrar" have the
respective meanings specified in Section 3.06.
"Senior Debt" means (i) the principal of, and premium and
interest, if any, on all indebtedness of the Company for money borrowed, whether
outstanding on the date of execution of the Indenture or thereafter created,
assumed or incurred, (ii) all obligations to make payment pursuant to the terms
of financial instruments, such as (a) securities contracts and foreign currency
exchange contracts, (b) derivative instruments, such as swap agreements
(including interest rate and foreign exchange rate swap agreements), cap
agreements, floor agreements, collar agreements, interest rate agreements,
foreign exchange agreements, options, commodity futures contracts and commodity
options contracts and (c) similar financial instruments; except, in the case of
both (i) and (ii) above, such indebtedness and obligations that are expressly
stated to rank junior in right of payment to, or pari passu in right of payment
with, the Securities, (iii) indebtedness or obligations of others of the kind
described in both (i) and (ii) above for the payment of which the Company is
responsible or liable as guarantor or otherwise, and (iv) deferrals, renewals or
extensions of any such Senior Debt; provided, however, that Senior Debt shall
not be deemed to include (a) any Debt of the Company which, when incurred and
without respect to any election under Section 1111(b) of the United States
Bankruptcy Code of 1978, was without recourse to the Company, (b) trade accounts
payable and accrued liabilities arising in the ordinary course of business, (c)
any Debt of the Company to any of its subsidiaries, (d) Debt to any employee of
the Company and (e) Debt which by its terms is subordinated to
<PAGE> 19
12
trade accounts payable or accrued liabilities arising in the ordinary course of
business to the extent that payments made to the holders of such Debt by the
Holders of the Securities as a result of the subordination provisions of the
Indenture would be greater than such payments otherwise would have been as a
result of any obligation of such holders of such Debt to pay amounts over to the
obligees on such trade accounts payable or accrued liabilities arising in the
ordinary course of business as a result of subordination provisions to which
such Debt is subject.
"Special Record Date" for the payment of any Defaulted
Interest means a date fixed by the Trustee pursuant to Section 3.08.
"Stated Maturity", when used with respect to any Security or
any installment of principal thereof or interest thereon, means the date
specified in such Security as the fixed date on which the principal, together
with any accrued and unpaid interest (including Compounded Interest), of such
Security or such installment of interest is due and payable.
"Subsidiary" of any Person means (i) a corporation more than
50% of the outstanding Voting Stock of which is owned, directly or indirectly,
by such Person or by one or more other Subsidiaries of such Person or by such
Person and one or more Subsidiaries thereof or (ii) any other Person (other than
a corporation) in which such Person, or one or more other Subsidiaries of such
Person or such Person and one or more other Subsidiaries thereof, directly or
indirectly, has at least a majority ownership and power to direct the policies,
management and affairs thereof.
"Tax Event" means the receipt by the Property Trustee of an
opinion of a nationally recognized independent tax counsel to the Company
experienced in such matters (a "Dissolution Tax Opinion") to the effect that, as
a result of (a) any amendment to or change (including any announced prospective
change (which shall not include a proposed change), provided that a Tax Event
shall not occur more than 90 days before the effective date of any such
prospective change) in the laws (or any regulations thereunder) of the United
States or any political subdivision or taxing authority thereof or therein, (b)
any judicial decision or official administrative pronouncement, ruling,
regulatory procedure, notice or announcement, including any notice or
announcement of intent to adopt such procedures or regulations (an
"Administrative Action"), (c) any amendment to or change in the administrative
position or interpretation of any Administrative Action or judicial decision
that differs from the theretofore generally
<PAGE> 20
13
accepted position, in each case, by any legislative body, court, governmental
agency or regulatory body, irrespective of the manner in which such amendment or
change is made known, which amendment or change is effective or such
Administrative Action or decision is announced or (d) any current or future
audit examination or proceeding, in each case, on or after the date of original
issuance of the Securities or the issue date of the Preferred Securities issued
by the Trust, there is more than an insubstantial risk that (x) if the
Securities are held by the Property Trustee, (i) the Trust is, or will be within
90 days of the date of such opinion, subject to United States Federal income tax
with respect to interest accrued or received on the Securities or subject to
more than a DE MINIMIS amount of other taxes, duties or other governmental
charges as determined by such counsel, or (ii) any portion of interest payable
by the Company to the Trust on the Securities is not, or within 90 days of the
date of such opinion will not be, deductible by the Company in whole or in part
for United States Federal income tax purposes or (y) with respect to Securities
which are no longer held by the Property Trustee, any portion of interest
payable by the Company on the Securities is not, or within 90 days of the date
of such opinion will not be, deductible by the Company in whole or in part for
United States Federal income tax purposes.
"Trading Day" has the meaning specified in Section 13.07(b).
"Trust" has the meaning specified in the first recital to this
instrument.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean such successor Trustee.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as
in force at the date as of which this instrument was executed; PROVIDED,
HOWEVER, that in the event the Trust Indenture Act of 1939 is amended after such
date, "Trust Indenture Act" means, to the extent required by any such amendment,
the Trust Indenture Act of 1939 as so amended.
"Trust Securities" means Common Securities and Preferred
Securities.
"Vice President", when used with respect to the Company or the
Trustee, means any vice president, whether or
<PAGE> 21
14
not designated by a number or a word or words added before or after the title
"vice president".
"Voting Stock" of any Person means capital stock of such
Person which ordinarily has voting power for the election of directors (or
Persons performing similar functions) of such Person, whether at all times or
only so long as no senior class of securities has such voting power by reason of
any contingency.
SECTION 1.02. COMPLIANCE CERTIFICATES AND OPINIONS. Upon any
application or request by the Company to the Trustee to take any action under
any provision of this Indenture, the Company shall furnish to the Trustee such
certificates and opinions as may be required under the Trust Indenture Act or
reasonably requested by the Trustee in connection with such application or
request. Each such certificate or opinion shall 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 shall comply with the
applicable requirements of the Trust Indenture Act and any other applicable
requirement set forth in this Indenture.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than the certificate
required by Section 10.04) shall include:
(1) a statement that each individual signing such certificate
or opinion has read such covenant or condition and the definitions
herein relating thereto;
(2) a brief statement as to the nature and scope 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.
SECTION 1.03. FORM OF DOCUMENTS DELIVERED TO TRUSTEE. In any
case where several matters are required to
<PAGE> 22
15
be certified by, or covered by an opinion of, any specified Person, it is not
necessary that all such matters be certified by, or covered by the opinion of,
only one such Person, or that they be so certified or covered by only one
document, but one such Person may certify or give an opinion with respect to
some matters and one or more other such Persons as to other matters, and any
such Person may certify or give an opinion as to such matters in one or several
documents.
Any certificate or opinion of an officer of the Company may be
based, insofar as it relates to legal matters, upon a certificate or opinion of,
or representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture, they may, but need not, be consolidated
and form one instrument.
SECTION 1.04. ACTS OF HOLDERS; RECORD DATES. (a) Any request,
demand, authorization, direction, notice, consent, waiver or other action
provided by this Indenture to be given to or taken by Holders may be embodied in
and evidenced by one or more instruments of substantially similar tenor signed
by such Holders in person or by an agent duly appointed in writing; and, except
as herein otherwise expressly provided, such action shall become effective when
such instrument or instruments is or are delivered to the Trustee and, where it
is hereby expressly required, to the Company. Such instrument or instruments
(and the action embodied therein and evidenced thereby) are herein sometimes
referred to as the "ACT" of the Holders signing such instrument or instruments.
Proof of execution of any such instrument or of a writing appointing any such
agent shall be sufficient for any purpose of this Indenture and (subject to
Section 6.01) conclusive in favor of the
<PAGE> 23
16
Trustee and the Company, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any
such instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which the Trustee or the Company, as the case may be, deems
sufficient.
(c) The Company may, except in the circumstances set forth in
clause (d) below, fix any day as the record date for the purpose of determining
the Holders of Outstanding Securities entitled to give, make or take any
request, demand, authorization, direction, notice, consent, waiver or other
action, or to vote on any action, authorized or permitted to be given or taken
by Holders. If not set by the Company prior to the first solicitation of a
Holder made by any Person in respect of any such action, or, in the case of any
such vote, prior to such vote, the record date for any such action or vote shall
be the 30th day (or, if later, the date of the most recent list of Holders
required to be provided pursuant to Section 7.01) prior to such first
solicitation or vote, as the case may be. With regard to any record date, only
the Holders on such date (or their duly designated proxies) shall be entitled to
give or take, or vote on, the relevant action. Provided, that unless such
consent shall have become effective by virtue of the requisite percentage having
been obtained prior to the date which is 90 days after such record date, any
such consent previously given shall automatically and without further action by
any Holder be canceled and of no further effect.
(d) The Trustee may set any day as a record date for the
purpose of determining the Holders of Outstanding Securities entitled to join in
the giving or making of (i) any notice of default, (ii) any declaration of
acceleration referred to in Section 5.02, (iii) any request to institute
proceedings referred to in Section 5.07(2) or (iv) any direction referred to in
Section 5.12. If any record date is set pursuant to this paragraph, the Holders
of Outstanding Securities on such record date, and no other Holders, shall be
entitled to join in such notice,
<PAGE> 24
17
declaration, request or direction, whether or not such Holders remain Holders
after such record date; PROVIDED that no such action shall be effective
hereunder unless taken on or prior to the date set by the Trustee by which any
such determination shall be made (the "Expiration Date") by Holders of the
requisite principal amount of Outstanding Securities on such record date.
Nothing in this paragraph shall be construed to prevent the Trustee from setting
a new record date for any action for which a record date has previously been set
pursuant to this paragraph (whereupon the record date previously set shall
automatically and with no action by any Person be canceled and of no effect),
and nothing in this paragraph shall be construed to render ineffective any
action taken by Holders of the requisite principal amount of Outstanding
Securities on the date such action is taken. Promptly after any record date is
set pursuant to this paragraph, the Trustee, at the Company's expense, shall
cause notice of such record date, the proposed action by Holders and the
applicable Expiration Date to be given to the Company in writing and to each
Holder of Securities in the manner set forth in Section 1.06.
(e) The ownership of Securities shall be proved by the
Security Register.
(f) Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Security shall bind every
future Holder of the same Security and the Holder of every Security issued upon
the registration of transfer thereof or in exchange therefor or in lieu thereof
in respect of anything done, omitted or suffered to be done by the Trustee or
the Company in reliance thereon, whether or not notation of such action is made
upon such Security.
(g) Without limiting the foregoing, a Holder entitled
hereunder to give or take any such action with regard to any particular Security
may do so with regard to all or any part of the principal amount of such
Security or by one or more duly appointed agents each of which who may do so
pursuant to such appointment with regard to all or any different part of such
principal amount.
SECTION 1.05. NOTICES, ETC., TO TRUSTEE AND THE COMPANY. Any
request, demand, authorization, direction,
<PAGE> 25
18
notice, consent, waiver or Act of Holders or other document provided or
permitted by this Indenture to be made upon, given or furnished to, or filed
with,
(1) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished or
filed in writing to:
Firstar Bank, National Association
Corporate Trust Services
425 Walnut Street
Sixth Floor
Cincinnati, Ohio 45202
Attention of: Corporate Trust Administration
(2) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage
prepaid, to the Company addressed to:
Chemed Corporation
2600 Chemed Center
255 E. Fifth Street
Cincinnati, Ohio 45202-4726
Attention of: Chief Financial Officer
SECTION 1.06. NOTICE TO HOLDERS; WAIVER. Where this Indenture
provides for notice to Holders of any event, such notice shall be sufficiently
given (unless otherwise herein expressly provided) if in writing and mailed,
first- class postage prepaid, to each Holder affected by such event, at such
Holder's address as it appears in the Security Register, not later than the
latest date (if any), and not earlier than the earliest date (if any),
prescribed for the giving of such notice. In any case where notice to Holders is
given by mail, neither the failure to mail such notice, nor any defect in any
notice so mailed, to any particular Holder shall affect the sufficiency of such
notice with respect to other Holders. Any notice when mailed to a Holder in the
aforesaid manner shall be conclusively deemed to have been received by such
Holder whether or not actually received by such Holder. Where this Indenture
provides for notice in any manner, such notice may be waived in writing by the
Person entitled to receive such notice, either before or after the event, and
such waiver shall be the equivalent of such notice. Waivers of notice by Holders
shall be filed with the Trustee, but such filing
<PAGE> 26
19
shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.
In case, by reason of the suspension of regular mail service
or by reason of any other cause, it shall be impracticable to give such notice
by mail, then such notification as shall be made with the approval of the
Trustee shall constitute a sufficient notification for every purpose hereunder.
SECTION 1.07. CONFLICT WITH TRUST INDENTURE ACT. If any
provision hereof limits, qualifies or conflicts with a provision of the Trust
Indenture Act that is required under such Act to be a part of and govern this
Indenture, the latter provision shall control. If any provision of this
Indenture modifies or excludes any provision of the Trust Indenture Act that may
be so modified or excluded, the latter provision shall be deemed to apply to
this Indenture as so modified or to be excluded, as the case may be.
SECTION 1.08. EFFECT OF HEADINGS AND TABLE OF CONTENTS. The
Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
SECTION 1.09. SUCCESSORS AND ASSIGNS. All covenants and
agreements in this Indenture by the Company shall bind its successors and
assigns, whether so expressed or not.
SECTION 1.10. SEPARABILITY CLAUSE. In case any provision in
this Indenture or in the Securities 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 1.11. BENEFITS OF INDENTURE. Nothing in this Indenture
or in the Securities, express or implied, shall give to any Person, other than
the parties hereto and their successors hereunder, the holders of Senior Debt,
the holders of Preferred Securities (to the extent provided herein) and the
Holders of Securities, any benefit or any legal or equitable right, remedy or
claim under this Indenture.
SECTION 1.12. GOVERNING LAW; JURISDICTION. THIS INDENTURE AND
THE SECURITIES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF DELAWARE, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS. THE
PARTIES HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY CONSENT TO SUBMIT TO THE
EXCLUSIVE JURISDICTION OF THE
<PAGE> 27
20
COURTS OF THE STATE OF DELAWARE AND OF THE UNITED STATES DISTRICT COURTS LOCATED
IN THE STATE OF DELAWARE FOR ANY LAWSUITS, CLAIMS OR OTHER PROCEEDINGS ARISING
OUT OF OR RELATING TO THIS AGREEMENT AND AGREE NOT TO COMMENCE ANY SUCH LAWSUIT,
CLAIM OR OTHER PROCEEDING EXCEPT IN SUCH COURTS. THE PARTIES HERETO HEREBY
IRREVOCABLY AND UNCONDITIONALLY WAIVE ANY OBJECTION TO THE LAYING OF VENUE OF
ANY LAWSUIT, CLAIM, OR OTHER PROCEEDING ARISING OUT OF OR RELATING TO THIS
AGREEMENT IN THE COURTS OF THE STATE OF DELAWARE OR THE UNITED STATES DISTRICT
COURTS LOCATED IN THE STATE OF DELAWARE, AND HEREBY FURTHER IRREVOCABLY AND
UNCONDITIONALLY WAIVE AND AGREE NOT TO PLEAD OR CLAIM IN ANY SUCH COURT THAT ANY
SUCH LAWSUIT, CLAIM OR OTHER PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN
BROUGHT IN AN INCONVENIENT FORUM.
SECTION 1.13. LEGAL HOLIDAYS. In any case where any Interest
Payment Date, Redemption Date or Stated Maturity of any Security or the last
date on which a Holder has the right to convert his Securities shall not be a
Business Day, then (notwithstanding any other provision of this Indenture or of
the Securities) payment of interest or principal or conversion of the Securities
need not be made on such date, but may be made on the next succeeding Business
Day (except that, with respect to any Redemption Date, if such Business Day is
in the next succeeding calendar year, such Redemption Date shall be the
immediately preceding Business Day) with the same force and effect as if made on
the Interest Payment Date or Redemption Date, or at the Stated Maturity or on
such last day for conversion, provided that no interest shall accrue for the
period from and after such Interest Payment Date, Redemption Date or Stated
Maturity, as the case may be.
ARTICLE II
Security Forms
--------------
SECTION 2.01. FORMS GENERALLY. The Securities and the
Trustee's certificates of authentication shall be substantially in the form of
Exhibit A which is hereby incorporated in and expressly made a part of this
Indenture. The Securities may have notations, legends or endorsements required
by law, stock exchange rule, agreements to which the Company is subject, if any,
or usage (provided that any such notation, legend or endorsement is in a form
acceptable to the Company). The Company shall furnish any such legend not
contained in Exhibit A to the Trustee in writing. Each Security shall be dated
the date of its authentication. The terms and provisions of the Securities set
forth in
<PAGE> 28
21
Exhibit A are part of the terms of this Indenture and to the extent applicable,
the Company and the Trustee, by their execution and delivery of this Indenture,
expressly agree to such terms and provisions and to be bound thereby.
The definitive Securities shall be typewritten or printed,
lithographed or engraved or produced by any combination of these methods on
steel engraved borders or may be produced in any other manner permitted by the
rules of any securities exchange on which the Securities may be listed, all as
determined by the officers executing such Securities, as evidenced by their
execution of such Securities.
SECTION 2.02. INITIAL ISSUANCE TO PROPERTY TRUSTEE. The
Securities initially issued to the Property Trustee of the Trust shall be in the
form of one or more individual certificates in definitive, fully registered form
without distribution coupons.
SECTION 2.03. PROVISIONS REQUIRED IN GLOBAL SECURITY. Any
Global Security issued hereunder shall bear a legend in substantially the
following form:
"THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITORY
TRUST COMPANY (THE "DEPOSITARY") OR A NOMINEE OF THE DEPOSITARY. THIS
SECURITY IS EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A
PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE INDENTURE AND NO TRANSFER OF THIS
SECURITY (OTHER THAN A TRANSFER OF THIS SECURITY AS A WHOLE BY THE
DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE
DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY) MAY
BE REGISTERED EXCEPT IN LIMITED CIRCUMSTANCES.
UNLESS THIS SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK, NEW YORK) TO
CHEMED CORPORATION OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE
OR PAYMENT, AND ANY SECURITY ISSUED IS REGISTERED IN THE NAME OF CEDE &
CO. OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY AND ANY PAYMENT HEREON IS MADE TO CEDE &
CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY
A PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE &
CO., HAS AN INTEREST HEREIN."
<PAGE> 29
22
SECTION 2.04. ISSUANCE OF GLOBAL SECURITIES TO HOLDERS. The
Securities may be represented by one or more Global Securities registered in the
name of the Depositary or its nominee if, and only if, the Securities are
distributed to the Holders of the Trust Securities. Until such time, the
Securities shall be registered in the name of, and held by, the Property
Trustee. Securities distributed to Holders of book-entry Trust Securities shall
be distributed in the form of one or more Global Securities registered in the
name of the Depositary or its nominee, and deposited with the Security
Registrar, as custodian for such Depositary, or held by such Depositary for
credit by the Depositary to the respective accounts of the beneficial owners of
the Securities represented thereby (or such other accounts as they may direct).
Securities distributed to Holders of Trust Securities other than book-entry
Trust Securities shall not be issued in the form of a Global Security or any
other form intended to facilitate book-entry trading in beneficial interests in
such Securities.
ARTICLE III
The Securities
--------------
SECTION 3.01. TITLE AND TERMS. The aggregate principal amount
of Securities that may be authenticated and delivered under this Indenture is
limited to the sum of $55,670,112 except for Securities authenticated and
delivered upon registration of transfer of, or in exchange for, or in lieu of,
other Securities pursuant to Section 3.04, 3.05, 3.06, 3.07, 9.06, 11.08 or
13.02.
The Securities shall be known and designated as the
"Convertible Junior Subordinated Debentures Due 2030" of the Company. Their
Stated Maturity shall be March 15, 2030, and they shall bear interest equal to
$0.50 per each $27 principal amount, during the period from issuance of the
Securities to March 15, 2000, and they shall bear interest at the Applicable
Rate, from March 15, 2000 or from the most recent Interest Payment Date (as
defined below) to which interest has been paid or duly provided for, as the case
may be, payable quarterly (subject to deferral as set forth herein), in arrears,
on March 15, June 15, September 15 and December 15 (each an "Interest Payment
Date") of each year, commencing March 15, 2000, until the principal thereof is
paid or made available for payment, and interest payable on an Interest Payment
Date shall be paid to the Person in whose name the Security is registered at the
close of business on the regular record date for such interest installment,
which shall be the close of business on the
<PAGE> 30
23
first of the month in which the applicable Interest Payment Date occurs(the
"Regular Record Date"). Interest will compound quarterly and will accrue at the
Applicable Rate on any interest installment in arrears for more than one quarter
or during an extension of an interest payment period as set forth in Section
3.13 hereof.
Except for the interest payable on March 15, 2000, the amount
of interest payable for any period will be computed on the basis of a 360-day
year of twelve 30-day months and except as provided in the following sentence,
the amount of interest payable for any period shorter than a full quarterly
period for which interest is computed, will be computed on the basis of the
actual number of days elapsed in such a 30-day month. In the event that any date
on which interest is payable on the Securities is not a Business Day, then
payment of interest payable on such date will be made on the next succeeding day
which is a Business Day (and without any interest or other payment in respect of
any such delay), with the same force and effect as if made on such date.
If at any time (including upon the occurrence of a Tax Event)
while the Property Trustee is the Holder of all the Securities, the Trust or the
Property Trustee is required to pay any taxes, duties, assessments or
governmental charges of whatever nature (other than withholding taxes) imposed
by the United States, or any other taxing authority, then, in any case, the
Company will pay as additional amounts ("Additional Sums") on the Securities
held by the Property Trustee, such additional amounts as shall be required so
that the net amounts received and retained by the Trust and the Property Trustee
after paying such taxes, duties, assessments or other governmental charges will
be equal to the amounts the Trust and the Property Trustee would have received
had no such taxes, duties, assessments or other governmental charges been
imposed.
The principal of and interest on the Securities shall be
payable at the office or agency of the Company in New York, New York maintained
for such purpose and at any other office or agency maintained by the Company for
such purpose in such coin or currency of the United States of America as at the
time of payment is legal tender for payment of public and private debts;
PROVIDED, HOWEVER, that at any time that the Property Trustee is not the sole
holder of the Securities, payment of interest may, at the option of the Company,
be made by check mailed to the address of the Person entitled thereto as such
address shall appear in the Security Register or by wire transfer.
<PAGE> 31
24
The Securities shall be redeemable as provided in Article XI
hereof.
The Securities shall be subordinated in right of payment to
Senior Debt as provided in Article XII hereof.
The Securities shall be convertible as provided in Article
XIII hereof.
SECTION 3.02. DENOMINATIONS. The Securities shall be issuable
only in registered form without coupons.
SECTION 3.03. EXECUTION, AUTHENTICATION, DELIVERY AND DATING.
The Securities shall be executed on behalf of the Company by its Chairman of the
Board, its Vice Chairman of the Board, 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 Securities may be manual or facsimile.
Securities 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 Securities or
did not hold such offices at the date of such Securities.
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Securities executed by the
Company to the Trustee for authentication, together with a Company Order for the
authentication and delivery of such Securities; and the Trustee in accordance
with such Company Order shall manually authenticate and make available for
delivery such Securities as in this Indenture provided and not otherwise.
No Security shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose unless there appears on such
Security a certificate of authentication substantially in the form provided for
herein executed by the Trustee by manual signature, and such certificate upon
any Security shall be conclusive evidence, and the only evidence, that such
Security has been duly authenticated and delivered hereunder.
SECTION 3.04. TEMPORARY SECURITIES. Pending the preparation of
definitive Securities, the Company may execute, and upon Company Order the
Trustee shall authenticate and make available for delivery, temporary
<PAGE> 32
25
Securities which are printed, lithographed, typewritten, mimeographed or
otherwise produced, in any authorized denomination, substantially of the tenor
of the definitive Securities in lieu of which they are issued and with such
appropriate insertions, omissions, substitutions and other variations as the
officers executing such Securities may determine, as evidenced by their
execution of such Securities.
If temporary Securities are issued, the Company will cause
definitive Securities to be prepared without unreasonable delay. After the
preparation of definitive Securities, the temporary Securities shall be
exchangeable for definitive Securities upon surrender of the temporary
Securities at any office or agency of the Company designated pursuant to Section
10.02, without charge to the Holder. Upon surrender for cancelation of any one
or more temporary Securities, the Company shall execute and the Trustee shall
authenticate and make available for delivery in exchange therefor a like
principal amount of definitive Securities of authorized denominations. Until so
exchanged the temporary Securities shall in all respects be entitled to the same
benefits under this Indenture as definitive Securities.
SECTION 3.05. GLOBAL SECURITIES. (a) Each Global Security
issued under this Indenture shall be registered in the name of the Depositary
designated by the Company for such Global Security or a nominee thereof and
delivered to such Depositary or a nominee thereof or custodian therefor, and
each such Global Security shall constitute a single Security for all purposes of
this Indenture.
(b) Notwithstanding any other provision in this Indenture, no
Global Security may be exchanged in whole or in part for Securities registered,
and no transfer of a Global Security in whole or in part may be registered, in
the name of any Person other than the Depositary for such Global Security or a
nominee thereof unless (i) such Depositary advises the Trustee in writing that
such Depositary is no longer willing or able to continue as a Depositary with
respect to such Global Security, and no successor depositary shall have been
appointed, or if at any time the Depositary ceases to be a "clearing agency"
registered under the Exchange Act, at a time when the Depositary is required to
be so registered to act as such depositary, (ii) the Company in its sole
discretion determines that such Global Security shall be so exchangeable or
(iii) there shall have occurred and be continuing an Event of Default.
<PAGE> 33
26
(c) If any Global Security is to be exchanged for other
Securities or canceled in whole, it shall be surrendered by or on behalf of the
Depositary or its nominee to the Security Registrar for exchange or cancelation
as provided in this Article III. If any Global Security is to be exchanged for
other Securities or canceled in part, or if another Security is to be exchanged
in whole or in part for a beneficial interest in any Global Security, then
either (i) such Global Security shall be so surrendered for exchange or
cancelation as provided in this Article III or (ii) the principal amount thereof
shall be reduced or increased by an amount equal to the portion thereof to be so
exchanged or canceled, or equal to the principal amount of such other Security
to be so exchanged for a beneficial interest therein, as the case may be, by
means of an appropriate adjustment made on the records of the Security
Registrar, whereupon the Trustee shall instruct the Depositary or its authorized
representative to make a corresponding adjustment to its records. Upon any such
surrender or adjustment of a Global Security by the Depositary, accompanied by
registration instructions, the Trustee shall, subject to Section 3.05(b) and as
otherwise provided in this Article III, authenticate and make available for
delivery any Securities issuable in exchange for such Global Security (or any
portion thereof) in accordance with the instructions of the Depositary. The
Trustee shall not be liable for any delay in delivery of such instructions and
may conclusively rely on, and shall be fully protected in relying on, such
instructions.
(d) The Depositary or its nominee, as registered owner of a
Global Security, shall be the Holder of such Global Security for all purposes
under this Indenture and the Securities, and owners of beneficial interests in a
Global Security shall hold such interest pursuant to the rules and procedures of
the Depositary. Accordingly, any such owner's beneficial interests in a Global
Security shall be shown only on, and the transfer of such interest shall be
effected only through, records maintained by the Depositary or its nominee or
its Agent Members. Neither the Trustee nor the Security Registrar shall have any
liability in respect of any transfers effected by the Depositary.
(e) The rights of the beneficial interests in a Global
Security shall be exercised only through the Depositary and shall be limited to
those established by law and agreements between such owners and the Depositary
and/or its Agent Members.
SECTION 3.06. REGISTRATION, TRANSFER AND EXCHANGE GENERALLY;
CERTAIN TRANSFERS AND EXCHANGES. (a) The
<PAGE> 34
27
Company shall cause to be kept at the Corporate Trust Office of the Trustee a
register (the register maintained in such office and in any other office or
agency designated pursuant to Section 10.02 being herein sometimes collectively
referred to as the "Security Register") in which, subject to such reasonable
regulations as it may prescribe, the Company shall provide for the registration
of Securities and of transfers of Securities. The Trustee is hereby appointed
"Security Registrar" for the purpose of registering Securities and transfers of
Securities as herein provided.
Upon surrender for registration of transfer of any Security at
an office or agency of the Company designated pursuant to Section 10.02 for such
purpose, the Company shall execute, and the Trustee shall authenticate and
deliver, in the name of the designated transferee or transferees, one or more
new Securities of any authorized denominations and of a like aggregate principal
amount and bearing such restrictive legends as may be required by this
Indenture.
At the option of the Holder, Securities may be exchanged for
other Securities of any authorized denominations and of a like aggregate
principal amount and bearing such restrictive legends as may be required by this
Indenture, upon surrender of the Securities to be exchanged at such office or
agency. Whenever any Securities are so surrendered for exchange, the Company
shall execute, and the Trustee shall authenticate and make available for
delivery, the Securities which the Holder making the exchange is entitled to
receive.
All Securities issued upon any registration of transfer or
exchange of Securities shall be the valid obligations of the Company, evidencing
the same debt, and entitled to the same benefits under this Indenture, as the
Securities surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of
transfer or for exchange shall (if so required by the Company or the Trustee) be
duly endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed, by the
Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of
transfer or exchange of Securities, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
<PAGE> 35
28
connection with any registration of transfer or exchange of Securities, other
than exchanges pursuant to Section 3.04, 3.05, 9.06, 11.09 or 13.01 not
involving any transfer.
Neither the Company nor the Trustee shall be required (i) in
the case of a partial redemption of the Securities, to issue, register the
transfer of or exchange any Security during a period beginning at the opening of
business 15 days before the day of the mailing of a notice of redemption of
Securities selected for redemption under Section 11.04 and ending at the close
of business on the day of such mailing or (ii) to register the transfer of or
exchange any Security so selected for redemption in whole or in part, except the
unredeemed portion of any Security being redeemed in part.
SECTION 3.07. MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES. If
any mutilated Security is surrendered to the Trustee, the Company shall execute
and the Trustee shall authenticate and make available for delivery in exchange
therefor a new Security of like tenor and principal amount and bearing a number
not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any Security
and (ii) such security or indemnity as may be required by them to save each of
them and any agent of either of them harmless, then, in the absence of notice to
the Company or the Trustee that such Security has been acquired by a bona fide
purchaser, the Company shall execute and the Trustee shall authenticate and
deliver, in lieu of any such destroyed, lost or stolen Security, a new Security
of like tenor and principal amount and bearing a number not contemporaneously
outstanding.
In case any such mutilated, destroyed, lost or stolen Security
has become or is about to become due and payable, the Company in its discretion
may, instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security issued pursuant to this Section in lieu of
any destroyed, lost or stolen Security shall constitute an original additional
contractual obligation of
<PAGE> 36
29
the Company, whether or not the destroyed, lost or stolen Security shall be at
any time enforceable by anyone, and shall be entitled to all the benefits of
this Indenture equally and proportionately with any and all other Securities
duly issued hereunder.
The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Securities.
SECTION 3.08. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED.
Interest on any Security which is payable, and is punctually paid or duly
provided for, on any Interest Payment Date shall be paid to the Person in whose
name that Security (or one or more Predecessor Securities) is registered at the
close of business on the Regular Record Date.
Any interest on any Security which is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date (herein
called "Defaulted Interest") shall forthwith cease to be payable to the Holder
on the relevant Regular Record Date by virtue of having been such Holder, and
such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Securities (or their
respective Predecessor Securities) are registered at the close of
business on a Special Record Date (as defined below) for the payment of
such Defaulted Interest, which shall be fixed in the following manner.
The Company shall notify the Trustee in writing of the amount of
Defaulted Interest proposed to be paid on each Security and the date of
the proposed payment, and at the same time the Company shall deposit
with the Trustee an amount of money equal to the aggregate amount
proposed to be paid in respect of such Defaulted Interest or shall make
arrangements satisfactory to the Trustee for such deposit prior to the
date of the proposed payment, such money when deposited to be held in
trust for the benefit of the Persons entitled to such Defaulted
Interest as in this clause provided. Thereupon the Trustee shall fix a
special record date (the "Special Record Date") for the payment of such
Defaulted Interest which shall be not more than 15 days and not less
than 10 days prior to the date of the proposed payment and not less
than 10 days after the receipt by the Trustee of the notice
<PAGE> 37
30
of the proposed payment. The Trustee shall promptly notify the Company
of such Special Record Date and, in the name and at the expense of the
Company, shall cause notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor to be mailed, first-class
postage prepaid, to each Holder at his address as it appears in the
Security Register, not less than 10 days prior to such Special Record
Date. Notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor having been so mailed, such Defaulted
Interest shall be paid to the Persons in whose names the Securities (or
their respective Predecessor Securities) are registered at the close of
business on such Special Record Date and shall no longer be payable
pursuant to the following clause (2).
(2) The Company may make payment of any Defaulted Interest in
any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Securities may be listed, and, if so
listed, upon such notice as may be required by such exchange (or by the
Trustee if the Securities are not listed), if, after notice given by
the Company to the Trustee of the proposed payment pursuant to this
clause, such manner of payment shall be deemed practicable by the
Trustee provided that any such payment will be made in coin or currency
of the United States of America which at the time of payment is a legal
tender for payment of public and private debt.
Subject to the foregoing provisions of this Section, each
Security delivered under this Indenture upon registration of transfer of or in
exchange for or in lieu of any other Security shall carry the rights to interest
accrued and unpaid, and to accrue (including in each such case Compounded
Interest), which were carried by such other Security.
In the case of any Security which is converted after any
Regular Record Date and on or prior to the next succeeding Interest Payment Date
(other than any Security whose Maturity is prior to such Interest Payment Date),
interest whose Stated Maturity is on such Interest Payment Date shall be payable
on such Interest Payment Date notwithstanding such conversion, and such interest
(whether or not punctually paid or duly provided for) shall be paid to the
Person in whose name that Security (or one or more Predecessor Securities) is
registered at the close of business on such Regular Record Date. Except as
otherwise expressly provided in the immediately preceding sentence, in
<PAGE> 38
31
the case of any Security that is converted prior to any Regular Record Date,
interest whose Stated Maturity is after the date of conversion of such Security
shall not be payable, and the Company shall not make nor be required to make any
other payment, adjustment or allowance with respect to accrued but unpaid
interest (including Additional Payments) on the Securities being converted,
which shall be deemed to be paid in full.
SECTION 3.09. PERSONS DEEMED OWNERS. The Company, the Trustee
and any agent of the Company or the Trustee may treat the Person in whose name
any Security is registered as the owner of such Security for the purpose of
receiving payment of principal of and (subject to Section 3.08) interest on such
Security and for all other purposes whatsoever, whether or not such Security be
overdue, and neither the Company, the Trustee nor any agent of the Company or
the Trustee shall be affected by notice to the contrary. No holder of any
beneficial interest in any Global Security held on its behalf by a Depositary
shall have any rights under this Indenture with respect to such Global Security,
and such Depositary may be treated by the Company, the Trustee and any agent of
the Company or the Trustee as the owner of such Global Security for all purposes
whatsoever. Notwithstanding the foregoing, nothing herein shall prevent the
Company or the Trustee from giving effect to any written certification, proxy,
or other authorization furnished by a Depositary or impair, as between the
Depositary and such holders of beneficial interests, the operation of customary
practices governing the exercise of the rights of the Depositary (or its
nominee) as Holder of any Security.
SECTION 3.10. CANCELATION. All Securities surrendered for
payment, redemption, registration of transfer or exchange or conversion shall,
if surrendered to any Person other than the Trustee, be delivered to the Trustee
and shall be promptly canceled by it. The Company may at any time deliver to the
Trustee for cancelation any Securities previously authenticated and delivered
hereunder which the Company may have acquired in any manner whatsoever, and all
Securities so delivered shall be promptly canceled by the Trustee. No Securities
shall be authenticated in lieu of or in exchange for any Securities canceled as
provided in this Section, except as expressly permitted by this Indenture. All
canceled Securities held by the Trustee shall be disposed of as directed by a
Company Order; PROVIDED, HOWEVER, that the Trustee shall not be required to
destroy the certificates representing such canceled Securities.
<PAGE> 39
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SECTION 3.11. RIGHT OF SET OFF. Notwithstanding anything to
the contrary in this Indenture, the Company shall have the right to set off any
payment it is otherwise required to make hereunder to the extent the Company has
theretofore made, or is concurrently on the date of such payment making, a
payment under the Guarantee.
SECTION 3.12. CUSIP NUMBERS. The Company in issuing the
Securities may use "CUSIP" numbers (if then generally in use), and, if so, the
Trustee shall use "CUSIP" numbers in notices of redemption as a convenience to
Holders; PROVIDED, that any such notice may state that no representation is made
as to the correctness of such numbers either as printed on the Securities or as
contained in any notice of a redemption and that reliance may be placed only on
the other identification numbers printed on the Securities, and any such
redemption shall not be affected by any defect in or omission of such numbers.
SECTION 3.13. EXTENSION OF INTEREST PAYMENT PERIOD; NOTICE OF
EXTENSION. (a) So long as no Event of Default has occurred and is continuing,
the Company shall have the right, after March 15, 2000, at any time during the
term of this Security, from time to time to defer payments of interest by
extending for successive periods not exceeding 20 consecutive quarters for each
such period (a "Deferral Period"); PROVIDED that no Deferral Period may extend
beyond March 15, 2030. To the extent permitted by applicable law, interest, the
payment of which has been deferred because of the extension of the interest
payment period pursuant to this Section 3.13, will bear interest thereon at the
Applicable Rate compounded quarterly for each quarter of the Deferral Period
("Compounded Interest"). On the applicable Payment Resumption Date, the Company
shall pay all interest then accrued and unpaid on the Securities, including any
Compounded Interest that shall be payable to the Holders of the Securities in
whose names the Securities are registered in the Security Register on the
Regular Record Date fixed for such Payment Resumption Date. A Deferral Period
shall terminate upon the payment by the Company of all interest then accrued and
unpaid on the Securities (together with interest thereon accrued at an annual
rate equal to the Applicable Rate, compounded quarterly, to the extent permitted
by applicable law). Before the termination of any Deferral Period, the Company
may further extend such period as provided in paragraph (b) of this Section
3.13, PROVIDED that such period together with all such further extensions
thereof shall not exceed 20 consecutive quarters or extend beyond the Stated
Maturity of the Securities. Upon the termination of any Deferral Period, and
subject to the foregoing requirements, the
<PAGE> 40
33
Company may elect to begin a new Deferral Period. No interest shall be due and
payable during a Deferral Period except on the Payment Resumption Date as
determined pursuant to paragraph (b) of this Section 3.13. There is no
limitation on the number of times that the Company may elect to begin a Deferral
Period.
(b) The Company shall give the Holder of the Security and the
Trustee written notice (a "Deferral Notice") of its selection of a Deferral
Period at least ten days prior to the record date for any distributions that
would have been payable on the Trust Securities except for the decision to begin
or extend a Deferral Period. On or prior to the Regular Record Date immediately
preceding the Interest Payment Date on which the Company elects to pay all
interest then accrued and unpaid on the Securities, including Compound Interest,
(the "Payment Resumption Date") the Company shall give the Holder of the
Security and the Trustee written notice that the Deferral Period will end on
such Payment Resumption Date. Notwithstanding the provision of such notice, the
Company may elect to further extend the Deferral Period, subject to the
limitations set forth in Section 3.13(a), by providing the Holder of the
Security and the Trustee with a new Deferral Notice not less than three Business
Days prior to the Regular Record Date immediately preceding the previously
scheduled Payment Resumption Date. The Company may elect to pay all interest
then accrued and unpaid on the Securities, including Compound Interest, on an
Interest Payment Date prior to its most recently established Payment Resumption
Date PROVIDED that the Company gives the Holder of the Security and the Trustee
a new Deferral Notice setting forth the revised Payment Resumption Date at least
three Business Days prior to the Regular Record Date for such revised Payment
Resumption Date.
(c) The quarter in which any Deferral Notice is given pursuant
to paragraph (b) hereof shall be counted as one of the 20 quarters permitted in
the maximum Deferral Period permitted under paragraph (a) hereof.
SECTION 3.14. PAYING AGENT, SECURITY REGISTRAR AND CONVERSION
AGENT. The Trustee will initially act as Paying Agent, Security Registrar and
Conversion Agent. The Company may change any Paying Agent, Security Registrar,
co-registrar or Conversion Agent without prior notice. The Company or any of its
Affiliates may act in any such capacity.
<PAGE> 41
34
ARTICLE IV
Satisfaction and Discharge
--------------------------
SECTION 4.01. SATISFACTION AND DISCHARGE OF INDENTURE. This
Indenture shall cease to be of further effect (except as to any surviving rights
of conversion, registration of transfer or exchange of Securities herein
expressly provided for), and the Trustee, on demand of and at the expense of the
Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture, when
(1) either
(A) all Securities theretofore authenticated and
delivered (other than (i) Securities which have been
destroyed, lost or stolen and which have been replaced or paid
as provided in Section 3.06 and (ii) Securities 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) have been delivered to the Trustee
for cancelation; or
(B) all such Securities not theretofore
delivered to the Trustee for cancelation
(i) have become due and payable, or
(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 Trustee
for the giving of notice of redemption by the Trustee
in the name, and at the expense, of the Company
and the Company, in the case of (i), (ii) or (iii) above, has
deposited or caused to be deposited with the Trustee as trust
funds in trust for the purpose an amount sufficient to pay and
discharge the entire indebtedness on such Securities not
theretofore delivered to the Trustee for cancelation, for
principal and interest (including Compounded Interest) to the
date of such deposit (in the case of Securities which have
become due and payable) or to the
<PAGE> 42
35
Stated Maturity or Redemption Date, as the case
may be;
(2) the Company has paid or caused to be paid all
other sums payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and
discharge of this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 6.07 and, if money shall
have been deposited with the Trustee pursuant to subclause (B) of clause (1) of
this Section, the obligations of the Trustee under Section 4.02 and the last
paragraph of Section 10.03 shall survive.
SECTION 4.02. APPLICATION OF TRUST MONEY. Subject to the
provisions of the last paragraph of Section 10.03, all money deposited with the
Trustee pursuant to Section 4.01 shall be held in trust and applied by it, in
accordance with the provisions of the Securities and this Indenture, to the
payment, either directly or through any Paying Agent (including the Company
acting as its own Paying Agent) as the Trustee may determine, to the Persons
entitled thereto, of the principal and interest for whose payment such money has
been deposited with the Trustee. All moneys deposited with the Trustee pursuant
to Section 4.01 (and held by it or any Paying Agent) for the payment of
Securities subsequently converted shall be returned to the Company upon Company
Request.
ARTICLE V
Remedies
--------
SECTION 5.01. EVENTS OF DEFAULT. "Event of Default," wherever
used herein, means any one of the following events that has occurred and is
continuing (whatever the reason for such Event of Default and whether it shall
be occasioned by the provisions of Article XI or be voluntary or involuntary or
be effected by operation of law
<PAGE> 43
36
or pursuant to any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body):
(1) default in the payment of any interest upon any Security,
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); or
(2) default in the payment of the principal of any Security
when due, whether at its Maturity, upon redemption, by declaration of
acceleration or otherwise; or
(3) default in the observation or performance, in any material
respect, of any covenant of the Company in this Indenture (other than a
covenant a default in the performance of which or the breach of which
is elsewhere in this Section specifically dealt with), 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 Trustee or to the
Company and the Trustee by the Holders of at least 25% in aggregate
outstanding principal amount of the Securities a written notice
specifying such default and requiring it to be remedied; or
(4) failure by the Company to issue and deliver Capital Stock
upon an election to convert the Securities into Capital Stock; or
(5) 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; or
(6) 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
<PAGE> 44
37
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; or
(7) the voluntary or involuntary dissolution, winding up or
termination of the Trust, except in connection with (i) the
distribution of Securities 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.
SECTION 5.02. ACCELERATION OF MATURITY; RESCISSION AND
ANNULMENT. If an Event of Default occurs and is continuing, then and in every
such case the Trustee or the Holders of not less than 25% in principal amount of
the Outstanding Securities may declare the principal of all the Outstanding
Securities and any other amounts payable hereunder (including any Additional
Payments) to be due and payable immediately, by a notice in writing to the
Company (and to the Trustee if given by Holders); PROVIDED that, if the Property
Trustee is the sole Holder of the Securities and if upon an Event of Default,
the Trustee or the Holders of not less than 25% in principal amount of the
Outstanding Securities fail to declare the principal of all the Securities to be
immediately due and payable, the holders of at least 25% in aggregate
liquidation amount of Preferred Securities then outstanding shall have such
right by a notice in writing to the Company and the Trustee; and upon any such
declaration such principal and all accrued interest shall become immediately due
and payable. Upon any such declaration such principal amount (or specified
amount) of and the accrued interest (including any Additional Payments) on all
the Securities of such series shall then become immediately due and payable;
PROVIDED that the payment of principal and interest on such Securities
(including
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38
Additional Payments) shall remain subordinated to the extent provided in Article
XII.
At any time after such a declaration of acceleration has been
made and before a judgment or decree for payment of the money due has been
obtained by the Trustee as provided in this Article hereinafter, the Holders of
a majority in aggregate principal amount of the Outstanding Securities, by
written notice to the Company and the Trustee, may rescind and annul such
declaration and its consequences if
(1) the Company has paid or deposited with the
Trustee a sum sufficient to pay
(A) all overdue interest (including any
Compounded Interest) on all Securities,
(B) the principal of any Securities which have become
due otherwise than by such declaration of acceleration and
interest thereon at the rate borne by the Securities, and
(C) all sums paid or advanced by the Trustee
hereunder and the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and
counsel;
and
(2) all Events of Default, other than the non- payment of the
principal of Securities which have become due solely by such
declaration of acceleration, have been cured or waived as provided in
Section 5.13.
The Company is required to file annually with the Trustee a
certificate as to whether or not the Company is in compliance with all the
conditions and covenants applicable to it under this Indenture.
No such rescission shall affect any subsequent default or
impair any right consequent thereon.
SECTION 5.03. COLLECTION OF INDEBTEDNESS AND SUITS FOR
ENFORCEMENT BY TRUSTEE. The Company covenants that if
(1) default is made in the payment of any interest (including
any Compounded Interest) on any Security when such interest becomes due
and payable and such default continues for a period of 30 days, or
<PAGE> 46
39
(2) default is made in the payment of the principal of any
Security at the Stated Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities, the whole amount then due and payable on such
Securities for principal and interest (including any Additional Payments) and,
to the extent that payment thereof shall be legally enforceable, interest on any
overdue principal and on any overdue interest (including any Additional Sums),
at the rate borne by the Securities, and, in addition thereto, all amounts owing
to the Trustee under Section 6.07.
If an Event of Default occurs and is continuing, the Trustee
may in its discretion proceed to protect and enforce its rights and the rights
of the Holders by such appropriate judicial proceedings as the Trustee shall
deem most effectual to protect and enforce any such rights, whether for the
specific enforcement of any covenant or agreement in this Indenture or in aid of
the exercise of any power granted herein, or to enforce any other proper remedy.
SECTION 5.04. TRUSTEE MAY FILE PROOFS OF CLAIM. In case of any
judicial proceeding relative to the Company (or any other obligor upon the
Securities), its property or its creditors, the Trustee shall be entitled and
empowered, by intervention in such proceeding or otherwise, to take any and all
actions authorized under the Trust Indenture Act in order to have claims of the
Holders and the Trustee allowed in any such proceeding. In particular, the
Trustee shall be authorized to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the same; and any
custodian, receiver, assignee, trustee, liquidator, sequestrator or other
similar official in any such judicial proceeding is hereby authorized by each
Holder to make such payments to the Trustee and, in the event that the Trustee
shall consent to the making of such payments directly to the Holders, to pay to
the Trustee any amount due it and any predecessor Trustee under Section 6.07.
No provision of this Indenture shall be deemed to authorize
the Trustee to authorize or consent to or accept or adopt on behalf of any
Holder any plan of reorganization, arrangement, adjustment or composition
affecting the Securities or the rights of any Holder thereof or to authorize the
Trustee to vote in respect of the claim of any Holder in any such proceeding.
<PAGE> 47
40
SECTION 5.05. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF
SECURITIES. All rights of action and claims under this Indenture or the
Securities may be prosecuted and enforced by the Trustee without the possession
of any of the Securities or the production thereof in any proceeding relating
thereto, and any such proceeding instituted by the Trustee shall be brought in
its own name as trustee of an express trust, and any recovery of judgment shall,
after provision for the payment of all the amounts owing to the Trustee and any
predecessor Trustee under Section 6.07, be for the ratable benefit of the
Holders of the Securities in respect of which such judgment has been recovered.
SECTION 5.06. APPLICATION OF MONEY COLLECTED. Subject to
Article XII, any money collected by the Trustee pursuant to this Article shall
be applied in the following order, at the date or dates fixed by the Trustee
and, in case of the distribution of such money on account of principal or
interest (including any Additional Payments), upon presentation of the
Securities and the notation thereon of the payment if only partially paid and
upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee and any
predecessor Trustee under Section 6.07;
SECOND: To the payment of the amounts then due and unpaid for
principal of and interest (including any Additional Payments) on the
Securities in respect of which or for the benefit of which such money
has been collected, ratably, without preference or priority of any
kind, according to the amounts due and payable on such Securities for
principal and interest (including any Compounded Interest),
respectively; and
THIRD: The balance, if any, to the Company.
SECTION 5.07. LIMITATION ON SUITS. Subject to Section 5.08, no
Holder of any Security shall have any right to institute any proceeding,
judicial or otherwise, with respect to this Indenture, or for the appointment of
a receiver or trustee, or for any other remedy hereunder, unless
(1) such Holder has previously given written notice to the
Trustee of a continuing Event of Default;
(2) the Holders of not less than 25% in aggregate principal
amount of the Outstanding Securities shall have made written request to
the Trustee to institute
<PAGE> 48
41
proceedings in respect of such Event of Default, in its own name as
Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities to be
incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(5) no direction inconsistent with such written request has
been given to the Trustee during such 60-day period by the Holders of a
majority in principal amount of the Outstanding Securities;
it being understood and intended that no one or more Holders shall have any
right in any manner whatever by virtue of, or by availing of, any provision of
this Indenture to affect, disturb or prejudice the rights of any other Holders,
or to obtain or to seek to obtain priority or preference over any other Holders
or to enforce any right under this Indenture, except in the manner herein
provided and for the equal and ratable benefit of all Holders.
SECTION 5.08. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE
PRINCIPAL AND INTEREST AND TO CONVERT. Notwithstanding any other provision in
this Indenture, the Holder of any Security shall have the right, which is
absolute and unconditional, to receive payment of the principal of and (subject
to Section 3.08) interest (including any Additional Payments) on such Security
on the respective Stated Maturities expressed in such Security (or, in the case
of redemption, on the Redemption Date) and to convert such Security in
accordance with Article XIII and to institute suit for the enforcement of any
such payment and right to convert, and such rights shall not be impaired without
the consent of such Holder. If the Property Trustee is the sole Holder of the
Securities, any holder of the Preferred Securities shall have the right to
institute suit on behalf of the Trust for the enforcement of any such payment
and right to convert.
SECTION 5.09. RESTORATION OF RIGHTS AND REMEDIES. If the
Trustee or any Holder has instituted any proceeding to enforce any right or
remedy under this Indenture and such proceeding has been discontinued or
abandoned for any reason, or has been determined adversely to the Trustee or to
such Holder, then and in every such case, subject to any determination in such
proceeding, the Company, the Trustee
<PAGE> 49
42
and the Holders shall be restored severally and respectively to their former
positions hereunder and thereafter all rights and remedies of the Trustee and
the Holders shall continue as though no such proceeding had been instituted.
SECTION 5.10. RIGHTS AND REMEDIES CUMULATIVE. Except as
otherwise provided with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Securities in the last paragraph of Section 3.07, no
right or remedy herein conferred upon or reserved to the Trustee or to the
Holders is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
SECTION 5.11. DELAY OR OMISSION NOT WAIVER. No delay or
omission of the Trustee or of any Holder of any Security to exercise any right
or remedy accruing upon any Event of Default shall impair any such right or
remedy or constitute a waiver of any such Event of Default or an acquiescence
therein. Every right and remedy given by this Article or by law to the Trustee
or to the Holders may be exercised from time to time, and as often as may be
deemed expedient, by the Trustee or by the Holders, as the case may be.
SECTION 5.12. CONTROL BY HOLDERS. The Holders of a majority in
principal amount of the Outstanding Securities shall have the right to direct
the time, method and place of conducting any proceeding for any remedy available
to the Trustee or exercising any trust or power conferred on the Trustee;
PROVIDED, that
(1) such direction shall not be in conflict with any rule of
law or with this Indenture; and
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
SECTION 5.13. WAIVER OF PAST DEFAULTS. Subject to Section 9.02
hereof, the Holders of not less than a majority in principal amount of the
Outstanding Securities may on behalf of the Holders of all the Securities waive
any
<PAGE> 50
43
past default hereunder and its consequences, except a default
(1) in the payment of the principal of, premium, if any, or
interest (including any Additional Payments) on any Security (unless
such default has been cured and a sum sufficient to pay all matured
installments of interest and principal due otherwise than by
acceleration has been deposited with the Trustee); or
(2) in respect of a covenant or provision hereof which under
Article IX cannot be modified or amended without the consent of the
Holder of each Outstanding Security affected.
Upon any such waiver, such default shall cease to exist, and
any Event of Default arising therefrom shall be deemed to have been cured, for
every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other default or impair any right consequent thereon.
SECTION 5.14. UNDERTAKING FOR COSTS. In any suit for the
enforcement of any right or remedy under this Indenture, or in any suit against
the Trustee for any action taken, suffered or omitted by it as Trustee, a court
may require any party litigant in such suit to file an undertaking to pay the
costs of such suit, and may assess costs against any such party litigant, in the
manner and to the extent provided in the Trust Indenture Act; PROVIDED, that
neither this Section nor the Trust Indenture Act shall be deemed to authorize
any court to require such an undertaking or to make such an assessment in any
suit instituted by the Company or the Trustee or in any suit for the enforcement
of the right to receive the principal of and interest (including any Additional
Payments) on any Security or to convert any Security in accordance with Article
XIII.
SECTION 5.15. WAIVER OF STAY OR EXTENSION LAWS. The Company
covenants (to the extent that it may lawfully do so) that it will not at any
time insist upon, or plead, or in any manner whatsoever claim or take the
benefit or advantage of, any stay or extension law wherever enacted, now or at
any time hereafter in force, which may affect the covenants or the performance
of this Indenture; and the Company (to the extent that it may lawfully do so)
hereby expressly waives all benefit or advantage of any such law and covenants
that it will not hinder, delay or impede the execution of any power herein
granted to the Trustee, but will suffer and permit the execution of every such
power as though no such law had been enacted.
<PAGE> 51
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SECTION 5.16. ENFORCEMENT BY HOLDERS OF PREFERRED SECURITIES.
Notwithstanding anything to the contrary contained herein, if an Event of
Default has occurred and is continuing and such event is attributable to the
failure of the Company to pay interest or principal on the Securities on the
date such interest or principal is otherwise payable, the Company acknowledges
that, in such event, a holder of Preferred Securities may institute a legal
proceeding directly for enforcement of payment to such Holder of the principal
of or interest on the Debentures having a principal amount equal to the
aggregate liquidation amount of the Preferred Securities of such Holder (a
"DIRECT ACTION") on or after the respective due date specified in the
Securities. The Company may not amend this Indenture to remove the foregoing
right to bring a Direct Action without the prior written consent of all the
holders of Preferred Securities. Notwithstanding any payment made to such holder
of Preferred Securities by the Company in connection with a Direct Action, the
Company shall remain obligated to pay the principal of and interest on the
Securities (including Additional Payments, if any) held by the Trust or the
Property Trustee and the Company shall be subrogated to the rights of the holder
of such Preferred Securities with respect to payments on the Preferred
Securities to the extent of any payments made by the Company to such holder in
any Direct Action. The holders of Preferred Securities will not be able to
exercise directly any other remedy available to the Holders of the Securities.
ARTICLE VI
The Trustee
-----------
SECTION 6.01. CERTAIN DUTIES AND RESPONSIBILITIES. (a) Except
during the continuance of an Event of Default, the Trustee undertakes to perform
such duties and only such duties as are specifically set forth in this
Indenture, and no implied covenants or obligations shall be read into this
Indenture against the Trustee.
(b) In case an Event of Default has occurred and is
continuing, the Trustee shall exercise such of the rights and powers vested in
it by this Indenture, and use the same degree of care and skill in their
exercise, as a prudent person would exercise or use under the circumstances in
the conduct of his own affairs.
(c) Notwithstanding the foregoing, (i) the duties and
responsibilities of the Trustee shall be as provided by the Trust Indenture Act
and (ii) no provision of this
<PAGE> 52
45
Indenture shall require the Trustee to expend or risk its own funds or otherwise
incur any financial liability in the performance of any of its duties hereunder,
or in the exercise of any of its rights or powers, if it shall have reasonable
grounds for believing that repayment of such funds or adequate indemnity against
such risk or liability is not reasonably assured to it. Whether or not therein
expressly so provided, every provision of this Indenture relating to the conduct
or affecting the liability of or affording protection to the Trustee shall be
subject to the provisions of this Section.
SECTION 6.02. NOTICE OF DEFAULTS. The Trustee shall give the
Holders notice of any default hereunder as and to the extent provided by the
Trust Indenture Act; PROVIDED, HOWEVER, that in the case of any default of the
character specified in Section 5.01(3), no such notice to Holders shall be given
until at least 30 days after the occurrence thereof. For the purpose of this
Section, the term "default" means any event which is, or after notice or lapse
of time or both would become, an Event of Default.
SECTION 6.03. CERTAIN RIGHTS OF TRUSTEE. Subject to the
provisions of Section 6.01:
(a) the Trustee may conclusively rely and shall be protected
in acting or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness
or other paper or document believed by it to be genuine and to have
been signed or presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order
and any resolution of the Board of Directors may be sufficiently
evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established
prior to taking, suffering or omitting any action hereunder, the
Trustee (unless other evidence be herein specifically prescribed) may,
in the absence of bad faith on its part, rely upon an Officers'
Certificate;
(d) the Trustee may consult with counsel of its choice and the
advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and
<PAGE> 53
46
protection in respect of any action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request
or direction of any of the Holders pursuant to this Indenture, unless
such Holders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which might be
incurred by it in compliance with such request or direction;
(f) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness
or other paper or document, but the Trustee, in its discretion, may
make such further inquiry or investigation into such facts or matters
as it may see fit, and, if the Trustee shall determine to make such
further inquiry or investigation, it shall be entitled to reasonable
examination of the books, records and premises of the Company,
personally or by agent or attorney;
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and the Trustee shall not be responsible
for any misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder; and
(h) the Trustee shall not be liable for any action taken,
suffered, or omitted to be taken by it in good faith, without
negligence or willful misconduct, and reasonably believed by it to be
authorized or within the discretion or rights or powers conferred upon
it by this Indenture.
SECTION 6.04. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF
SECURITIES. The recitals contained herein and in the Securities, except the
Trustee's certificates of authentication, shall be taken as the statements of
the Company, and the Trustee assumes no responsibility for their correctness.
The Trustee makes no representations as to the validity or sufficiency of this
Indenture or of the Securities. The Trustee shall not be accountable for the use
or application by the Company of the Securities or the proceeds thereof.
<PAGE> 54
47
SECTION 6.05. MAY HOLD SECURITIES. The Trustee, any Paying
Agent, any Security Registrar or any other agent of the Company, in its
individual or any other capacity, may become the owner or pledgee of Securities
and, subject to Sections 6.08 and 6.13, may otherwise deal with the Company with
the same rights it would have if it were not Trustee, Paying Agent, Security
Registrar, or such other agent.
SECTION 6.06. MONEY HELD IN TRUST. Money held by the Trustee
in trust hereunder need not be segregated from other funds except to the extent
required by law. The Trustee shall be under no liability for interest on any
money received by it hereunder except as otherwise agreed with the Company.
SECTION 6.07. COMPENSATION AND REIMBURSEMENT. The Company
agrees:
(1) to pay to the Trustee from time to time such reasonable
compensation as the Company and the Trustee shall from time to time
agree in writing for all services rendered by it hereunder (which
compensation shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to
reimburse the Trustee upon its request for all reasonable expenses,
fees, disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture (including the
reasonable compensation and the expenses and disbursements of its
agents and counsel), except any such expense, disbursement or advance
as may be attributable to its negligence or bad faith; and
(3) to indemnify the Trustee and any predecessor Trustee for,
and to hold it harmless against, any loss, liability or expense
incurred without negligence or bad faith on its part, arising out of or
in connection with the acceptance or administration of this trust,
including the costs and expenses of defending itself against any claim
or liability in connection with the exercise or performance of any of
its powers or duties hereunder.
SECTION 6.08. DISQUALIFICATION; CONFLICTING INTERESTS. If the
Trustee has or shall acquire a conflicting interest within the meaning of the
Trust Indenture Act, the Trustee shall either eliminate such interest or resign,
to the extent and in the manner provided
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48
by, and subject to the provisions of, the Trust Indenture Act and this
Indenture.
SECTION 6.09. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY. There
shall at all times be a Trustee hereunder which shall be a Person that is
eligible pursuant to the Trust Indenture Act to act as such and has a combined
capital and surplus of at least $50,000,000 and has its Corporate Trust Office
in Cincinnati, Ohio. If such Person publishes reports of condition at least
annually, pursuant to law or to the requirements of said supervising or
examining authority, then for the purposes of this Section, the combined capital
and surplus of such Person shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published.
Neither the Company nor any Person directly or indirectly controlling,
controlled by or under common control with the Company shall serve as Trustee
hereunder. If at any time the Trustee shall cease to be eligible in accordance
with the provisions of this Section, it shall resign immediately in the manner
and with the effect hereinafter specified in this Article.
SECTION 6.10. RESIGNATION AND REMOVAL; APPOINTMENT OF
SUCCESSOR. (a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee under Section 6.11.
(b) The Trustee may resign at any time by giving written
notice thereof to the Company. If an instrument of acceptance by a successor
Trustee shall not have been delivered to the Trustee within 30 days after the
giving of such notice of resignation, the resigning Trustee may petition any
court of competent jurisdiction for the appointment of a successor Trustee.
(c) The Trustee may be removed at any time by Act of the
Holders of a majority in principal amount of the Outstanding Securities,
delivered to the Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 6.08 after
written request therefor by the Company or by any Holder who has been a
bona fide Holder of a Security for at least six months; or
<PAGE> 56
49
(2) the Trustee shall cease to be eligible under Section 6.09
and shall fail to resign after written request therefor by the Company
or by any such Holder; or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of its
property shall be appointed or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation;
then, in any such case, (i) the Company may remove the Trustee, or (ii) subject
to Section 5.14, any Holder who has been a bona fide Holder of a Security for at
least six months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the removal of the Trustee and
the appointment of a successor Trustee.
(e) If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of Trustee for
any cause, the Company, by a Board Resolution, shall promptly appoint a
successor Trustee. If, within one year after such resignation, removal or
incapability, or the occurrence of such vacancy, a successor Trustee shall be
appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities delivered to the Company and the retiring Trustee, the
successor Trustee so appointed shall, forthwith upon its acceptance of such
appointment, become the successor Trustee and supersede the successor Trustee
appointed by the Company. If no successor Trustee shall have been so appointed
by the Company or the Holders and accepted appointment in the manner hereinafter
provided, any Holder who has been a bona fide Holder of a Security for at least
six months may, on behalf of himself and all others similarly situated, petition
any court of competent jurisdiction for the appointment of a successor Trustee.
(f) The Company shall give written notice of each resignation
and each removal of the Trustee and each appointment of a successor Trustee to
all Holders in the manner provided in Section 1.06. Each notice shall include
the name of the successor Trustee and the address of its Corporate Trust Office.
SECTION 6.11. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR. Every
successor Trustee appointed hereunder shall execute, acknowledge and deliver to
the Company and to
<PAGE> 57
50
the retiring Trustee an instrument accepting such appointment, and thereupon the
resignation or removal of the retiring Trustee shall become effective and such
successor Trustee, without any further act, deed or conveyance, shall become
vested with all the rights, powers, trusts and duties of the retiring Trustee;
PROVIDED, that on request of the Company or the successor Trustee, such retiring
Trustee shall, upon payment of its charges, execute and deliver an instrument
transferring to such successor Trustee all the rights, powers and trusts of the
retiring Trustee and shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder. Upon
request of any such successor Trustee, the Company shall execute any and all
instruments required to more fully and certainly vest in and confirm to such
successor Trustee all such rights, powers and trusts.
No successor Trustee shall accept its appointment unless at
the time of such acceptance such successor Trustee shall be qualified and
eligible under this Article.
SECTION 6.12. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION
TO BUSINESS. Any Person into which the Trustee may be merged or converted or
with which it may be consolidated, or any Person resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any Person
succeeding to all or substantially all the corporate trust business of the
Trustee, shall be the successor of the Trustee hereunder; PROVIDED such Person
shall be otherwise qualified and eligible under this Article, without the
execution or filing of any paper or any further act on the part of any of the
parties hereto. In case any Securities shall have been authenticated, but not
delivered, by the Trustee then in office, any successor by merger, conversion or
consolidation to such authenticating Trustee may adopt such authentication and
deliver the Securities so authenticated with the same effect as if such
successor Trustee had itself authenticated such Securities.
SECTION 6.13. PREFERENTIAL COLLECTION OF CLAIMS AGAINST
COMPANY. If and when the Trustee shall be or become a creditor of the Company
(or any other obligor upon the Securities), the Trustee shall be subject to the
provisions of the Trust Indenture Act regarding the collection of claims against
the Company (or any such other obligor).
<PAGE> 58
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ARTICLE VII
Holders' Lists and Reports by Trustee and Company
-------------------------------------------------
SECTION 7.01. COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES
OF HOLDERS. The Company will furnish or cause to be furnished to the Trustee
(a) semiannually, not later than January 15 and July 15 in
each year, a list, in such form as the Trustee may reasonably require,
of the names and addresses of the Holders as of a date not more than 15
days prior to the delivery thereof; and
(b) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Company of any such request, a
list of similar form and content as of a date not more than 15 days
prior to the time such list is furnished;
EXCLUDING from any such list names and addresses received by the Trustee in its
capacity as Security Registrar.
SECTION 7.02. PRESERVATION OF INFORMATION; COMMUNICATIONS TO
HOLDERS. (a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in Section 7.01 and the names and
addresses of Holders received by the Trustee in its capacity as Security
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 7.01 upon receipt of a new list so furnished.
(b) The rights of Holders to communicate with other Holders
with respect to their rights under this Indenture or under the Securities, and
the corresponding rights and duties of the Trustee, shall be as provided by the
Trust Indenture Act.
(c) Every Holder of Securities, by receiving and holding the
same, agrees with the Company and the Trustee that neither the Company nor the
Trustee nor any agent of either of them shall be held accountable by reason of
any disclosure of information as to names and addresses of Holders made pursuant
to the Trust Indenture Act.
SECTION 7.03. REPORTS BY TRUSTEE. (a) Within 60 days after
March 15 of each year, commencing March 15, 2000, the Trustee shall transmit by
first-class mail to Holders such reports concerning the Trustee and its actions
under this Indenture as may be required by Section 313(a) of
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the Trust Indenture Act in the manner provided pursuant thereto. The Trustee
shall also comply with the other requirements of Section 313 of the Trust
Indenture Act.
(b) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each stock exchange upon
which the Securities are listed, with the Commission and with the Company. The
Company will notify the Trustee when the Securities are listed on any stock
exchange.
SECTION 7.04. REPORTS BY COMPANY. The Company shall file with
the Trustee and the Commission, and transmit to Holders, such information,
documents and other reports, and such summaries thereof, as may be required
pursuant to the Trust Indenture Act at the times and in the manner provided
pursuant to such Act; PROVIDED, that any such information, documents or reports
required to be filed with the Commission pursuant to Section 13 or 15(d) of the
Exchange Act shall be filed with the Trustee within 15 days after the same is so
required to be filed with the Commission.
Delivery of such reports, information and documents to the
Trustee is for informational purposes only and the Trustee's receipt of such
shall not constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers' Certificates).
SECTION 7.05. TAX REPORTING. The Company shall provide to the
Trustee on a timely basis such information as the Trustee requires to enable the
Trustee to prepare and file any form required to be submitted by the Company
with the Internal Revenue Service and the Holders relating to original issue
discount, including, without limitation, Form 1099-0ID or any successor form.
ARTICLE VIII
Consolidation, Merger, Conveyance, Transfer or Lease
----------------------------------------------------
SECTION 8.01. COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN
TERMS. The Company shall not consolidate with or merge with or into any other
Person or convey, transfer or lease its properties and assets substantially as
an entirety to any Person, and no Person shall consolidate with or merge with or
into the Company or convey, transfer
<PAGE> 60
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or lease its properties and assets substantially as an entirety to the Company,
unless:
(1) in case the Company shall consolidate with or merge with
or into another Person or convey, transfer or lease all or
substantially all of its properties and assets on a consolidated basis
to any Person, the Person formed by such consolidation or into which
the Company is merged or the Person which acquires by conveyance,
transfer or lease, all or substantially all of the properties and
assets of the Company on a consolidated basis shall be a corporation,
limited liability company, partnership or trust, shall be organized and
validly existing under the laws of the United States of America, any
State thereof or the District of Columbia and shall expressly assume,
by an indenture supplemental hereto, executed and delivered to the
Trustee, in form reasonably satisfactory to the Trustee, the due and
punctual payment of the principal of and interest (including any
Additional Payments) on all the Securities and the performance or
observance of every covenant of this Indenture on the part of the
Company to be performed or observed and shall have provided for
conversion rights in accordance with Article XIII;
(2) immediately after giving effect to such transaction and
treating any indebtedness which becomes an obligation of the Company or
a Subsidiary as a result of such transaction as having been incurred by
the Company or such Subsidiary at the time of such transaction, no
Event of Default, and no event which, after notice or lapse of time or
both, would become an Event of Default, shall have happened and be
continuing;
(3) if at the time any Preferred Securities are outstanding,
such consolidation or merger or conveyance, transfer or lease of assets
of the Company is permitted under, and does not give rise to any breach
or violation of, the Declaration or the Guarantee; and
(4) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, conveyance, transfer or lease and, if a
supplemental indenture is required in connection with such transaction,
such supplemental indenture, comply with this Article and that all
conditions precedent herein provided for relating to such transaction
have been complied with.
<PAGE> 61
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SECTION 8.02. SUCCESSOR SUBSTITUTED. Upon any consolidation of
the Company with, or merger of the Company into, any other Person or any
conveyance, transfer or lease of all or substantially all the properties and
assets of the Company on a consolidated basis in accordance with Section 8.01,
the successor Person formed by such consolidation or into which the Company is
merged or to which such conveyance, transfer or lease is made shall succeed to,
and be substituted for, and may exercise every right and power of, the Company
under this Indenture with the same effect as if such successor Person had been
named as the Company herein, and thereafter, except in the case of a lease, the
predecessor Person shall be relieved of all obligations and covenants under this
Indenture and the Securities.
ARTICLE IX
Supplemental Indentures
-----------------------
SECTION 9.01. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF
HOLDERS. Without the consent of any Holders, the Company, when authorized by a
Board Resolution, and the Trustee, at any time and from time to time, may enter
into one or more indentures supplemental hereto, in form satisfactory to the
Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the
Company and the assumption by any such successor of the covenants of
the Company herein and in the Securities; or
(2) to add to the covenants of the Company for the benefit of
the Holders, or to surrender any right or power herein conferred upon
the Company; or
(3) to make provision with respect to the conversion rights of
Holders pursuant to the requirements of Article XIII; or
(4) to cure any ambiguity, to correct or supplement any
provision herein which may be inconsistent with any other provision
herein, or to make any other provisions with respect to matters or
questions arising under this Indenture which shall not be inconsistent
with the provisions of this Indenture; PROVIDED, that such action
pursuant to this clause (4) shall not adversely affect the interests of
the Holders of the Securities or, so long as any of the Preferred
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Securities shall remain outstanding, the holders of the Preferred
Securities; or
(5) to comply with the requirements of the Commission in order
to effect or maintain the qualification of this Indenture under the
Trust Indenture Act.
SECTION 9.02. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS.
With the consent of the Holders of not less than a majority in principal amount
of the Outstanding Securities, by Act of said Holders delivered to the Company
and the Trustee, the Company, when authorized by a Board Resolution, and the
Trustee may enter into an indenture or indentures supplemental hereto for the
purpose of adding any provisions to or changing in any manner or eliminating any
of the provisions of this Indenture or of modifying in any manner the rights of
the Holders under this Indenture; PROVIDED, HOWEVER, that no such supplemental
indenture shall, without the consent of the Holder of each Outstanding Security
affected thereby,
(1) extend the Stated Maturity of the principal of, or any
installment of interest (including any Additional Payments) on, any
Security, or reduce the principal amount thereof, or reduce the rate or
extend the time for payment of interest thereon, or reduce any premium
payable upon the redemption thereof, or change the place of payment
where, or the coin or currency in which, any Security or interest
thereon is payable, or impair the right to institute suit for the
enforcement of any such payment on or after the Stated Maturity thereof
(or, in the case of redemption, on or after the Redemption Date), or
adversely affect the right to convert any Security as provided in
Article XIII (except as permitted by Section 9.01(3)), or modify the
provisions of this Indenture with respect to the subordination of the
Securities in a manner adverse to the Holders,
(2) reduce the percentage in principal amount of the
Outstanding Securities, the consent of whose Holders is required for
any such supplemental indenture, or the consent of whose Holders is
required for any waiver of compliance with certain provisions of this
Indenture or certain defaults hereunder and their consequences provided
for in this Indenture, or
(3) modify any of the provisions of this Section or Section
5.13, except to increase any such percentage or to provide that certain
other provisions of this
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56
Indenture cannot be modified or waived without the consent of the
Holder of each Outstanding Security affected thereby.
Notwithstanding anything to the contrary in this Indenture or
the Declaration, if the Property Trustee is the sole holder of the Securities,
so long as any of the Preferred Securities remains outstanding, no amendment
shall be made that adversely affects the holders of such Preferred Securities,
and no termination of this Indenture shall occur, and no waiver of any Event of
Default or compliance with any covenant under this Indenture shall be effective,
without the prior consent of the holders of the percentage of the aggregate
liquidation amount of such Preferred Securities then outstanding which is at
least equal to the percentage of aggregate stated liquidation amount of the
Outstanding Securities as shall be required under this Indenture to effect any
such amendment, termination or waiver.
It shall not be necessary for any Act of Holders under this
Section to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such Act shall approve the substance thereof.
SECTION 9.03. EXECUTION OF SUPPLEMENTAL INDENTURES. In
executing or accepting the additional trusts created by any supplemental
indenture permitted by this Article or the modifications thereby of the trusts
created by this Indenture, the Trustee shall be entitled to receive, and
(subject to Section 6.01) shall be fully protected in relying upon, an Opinion
of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
SECTION 9.04. EFFECT OF SUPPLEMENTAL INDENTURES. Upon the
execution of any supplemental indenture under this Article, this Indenture shall
be modified in accordance therewith, and such supplemental indenture shall form
a part of this Indenture for all purposes; and every Holder of Securities
theretofore or thereafter authenticated and delivered hereunder shall be bound
thereby. No such supplemental indenture shall directly or indirectly modify the
provisions of Article XII in any manner which might terminate or impair the
rights of the Senior Debt pursuant to such subordination provisions.
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SECTION 9.05. CONFORMITY WITH TRUST INDENTURE ACT. Every
supplemental indenture executed pursuant to this Article shall conform to the
requirements of the Trust Indenture Act.
SECTION 9.06. REFERENCE IN SECURITIES TO SUPPLEMENTAL
INDENTURES. Securities authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and shall if required by
the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company shall so determine,
new Securities so modified as to conform, in the opinion of the Trustee and the
Company, to any such supplemental indenture, may be prepared and executed by the
Company and authenticated and delivered by the Trustee in exchange for
Outstanding Securities.
ARTICLE X
Covenants; Representations and Warranties
-----------------------------------------
SECTION 10.01. PAYMENT OF PRINCIPAL AND INTEREST. The Company
will duly and punctually pay the principal of and interest on the Securities in
accordance with the terms of the Securities and this Indenture.
SECTION 10.02. MAINTENANCE OF OFFICE OR AGENCY. The Company
will maintain in the United States an office or agency where Securities may be
presented or surrendered for payment, where Securities may be surrendered for
registration of transfer, exchange or conversion, and where notices and demands
to or upon the Company in respect of the Securities and this Indenture may be
served. The Company will give prompt written notice to the Trustee of the
location, and any change in the location, of such office or agency. If at any
time the Company shall fail to maintain any such required office or agency or
shall fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the Corporate Trust
Office of the Trustee, and the Company hereby appoints the Trustee as its agent
to receive all such presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more
other offices or agencies (in the United States) where the Securities may be
presented or surrendered for any or all such purposes and may from time to time
rescind such designations; PROVIDED, HOWEVER, that no such designation or
rescission shall in any manner relieve the Company of its
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58
obligation to maintain an office or agency in the United States for such
purposes. The Company will give prompt written notice to the Trustee of any such
designation or rescission and of any change in the location of any such other
office or agency.
SECTION 10.03. MONEY FOR SECURITY PAYMENTS TO BE HELD IN
TRUST. If the Company shall at any time act as its own Paying Agent, it will, on
or before each due date of the principal of or interest on any of the
Securities, segregate and hold in trust for the benefit of the Persons entitled
thereto a sum sufficient to pay the principal or interest so becoming due until
such sums shall be paid to such Persons or otherwise disposed of as herein
provided and will promptly notify the Trustee of its action or failure so to
act.
Whenever the Company shall have one or more Paying Agents, it
will, prior to each due date of the principal of or interest on any Securities,
deposit with a Paying Agent a sum sufficient to pay the principal or interest so
becoming due, such sum to be held as provided by the Trust Indenture Act, and
(unless such Paying Agent is the Trustee) the Company will promptly notify the
Trustee of its action or failure to so act.
The Company will cause each Paying Agent other than the
Trustee to execute and deliver to the Trustee an instrument in which such Paying
Agent shall agree with the Trustee, subject to the provisions of this Section,
that such Paying Agent will (i) comply with the provisions of the Trust
Indenture Act applicable to it as a Paying Agent and (ii) during the continuance
of any default by the Company (or any other obligor upon the Securities) in the
making of any payment in respect of the Securities, upon the written request of
the Trustee, forthwith pay to the Trustee all sums held in trust by such Paying
Agent as such.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such money.
Any money deposited with the Trustee or any Paying Agent, or
then held by the Company, in trust for the payment
<PAGE> 66
59
of the principal of or interest on any Security and remaining unclaimed for two
years after such principal or interest has become due and payable, shall be paid
to the Company on Company Request, or (if then held by the Company) shall be
discharged from such trust; and the Holder of any such Security shall
thereafter, as an unsecured general creditor, look only to the Company for
payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Company as trustee
thereof, shall thereupon cease.
SECTION 10.04. STATEMENT BY OFFICERS AS TO DEFAULT. The
Company will deliver to the Trustee, within 120 days after the end of each
fiscal year of the Company ending after the date hereof, an Officers'
Certificate, stating whether or not to the best knowledge of the signers thereof
the Company is in default in the performance and observance of any of the terms,
provisions, covenants and conditions of this Indenture (without regard to any
period of grace or requirement of notice provided hereunder) and, if the Company
shall be in default, specifying all such defaults and the nature and status
thereof of which they may have knowledge.
SECTION 10.05. LIMITATION ON DIVIDENDS; TRANSACTIONS WITH
AFFILIATES; COVENANTS AS TO THE TRUST. (a) If at such time (x) there shall have
occurred an Event of Default, (y) the Company shall be in default with respect
to its payment of any obligations under the Guarantee or (z) the Company shall
have given notice of its election to begin a Deferral Period as provided herein
and shall not have rescinded such notice, or such Deferral Period shall be
continuing, the Company covenants that the Company shall not (i) declare or pay
any dividends or distributions on, or redeem, purchase, acquire or make a
liquidation payment with respect to, any of the Company's capital stock (which
includes common and preferred stock) other than stock dividends which consist of
stock of the same class as that on which the dividends are being paid, (ii) make
any payment of principal, interest or premium, on or repay or repurchase or
redeem any debt securities of the Company that rank PARI PASSU with or junior in
interest to the Securities or (iii) make any guarantee payments with respect to
any guarantee by the Company of the debt securities of any subsidiary of the
Company if such guarantee ranks PARI PASSU with or junior in interest to the
Securities (in each case, other than (A) dividends or distributions in Capital
Stock, (B) any declaration of a dividend in connection with the implementation
of a stockholders' rights plan, or the issuance of stock under any such plan in
the future, or the redemption or repurchase of any such rights pursuant
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thereto, (C) payments under the Guarantee, (D) purchases or acquisitions of
shares of the Capital Stock in connection with the satisfaction by the Company
of its obligations under any employee benefit plan or any other contractual
obligation of the Company (other than a contractual obligation ranking PARI
PASSU with or junior in interest to the Securities), (E) as a result of a
reclassification of the Company's capital stock or the exchange or conversion of
one class or series of the Company's capital stock for another class or series
of the Company's capital stock or (F) the purchase of fractional interests in
shares of the Company's capital stock pursuant to the conversion or exchange
provisions of such capital stock or the security being converted or exchanged).
(b) The Company also covenants and agrees (i) that it shall
directly or indirectly maintain 100% ownership of the Common Securities of the
Trust; PROVIDED, HOWEVER, that any permitted successor of the Company hereunder
may succeed to the Company's ownership of such Common Securities and (ii) that
it shall use its reasonable efforts, consistent with the terms and provisions of
the Declaration, to cause the Trust (x) to remain a statutory business trust,
except in connection with the distribution of the Securities to the holders of
Trust Securities in liquidation of the Trust, the redemption of all of the Trust
Securities of the Trust, or certain mergers, consolidations or amalgamations,
each as permitted by the Declaration, and (y) to otherwise continue to be
classified as a grantor trust for United States Federal income tax purposes.
SECTION 10.06. PAYMENT OF EXPENSES OF THE TRUST. In connection
with the offering, sale and issuance of the Securities to the Property Trustee
in connection with the sale of the Trust Securities by the Trust, the Company
shall:
(a) pay for all costs, fees and expenses relating to the
exchange and issuance of the Securities, including compensation of the
Trustee under the Indenture in accordance with the provisions of
Section 6.07 of the Indenture;
(b) be responsible for and pay for all debts and obligations
(other than with respect to the Trust Securities) of the Trust, pay for
all costs and expenses of the Trust (including, but not limited to,
costs and expenses relating to the organization of the Trust, the
offering, sale and issuance of the Trust Securities (including
commissions to the underwriters in connection therewith), the fees and
expenses of the
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Property Trustee and the Delaware Trustee, the costs and expenses
relating to the operation of the Trust, including without limitation,
costs and expenses of accountants, attorneys, statistical or
bookkeeping services, expenses for printing and engraving and computing
or accounting equipment, paying agent(s), registrar(s), transfer
agent(s), duplicating, travel and telephone and other
telecommunications expenses and costs and expenses incurred in
connection with the acquisition, financing, and disposition of Trust
assets); and
(c) pay any and all taxes (other than United States
withholding taxes attributable to the Trust or its assets) and all
liabilities, costs and expenses with respect to such taxes of the
Trust.
ARTICLE XI
Redemption of Securities
------------------------
SECTION 11.01. OPTIONAL REDEMPTION. The Company shall have the
right to redeem the Securities (an "Optional Redemption") in whole or in part,
at any time or from time to time on or after March 15, 2003, at a Redemption
Price (the "Optional Redemption Price") equal to $27.27 per $27 principal amount
of the Securities to be redeemed plus any accrued and unpaid interest, including
Additional Payments, if any, to the Redemption Date, if redeemed on or before
March 15, 2004, and thereafter at $27 per $27 principal amount of the Securities
plus, in each case, any accrued and unpaid interest, including Additional
Payments, if any, to the Redemption Date.
SECTION 11.02. TAX EVENT REDEMPTION. (a) If a Tax Event has
occurred and is continuing and:
(1) the Company has received a Redemption Tax Opinion; or
(2) the Issuer Trustees shall have been informed by nationally
recognized independent tax counsel (reasonably acceptable to the Issuer
Trustees) experienced in such matters that a No Recognition Opinion
cannot be delivered,
then the Company shall have the right upon not less than 20 days, nor more than
60 days, notice to the Holders of the Securities to redeem the Securities in
whole, but not in part, for cash at $27.27 per $27 principal amount of the
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Securities plus accrued and unpaid interest, including Additional Payments, if
any, to the Redemption Date, within 90 days following the occurrence of such Tax
Event (the "90 Day Period"); PROVIDED, HOWEVER, that if, at the time there is
available to the Company or the Trust the opportunity to eliminate, within the
90 Day Period, the Tax Event by taking some ministerial action, including, but
not limited to, filing a form or making an election, or pursuing some other
similar reasonable measure which, in the sole judgment of the Company, will have
no adverse effect on the Company, the Trust or the Holders of the Preferred
Securities and will involve no material cost, then the Company or the Trust
shall pursue such ministerial action or other measure in lieu of redemption; and
PROVIDED FURTHER that the Company shall have no right to redeem the Securities
while the Trust is pursuing any ministerial action or other similar measure
pursuant to its obligations under the Declaration.
(b) If the Company opts not to redeem the Securities pursuant
to this Section 11.02, the Company shall be required to pay Additional Sums in
respect of the Securities pursuant to Section 3.01 for so long as (i) a Tax
Event has occurred and is continuing and (ii) the Property Trustee is the sole
Holder of the Securities.
SECTION 11.03. SELECTION BY TRUSTEE OF SECURITIES TO BE
REDEEMED. If less than all the Securities are to be redeemed (unless such
redemption affects only a single Security), the particular Securities to be
redeemed shall be selected not more than 60 days prior to the Redemption Date by
the Trustee by such method as the Trustee shall deem fair and appropriate, from
the Outstanding Securities not previously called for redemption. Such selection
method may provide for the selection for redemption of portions (equal to $27 or
any integral multiple thereof) of the principal amount of the Securities.
The Trustee shall promptly notify the Company in writing of
the Securities selected for redemption as aforesaid and, in case of any
Securities selected for partial redemption as aforesaid, the principal amount
thereof to be redeemed.
The provisions of the two preceding paragraphs shall not apply
with respect to any redemption affecting only a single Security, whether such
Security is to be redeemed in whole or in part. In the case of any such
redemption in part, the unredeemed portion of the principal amount of the
Security shall be in an authorized
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denomination (which shall not be less than the minimum authorized denomination)
for such Security.
For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the redemption of Securities
shall relate, in the case of any Securities redeemed or to be redeemed only in
part, to the portion of the principal amount of such Securities which has been
or is to be redeemed.
SECTION 11.04. NOTICE OF REDEMPTION. Notice of redemption
shall be given by first-class mail, postage prepaid, mailed not less than 30
(or, in the case of a redemption pursuant to Section 11.02 hereof, 20) nor more
than 60 days prior to the Redemption Date, to each Holder of Securities to be
redeemed, at such Holder's address appearing in the Security Register.
All notices of redemption given pursuant to this Article XI
shall identify the Securities to be redeemed (including, if relevant, CUSIP or
ISIN number) and shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) that on the Redemption Date the Redemption Price will
become due and payable upon each such Security to be redeemed and that
interest thereon will cease to accrue on and after said date,
(4) the place or places where such Securities are
to be surrendered for payment of the Redemption Price,
and
(5) the date on which the right to convert the Securities to
be redeemed will terminate and the places where such Securities may be
surrendered for conversion.
Notice of redemption of Securities to be redeemed at the
election of the Company shall be given by the Company or, at the Company's
request, by the Trustee in the name and at the expense of the Company.
SECTION 11.05. DEPOSIT OF REDEMPTION PRICE. Prior to 12:00
noon on any Redemption Date, the Company shall deposit with the Trustee or with
a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate
and hold in trust as provided in Section 10.03) an amount of
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money sufficient to pay the Redemption Price of, and (except if the Redemption
Date shall be an Interest Payment Date) accrued interest on, all the Securities
which are to be redeemed on that date.
If any Security called for redemption is converted, any money
deposited with the Trustee or with any Paying Agent or so segregated and held in
trust for the redemption of such Security shall (subject to any right of the
Holder of such Security or any Predecessor Security to receive interest as
provided in the last paragraph of Section 3.08) be paid to the Company upon
Company Request or, if then held by the Company, shall be discharged from such
trust.
SECTION 11.06. SECURITIES PAYABLE ON REDEMPTION DATE. Notice
of redemption having been given as aforesaid, the Securities so to be redeemed
shall, on the Redemption Date, become due and payable at the Redemption Price
therein specified, and from and after such date (unless the Company shall
default in the payment of the Redemption Price and accrued interest) such
Securities shall cease to bear interest. Upon surrender of any such Security for
redemption in accordance with said notice, such Security shall be paid by the
Company at the Redemption Price; PROVIDED, HOWEVER, that installments of
interest whose Stated Maturity is on or prior to the Redemption Date shall be
payable to the Holders of such Securities, or one or more Predecessor
Securities, registered as such at the close of business on the relevant Record
Dates according to the terms and the provisions of Section 3.08.
If any Security called for redemption shall not be so paid
upon surrender thereof for redemption, the principal shall, until paid, bear
interest from the Redemption Date at the rate borne by the Security.
SECTION 11.07. SECURITIES REDEEMED IN PART. (a) In the event
of any redemption in part, the Company shall not be required (i) to issue,
register the transfer of or exchange any Security during a period beginning at
the opening of business 15 days before the date of the mailing of a notice of
redemption of Securities selected for redemption and ending at the close of
business on the day of such mailing and (ii) to register the transfer of or
exchange any Securities so selected for redemption, in whole or in part, except
for the unredeemed portion of any Securities being redeemed in part.
(b) If a partial redemption of the Securities would result in
the delisting of the Preferred Securities
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issued by the Trust from any national securities exchange or other organization
on which the Preferred Securities are listed, the Company shall not be permitted
to effect such partial redemption and may only redeem the Securities in whole.
(c) Any Security which is to be redeemed only in part shall be
surrendered at a place of payment therefor (with, if the Company or the Trustee
so requires, due endorsement by, or a written instrument of transfer in form
satisfactory to the Company and the Trustee duly executed by, the Holder thereof
or his attorney duly authorized in writing), and the Company shall execute, and
the Trustee shall authenticate and make available for delivery to the Holder of
such Security without service charge, a new Security or Securities, of any
authorized denomination as requested by such Holder, in aggregate principal
amount equal to and in exchange for the unredeemed portion of the principal of
the Security so surrendered. If a Global Security is surrendered, such new
Security will (subject to Section 3.06) also be a new Global Security.
ARTICLE XII
Subordination of Securities
---------------------------
SECTION 12.01. AGREEMENT TO SUBORDINATE. The Company covenants
and agrees, and each Holder of Securities by such Holder's acceptance thereof
likewise covenants and agrees, that all Securities shall be issued subject to
the provisions of this Article XII; and each Holder of a Security, whether upon
original issue or upon transfer or assignment thereof, accepts and agrees to be
bound by such provisions. The payment by the Company of the principal of,
premium, if any, and interest (including Additional Payments) on all Securities
issued hereunder shall, to the extent and in the manner hereinafter set forth,
be subordinated and junior in right of payment to the prior payment in full of
all Senior Debt, whether outstanding at the date of this Indenture or thereafter
incurred; PROVIDED, HOWEVER, that no provision of this Article XII shall prevent
the occurrence of any default or Event of Default hereunder.
SECTION 12.02. DEFAULT ON SENIOR DEBT. In the event and during
the continuation of any default by the Company in the payment of principal,
premium, interest or any other payment due on any Senior Debt continuing beyond
the period of grace, if any, specified in the instrument evidencing such Senior
Debt, unless and until such default shall have been cured or waived or shall
have ceased to
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exist, and in the event that the maturity of any Senior Debt has been
accelerated because of a default, then no payment shall be made by the Company
with respect to the principal of (including redemption payments), premium, if
any, or interest on the Securities.
In the event that, notwithstanding the foregoing, any payment
shall be received by the Trustee when such payment is prohibited by the
preceding paragraph of this Section 12.02, such payment shall be held in trust
for the benefit of, and shall be paid over or delivered to, the holders of
Senior Debt or their respective representatives, or to the trustee or trustees
under any indenture pursuant to which any of such Senior Debt may have been
issued, as their respective interests may appear, but only to the extent that
the holders of the Senior Debt (or their representative or representatives or a
trustee) notify the Trustee in writing within 90 days of such payment of the
amounts then due and owing on the Senior Debt and only the amounts specified in
such notice to the Trustee shall be paid to the holders of Senior Debt.
SECTION 12.03. LIQUIDATION; DISSOLUTION; BANKRUPTCY. Upon any
payment by the Company or distribution of assets of the Company of any kind or
character, whether in cash, property or securities, to creditors upon any
dissolution or winding up or liquidation or reorganization of the Company,
whether voluntary or involuntary, or in bankruptcy, insolvency, receivership or
other proceedings, all amounts (including principal, premium, if any, and
interest) due or to become due upon all Senior Debt shall first be paid in full,
or payment thereof provided for in money in accordance with its terms, before
any payment is made on account of the principal (and premium, if any) or
interest on the Securities; and upon any such dissolution or winding up or
liquidation or reorganization, any payment by the Company, or distribution of
assets of the Company of any kind or character, whether in cash, property or
securities, to which the Holders of the Securities or the Trustee would be
entitled, except for the provisions of this Article XII, shall be paid by the
Company or by any receiver, trustee in bankruptcy, liquidating trustee, agent or
other Person making such payment or distribution, or by the Holders of the
Securities or by the Trustee under this Indenture if received by them or it,
directly to the holders of Senior Debt (pro rata to such holders on the basis of
the respective amounts of Senior Debt held by such holders, as calculated by the
Company) or their representative or representatives, or to the trustee or
trustees under any indenture pursuant to which any instruments evidencing such
Senior Debt may have been issued, as their respective
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interests may appear, to the extent necessary to pay such Senior Debt in full,
in money or money's worth, after giving effect to any concurrent payment or
distribution to or for the holders of such Senior Debt, before any payment or
distribution is made to the Holders of Securities or to the Trustee.
In the event that, notwithstanding the foregoing, any payment
or distribution of assets of the Company of any kind or character, whether in
cash, property or securities, prohibited by the foregoing shall be received by
the Trustee or the Holders of the Securities before all Senior Debt is paid in
full, or provision is made for such payment in money in accordance with its
terms, such payment or distribution shall be held in trust for the benefit of
and shall be paid over or delivered to the holders of Senior Debt or their
representative or representatives, or to the trustee or trustees under any
indenture pursuant to which any instruments evidencing such Senior Debt may have
been issued, and their respective interests may appear, as calculated by the
Company, for application to the payment of all Senior Debt remaining unpaid to
the extent necessary to pay such Senior Debt in full in money in accordance with
its terms, after giving effect to any concurrent payment or distribution to or
for the holders of such Senior Debt.
For purposes of this Article XII, the words, "cash, property
or securities" shall not be deemed to include shares of stock of the Company as
reorganized or readjusted, or securities of the Company or any other corporation
provided for by a plan of reorganization or readjustment, the payment of which
is subordinated at least to the extent provided in this Article XII with respect
to the Securities to the payment of all Senior Debt which may at the time be
outstanding; PROVIDED that (i) such Senior Debt is assumed by the new
corporation, if any, resulting from any such reorganization or readjustment, and
(ii) the rights of the holders of such Senior Debt are not, without the consent
of such holders, altered by such reorganization or readjustment. The
consolidation of the Company with, or the merger of the Company with or into,
another Person or the liquidation or dissolution of the Company following the
conveyance, transfer or lease of all or substantially all its properties and
assets on a consolidated basis to another Person upon the terms and conditions
provided for in Article VIII hereof shall not be deemed a dissolution, winding
up, liquidation or reorganization for the purposes of this Section 12.03 if such
other Person shall, as a part of such consolidation, merger, conveyance,
transfer or lease, comply with the conditions stated in Article VIII hereof.
Nothing in Section 12.02 or in this Section 12.03
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shall apply to claims of, or payments to, the Trustee under or pursuant to
Section 6.07 hereof.
SECTION 12.04. SUBROGATION. Subject to the payment in full of
all Senior Debt, the rights of the Holders of the Securities shall be subrogated
to the rights of the holders of such Senior Debt to receive payments or
distributions of cash, property or securities of the Company, as the case may
be, applicable to such Senior Debt until the principal of (and premium, if any)
and interest on the Securities shall be paid in full; and, for the purposes of
such subrogation, no payments or distributions to the holders of such Senior
Debt of any cash, property or securities to which the Holders of the Securities
or the Trustee would be entitled except for the provisions of this Article XII,
and no payment pursuant to the provisions of this Article XII, to or for the
benefit of the holders of such Senior Debt by Holders of the Securities or the
Trustee, shall, as between the Company, its creditors other than holders of
Senior Debt, and the Holders of the Securities, be deemed to be a payment by the
Company to or on account of such Senior Debt. It is understood that the
provisions of this Article XII are and are intended solely for the purposes of
defining the relative rights of the Holders of the Securities, on the one hand,
and the holders of such Senior Debt on the other hand.
Nothing contained in this Article XII or elsewhere in this
Indenture or in the Securities is intended to or shall impair, as between the
Company, its creditors other than the holders of Senior Debt, and the Holders of
the Securities, the obligation of the Company, which is absolute and
unconditional, to pay to the Holders of the Securities the principal of (and
premium, if any) and interest on the Securities as and when the same shall
become due and payable in accordance with their terms, or is intended to or
shall affect the relative rights of the Holders of the Securities and creditors
of the Company, as the case may be, other than the holders of Senior Debt, nor
shall anything herein or therein prevent the Trustee or the Holder of any
Security from exercising all remedies otherwise permitted by applicable law upon
default under this Indenture, subject to the rights, if any, under this Article
XII of the holders of such Senior Debt in respect of cash, property or
securities of the Company, as the case may be, received upon the exercise of any
such remedy.
Upon any payment or distribution of assets of the Company
referred to in this Article XII, the Trustee, subject to the provisions of
Section 6.03, and the Holders of the Securities shall be entitled to rely upon
any order
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or decree made by any court of competent jurisdiction in which such dissolution,
winding up, liquidation or reorganization proceedings are pending, or a
certificate of the receiver, trustee in bankruptcy, liquidation trustee, agent
or other Person making such payment or distribution, delivered to the Trustee or
to the Holders of the Securities, for the purposes of ascertaining the Persons
entitled to participate in such distribution, the holders of the Senior Debt and
other indebtedness of the Company, as the case may be, the amount thereof or
payable thereon, the amount or amounts paid or distributed thereon and all other
facts pertinent thereto or to this Article XII.
SECTION 12.05. TRUSTEE TO EFFECTUATE SUBORDINATION. Each
Holder of Securities by such Holder's acceptance thereof authorizes and directs
the Trustee on such Holder's behalf to take such action as may be necessary or
appropriate to effectuate the subordination provided in this Article XII and
appoints the Trustee as such Holder's attorney-in-fact for any and all such
purposes.
SECTION 12.06. NOTICE BY THE COMPANY. The Company shall give
prompt written notice to a Responsible Officer of the Trustee of any fact known
to the Company which would prohibit the making of any payment of monies to or by
the Trustee in respect of the Securities pursuant to the provisions of this
Article XII. Notwithstanding the provisions of this Article XII or any other
provision of this Indenture, the Trustee shall not be charged with knowledge of
the existence of any facts which would prohibit the making of any payment of
monies to or by the Trustee in respect of the Securities pursuant to the
provisions of this Article XII unless and until a Responsible Officer of the
Trustee shall have received written notice thereof at the Corporate Trust Office
of the Trustee from the Company or a holder or holders of Senior Debt or from
any trustee therefor; and before the receipt of any such written notice, the
Trustee, subject to the provisions of Section 6.03 hereof, shall be entitled in
all respects to assume that no such facts exist; PROVIDED, HOWEVER, that if the
Trustee shall not have received the notice provided for in this Section 12.06 at
least two Business Days prior to the date upon which by the terms hereof any
money may become payable for any purpose (including, without limitation, the
payment of the principal of (and premium, if any) or interest on any Security),
then, anything herein contained to the contrary notwithstanding, the Trustee
shall have full power and authority to receive such money and to apply the same
to the purposes for which it was received, and shall not be affected by any
notice to the contrary which may be received by it within two Business Days
prior to such date.
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The Trustee, subject to the provisions of Section 6.03, shall
be entitled to rely on the delivery to it of a written notice by a Person
representing himself to be a holder of Senior Debt (or a trustee on behalf of
such holder) to establish that such notice has been given by a holder of such
Senior Debt or a trustee on behalf of any such holder or holders. In the event
that the Trustee determines in good faith that further evidence is required with
respect to the right of any Person as a holder of Senior Debt to participate in
any payment or distribution pursuant to this Article XII, the Trustee may
request such Person to furnish evidence to the reasonable satisfaction of the
Trustee as to the amount of Senior Debt held by such Person, the extent to which
such Person is entitled to participate in such payment or distribution and any
other facts pertinent to the right of such Person under this Article XII, and,
if such evidence is not furnished, the Trustee may defer any payment to such
Person pending judicial determination as to the right of such Person to receive
such payment.
SECTION 12.07. RIGHTS OF THE TRUSTEE; HOLDERS OF SENIOR DEBT.
The Trustee in its individual capacity shall be entitled to all the rights set
forth in this Article XII in respect of any Senior Debt at any time held by it,
to the same extent as any other holder of Senior Debt, and nothing in this
Indenture shall deprive the Trustee of any of its rights as such holder.
With respect to the holders of Senior Debt of the Company, the
Trustee undertakes to perform or to observe only such of its covenants and
obligations as are set forth in this Article XII, and no implied covenants or
obligations with respect to the holders of such Senior Debt shall be read into
this Indenture against the Trustee. The Trustee shall not be deemed to owe any
fiduciary duty to the holders of such Senior Debt and, subject to the provisions
of Section 6.03, the Trustee shall not be liable to any holder of such Senior
Debt if it shall pay over or deliver to Holders of Securities, the Company or
any other Person money or assets to which any holder of such Senior Debt shall
be entitled by virtue of this Article XII or otherwise.
SECTION 12.08. SUBORDINATION MAY NOT BE IMPAIRED. No right of
any present or future holder of any Senior Debt to enforce subordination as
herein provided shall at any time in any way be prejudiced or impaired by any
act or failure to act on the part of the Company or by any act or failure to
act, in good faith, by any such holder, or by any noncompliance by the Company
with the terms, provisions and covenants of this Indenture, regardless of any
knowledge
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thereof which any such holder may have or otherwise be charged with.
Without in any way limiting the generality of the foregoing
paragraph, the holders of Senior Debt may, at any time and from time to time,
without the consent of or notice to the Trustee or the Holders of the
Securities, without incurring responsibility to the holders of the Securities
and without impairing or releasing the subordination provided in this Article
XII or the obligations hereunder of the Holders of the Securities to the holders
of Senior Debt, do any one or more of the following: (i) change the manner,
place or terms of payment or extend the time of payment of, or renew or alter,
such Senior Debt, or otherwise amend or supplement in any manner such Senior
Debt or any instrument evidencing the same or any agreement under which such
Senior Debt is outstanding; (ii) sell, exchange, release or otherwise deal with
any property pledged, mortgaged or otherwise securing such Senior Debt; (iii)
release any Person liable in any manner for the collection of such Senior Debt;
and (iv) exercise or refrain from exercising any rights against the Company and
any other Person.
ARTICLE XIII
Conversion of Securities
------------------------
SECTION 13.01. CONVERSION RIGHTS. Subject to and upon
compliance with the provisions of this Article, the Securities are convertible,
at the option of the Holder, at any time prior to 5:00 p.m. New York City time
on March 15, 2030 into fully paid and nonassessable shares of Capital Stock of
the Company at an initial conversion rate of 0.73 shares of Capital Stock for
each $27 in aggregate principal amount of Securities (the "Initial Conversion
Ratio") (equal to a conversion price of $37 principal amount of Securities per
share of Capital Stock (the "Initial Conversion Price")). The conversion ratio
and the equivalent conversion price in effect at any given time are known as the
"Applicable Conversion Ratio" and the "Applicable Conversion Price",
respectively, and are subject to adjustment as described in this Article XIII. A
Holder of Securities may convert any portion of the principal amount of the
Securities into that number of fully paid and nonassessable shares of Capital
Stock (calculated as to each conversion to the nearest 1/100th of a share)
obtained by dividing the principal amount of the Securities to be converted by
the Applicable Conversion Ratio. In case a Security or portion thereof is called
for redemption, such conversion right in respect of the Security or portion so
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called shall expire at the close of the Business Day immediately preceding the
corresponding Redemption Date, unless the Company defaults in making the payment
due upon redemption.
SECTION 13.02. CONVERSION PROCEDURES. (a) In order to convert
all or a portion of the Securities, the Holder thereof shall deliver to the
Conversion Agent an irrevocable Notice of Conversion setting forth the principal
amount of Securities to be converted, together with the name or names, if other
than the Holder, in which the shares of Capital Stock should be issued upon
conversion and, if such Securities are definitive Securities, surrender to the
Conversion Agent the Securities to be converted, duly endorsed or assigned to
the Company or in blank. In addition, a holder of Preferred Securities may
exercise its right under the Declaration to convert such Preferred Securities
into Capital Stock by delivering to the Conversion Agent an irrevocable Notice
of Conversion setting forth the information called for by the preceding sentence
and directing the Conversion Agent (i) to exchange such Preferred Security for a
portion of the Securities held by the Trust (at an exchange rate of $27
principal amount of Securities for each Preferred Security) and (ii) to
immediately convert such Securities, on behalf of such holder, into Capital
Stock of the Company pursuant to this Article XIII and, if such Preferred
Securities are in definitive form, surrendering such Preferred Securities, duly
endorsed or assigned to the Company or in blank. So long as any Preferred
Securities are outstanding, the Trust shall not convert any Securities except
pursuant to a Notice of Conversion duly executed and delivered to the Conversion
Agent by a holder of Preferred Securities.
If a Notice of Conversion is delivered on or after the Regular
Record Date and prior to the subsequent Interest Payment Date, the Holder will
be entitled to receive the interest payable on the subsequent Interest Payment
Date on the portion of Securities to be converted notwithstanding the conversion
thereof prior to such Interest Payment Date (unless the Maturity of such portion
of such Security is prior to such Interest Payment Date). Except as otherwise
provided in the immediately preceding sentence, in the case of any Security
which is converted, interest whose Stated Maturity is after the date of
conversion of such Security shall not be payable, and the Company shall not make
nor be required to make any other payment, adjustment or allowance with respect
to accrued but unpaid interest on the Securities being converted, which shall be
deemed to be paid in full. Each conversion shall be deemed to have been effected
immediately prior to the close of business on the
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73
day on which the Notice of Conversion was received (the "Conversion Date") by
the Conversion Agent from the Holder or from a holder of the Preferred
Securities effecting a conversion thereof pursuant to its conversion rights
under the Declaration, as the case may be. The Person or Persons entitled to
receive the Capital Stock issuable upon such conversion shall be treated for all
purposes as the record holder or holders of such Capital Stock as of the
Conversion Date. As promptly as practicable on or after the Conversion Date, the
Company shall issue and deliver at the office of the Conversion Agent, unless
otherwise directed by the Holder in the Notice of Conversion, a certificate or
certificates for the number of full shares of Capital Stock issuable upon such
conversion, together with the cash payment, if any, in lieu of any fraction of
any share to the Person or Persons entitled to receive the same. The Conversion
Agent shall deliver such certificate or certificates to such Person or Persons.
(b) Subject to any right of the Holder of such Security or any
Predecessor Security to receive interest as provided in the last paragraph of
Section 3.08 and the second paragraph of clause (a) of Section 13.02, the
Company's delivery upon conversion of the whole number of shares of Capital
Stock into which the Securities are convertible (together with the cash payment,
if any, in lieu of fractional shares) shall be deemed to satisfy the Company's
obligation to pay the principal amount at Maturity of the portion of Securities
so converted and any unpaid interest (including Compounded Interest and
Additional Sums) accrued on such Securities at the time of such conversion.
(c) No fractional shares of Capital Stock will be issued as a
result of conversion, but in lieu thereof, the Company shall pay to the
Conversion Agent a cash adjustment in an amount equal to the same fraction of
the Closing Price of such fractional interest on the date on which the
Securities or Preferred Securities, as the case may be, were duly surrendered to
the Conversion Agent for conversion, or, if such day is not a Trading Day, on
the next Trading Day, and the Conversion Agent in turn will make such payment,
if any, to the Holder of the Securities or the holder of the Preferred
Securities so converted.
(d) In the event of the conversion of any Security in part
only, a new Security or Securities for the unconverted portion thereof will be
issued in the name of the Holder thereof upon the cancelation thereof in
accordance with Section 3.06.
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(e) In effecting the conversion transactions described in this
Section, the Conversion Agent is acting as agent of the holders of Preferred
Securities (in the exchange of Preferred Securities for Securities) and as agent
of the Holders of Securities (in the conversion of Securities into Capital
Stock), as the case may be, directing it to effect such conversion transactions.
The Conversion Agent is hereby authorized (x) if the Trust exists, (i) to
exchange Securities held by or on behalf of the Trust from time to time for
Preferred Securities in connection with the conversion of such Preferred
Securities in accordance with this Article XIII and (ii) to convert all or a
portion of the Securities into Capital Stock and thereupon to deliver such
shares of Capital Stock in accordance with the provisions of this Article XIII
and to deliver to the Trust a new Security or Securities for any resulting
unconverted principal amount and (y) if the Trust no longer exists (i) to
exchange Securities held by the Holders in connection with the conversion of
such Securities in accordance with this Article XIII and (ii) to convert all or
a portion of the Securities into Capital Stock and thereupon to deliver such
shares of Capital Stock in accordance with the provisions of this Article XIII
and to deliver to such Holders a new Security or Securities for any resulting
unconverted principal amount.
SECTION 13.03. CONVERSION PRICE ADJUSTMENTS. The Applicable
Conversion Price shall be subject to adjustment (without duplication) from time
to time as follows:
(i) In case the Company shall pay a dividend or make a
distribution on the Capital Stock exclusively in Capital Stock, the
Applicable Conversion Price in effect at the opening of business on the
day following the date fixed for the determination of stockholders
entitled to receive such dividend or other distribution shall be
reduced by multiplying such Applicable Conversion Price by a fraction
of which the numerator shall be the number of shares of Capital Stock
outstanding at the close of business on the date fixed for such
determination and the denominator shall be the sum of such number of
shares and the total number of shares constituting such dividend or
other distribution, such reduction to become effective immediately
after the opening of business on the day following the date fixed for
such determination. For the purposes of this subparagraph (i), the
number of shares of Capital Stock at any time outstanding shall not
include shares held in the treasury of the Company. In the event that
such dividend or distribution is not so paid or made, the Applicable
Conversion Price shall
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again be adjusted to be the Applicable Conversion Price which would
then be in effect if such dividend or distribution had not occurred.
(ii) In case the Company shall pay or make a dividend or other
distribution on its Capital Stock consisting exclusively of, or shall
otherwise issue to all holders of its Capital Stock, rights or
warrants, in each case entitling the holders thereof to subscribe for
or purchase shares of Capital Stock at a price per share less than the
current market price per share (determined as provided in subparagraph
(vii)) of the Capital Stock on the date fixed for the determination of
stockholders entitled to receive such rights or warrants, the
Applicable Conversion Price in effect at the opening of business on the
day following the date fixed for such determination shall be reduced by
multiplying such Applicable Conversion Price by a fraction of which the
numerator shall be the number of shares of Capital Stock outstanding at
the close of business on the date fixed for such determination plus the
number of shares of Capital Stock which the aggregate of the offering
price of the total number of shares of Capital Stock so offered for
subscription or purchase would purchase at such current market price
and the denominator shall be the number of shares of Capital Stock
outstanding at the close of business on the date fixed for such
determination plus the number of shares of Capital Stock so offered for
subscription or purchase, such reduction to become effective
immediately after the opening of business on the day following the date
fixed for such determination. To the extent that rights are not so
issued or shares of Capital Stock are not so delivered after the
expiration of such rights or warrants, the Applicable Conversion Price
shall be readjusted to the Applicable Conversion Price which would then
be in effect if such date fixed for the determination of stockholders
entitled to receive such rights or warrants had not been fixed. For the
purposes of this subparagraph (ii), the number of shares of Capital
Stock at any time outstanding shall not include shares held in the
treasury of the Company.
(iii) In case outstanding shares of Capital Stock shall be
subdivided into a greater number of shares of Capital Stock, the
Applicable Conversion Price in effect at the opening of business on the
day following the day upon which such subdivision becomes effective
shall be proportionately reduced and, conversely, in case outstanding
shares of Capital Stock shall each be
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combined into a smaller number of shares of Capital Stock, the
Applicable Conversion Price in effect at the opening of business on the
day following the day upon which such combination becomes effective
shall be proportionately increased, such reduction or increase, as the
case may be, to become effective immediately after the opening of
business on the day following the day upon which such subdivision or
combination becomes effective.
(iv) Subject to the last sentence of this subparagraph (iv),
in case the Company shall, by dividend or otherwise, distribute to all
holders of its Capital Stock evidences of its indebtedness, shares of
any class or series of capital stock, cash or assets (including
securities, but excluding any rights or warrants referred to in
subparagraph (ii) of this Section 13.03, any dividend or distribution
paid exclusively in cash and any dividend or distribution referred to
in subparagraph (i) of this Section 13.03), the Applicable Conversion
Price shall be reduced so that the same shall equal the price
determined by multiplying the Applicable Conversion Price in effect
immediately prior to the effectiveness of the Applicable Conversion
Price reduction contemplated by this subparagraph (iv) by a fraction of
which the numerator shall be the current market price per share
(determined as provided in subparagraph (vii) of this Section 13.03) of
the Capital Stock on the date fixed for the determination of
stockholders entitled to receive such distribution (the "Reference
Date") less the fair market value (as determined in good faith by the
Board of Directors, whose determination shall be conclusive and
described in a resolution of the Board of Directors), on the Reference
Date, of the portion of the evidences of indebtedness, shares of
capital stock, cash and assets so distributed applicable to one share
of Capital Stock and the denominator shall be such current market price
per share of the Capital Stock, such reduction to become effective
immediately prior to the opening of business on the day following the
Reference Date. In the event that such dividend or distribution is not
so paid or made, the Applicable Conversion Price shall again be
adjusted to be the Applicable Conversion Price which would then be in
effect if such dividend or distribution had not occurred. For purposes
of this subparagraph (iv), any dividend or distribution that includes
shares of Capital Stock or rights or warrants to subscribe for or
purchase shares of Capital Stock shall be deemed instead to be (1) a
dividend or distribution of the
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evidences of indebtedness, shares of capital stock, cash or assets
other than such shares of Capital Stock or such rights or warrants
(making any Applicable Conversion Price reduction required by this
subparagraph (iv)) immediately followed by (2) a dividend or
distribution of such shares of Capital Stock or such rights or warrants
(making any further Applicable Conversion Price reduction required by
subparagraph (i) or (ii) of this Section 13.03), except any shares of
Capital Stock included in such dividend or distribution shall not be
deemed "outstanding at the close of business on the date fixed for such
determination" within the meaning of subparagraph (i) of this Section
13.03.
(v) In case the Company shall pay or make a dividend or other
distribution on its Capital Stock exclusively in cash (excluding cash
dividends to the extent that the annualized per share amount thereof
does not exceed 12 1/2 of the current market price per share of the
Capital Stock on the Trading Day next preceding the date of declaration
of such dividend), the Applicable Conversion Price shall be reduced so
that the same shall equal the price determined by multiplying the
Applicable Conversion Price in effect immediately prior to the
effectiveness of the Applicable Conversion Price reduction contemplated
by this subparagraph (v) by a fraction of which the numerator shall be
the current market price per share (determined as provided in
subparagraph (vii) of this Section 13.03) of the Capital Stock on the
date fixed for the payment of such distribution less the amount of cash
so distributed and not excluded as provided applicable to one share of
Capital Stock and the denominator shall be such current market price
per share of the Capital Stock, such reduction to become effective
immediately prior to the opening of business on the day following the
date fixed for the payment of such distribution; PROVIDED, HOWEVER,
that in the event the portion of the cash so distributed applicable to
one share of Capital Stock is equal to or greater than the current
market price per share (as defined in subparagraph (vii) of this
Section 13.03) of the Capital Stock on the record date mentioned above,
in lieu of the foregoing adjustment, adequate provision shall be made
so that each Holder of Securities shall have the right to receive upon
conversion the amount of cash such Holder would have received had such
Holder converted each Security immediately prior to the record date for
the distribution of the cash. In the event that such dividend or
distribution is not so paid or
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made, the Applicable Conversion Price shall again be adjusted to be the
Applicable Conversion Price which would then be in effect if such
record date had not been fixed.
(vi) In case a tender or exchange offer (other than an odd-lot
offer) made by the Company or any Subsidiary of the Company for all or
any portion of the Company's Capital Stock shall expire and such tender
or exchange offer shall involve the payment by the Company or such
Subsidiary of consideration per share of Capital Stock having a fair
market value (as determined in good faith by the Board of Directors,
whose determination shall be conclusive and described in a resolution
of the Board of Directors) at the last time (the "Expiration Time")
tenders or exchanges may be made pursuant to such tender or exchange
offer (as it shall have been amended) that exceeds 110% of the current
market price per share (determined as provided in subparagraph (vii) of
this Section 13.03) of the Capital Stock on the Trading Day next
succeeding the Expiration Time, the Applicable Conversion Price shall
be reduced so that the same shall equal the price determined by
multiplying the Applicable Conversion Price in effect immediately prior
to the effectiveness of the Applicable Conversion Price reduction
contemplated by this subparagraph (vi) by a fraction of which the
numerator shall be the number of shares of Capital Stock outstanding
(including any tendered or exchanged shares) at the Expiration Time
multiplied by the current market price per share (determined as
provided in subparagraph (vii) of this Section 13.03) of the Capital
Stock on the Trading Day next succeeding the Expiration Time and the
denominator shall be the sum of (x) the fair market value (determined
as aforesaid) of the aggregate consideration payable to stockholders
based on the acceptance (up to any maximum specified in the terms of
the tender or exchange offer) of all shares validly tendered or
exchanged and not withdrawn as of the Expiration Time (the shares
deemed so accepted, up to any such maximum, being referred to as the
"Purchased Shares") and (y) the product of the number of shares of
Capital Stock outstanding (less any Purchased Shares) at the Expiration
Time and the current market price per share (determined as provided in
subparagraph (vii) of this Section 13.03) of the Capital Stock on the
Trading Day next succeeding the Expiration Time, such reduction to
become effective immediately prior to the opening of business on the
day following the Expiration Time.
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(vii) For the purpose of any computation under subparagraphs
(ii), (iv), (v) and (vi) of this Section 13.03, the current market
price per share of Capital Stock on any date in question shall be
deemed to be the average of the daily Closing Prices for the ten
consecutive Trading Days prior to the earlier of the day in question
and, if applicable, the day before the "ex" date with respect to the
issuance or distribution requiring such computation; PROVIDED, HOWEVER,
that if another event occurs that would require an adjustment pursuant
to subparagraphs (i) through (vi) of this Section 13.03, inclusive, the
Board of Directors may make such adjustments to the Closing Prices
during such five Trading Day period as it deems appropriate to
effectuate the intent of the adjustments in this Section 13.03, in
which case any such determination by the Board of Directors shall be
set forth in a Board Resolution and shall be conclusive. For purposes
of this paragraph, the term "ex" date, (1) when used with respect to
any issuance or distribution, means the first date on which the Capital
Stock is quoted regular way on the New York Stock Exchange Composite
Tape or on such successor securities exchange on which the Capital
Stock may be quoted or listed or in the relevant market from which the
Closing Prices were obtained without the right to receive such issuance
or distribution, and (2) when used with respect to any tender or
exchange offer means the first date on which the Capital Stock is
quoted regular way on such securities exchange or in such market after
the Expiration Time of such offer.
(viii) The Company may make such reductions in the Applicable
Conversion Price, in addition to those required by subparagraphs (i),
(ii), (iii), (iv), (v) and (vi) of this Section 13.03, as it considers
to be advisable to avoid or diminish any income tax to holders of
Capital Stock or rights to purchase Capital Stock resulting from any
dividend or distribution of stock (or rights to acquire stock) or from
any event treated as such for income tax purposes.
(ix) There shall also be no adjustment of the Applicable
Conversion Price in case of the issuance of any Capital Stock (or
securities convertible into or exchangeable for Capital Stock), except
as specifically described above. If any action would require adjustment
of the Applicable Conversion Price, pursuant to more than one of the
anti-dilution provisions set forth in this Article XIII, only one
adjustment shall be made and such adjustment shall be the amount of
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adjustment that has the highest absolute value to Holders. Furthermore,
no adjustment in the Applicable Conversion Price shall be required
unless such adjustment would require an increase or decrease of at
least 1% in the Applicable Conversion Price; PROVIDED, HOWEVER, that
any adjustments which by reason of this sentence are not required to be
made shall be carried forward and taken into account in determining
whether any subsequent adjustment shall be required.
SECTION 13.04. RECLASSIFICATION, CONSOLIDATION, MERGER OR SALE
OF ASSETS. In the event that the Company shall be a party to any transaction
(including without limitation (a) any recapitalization or reclassification of
the Capital Stock (other than a change in par value, or from par value to no par
value, or from no par value to par value, or as a result of a subdivision or
combination of the Capital Stock), (b) any consolidation of the Company with, or
merger of the Company into, any other Person, any merger of another Person into
the Company (other than a merger which does not result in a reclassification,
conversion, exchange or cancelation of outstanding shares of Capital Stock of
the Company), (c) any sale or transfer of all or substantially all of the assets
of the Company or (d) any compulsory share exchange) (each of the events in the
preceding clauses (a) through (d) being referred to as a "Company Transaction"),
in each case, as a result of which shares of Capital Stock shall be converted
into the right to receive other securities, cash or other property, then lawful
provision shall be made as part of the terms of such Company Transaction whereby
the Holder of each Security then outstanding shall have the right thereafter to
convert such Security only into (i) in the case of any Company Transaction other
than a Capital Stock Fundamental Change, the kind and amount of securities, cash
and other property receivable upon the consummation of the Company Transaction
by a holder of that number of shares of Capital Stock into which such Security
was convertible immediately prior to such transaction, after giving effect to
any adjustment in the Applicable Conversion Price required by the provision of
Section 13.07(a)(i), and (ii) in the case of a Company Transaction involving a
Capital Stock Fundamental Change, common stock of the kind received by holders
of Capital Stock as a result of such Capital Stock Fundamental Change in an
amount determined pursuant to the provisions of Section 13.07(a)(ii). Holders of
the Securities shall have no voting rights with respect to any Company
Transaction described in this Section 13.04.
The Company or the Person formed by such consolidation or
resulting from such merger or which
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acquired such assets or which acquires the Company's shares, as the case may be,
shall make provision in its certificate or articles of incorporation or other
constituent document to establish such right. Such certificate or articles of
incorporation or other constituent document shall provide for adjustments which,
for events subsequent to the effective date of such certificate or articles of
incorporation or other constituent document, shall be as nearly equivalent as
may be practicable to the adjustments provided for in this Article XIII. The
above provisions shall similarly apply to successive transactions of the
foregoing type.
SECTION 13.05. NOTICE OF ADJUSTMENTS OF CONVERSION PRICE.
Whenever the Applicable Conversion Price is adjusted as herein provided:
(a) the Company shall compute the adjusted Applicable
Conversion Price and shall prepare a certificate signed by the Chief
Financial Officer or the Treasurer of the Company setting forth the
adjusted Applicable Conversion Price and showing in reasonable detail
the facts upon which such adjustment is based, and such certificate
shall forthwith be filed with the Trustee, the Conversion Agent and the
transfer agent for the Preferred Securities and the Securities; and
(b) a notice stating the Applicable Conversion Price has been
adjusted and setting forth the adjusted Applicable Conversion Price
shall as soon as practicable be mailed by the Company to all record
holders of Preferred Securities and the Securities at their last
addresses as they appear upon the stock transfer books of the Company
and the books and records of the Trust, respectively.
SECTION 13.06. PRIOR NOTICE OF CERTAIN EVENTS. In case:
(i) the Company shall (1) declare any dividend (or any other
distribution) on its Capital Stock, other than (A) a dividend payable
in shares of Capital Stock or (B) a dividend payable in cash that would
not require an adjustment pursuant to Section 13.03(iv) or (v) or (2)
authorize a tender or exchange offer that would require an adjustment
pursuant to Section 13.03(vi);
(ii) the Company shall authorize the granting to all holders
of Capital Stock of rights or warrants to
<PAGE> 89
82
subscribe for or purchase any shares of stock of any class or series
or of any other rights or warrants;
(iii) of any reclassification of Capital Stock (other than a
subdivision or combination of the outstanding Capital Stock, or a
change in par value, or from par value to no par value, or from no par
value to par value), or of any consolidation or merger to which the
Company is a party and for which approval of any stockholders of the
Company shall be required, or of the sale or transfer of all or
substantially all of the assets of the Company or of any compulsory
share exchange whereby the Capital Stock is converted into other
securities, cash or other property; or
(iv) of the voluntary or involuntary dissolution, liquidation
or winding up of the Company;
then the Company shall (a) if any Preferred Securities are outstanding, cause to
be filed with the transfer agent for the Preferred Securities, and shall cause
to be mailed to the holders of record of the Preferred Securities, at their last
addresses as they shall appear upon the books and records of the Trust, or (b)
shall cause to be mailed to all Holders at their last addresses as they shall
appear in the Security Register, at least fifteen days prior to the applicable
record or effective date hereinafter specified, a notice stating (x) the date on
which a record (if any) is to be taken for the purpose of such dividend,
distribution, rights or warrants or, if a record is not to be taken, the date as
of which the holders of Capital Stock of record to be entitled to such dividend,
distribution, rights or warrants are to be determined or (y) the date on which
such reclassification, consolidation, merger, sale, transfer, share exchange,
dissolution, liquidation or winding up is expected to become effective, and the
date as of which it is expected that holders of Capital Stock of record shall be
entitled to exchange their shares of Capital Stock for securities, cash or other
property deliverable upon such reclassification, consolidation, merger, sale,
transfer, share exchange, dissolution, liquidation or winding up (but no failure
to mail such notice or any defect therein or in the mailing thereof shall affect
the validity of the corporate action required to be specified in such notice).
SECTION 13.07. ADJUSTMENTS IN CASE OF FUNDAMENTAL CHANGES. (a)
Notwithstanding any other provision in this Article XIII to the contrary, in the
case of any Company
<PAGE> 90
83
Transaction involving a Fundamental Change, the Applicable Conversion Price will
be adjusted immediately after such Fundamental Change as follows:
(i) in the case of a Non-Stock Fundamental Change, the
Applicable Conversion Price of the Securities shall thereupon become
the lower of (A) the Applicable Conversion Price in effect immediately
prior to such Non-Stock Fundamental Change, but after giving effect to
any other prior adjustments effected pursuant to this Article XIII, and
(B) the result obtained by multiplying the greater of the Relevant
Price or the then applicable Reference Market Price by the Optional
Redemption Ratio (such product shall hereinafter be referred to as the
"Adjusted Relevant Price" or the "Adjusted Reference Market Price", as
the case may be); and
(ii) in the case of a Capital Stock Fundamental Change, the
Applicable Conversion Price of the Securities in effect immediately
prior to such Capital Stock Fundamental Change, but after giving effect
to any other prior adjustments effected pursuant to this Article XIII,
shall thereupon be adjusted by multiplying such Applicable Conversion
Price by a fraction of which the numerator shall be the Purchaser Stock
Price and the denominator shall be the Relevant Price; PROVIDED,
HOWEVER, that in the event of a Capital Stock Fundamental Change in
which (A) 100% of the value of the consideration received by a holder
of Capital Stock is common stock of the successor, acquiror or other
third party (and cash, if any, is paid only with respect to any
fractional interests in such common stock resulting from such Capital
Stock Fundamental Change) and (B) all of the Capital Stock shall have
been exchanged for, converted into or acquired for common stock (and
cash with respect to fractional interests) of the successor, acquiror
or other third party, the Applicable Conversion Price of the Securities
in effect immediately prior to such Capital Stock Fundamental Change
shall thereupon be adjusted by multiplying such Applicable Conversion
Price by a fraction of which the numerator shall be one and the
denominator shall be the number of shares of common stock of the
successor, acquiror, or other third party received by a stockholder for
one share of Capital Stock as a result of such Capital Stock
Fundamental Change.
<PAGE> 91
84
(b) DEFINITIONS. The following definitions shall
apply to terms used in this Article XIII:
(1) "CLOSING PRICE" of any security on any day shall mean on
any day the last reported sale price of such security on such day, or
in case no sale takes place on such day, the average of the closing bid
and asked prices in each case on the principal national securities
exchange on which such securities are listed or admitted to trading or,
if not listed or admitted to trading on any national securities
exchange, on the NNM or, if such securities are not listed or admitted
to trading on any national securities exchange or quoted on the NNM,
the average of the closing bid and asked prices in the over-the-counter
market as furnished by any New York Stock Exchange member firm, or the
national, commission-recognized trading system, selected by the Company
for such purpose.
(2) "CAPITAL STOCK FUNDAMENTAL CHANGE" shall mean any
Fundamental Change in which more than 50% of the value (as determined
in good faith by the Board of Directors) of the consideration received
by holders of Capital Stock consists of common stock that for each of
the ten consecutive Trading Days immediately prior to the Entitlement
Date has been admitted for listing or admitted for listing subject to
notice of issuance on a national securities exchange or quoted on the
NNM.
(3) "ENTITLEMENT DATE" shall mean the record date for
determination of the holders of Capital Stock entitled to receive
securities, cash or other property in connection with a Non-Stock
Fundamental Change or a Capital Stock Fundamental Change or, if there
is no such record date, the date upon which holders of Capital Stock
shall have the right to receive such securities, cash or other
property.
(4) "FUNDAMENTAL CHANGE" shall mean the occurrence of any
transaction or event in connection with a plan pursuant to which all or
substantially all of the Capital Stock shall be exchanged for,
converted into, acquired for or constitute solely the right to receive
securities, cash or other property (whether by means of an exchange
offer, liquidation, tender offer, consolidation, merger, combination,
reclassification, recapitalization or otherwise); PROVIDED, HOWEVER, in
the case of a plan involving more than one such transaction or event,
for purposes of adjustment of the Applicable Conversion Price, such
Fundamental Change shall be deemed to have occurred when substantially
all
<PAGE> 92
85
of the Capital Stock of the Company shall be exchanged for, converted
into, or acquired for or constitute solely the right to receive
securities, cash or other property, but the adjustment shall be based
upon the highest weighted average per share consideration that a holder
of Capital Stock could have received in such transactions or events as
a result of which more than 50% of the Capital Stock of the Company
shall have been exchanged for, converted into, or acquired for or
constitute solely the right to receive securities, cash or other
property.
(5) "NON-STOCK FUNDAMENTAL CHANGE" shall mean any Fundamental
Change other than a Capital Stock Fundamental Change.
(6) "OPTIONAL REDEMPTION RATIO" means a fraction of which the
numerator shall be $27 and the denominator will be the then current
Optional Redemption Price or, prior to March 15, 2003, an amount per
Security determined by the Company in its sole discretion, after
consultation with an investment banking firm, to be the equivalent of
the hypothetical redemption price that would have been applicable if
the Securities had been redeemable during such period.
(7) "PURCHASER STOCK PRICE" shall mean, with respect to any
Capital Stock Fundamental Change, the average of the daily Closing
Prices of the common stock received in such Capital Stock Fundamental
Change for the ten (10) consecutive Trading Days prior to and including
the Entitlement Date, as adjusted in good faith by the Board of
Directors to appropriately reflect any of the events referred to in
subparagraphs (i), (ii), (iii), (iv), (v) and (vi) of Section 13.03.
(8) "REFERENCE MARKET PRICE" shall initially mean on the date
of original issuance of the Securities, $18 (which is an amount equal
to 66-2/3% of the liquidation amount per Preferred Security), and, in
the event of any adjustment to the Applicable Conversion Price, other
than as a result of a Non-Stock Fundamental Change, the Reference
Market Price shall also be adjusted so that the ratio of the Reference
Market Price to the Applicable Conversion Price after giving effect to
any such adjustment shall always be the same as the ratio of $18 to the
Initial Conversion Price.
(9) "RELEVANT PRICE" shall mean (i) in the event of a
Non-Stock Fundamental Change in which the holders of the Capital Stock
receive only cash, the amount of
<PAGE> 93
86
cash received by a stockholder for one share of Capital Stock and (ii)
in the event of any other Non-Stock Fundamental Change or any Capital
Stock Fundamental Change, the average of the daily Closing Prices of
the Capital Stock for the ten (10) consecutive Trading Days prior to
and including the Entitlement Date, in each case, as adjusted in good
faith by the Company to appropriately reflect any of the events
referred to in subparagraphs (i), (ii), (iii), (iv), (v) and (vi) of
Section 13.03.
(10) "TRADING DAY" shall mean a Business Day on which
securities are traded on the national securities exchange, trading
system or quotation system used to determine the Closing Price.
SECTION 13.08. DIVIDEND OR INTEREST REINVESTMENT PLANS. (a)
Notwithstanding the foregoing provisions, the issuance of any shares of Capital
Stock pursuant to any present or future plan providing for the reinvestment of
dividends or interest payable on securities of the Company and the investment of
additional optional amounts in shares of Capital Stock under any such plan, and
the issuance of any shares of Capital Stock or options or rights to purchase
such shares pursuant to any employee benefit plan or program of the Company or
pursuant to any option, warrant, right or exercisable, exchangeable or
convertible security outstanding as of the date the Securities were first
issued, shall not be deemed to constitute an issuance of Capital Stock or
exercisable, exchangeable or convertible securities by the Company to which any
of the adjustment provisions described above applies.
(b) There shall also be no adjustment of the Applicable
Conversion Price in case of the issuance of any stock (or securities convertible
into or exchangeable for stock) of the Company except as specifically described
in this Article XIII.
SECTION 13.09. CERTAIN ADDITIONAL RIGHTS. Notwithstanding any
other provision of this Article XIII to the contrary, rights, warrants,
evidences of indebtedness, other securities, cash or other assets (including,
without limitation, any rights distributed pursuant to any stockholder rights
plan) shall be deemed not to have been distributed for purposes of this Article
XIII if the Company makes proper provision so that each Holder who converts a
Security (or any portion thereof) after the date fixed for determination of
stockholders entitled to receive such distribution shall be entitled to receive
upon such conversion, in addition to the shares of Capital Stock
<PAGE> 94
87
issuable upon such conversion, the amount and kind of such distributions that
such Holder would have been entitled to receive if such Holder had, immediately
prior to such determination date, converted such Security into Capital Stock.
SECTION 13.10. TRUSTEE NOT RESPONSIBLE FOR DETERMINING
CONVERSION PRICE OR ADJUSTMENTS. Neither the Trustee nor any Conversion Agent
shall at any time be under any duty or responsibility to any Holder of any
Security to determine whether any facts exist which may require any adjustment
of the Applicable Conversion Price, or with respect to the nature or extent of
any such adjustment when made, or with respect to the method employed, or herein
or in any supplemental indenture provided to be employed, in making the same.
Neither the Trustee nor any Conversion Agent shall be accountable with respect
to the validity or value (or the kind or amount) of any shares of Capital Stock
or of any securities or property, which may at any time be issued or delivered
upon the conversion of any Security; and neither the Trustee nor any Conversion
Agent makes any representation with respect thereto. Neither the Trustee nor any
Conversion Agent shall be responsible for any failure of the Company to make any
cash payment or to issue, transfer or deliver any shares of Capital Stock or
stock certificates or other securities or property upon the surrender of any
Security for the purpose of conversion, or, except as expressly herein provided,
to comply with any of the covenants of the Company contained in Article X or
this Article XIII.
ARTICLE XIV
Immunity of Incorporators,
Stockholders, Officers and Directors
------------------------------------
SECTION 14.01. NO RECOURSE. No recourse under or upon any
obligation, covenant or agreement of this Indenture, or of any Security, or for
any claim based thereon or otherwise in respect thereof, shall be had against
any incorporator, stockholder, officer or director, past, present or future as
such, of the Company or of any predecessor or successor corporation, either
directly or through the Company or any such predecessor or successor
corporation, whether by virtue of any constitution, statute or rule of law, or
by the enforcement of any assessment or penalty or otherwise; it being expressly
understood that this Indenture and the obligations issued hereunder are solely
corporate obligations, and that no such personal liability whatever shall attach
to, or is or shall be
<PAGE> 95
88
incurred by, the incorporators, stockholders, officers or directors as such, of
the Company or of any predecessor or successor corporation, or any of them,
because of the creation of the indebtedness hereby authorized, or under or by
reason of the obligations, covenants or agreements contained in this Indenture
or in any of the Securities or implied therefrom; and that any and all such
personal liability of every name and nature, either at common law or in equity
or by constitution or statute, of, and any and all such rights and claims
against, every such incorporator, stockholder, officer or director as such,
because of the creation of the indebtedness hereby authorized, or under or by
reason of the obligations, covenants or agreements contained in this Indenture
or in any of the Securities or implied therefrom, are hereby expressly waived
and released as a condition of, and as a consideration for, the execution of
this Indenture and the issuance of such Securities.
<PAGE> 96
89
This instrument may be executed in any number of counterparts,
each of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed as of the day and year first above written.
CHEMED CORPORATION,
by
------------------------------
Name: Kevin J. McNamara
Title: President
FIRSTAR BANK, NATIONAL
ASSOCIATION,
by
------------------------------
Name:
Title:
<PAGE> 97
EXHIBIT A
FORM OF SECURITY
[FORM OF FACE OF SECURITY]
[Include if a Global Security: THIS SECURITY IS A GLOBAL SECURITY WITHIN THE
MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME
OF THE DEPOSITORY TRUST COMPANY (THE "DEPOSITARY") OR A NOMINEE OF THE
DEPOSITARY. THIS SECURITY IS EXCHANGEABLE FOR A SECURITY REGISTERED IN THE NAME
OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE INDENTURE AND NO TRANSFER OF THIS SECURITY (OTHER
THAN A TRANSFER OF THIS SECURITY AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF
THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER
NOMINEE OF THE DEPOSITARY) MAY BE REGISTERED EXCEPT IN LIMITED CIRCUMSTANCES.
UNLESS THIS SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK, NEW YORK) TO CHEMED
CORPORATION OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND
ANY SECURITY ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME
AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY AND
ANY PAYMENT HEREON IS MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY A PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
<PAGE> 98
2
CHEMED CORPORATION
Convertible Junior Subordinated
Debenture Due 2030
No. $
[CUSIP No. ]
CHEMED CORPORATION, a corporation duly organized and existing
under the laws of the State of Delaware (herein called "the Company", which
term includes any successor corporation under the Indenture hereinafter
referred to), for value received, hereby promises to pay to ,
or registered assigns, the principal sum [indicated on Schedule A hereof](1)
[of Dollars](2) ($ ) on March 15, 2030.
Interest Payment Dates: March 15, June 15, September 15 and December 15,
commencing March 15, 2000
Regular Record Dates: the close of business on the first of the month in
which the applicable Interest Payment Date occurs,
commencing March 1, 2000
Reference is hereby made to the further provisions of this
Security set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been
executed by the Trustee referred to on the reverse hereof by manual signature,
this Security shall not be entitled to any benefit under the Indenture or be
valid or obligatory for any purpose.
- --------
(1) Applicable to Global Securities only.
(2) Applicable to certificated Securities only.
<PAGE> 99
IN WITNESS WHEREOF, the Company has caused this instrument to
be signed manually or by facsimile by its duly authorized officers and a
facsimile of its corporate seal to be affixed hereto or imprinted hereon.
Dated: February 7, 2000
CHEMED CORPORATION
By:________________________
Name: Kevin J. McNamara
Title: President
Attest:
By: _______________
Name:
Title:
TRUSTEE'S CERTIFICATE
OF AUTHENTICATION
This is one of the Securities referred to in the within-
mentioned Indenture.
Dated: February 7, 2000 FIRSTAR BANK, NATIONAL ASSOCIATION
AS TRUSTEE,
By: _______________________
Authorized Signatory
<PAGE> 100
2
[FORM OF REVERSE OF SECURITY]
CHEMED CORPORATION
Convertible Junior Subordinated
Debenture Due 2030(3)
1. INTEREST. CHEMED Corporation, a Delaware corporation (the
"Company"), is the issuer of this Convertible Junior Subordinated Debenture Due
2030 (the "Security") limited in aggregate principal amount to $27, issued under
the Indenture hereinafter referred to. The Company promises to pay interest on
the Securities in cash from the date of their original issuance or from the most
recent interest payment date to which interest has been paid or duly provided
for, quarterly (subject to deferral for up to 20 consecutive quarters as
described in Section 3 hereof) in arrears on March 15, June 15, September 15 and
December 15 of each year (each such date, an "Interest Payment Date"),
commencing March 15, 2000, at $0.50 per $27 principal amount for the period from
the date of original issuance of the Securities to March 15, 2000, and from
March 15, 2000, at the Applicable Rate, PLUS Additional Sums, if any, until the
principal hereof shall have become due and payable.
Except for the interest payable on March 15, 2000, the amount
of interest payable for any period will be computed on the basis of twelve
30-day months and a 360-day year. To the extent lawful, the Company shall pay
interest on overdue installments of interest (without regard to any applicable
grace period) at the rate borne by the Securities, compounded quarterly. Any
interest paid on this Security shall be increased to the extent necessary to pay
Additional Sums as set forth in this Security.
2. ADDITIONAL SUMS. The Company shall pay to Chemed Capital
Trust (and its permitted successors or assigns under the Declaration) (the
"Trust") such additional amounts as may be necessary in order that the amount of
dividends or other distributions then due and payable by the Trust on the
Preferred Securities that at any time remain outstanding in accordance with the
terms thereof shall not be reduced as a result of any additional taxes, duties
and other governmental charges of whatever nature (other than withholding taxes)
imposed by the United States or any other taxing authority.
3. EXTENSION OF INTEREST PAYMENT PERIOD. So long as no Event
of Default has occurred and is continuing, the Company shall have the right,
after March 15, 2000, at any time during the term of this Security, from time to
time to defer payments of interest by extending the interest payment period of
such Security for up to 20 consecutive quarters (a "Deferral Period"); PROVIDED
that no Deferral Period may extend beyond March 15, 2030. To the extent
permitted by applicable law, interest, the payment of which has been deferred
because of the extension of the interest payment period pursuant to Section 3.13
of the Indenture, will bear interest thereon at the Applicable Rate compounded
quarterly for each quarter of the Deferral Period ("Compounded Interest"). On
the applicable Payment Resumption Date, the Company
- --------
(3) All terms used in this Security which are defined in the Indenture or in
the Declaration referred to herein shall have the meanings assigned to them in
the Indenture or the Declaration, as the case may be.
<PAGE> 101
3
shall pay all interest then accrued and unpaid on the Securities, including any
Compounded Interest that shall be payable to the Holders of the Securities in
whose names the Securities are registered in the Security Register on the
record date fixed for such Payment Resumption Date. Before the termination of
any Deferral Period, the Company may further extend such period as provided in
the Indenture, PROVIDED that such period together with all such further
extensions thereof shall not exceed 20 consecutive quarters or extend beyond
the Stated Maturity of the Security. Upon the termination of any Deferral
Period and upon the payment of all Compounded Interest and Additional Sums
(together, "Additional Payments"), if any, then due, the Company may commence a
new Deferral Period, subject to the foregoing requirements. No interest shall
be due and payable during a Deferral Period except on the applicable Payment
Resumption Date.
The Company shall give the Holder of the Security and the
Trustee written notice (a "Deferral Notice") of its selection of a Deferral
Period at least ten days prior to the record date for any distributions that
would have been payable on the Trust Securities except for the decision to begin
or extend such Deferral Period. The Company may elect to pay all interest then
accrued and unpaid on the Securities, including Compound Interest, on an
Interest Payment Date prior to its most recently established Payment Resumption
Date, PROVIDED that the Company gives the Holder of the Security and the Trustee
a new Deferral Notice setting forth the revised Payment Resumption Date at least
three Business Days prior to the Regular Record Date for such revised Payment
Resumption Date.
The quarter in which any Deferral Notice is given pursuant to
the second paragraph of this Section 3 shall be counted as one of the 20
quarters permitted in the maximum Deferral Period permitted under the first
paragraph of this Section 3.
4. METHOD OF PAYMENT. The interest so payable, and punctually
paid or duly provided for, on any Interest Payment Date will, as provided in the
Indenture, be paid to the Person in whose name this Security (or one or more
Predecessor Securities) is registered at the close of business on the regular
record date for such interest installment, which shall be the close of business
on the fifteenth day immediately preceding each Interest Payment Date (the
"Regular Record Date"), commencing March 1, 2000. Any such interest not so
punctually paid or duly provided for shall forthwith cease to be payable to the
Holder on such Regular Record Date and may either be paid to the Person in whose
name this Security (or one or more Predecessor Securities) is registered at the
close of business on a Special Record Date for the payment of such Defaulted
Interest to be fixed by the Trustee, notice whereof shall be given to Holders of
Securities not less than ten days prior to such Special Record Date, or be paid
at any time in any other lawful manner not inconsistent with the requirements of
any securities exchange on which the Securities may be listed, and upon such
notice as may be required by such exchange, all as more fully provided in said
Indenture, provided that any such payment will be made in such coin or currency
of the United States of America which at the time of payment is a legal tender
for payment of public and private debts.
Payment of the principal of and interest on this Security will
be made at the office or agency of the Company maintained for that purpose, in
coin or currency of the United States of America which at the time of payment is
legal tender for payment of public and private debts; PROVIDED, HOWEVER, that at
any time that the Property Trustee is not the sole holder of the Securities,
payment of interest may, at the
<PAGE> 102
4
option of the Company, be made by check mailed to the address of the Person
entitled thereto as such address shall appear in the Security Register or by
wire transfer.
5. PAYING AGENT AND SECURITY REGISTRAR. The Trustee will act
as Paying Agent, Security Registrar and Conversion Agent. The Company may change
any Paying Agent, Security Registrar, co-registrar or Conversion Agent without
prior notice. The Company or any of its Affiliates may act in any such capacity.
6. INDENTURE. The Company issued the Securities under an
indenture, dated as of February 7, 2000 (the "Indenture"), between the Company
and Firstar Bank, National Association, as Trustee (herein called the "Trustee",
which term includes any successor trustee under the Indenture), to which
Indenture and all indentures supplemental thereto reference is hereby made for a
statement of the respective rights, limitations of rights, duties and immunities
thereunder of the Trustee, the Company and the Holders of the Securities, and of
the terms upon which the Securities are, and are to be, authenticated and
delivered. The terms of the Securities include those stated in the Indenture and
those made part of the Indenture by the Trust Indenture Act of 1939 ("Trust
Indenture Act") as in effect on the date of the Indenture. The Securities are
subject to, and qualified by, all such terms, certain of which are summarized
herein, and holders are referred to the Indenture and the Trust Indenture Act
for a statement of such terms. The Securities are unsecured general obligations
of the Company limited to up to $55,670,112 and subordinated in right of payment
to all existing and future Senior Debt of the Company. No reference herein to
the Indenture and no provision of this Security or of the Indenture shall alter
or impair the obligation of the Company, which is absolute and unconditional, to
pay the principal of and interest on this Security at the times, place and rate,
and in the coin or currency, herein prescribed or to convert this Security as
provided in the Indenture.
7. OPTIONAL REDEMPTION. The Securities are redeemable at the
Company's option (an "Optional Redemption") in whole or in part, at any time or
from time to time, on or after March 15, 2003, at a Redemption Price equal to
$27.27 per $27 principal amount of the Securities to be redeemed plus any
accrued and unpaid interest, including Additional Payments, if any, to the
Redemption Date, if redeemed on or before March 15, 2004, and thereafter at $27
per $27 principal amount of the Securities plus, in each case, any accrued and
unpaid interest, including Additional Payments, if any, to the Redemption Date.
8. OPTIONAL REDEMPTION UPON TAX EVENT. Subject to the
conditions set forth in the Indenture, the Securities are subject to redemption
in whole, but not in part, if a Tax Event shall occur and be continuing, at any
time within 90 days following the occurrence of such Tax Event, at a Redemption
Price equal to $27.27 per $27 principal amount thereof, plus accrued but unpaid
interest, including Additional Payments, if any, to the Redemption Date.
In lieu of the foregoing, the Company also shall have the
option of causing the Securities to remain outstanding and pay Additional Sums
on the Securities.
9. NOTICE OF REDEMPTION. Notice of redemption will be mailed
by first-class mail, postage prepaid, at least 30 days (or 20 days, in the case
of a redemption upon the occurrence of a Tax Event), but not more than 60 days
before the Redemption Date to each Holder of
<PAGE> 103
5
the Securities to be redeemed at such Holder's address appearing in the Security
Register.
10. NO SINKING FUND. There are no sinking fund payments with
respect to the Securities.
11. PAYMENT TO REGISTERED HOLDERS; CESSATION OF INTEREST
ACCRUAL UPON REDEMPTION. If this Security is redeemed subsequent to a Regular
Record Date with respect to any Interest Payment Date specified above and on or
prior to such Interest Payment Date, then any accrued interest will be paid to
the person in whose name this Security is registered at the close of business on
such record date. On or after the Redemption Date, interest will cease to accrue
on the Securities, or portion thereof, called for redemption.
12. SUBORDINATION. The payment of the principal of, interest
on or any other amounts due on the Securities is subordinated in right of
payment to all existing and future Senior Debt (as defined below) of the
Company, as described in the Indenture. Each Holder, by accepting a Security,
agrees to such subordination and authorizes and directs the Trustee on its
behalf to take such action as may be necessary or appropriate to effectuate the
subordination so provided and appoints the Trustee as its attorney-in-fact for
such purpose.
"Senior Debt" means (i) the principal of, and premium and
interest, if any, on all indebtedness of the Company for money borrowed, whether
outstanding on the date of execution of the Indenture or thereafter created,
assumed or incurred, (ii) all obligations to make payment pursuant to the terms
of financial instruments, such as (a) securities contracts and foreign currency
exchange contracts, (b) derivative instruments, such as swap agreements
(including interest rate and foreign exchange rate swap agreements), cap
agreements, floor agreements, collar agreements, interest rate agreements,
foreign exchange agreements, options, commodity futures contracts and commodity
options contracts, and (c) similar financial instruments; except, in the case of
both (i) and (ii) above, such indebtedness and obligations that are expressly
stated to rank junior in right of payment to, or PARI PASSU in right of payment
with, the Securities, (iii) indebtedness or obligations of others of the kind
described in both (i) and (ii) above for the payment of which the Company is
responsible or liable as guarantor or otherwise, and (iv) deferrals, renewals or
extensions of any such Senior Debt; PROVIDED, HOWEVER, that Senior Debt shall
not be deemed to include (a) any Debt of the Company which, when incurred and
without respect to any election under Section 1111(b) of the United States
Bankruptcy Code of 1978, was without recourse to the Company, (b) trade accounts
payable and accrued liabilities arising in the ordinary course of business, (c)
any Debt of the Company to any of its subsidiaries, (d) Debt to any employee of
the Company, and (e) Debt which by its terms is subordinated to trade accounts
payable or accrued liabilities arising in the ordinary course of business to the
extent that payments made to the holders of such Debt by the Holders of the
Securities as a result of the subordination provisions of the Indenture would be
greater than such payments otherwise would have been as a result of any
obligation of such holders of such Debt to pay amounts over to the obligees on
such trade accounts payable or accrued liabilities arising in the ordinary
course of business as a result of subordination provisions to which such Debt is
subject.
13. CONVERSION. The Holder of any Security has the right,
exercisable at any time prior to 5:00 p.m., New York City time, on March 15,
2030, to convert the principal amount thereof (or any portion
<PAGE> 104
6
thereof that is an integral multiple of $27) into shares of Capital Stock at the
initial conversation rate of 0.73 shares of Capital Stock for each $27 in
aggregate principal amount of Securities (equivalent to a conversion price of
$37 per share of Capital Stock of the Company). The conversion ratio and
equivalent conversion price in effect at any time are known as the "Applicable
Conversion Price" and the "Applicable Conversion Ratio," respectively, and are
subject to adjustment under certain circumstances. If a Security is called for
redemption, the conversion right will terminate at the close of business on the
Business Day immediately preceding the corresponding Redemption Date, unless the
Company defaults in making the payment due upon redemption.
To convert a Security, a Holder must (1) complete and sign a
conversion notice substantially in the form attached hereto, (2) surrender the
Security to a Conversion Agent, (3) furnish appropriate endorsements or transfer
documents if required by the Security Registrar or Conversion Agent and (4) pay
any transfer or similar tax, if required. Upon conversion, no adjustment or
payment will be made for interest or dividends, but if any Holder surrenders a
Security for conversion after the close of business on the Regular Record Date
for the payment of an installment of interest and prior to the opening of
business on the next Interest Payment Date, then, notwithstanding such
conversion, the interest payable on such Interest Payment Date will be paid to
the registered Holder of such Security on such Regular Record Date. In such
event, such Security, when surrendered for conversion, need not be accompanied
by payment of an amount equal to the interest payable on such Interest Payment
Date on the portion so converted. The number of shares issuable upon conversion
of a Security is determined by dividing the principal amount of the Security
converted by the Applicable Conversion Price in effect on the Conversion Date.
No fractional shares will be issued upon conversion but a cash adjustment will
be made for any fractional interest. The outstanding principal amount of any
Security shall be reduced by the portion of the principal amount thereof
converted into shares of Capital Stock.
14. REGISTRATION, TRANSFER, EXCHANGE AND DENOMINATIONS. As
provided in the Indenture and subject to certain limitations therein set forth,
the transfer of this Security is registrable in the Security Register, upon
surrender of this Security for registration of transfer at the office or agency
of the Company, duly endorsed by, or accompanied by a written instrument of
transfer in form satisfactory to the Company and the Security Registrar duly
executed by, the Holder hereof or his attorney duly authorized in writing, and
thereupon one or more new Securities, of authorized denominations and for the
same aggregate principal amount, will be issued to the designated transferee or
transferees.
The Securities are issuable only in registered form without
coupons. No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith. Prior to
due presentment of this Security for registration of transfer, the Company, the
Trustee and any agent of the Company or the Trustee may treat the Person in
whose name this Security is registered as the owner hereof for all purposes,
whether or not this Security be overdue, and neither the Company, the Trustee
nor any such agent shall be affected by notice to the contrary. In the event of
redemption or conversion of this Security in part only, a new Security or
Securities for the unredeemed or unconverted portion hereof will be issued in
the name of the Holder hereof upon the cancelation hereof.
<PAGE> 105
7
15. PERSONS DEEMED OWNERS. Except as provided in Section 3
hereof, the registered Holder of a Security may be treated as its owner for
all purposes.
16. UNCLAIMED MONEY. If money for the payment of principal or
interest remains unclaimed for two years, the Trustee and the Paying Agent shall
pay the money back to the Company at its written request. After that, holders of
Securities entitled to the money must look to the Company for payment unless an
abandoned property law designates another Person and all liability of the
Trustee and such Paying Agent with respect to such money shall cease.
17. EVENTS OF DEFAULT AND REMEDIES. The Securities shall
have the Events of Default as set forth in Section 5.01 of the Indenture.
Subject to certain limitations in the Indenture, if an Event of Default occurs
and is continuing, the Trustee by notice to the Company or the holders of at
least 25% in aggregate principal amount of the Outstanding Securities by notice
to the Company and the Trustee may declare all amounts payable on the Securities
(including any Additional Payments) to be due and payable immediately; PROVIDED
that, if the Property Trustee is the sole Holder of the Security and if upon an
Event of Default, the Trustee or the holder of not less than 25% in aggregate
principal amount of the then outstanding Securities fail to declare the
principal of all the Securities to be immediately due and payable, the holders
of at least 25% in aggregate liquidation amount of Preferred Securities then
outstanding shall have such right by a notice in writing to the Company and the
Trustee; and upon any such declaration such principal and all accrued interest
shall become immediately due and payable; and PROVIDED further that the payment
of principal and interest on such Securities shall remain subordinated to the
extent provided in the Indenture.
In the case of an Event of Default, the holders of a majority
in principal amount of the Outstanding Securities by written notice to the
Trustee may rescind an acceleration and its consequences if the rescission would
not conflict with any judgment or decree and if all existing Events of Default
have been cured or waived except nonpayment of principal or interest that has
become due solely because of the acceleration.
Holders may not enforce the Indenture or the Securities except
as provided in the Indenture. Subject to certain limitations, holders of a
majority in principal amount of the then outstanding Securities issued under the
Indenture may direct the Trustee in its exercise of any trust or power. The
Company must furnish annually compliance certificates to the Trustee. The above
description of Events of Default and remedies is qualified by reference to, and
subject in its entirety by, the more complete description thereof contained in
the Indenture.
18. AMENDMENTS, SUPPLEMENTS AND WAIVERS. The Indenture
permits, subject to the rights of the holders of Preferred Securities set forth
therein and in the Declaration and with certain other exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Company, and the rights of the Holders of the Securities
under the Indenture, at any time, by the Company and the Trustee with the
consent of the Holders of a majority in aggregate principal amount of the
Securities at the time Outstanding. The Indenture also contains provisions
permitting the Holders of specified percentages in aggregate principal amount of
the Securities at the time Outstanding, on behalf of the Holders of all the
<PAGE> 106
8
Securities, subject to the rights of the holders of the Preferred Securities set
forth therein and in the Declaration, to waive compliance by the Company with
certain provisions of the Indenture and certain past defaults under the
Indenture and their consequences. Any such consent or waiver by the Holder of
this Security shall be conclusive and binding upon such Holder and upon all
future Holders of this Security and of any Security issued upon the registration
of transfer hereof or in exchange therefor or in lieu hereof, whether or not
notation of such consent or waiver is made upon this Security. The above
description of amendments, supplements and waivers is qualified by reference to,
and subject in its entirety, by the more complete description thereof contained
in the Indenture.
19. TRUSTEE DEALINGS WITH THE COMPANY. The Trustee, in its
individual or any other capacity may become the owner or pledgee of the
Securities and may otherwise deal with the Company or an Affiliate with the same
rights it would have, as if it were not a Trustee, subject to certain
limitations provided for in the Indenture and in the Trust Indenture Act. Any
Agent may do the same with like rights.
22. NO RECOURSE AGAINST OTHERS. A director, officer, employee
or stockholder, as such, of the Company shall not have any liability for any
obligations of the Company under the Securities or the Indenture or for any
claim based on, in respect of, or by reason of such obligations or their
creation. Each Holder of the Securities by accepting a Security waives and
releases all such liability. The waiver and release are part of the
consideration for the issue of the Securities.
21. GOVERNING LAW. THE INTERNAL LAWS OF THE STATE OF DELAWARE
SHALL GOVERN THE INDENTURE AND THE SECURITIES WITHOUT REGARD TO CONFLICT OF LAW
PROVISIONS THEREOF.
22. AUTHENTICATION. The Securities shall not be valid until
authenticated by the manual signature of an authorized officer of the Trustee or
an authenticating agent.
23. ABBREVIATIONS. Customary abbreviations may be used in the
name of a Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT
(= tenants by the entireties), JT TEN (= joint tenants with right of
survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A (=
Uniform Gifts to Minors Act).
The Company will furnish to any Holder of the Securities upon
written request and without charge a copy of the Indenture. Request may be made
to:
Chemed Corporation
2600 Chemed Center
255 East Fifth Street
Cincinnati, Ohio 45202-4726
Attention of: Chief Financial Officer
<PAGE> 107
ASSIGNMENT FORM
To assign this Security, fill in the form below:
(I) or (we) assign and transfer this Security to
- --------------------------------------------------------------------------------
(Insert assignee's social security or tax I.D. number)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Print or type assignee's name, address and zip code)
and irrevocably appoint ________________________________________________________
agent to transfer this Security on the books of the Company. The agent may
substitute another to act for him.
Your Signature: _______________________________________________________
(Sign exactly as your name appears on the other
side of this Security)
Date: ____________________________________________
Signature Guarantee:(4) _______________________________________________
- --------
(4)(Signature must be guaranteed by an "eligible guarantor institution" that
is, a bank, stockbroker, savings and loan association or credit union meeting
the requirements of the Registrar, which requirements include membership or
participation in the Securities Transfer Agents Medallion Program ("STAMP") or
such other "signature guarantee program" as may be determined by the Registrar
in addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934.)
<PAGE> 108
(TO BE ATTACHED TO GLOBAL SECURITIES)
SCHEDULE A
The initial principal amount of this Global Security shall be
$ . The following increases or decreases in the principal amount of this
Global Security have been made:
<TABLE>
=================================================================================================================
Amount of
increase in
Principal Amount
of this Global Principal Amount Signature of
Security Amount of of this Global authorized
including decrease in Security officer of
increase upon Principal Amount following such Trustee or
exercise of over- of this Global decrease or Securities
Date Made allotment option Security increase Custodian
<S> <C> <C> <C> <C>
- -----------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------
=================================================================================================================
</TABLE>
<PAGE> 109
ELECTION TO CONVERT
To: Chemed Corporation
The undersigned owner of this Security hereby irrevocably
exercises the option to convert this Security, or the portion below designated,
into Capital Stock of CHEMED CORPORATION in accordance with the terms of the
Indenture referred to in this Security, and directs that the shares issuable and
deliverable upon conversion, together with any check in payment for fractional
shares, be issued in the name of and delivered to the undersigned, unless a
different name has been indicated in the assignment below. If shares are to be
issued in the name of a person other than the undersigned, the undersigned will
pay all transfer taxes payable with respect thereto.
Date: ,
in whole __
Portions of Security to be
converted ($27 or integral
multiples thereof):
$_________________
-----------------------------------
Signature (for conversion only)
Plese Print or Typewrite
Name and Address, Including
Zip Code, and Social
Security or Other
Identifying Number
-----------------------------------
-----------------------------------
-----------------------------------
Signature Guarantee:(5)
-----------------------------------
- --------
(5)(Signature must be guaranteed by an "eligible guarantor institution" that
is, a bank, stockbroker, savings and loan association or credit union meeting
the requirements of the Registrar, which requirements include membership or
participation in the Securities Transfer Agents Medallion Program ("STAMP") or
such other "signature guarantee program" as may be determined by the Registrar
in addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934.)
<PAGE> 1
Exhibit T3C.4
================================================================================
PREFERRED SECURITIES GUARANTEE AGREEMENT
Between
CHEMED CORPORATION
and
FIRSTAR BANK, NATIONAL ASSOCIATION
Dated as of February 7, 2000
================================================================================
<PAGE> 2
2
CROSS-REFERENCE TABLE */
Section of Trust Section of
Indenture Act of 1939 Guarantee Agreement
- --------------------- -------------------
310(a)......................................................... 4.01(a)
310(b)......................................................... 4.01(c), 2.08
310(c)......................................................... Inapplicable
311(a)......................................................... 2.02(b)
311(b)......................................................... 2.02(b)
311(c)......................................................... Inapplicable
312(a)......................................................... 2.02(a)
312(b)......................................................... 2.02(b)
313 ......................................................... 2.03
314(a)......................................................... 2.04
314(b)......................................................... Inapplicable
314(c)......................................................... 2.05
314(d)......................................................... Inapplicable
314(e)......................................................... 1.01, 2.05, 3.02
314(f)......................................................... 2.01, 3.02
315(a)......................................................... 3.01(d)
315(b)......................................................... 2.07
315(c)......................................................... 3.01
315(d)......................................................... 3.01(d)
316(a)......................................................... 1.01, 2.06, 5.04
316(b)......................................................... 5.03
316(c)......................................................... 8.02
317(a)......................................................... Inapplicable
317(b)......................................................... Inapplicable
318(a)......................................................... 2.01(b)
318(b)......................................................... 2.01
318(c)......................................................... 2.01(a)
- --------
*/ This Cross-Reference Table does not constitute part of the Guarantee
Agreement and shall not affect the interpretation of any of its terms or
provisions.
<PAGE> 3
TABLE OF CONTENTS
PAGE
ARTICLE I
DEFINITIONS AND INTERPRETATION
SECTION 1.01. Definitions and Interpretation........................ 2
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.01. Trust Indenture Act; Application...................... 5
SECTION 2.02. Lists of Holders of Securities........................ 6
SECTION 2.03. Reports by the Guarantee
Trustee............................................. 6
SECTION 2.04. Periodic Reports to Guarantee
Trustee............................................. 6
SECTION 2.05. Evidence of Compliance with
Conditions Precedent................................ 6
SECTION 2.06. Events of Default; Waiver............................. 7
SECTION 2.07. Event of Default; Notice.............................. 7
SECTION 2.08. Conflicting Interests................................. 7
ARTICLE III
POWERS, DUTIES AND RIGHTS OF
GUARANTEE TRUSTEE
SECTION 3.01. Powers and Duties of the Guarantee
Trustee............................................... 7
SECTION 3.02. Certain Rights of Guarantee Trustee................... 9
SECTION 3.03. Not Responsible for Recitals or
Issuance of Guarantee............................... 12
<PAGE> 4
2
PAGE
ARTICLE IV
GUARANTEE TRUSTEE
SECTION 4.01. Guarantee Trustee;
Eligibility......................................... 12
SECTION 4.02. Appointment, Removal and
Resignation of Guarantee
Trustee............................................. 13
ARTICLE V
GUARANTEE
SECTION 5.01. Guarantee............................................. 13
SECTION 5.02. Subordination......................................... 14
SECTION 5.03. Waiver of Notice and Demand........................... 14
SECTION 5.04. Obligations Not Affected.............................. 14
SECTION 5.05. Rights of Holders..................................... 15
SECTION 5.06. Guarantee of Payment.................................. 16
SECTION 5.07. Subrogation........................................... 16
SECTION 5.08. Independent Obligations............................... 16
SECTION 5.09. Conversion............................................ 16
ARTICLE VI
LIMITATION OF TRANSACTIONS; SUBORDINATION
SECTION 6.01. Limitation of Transactions............................ 17
SECTION 6.02. Ranking............................................... 18
ARTICLE VII
TERMINATION
SECTION 7.01. Termination........................................... 18
<PAGE> 5
3
PAGE
ARTICLE VIII
INDEMNIFICATION
SECTION 8.01. Exculpation........................................... 18
SECTION 8.02. Indemnification....................................... 19
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. Successors and Assigns................................ 19
SECTION 9.02. Amendments............................................ 19
SECTION 9.03. Notices............................................... 20
SECTION 9.04. Benefit............................................... 21
SECTION 9.05. Governing Law......................................... 21
<PAGE> 6
THIS PREFERRED SECURITIES GUARANTEE
AGREEMENT ("Guarantee"), dated as of February 7,
2000, is executed and delivered by CHEMED
CORPORATION, a Delaware corporation (the
"Guarantor"), and Firstar Bank, National Association,
a United States banking corporation, as trustee (the
"Guarantee Trustee"), for the benefit of the HOLDERS
(as defined herein) from time to time of the
Preferred Securities (as defined herein) of CHEMED
CAPITAL TRUST, a Delaware statutory business trust
(the "Issuer").
WHEREAS, pursuant to an Amended and Restated Declaration of
Trust (the "Declaration"), dated as of February 7, 2000, among the trustees of
the Issuer named therein, the Guarantor, as sponsor, and the holders from time
to time of undivided beneficial interests in the assets of the Issuer, the
Issuer is issuing and offering for exchange (the "Exchange Offer") on the date
hereof up to 2,000,000 convertible trust preferred securities, having an
aggregate stated liquidation amount of up to $54,000,000 designated the
Convertible Trust Preferred Securities (liquidation amount $27 per Preferred
Security) (the "Preferred Securities");
WHEREAS as incentive for the Holders to participate in the
Exchange Offer, the Guarantor desires irrevocably and unconditionally to agree,
to the extent set forth in this Guarantee, to pay on a subordinated basis to the
Holders the Guarantee Payments (as defined herein) and to make certain other
payments on the terms and conditions set forth herein; and
WHEREAS the Guarantor is also executing and delivering a
guarantee agreement (the "Common Securities Guarantee") in substantially
identical terms to this Guarantee for the benefit of the holders of the Common
Securities (as defined herein) except that if a Debenture Event of Default or a
Declaration Event of Default (each as defined herein) (or an event that, with
passage of time, would become such a Debenture Event of Default) shall have
occurred and be continuing, the rights of holders of the Common Securities to
receive Guarantee Payments under the Common Securities Guarantee are
subordinated to the rights of Holders to receive Guarantee Payments under this
Guarantee.
NOW, THEREFORE, in consideration of the purchase by each
Holder of Preferred Securities, which purchase the Guarantor hereby agrees shall
benefit the Guarantor, the
<PAGE> 7
2
Guarantor executes and delivers this Guarantee for the benefit of the Holders.
ARTICLE I
DEFINITIONS AND INTERPRETATION
SECTION 1.01. DEFINITIONS AND INTERPRETATION. In
this Guarantee, unless the context otherwise requires:
(a) capitalized terms used in this Guarantee but not defined
in the preamble above have the respective meanings assigned to them in
this Section 1.01; terms defined in the Declaration as at the date of
execution of this Guarantee have the same meaning when used in this
Guarantee unless otherwise defined in this Guarantee;
(b) a term defined anywhere in this Guarantee has
the same meaning throughout;
(c) all references to "the Guarantee" or "this
Guarantee" are to this Guarantee as modified,
supplemented or amended from time to time;
(d) all references in this Guarantee to Articles
and Sections are to Articles and Sections of this
Guarantee unless otherwise specified;
(e) a term defined in the Trust Indenture Act has the same
meaning when used in this Guarantee unless otherwise defined in this
Guarantee or unless the context otherwise requires; and
(f) a reference to the singular includes the
plural and vice versa.
"AFFILIATE" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"COMMON SECURITIES" means the convertible common
securities (liquidation amount $27 per common security)
<PAGE> 8
3
representing common undivided beneficial interests in the
assets of the Issuer.
"COVERED PERSON" means any Holder or beneficial owner of
Preferred Securities.
"DEBENTURE EVENT OF DEFAULT" means an Event of Default as
defined in the Indenture.
"DEBENTURES" means the series of convertible junior
subordinated debt securities of the Guarantor designated the Convertible Junior
Subordinated Debentures Due 2030 held by the Property Trustee (as defined in the
Indenture) of the Issuer.
"DECLARATION EVENT OF DEFAULT" means an Event of Default as
defined in the Declaration.
"EVENT OF DEFAULT" means a default by the Guarantor on any of
its payment or other obligations under this Guarantee; PROVIDED, HOWEVER, that
except with respect to a default in payment of any Guarantee Payment, the
Guarantor shall have received notice of default and shall not have cured such
default within 60 days after receipt of such notice.
"GUARANTEE PAYMENTS" means the following payments or
distributions, without duplication, with respect to the Preferred Securities, to
the extent not paid or made by or on behalf of the Issuer: (i) any accrued and
unpaid Distributions (as defined in the Declaration) that are required to be
paid on the Preferred Securities, to the extent that the Issuer shall have funds
on hand available therefor at such time, (ii) the applicable Redemption Price
(as defined in the Indenture) with respect to Preferred Securities called for
redemption by the Issuer, to the extent that the Issuer has funds on hand
available therefor at such time, and (iii) upon a voluntary or involuntary
dissolution, winding up or liquidation of the Issuer (other than in connection
with the distribution of Debentures to the Holders or the redemption of all the
Preferred Securities), the lesser of (a) the aggregate liquidation amount
thereof plus accrued and unpaid Distributions thereon to the date of payment
(such amount being the "Liquidation Distribution") to the extent the Issuer has
funds available therefor and (b) the amount of assets of the Issuer remaining
available for distribution to Holders upon liquidation of the Issuer after
satisfaction of liabilities to creditors of the Issuer as required by applicable
law.
<PAGE> 9
4
"GUARANTEE TRUSTEE" means Firstar Bank, National Association
until a Successor Guarantee Trustee has been appointed and has accepted such
appointment pursuant to the terms of this Guarantee and thereafter means each
such Successor Guarantee Trustee.
"HOLDER" means any holder, as registered on the books and
records of the Issuer of any outstanding Preferred Securities; PROVIDED,
HOWEVER, that, in determining whether the holders of the requisite percentage in
liquidation amount of the Preferred Securities have given any request, notice,
consent or waiver hereunder, "Holder" shall not include the Guarantor or any
Affiliate of the Guarantor.
"INDEMNIFIED PERSON" means the Guarantee Trustee, any
Affiliate of the Guarantee Trustee, or any officers, directors, shareholders,
members, partners, employees, representatives or agents of the Guarantee
Trustee.
"INDENTURE" means the Indenture dated as of February 7, 2000,
among the Guarantor and Firstar Bank, National Association, as trustee, and any
indenture supplemental thereto, pursuant to which the Debentures are to be
issued to the Property Trustee of the Issuer.
"MAJORITY IN LIQUIDATION AMOUNT OF THE PREFERRED SECURITIES"
means, except as provided by the Trust Indenture Act, Holder(s), voting
separately as a class, representing more than 50% of the stated aggregate
liquidation amount (including the stated amount that would be paid on
redemption, liquidation or otherwise, plus accrued and unpaid Distributions to
the date upon which the voting percentages are determined) of all Preferred
Securities then outstanding.
"OFFICERS' CERTIFICATE" means, with respect to any Person, a
certificate signed by the Chairman of the Board, President or a Vice President,
and by the Treasurer, an Assistant Treasurer, the Controller, the Secretary or
an Assistant Secretary of such Person, and delivered to the Guarantee Trustee.
Any Officers' Certificate delivered with respect to compliance with a condition
or covenant provided for in this Guarantee shall include:
(a) a statement that each officer signing the Officers'
Certificate has read the covenant or condition and the definitions
relating thereto;
(b) a brief statement of the nature and scope of the
examination or investigation undertaken by each officer in rendering
the Officers' Certificate;
<PAGE> 10
5
(c) a statement that each such officer has made such
examination or investigation as, in such officer's opinion, is
necessary to enable such officer to express an informed opinion as to
whether or not such covenant or condition has been complied with; and
(d) a statement as to whether, in the opinion of each such
officer, such condition or covenant has been complied with.
"PERSON" means a legal person, including any individual,
corporation, estate, partnership, joint venture, association, joint stock
company, limited liability company, trust, unincorporated association, or
government or any agency or political subdivision thereof, or any other entity
of whatever nature.
"RESPONSIBLE OFFICER" means, with respect to the Guarantee
Trustee, the chairman of the board of directors, the president, any
vice-president, any assistant vice-president, the secretary, any assistant
secretary, the treasurer, any assistant treasurer, any trust officer or
assistant trust officer or any other officer of the Guarantee Trustee
customarily performing functions similar to those performed by any of the above
designated officers and also means, with respect to a particular corporate trust
matter, any other officer to whom such matter is referred because of that
officer's knowledge of and familiarity with the particular subject.
"SENIOR DEBT" shall have the meaning set forth in the
Indenture.
"SUCCESSOR GUARANTEE TRUSTEE" means a successor Guarantee
Trustee possessing the qualifications to act as Guarantee Trustee under Section
4.01.
"TRUST INDENTURE ACT" means the Trust Indenture Act of 1939.
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.01. TRUST INDENTURE ACT; APPLICATION. (a) This
Guarantee is subject to the provisions of the Trust Indenture Act that are
required to be part of this Guarantee, which are incorporated by reference
hereto, and shall, to the extent applicable, be governed by such provisions;
and
<PAGE> 11
6
(b) If and to the extent that any provision of this Guarantee
limits, qualifies or conflicts with the duties imposed by Sections 310 to 317,
inclusive, of the Trust Indenture Act, such imposed duties shall control.
SECTION 2.02. LISTS OF HOLDERS OF SECURITIES. (a) The
Guarantor shall provide the Guarantee Trustee (i) within 14 days after January 1
and June 30 of each year, commencing June 30, 2000, a list, in such form as the
Guarantee Trustee may reasonably require, of the names and addresses of the
Holders ("List of Holders") as of such date; PROVIDED that the Guarantor shall
not be obligated to provide such List of Holders at any time the List of Holders
does not differ from the most recent List of Holders given to the Guarantee
Trustee by the Guarantor, and (ii) at any other time, within 30 days of receipt
by the Guarantor of a written request for a List of Holders as of a date no more
than 14 days before such List of Holders is given to the Guarantee Trustee. The
Guarantee Trustee may destroy any List of Holders previously given to it on
receipt of a new List of Holders.
(b) The Guarantee Trustee shall comply with its obligations
under Sections 311(a), 311(b) and 312(b) of the Trust Indenture Act.
SECTION 2.03. REPORTS BY THE GUARANTEE TRUSTEE. Within 60 days
after March 15 of each year, commencing March 15, 2000, the Guarantee Trustee
shall provide to the Holders of the Securities such reports as are required by
Section 313 of the Trust Indenture Act, if any, in the form and in the manner
provided by Section 313 of the Trust Indenture Act. The Guarantee Trustee shall
also comply with the requirements of Section 313(d) of the Trust Indenture Act.
SECTION 2.04. PERIODIC REPORTS TO GUARANTEE TRUSTEE. The
Guarantor shall provide to the Guarantee Trustee, the Securities and Exchange
Commission and the Holders such documents, reports and information as required
by Section 314 (if any) and the compliance certificate required by Section 314
of the Trust Indenture Act in the form, in the manner and at the times required
by Section 314 of the Trust Indenture Act.
SECTION 2.05. EVIDENCE OF COMPLIANCE WITH CONDITIONS
PRECEDENT. The Guarantor shall provide to the Guarantee Trustee such evidence of
compliance with any conditions precedent, if any, provided for in this Guarantee
which relate to any of the matters set forth in Section 314(c) of the Trust
Indenture Act. Any certificate
<PAGE> 12
7
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.
SECTION 2.06. EVENTS OF DEFAULT; WAIVER. The Holders of a
Majority in liquidation amount of the Preferred Securities may, by vote, on
behalf of the Holders of all of the Preferred Securities, waive any past Event
of Default and its consequences. Upon such waiver, any such Event of Default
shall cease to exist, and any Event of Default arising therefrom shall be deemed
to have been cured, for every purpose of this Guarantee, but no such waiver
shall extend to any subsequent or other default or Event of Default or impair
any right consequent therefrom.
SECTION 2.07. EVENT OF DEFAULT; NOTICE. (a) The Guarantee
Trustee shall, within 90 days after the occurrence of an Event of Default
actually known to the Guarantee Trustee, transmit by mail, first-class postage
prepaid, to the Holders, notices of all Events of Default known to the Guarantee
Trustee, unless such defaults have been cured before the giving of such notice;
PROVIDED that, except in the case of a default in the payment of a Guarantee
Payment, the Guarantee Trustee shall be protected in withholding such notice if
and so long as the board of directors, the executive committee, or a trust
committee of directors and/or Responsible Officers of the Guarantee Trustee in
good faith determines that the withholding of such notice is in the interests of
the Holders.
(b) The Guarantee Trustee shall not be deemed to have
knowledge of any Event of Default except any Event of Default as to which the
Guarantee Trustee shall have received written notice or a Responsible Officer
charged with the administration of the Declaration shall have obtained written
notice.
SECTION 2.08. CONFLICTING INTERESTS. The Declaration shall be
deemed to be specifically described in this Guarantee for the purposes of clause
(i) of the first proviso contained in Section 310(b) of the Trust Indenture Act.
ARTICLE III
POWERS, DUTIES AND RIGHTS OF GUARANTEE TRUSTEE SECTION 3.01.
POWERS AND DUTIES OF THE GUARANTEE TRUSTEE. (a) This Guarantee shall be held
by the Guarantee Trustee for the benefit of the Holders, and the Guarantee
<PAGE> 13
8
Trustee shall not transfer this Guarantee to any Person except a Holder
exercising his or her rights pursuant to Section 5.05(d) or to a Successor
Guarantee Trustee on acceptance by such Successor Guarantee Trustee of its
appointment to act as Successor Guarantee Trustee. The right, title and interest
of the Guarantee Trustee shall automatically vest in any Successor Guarantee
Trustee, and such vesting and cessation of title shall be effective whether or
not conveyancing documents have been executed and delivered pursuant to the
appointment of such Successor Guarantee Trustee.
(b) If an Event of Default has occurred and is continuing, the
Guarantee Trustee shall enforce this Guarantee for the benefit of the Holders.
(c) The Guarantee Trustee, before the occurrence of any Event
of Default and after the curing of all Events of Default that may have occurred,
shall undertake to perform only such duties as are specifically set forth in
this Guarantee, and no implied covenants shall be read into this Guarantee
against the Guarantee Trustee. In case an Event of Default has occurred (that
has not been cured or waived pursuant to Section 2.06), the Guarantee Trustee
shall exercise such of the rights and powers vested in it by this Guarantee, and
use the same degree of care and skill in its exercise thereof, as a prudent
person would exercise or use under the circumstances in the conduct of his or
her own affairs.
(d) No provision of this Guarantee shall be construed to
relieve the Guarantee Trustee from liability for its own negligent action, its
own negligent failure to act, or its own willful misconduct, except that:
(i) prior to the occurrence of any Event of Default and after
the curing or waiving of all such Events of Default that may have
occurred:
(A) the duties and obligations of the Guarantee
Trustee shall be determined solely by the express provisions
of this Guarantee, and the Guarantee Trustee shall not be
liable except for the performance of such duties and
obligations as are specifically set forth in this Guarantee,
and no implied covenants or obligations shall be read into
this Guarantee against the Guarantee Trustee; and
(B) in the absence of bad faith on the part
of the Guarantee Trustee, the Guarantee Trustee
<PAGE> 14
9
may conclusively rely, as to the truth of the statements and
the correctness of the opinions expressed therein, upon any
certificates or opinions furnished to the Guarantee Trustee
and conforming to the requirements of this Guarantee; but in
the case of any such certificates or opinions that by any
provision hereof are specifically required to be furnished to
the Guarantee Trustee, the Guarantee Trustee shall be under a
duty to examine the same to determine whether or not they
conform to the requirements of this Guarantee;
(ii) the Guarantee Trustee shall not be liable for any error
of judgment made in good faith by a Responsible Officer of the
Guarantee Trustee, unless it shall be proved that the Guarantee Trustee
was negligent in ascertaining the pertinent facts upon which such
judgment was made;
(iii) the Guarantee Trustee shall not be liable with respect
to any action taken or omitted to be taken by it in good faith in
accordance with the direction of the Holders of not less than a
Majority in liquidation amount of the Preferred Securities, relating to
the time, method and place of conducting any proceeding for any remedy
available to the Guarantee Trustee, or exercising any trust or power
conferred upon the Guarantee Trustee under this Guarantee; and
(iv) no provision of this Guarantee shall require the
Guarantee Trustee to expend or risk its own funds or otherwise incur
personal financial liability in the performance of any of its duties or
in the exercise of any of its rights or powers.
SECTION 3.02. CERTAIN RIGHTS OF GUARANTEE TRUSTEE. (a) Subject
to the provisions of Section 3.01:
(i) the Guarantee Trustee may conclusively rely and shall be
fully protected in acting or refraining from acting upon any
resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, bond, debenture, note,
other evidence of indebtedness or other paper or document believed by
it to be genuine and to have been signed, sent or presented by the
proper party or parties;
<PAGE> 15
10
(ii) any direction or act of the Guarantor contemplated by
this Guarantee shall be sufficiently evidenced by an Officers'
Certificate;
(iii) whenever, in the administration of this Guarantee, the
Guarantee Trustee shall deem it desirable that a matter be proved or
established before taking, suffering or omitting any action hereunder,
the Guarantee Trustee (unless other evidence is herein specifically
prescribed) may, in the absence of bad faith on its part, request and
rely upon an Officers' Certificate which, upon receipt of such request,
shall be promptly delivered by the Guarantor;
(iv) the Guarantee Trustee shall have no duty to see to any
recording, filing or registration of any instrument (or any
rerecording, refiling or reregistration thereof);
(v) the Guarantee Trustee may consult with legal counsel of
its selection, and the written advice or opinion of such legal counsel
with respect to legal matters shall be full and complete authorization
and protection in respect of any action taken, suffered or omitted to
be taken by it hereunder in good faith and in accordance with such
advice or opinion. Such legal counsel may be legal counsel to the
Guarantor or any of its Affiliates and may include any of the
Guarantor's employees. The Guarantee Trustee shall have the right at
any time to seek instructions concerning the administration of this
Guarantee from any court of competent jurisdiction.
(vi) the Guarantee Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Guarantee at
the request or direction of any Holder, unless such Holder shall have
provided to the Guarantee Trustee security and indemnity satisfactory
to the Guarantee Trustee against the costs, expenses (including
attorneys' fees and expenses) and liabilities that might be incurred by
it in complying with such request or direction, including such
reasonable advances as may be requested by the Guarantee Trustee;
PROVIDED that nothing contained in this Section 3.02(a)(vi) shall be
taken to relieve the Guarantee Trustee, upon the occurrence of an Event
of Default, of its obligation to exercise the rights and powers vested
in it by this Guarantee;
(vii) the Guarantee Trustee shall not be bound to make any
investigation into the facts or matters stated
<PAGE> 16
11
in any resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, bond, debenture, note,
other evidence of indebtedness or other paper or document, but the
Guarantee Trustee, in its discretion, may make such further inquiry or
investigation into such facts or matters as it may see fit;
(viii) the Guarantee Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly or by
or through agents or attorneys, and the Guarantee Trustee shall not be
responsible for any misconduct or negligence on the part of any agent
or attorney appointed with due care by it hereunder;
(ix) any action taken by the Guarantee Trustee or its agents
hereunder shall bind the Holders, and the signature of the Guarantee
Trustee or its agents alone shall be sufficient and effective to
perform any such action; it being understood that no third party shall
be required to inquire as to the authority of the Guarantee Trustee to
so act or as to its compliance with any of the terms and provisions of
this Guarantee, both of which shall be conclusively evidenced by the
Guarantee Trustee's or its agent's taking such action; and
(x) whenever in the administration of this Guarantee the
Guarantee Trustee shall deem it desirable to receive instructions with
respect to enforcing any remedy or right or taking any other action
hereunder, the Guarantee Trustee (i) may request written instructions
from the Holders or, other than with respect to enforcing any remedy or
right or taking any action related thereto, the Guarantor, (ii) may
refrain from enforcing such remedy or right or taking such other action
until such written instructions are received, and (iii) shall be
protected in acting in accordance with such written instructions.
(b) No provision of this Guarantee shall be deemed to impose
any duty or obligation on the Guarantee Trustee to perform any act or acts or
exercise any right, power, duty or obligation conferred or imposed on it, in any
jurisdiction in which it shall be illegal, or in which the Guarantee Trustee
shall be unqualified or incompetent in accordance with applicable law, to
perform any such act or acts or to exercise any such right, power, duty or
obligation. No permissive power or authority available to the Guarantee Trustee
shall be construed to be a duty.
<PAGE> 17
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SECTION 3.03. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF
GUARANTEE. The recitals contained in this Guarantee shall be taken as the
statements of the Guarantor, and the Guarantee Trustee does not assume any
responsibility for their correctness. The Guarantee Trustee makes no
representations as to the validity or sufficiency of this Guarantee.
ARTICLE IV
GUARANTEE TRUSTEE
SECTION 4.01. GUARANTEE TRUSTEE; ELIGIBILITY. (a) There
shall at all times be a Guarantee Trustee which shall:
(i) not be an Affiliate of the Guarantor; and
(ii) be a corporation organized and doing business under the
laws of the United States of America or any State or Territory thereof
or of the District of Columbia, or a corporation or Person permitted by
the Securities and Exchange Commission to act as an institutional
trustee under the Trust Indenture Act, authorized under such laws to
exercise corporate trust powers, having a combined capital and surplus
of at least 50 million U.S. dollars ($50,000,000), and subject to
supervision or examination by Federal, State, Territorial or District
of Columbia authority. If such corporation publishes reports of
condition at least annually, pursuant to law or to the requirements of
the supervising or examining authority referred to above, then, for the
purposes of this Section 4.01(a)(ii), the combined capital and surplus
of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so
published.
(b) If at any time the Guarantee Trustee shall cease to be
eligible to so act under Section 4.01(a), the Guarantee Trustee shall
immediately resign in the manner and with the effect set out in Section 4.02(c).
(c) If the Guarantee Trustee has or shall acquire any
"conflicting interest" within the meaning of Section 3.10(b) of the Trust
Indenture Act, the Guarantee Trustee and Guarantor shall in all respects comply
with the provisions of Section 3.10(b) of the Trust Indenture Act.
<PAGE> 18
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SECTION 4.02. APPOINTMENT, REMOVAL AND RESIGNATION OF
GUARANTEE TRUSTEE. (a) Subject to Section 4.02(b), the Guarantee Trustee may be
appointed or removed without cause at any time by the Guarantor.
(b) The Guarantee Trustee shall not be removed in accordance
with Section 4.02(a) until a Successor Guarantee Trustee has been appointed and
has accepted such appointment by written instrument executed by such Successor
Guarantee Trustee and delivered to the Guarantor.
(c) The Guarantee Trustee appointed to office shall hold
office until a Successor Guarantee Trustee shall have been appointed or until
its removal or resignation. The Guarantee Trustee may resign from office
(without need for prior or subsequent accounting) by an instrument in writing
executed by the Guarantee Trustee and delivered to the Guarantor, which
resignation shall not take effect until a Successor Guarantee Trustee has been
appointed and has accepted such appointment by instrument in writing executed by
such Successor Guarantee Trustee and delivered to the Guarantor and the
resigning Guarantee Trustee.
(d) If no Successor Guarantee Trustee shall have been
appointed and accepted appointment as provided in this Section 4.02 within 60
days after delivery to the Guarantor of an instrument of removal or resignation,
the Guarantee Trustee resigning or being removed may petition any court of
competent jurisdiction for appointment of a Successor Guarantee Trustee. Such
court may thereupon, after prescribing such notice, if any, as it may deem
proper, appoint a Successor Guarantee Trustee.
(e) No Guarantee Trustee shall be liable for the acts or
omissions to act of any Successor Guarantee Trustee.
(f) Upon termination of this Guarantee or removal or
resignation of the Guarantee Trustee pursuant to this Section 4.02, the
Guarantor shall pay to the Guarantee Trustee all amounts accrued to the date of
such termination, removal or resignation.
ARTICLE V
GUARANTEE
SECTION 5.01. GUARANTEE. The Guarantor irrevocably and
unconditionally agrees to pay in full on a subordinated basis to the Holders the
Guarantee Payments (without duplication of amounts theretofore paid by or on
behalf of the Issuer), as and when due, in coin or currency
<PAGE> 19
14
of the United States of America which at the time of payment is legal tender for
payment of public and private debt regardless of any defense, right of setoff or
counterclaim that the Issuer may have or assert other than the defense of
payment. The Guarantor's obligation to make a Guarantee Payment may be satisfied
by direct payment of the required amounts by the Guarantor to the Holders or by
causing the Issuer to pay such amounts to the Holders.
SECTION 5.02. SUBORDINATION. If a Debenture Event of Default
or a Declaration Event of Default (or an event that, with passage of time, would
become a Debenture Event of Default) shall have occurred and be continuing, the
rights of holders of the Common Securities to receive Guarantee Payments under
the Common Securities Guarantee are subordinated to the rights of Holders to
receive Guarantee Payments under this Guarantee.
SECTION 5.03. WAIVER OF NOTICE AND DEMAND. The Guarantor
hereby waives notice of acceptance of this Guarantee and of any liability to
which it applies or may apply, presentment, demand for payment, any right to
require a proceeding first against the Issuer or any other Person before
proceeding against the Guarantor, protest, notice of nonpayment, notice of
dishonor, notice of redemption and all other notices and demands.
SECTION 5.04. OBLIGATIONS NOT AFFECTED. The obligations,
covenants, agreements and duties of the Guarantor under this Guarantee shall
in no way be affected or impaired by reason of the happening from time to time
of any of the following:
(a) the release or waiver, by operation of law or otherwise,
of the performance or observance by the Issuer of any express or
implied agreement, covenant, term or condition relating to the
Preferred Securities to be performed or observed by the Issuer;
(b) the extension of time for the payment by the Issuer of all
or any portion of the Distributions, the amount payable upon redemption
or the amount payable upon liquidation or any other sums payable under
the terms of the Preferred Securities or the extension of time for the
performance of any other obligation under, arising out of, or in
connection with, the Preferred Securities (other than an extension of
time for payment of Distributions that results from the extension of
any interest payment period on the Debentures permitted by the
Indenture);
<PAGE> 20
15
(c) any failure, omission, delay or lack of diligence on the
part of the Holders to enforce, assert or exercise any right,
privilege, power or remedy conferred on the Holders pursuant to the
terms of the Preferred Securities, or any action on the part of the
Issuer granting indulgence or extension of any kind;
(d) the voluntary or involuntary liquidation, dissolution,
sale of any collateral, receivership, insolvency, bankruptcy,
assignment for the benefit of creditors, reorganization, arrangement,
composition or readjustment of debt of, or other similar proceedings
affecting, the Issuer or any of the assets of the Issuer;
(e) any invalidity of, or defect or deficiency in the
Preferred Securities;
(f) the settlement or compromise of any obligation
guaranteed hereby or hereby incurred; or
(g) any other circumstance whatsoever that might otherwise
constitute a legal or equitable discharge or defense of a guarantor, it
being the intent of this Section 5.04 that the obligations of the
Guarantor hereunder shall be absolute and unconditional under any and
all circumstances.
There shall be no obligation of the Holders or any other
Person to give notice to, or obtain consent of, the Guarantor with respect to
the happening of any of the foregoing.
SECTION 5.05. RIGHTS OF HOLDERS. The Guarantor expressly
acknowledges that:
(a) This Guarantee will be deposited with the Guarantee
Trustee to be held for the benefit of the Holders.
(b) The Guarantee Trustee has the right to enforce this
Guarantee on behalf of the Holders.
(c) The Holders of a Majority in liquidation amount of the
Preferred Securities have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the
Guarantee Trustee in respect of this Guarantee or exercising any trust
or power conferred upon the Guarantee Trustee under this Guarantee.
<PAGE> 21
16
(d) Any Holder may institute a legal proceeding directly
against the Guarantor to enforce its rights under this Guarantee,
without first instituting a legal proceeding against the Issuer, the
Guarantee Trustee or any other Person.
SECTION 5.06. GUARANTEE OF PAYMENT. This Guarantee creates a
guarantee of payment and not of collection. This Guarantee will not be
discharged except by payment of the Guarantee Payments in full (without
duplication of amounts theretofore paid by the Issuer) or upon distribution of
Debentures to Holders as provided in the Declaration.
SECTION 5.07. SUBROGATION. The Guarantor shall be subrogated
to all (if any) rights of the Holders against the Issuer in respect of any
amounts paid to such Holders by the Guarantor under this Guarantee and shall
have the right to waive payment by the Issuer pursuant to Section 5.01;
PROVIDED, HOWEVER, that the Guarantor shall not (except to the extent required
by mandatory provisions of law) be entitled to enforce or exercise any right
that it may acquire by way of subrogation or any indemnity, reimbursement or
other agreement, in all cases as a result of payment under this Guarantee, if,
at the time of any such payment, any amounts are due and unpaid under this
Guarantee. If any amount shall be paid to the Guarantor in violation of the
preceding sentence, the Guarantor agrees to hold such amount in trust for the
Holders and to pay over such amount to the Holders.
SECTION 5.08. INDEPENDENT OBLIGATIONS. The Guarantor
acknowledges that its obligations hereunder are independent of the obligations
of the Issuer with respect to the Preferred Securities, and that the Guarantor
shall be liable as principal and as debtor hereunder to make Guarantee Payments
pursuant to the terms of this Guarantee notwithstanding the occurrence of any
event referred to in subsections (a) through (g), inclusive, of Section 5.04
hereof.
SECTION 5.09. CONVERSION. The Guarantor acknowledges its
obligation to issue and deliver common stock upon the conversion of the
Preferred Securities.
<PAGE> 22
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ARTICLE VI
LIMITATION OF TRANSACTIONS; SUBORDINATION
SECTION 6.01. LIMITATION OF TRANSACTIONS. So long as any
Preferred Securities remain outstanding, if there shall have occurred and be
continuing a Debenture Event of Default, a Declaration Event of Default or an
event that, with the giving of notice or the lapse of time or both, would
constitute a Debenture Event of Default or a Declaration Event of Default, or a
selection by the Guarantor of a Deferral Period as provided in the Indenture and
such period, or any extension thereof, shall be continuing, then (a) the
Guarantor shall not declare or pay any dividend on, or make any distribution
with respect to, or redeem, purchase, acquire or make a liquidation payment with
respect to, any of its capital stock (other than stock dividends paid by the
Guarantor which stock dividends consist of the stock of the same class as that
on which the dividend is being paid), (b) the Guarantor shall not make any
payment of interest, principal or premium, if any, on or repay, repurchase or
redeem any debt securities issued by the Guarantor which rank PARI PASSU with or
junior in interest to the Debentures and (c) shall not make any guarantee
payments with respect to any guarantee by the Guarantor of the debt securities
of any subsidiary of the Guarantor if such guarantee ranks PARI PASSU with or
junior in interest to the Debentures (in each case, other than (A) dividends or
distributions in Common Stock, (B) any declaration of a dividend in connection
with the implementation of a stockholders' rights plan, or the issuance of stock
under any such plan in the future, or the redemption or repurchase of any such
rights pursuant thereto, (C) payments under this Guarantee, (D) purchases or
acquisitions of shares of the Common Stock in connection with the satisfaction
by the Guarantor of its obligations under any employee benefit plan or any other
contractual obligation of the Guarantor (other than a contractual obligation
ranking PARI PASSU with or junior in interest to the Securities), (E) as a
result of a reclassification of the Guarantor's capital stock or the exchange or
conversion of one class or series of the Guarantor's capital stock for another
class or series of the Guarantor's capital stock or (F) the purchase of
fractional interests in shares of the Guarantor's capital stock pursuant to the
conversion or exchange provisions of such capital stock or the security being
converted or exchanged).
<PAGE> 23
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SECTION 6.02. RANKING. This Guarantee will constitute an
unsecured obligation of the Guarantor and will rank subordinate to all Senior
Debt of the Guarantor to the same extent that the Debentures are subordinated
pursuant to the Indenture.
ARTICLE VII
TERMINATION
SECTION 7.01. TERMINATION. This Guarantee shall terminate upon
(i) full payment of the amount payable upon redemption of all Preferred
Securities, (ii) the distribution of the Guarantor's common stock to the Holders
in respect of the conversion of the Preferred Securities into the Guarantor's
common 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 Issuer. Notwithstanding the
foregoing, this 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 this Guarantee.
ARTICLE VIII
INDEMNIFICATION
SECTION 8.01. EXCULPATION. (a) No Indemnified Person shall be
liable, responsible or accountable in damages or otherwise to the Guarantor or
any Covered Person for any loss, damage or claim incurred by reason of any act
or omission performed or omitted by such Indemnified Person in good faith in
accordance with this Guarantee and in a manner that such Indemnified Person
reasonably believed to be within the scope of the authority conferred on such
Indemnified Person by this Guarantee or by law, except that an Indemnified
Person shall be liable for any such loss, damage or claim incurred by reason of
such Indemnified Person's negligence or willful misconduct with respect to such
acts or omissions.
(b) An Indemnified Person shall be fully protected in relying
in good faith upon the records of the Guarantor and upon such information,
opinions, reports or statements presented to the Guarantor by any Person as to
matters the Indemnified Person reasonably believes are within such other
Person's professional or expert competence and who has been selected with
reasonable care by or on
<PAGE> 24
19
behalf of the Guarantor, including information, opinions, reports or statements
as to the value and amount of the assets, liabilities, profits, losses, or any
other facts pertinent to the existence and amount of assets from which
Distributions to Holders might properly be paid.
SECTION 8.02. INDEMNIFICATION. (a) The Guarantor agrees to
indemnify each Indemnified Person for, and to hold each Indemnified Person
harmless against, any and all loss, liability or expense including taxes (other
than taxes based on the income of such Indemnified Person) incurred without
negligence or bad faith on its part, arising out of or in connection with the
acceptance or administration of the trust or trusts hereunder, including the
costs and expenses (including reasonable legal fees and expenses) of defending
itself against or investigating any claim or liability in connection with the
exercise or performance of any of its powers or duties hereunder. The obligation
to indemnify as set forth in this Section 8.02 shall survive the termination of
this Guarantee.
(b) To the fullest extent permitted by applicable law,
expenses (including legal fees and expenses) incurred by an Indemnified Person
in defending any claim, demand, action, suit or proceeding shall, from time to
time, be advanced by the Guarantor prior to the final disposition of such claim,
demand, action, suit or proceeding upon receipt by the Guarantor of an
undertaking by or on behalf of the Indemnified Person to repay such amount if it
shall be determined that the Indemnified Person is not entitled to be
indemnified as authorized in Section 8.02(a).
(c) No Indemnified Person shall claim or exact any lien or
charge on any Guarantee Payments as a result of any amount due to it under this
Guarantee.
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. SUCCESSORS AND ASSIGNS. All guarantees and
agreements contained in this Guarantee shall bind the successors, assigns,
receivers, trustees and representatives of the Guarantor and shall inure to the
benefit of the Holders.
SECTION 9.02. AMENDMENTS. Except with respect to any changes
that do not adversely affect the rights of Holders (in which case no consent of
Holders will be required), this Guarantee may only be amended with the prior
<PAGE> 25
20
approval of the Holders of a majority in liquidation amount of the Preferred
Securities then outstanding. The provisions of Section 12.02 of the Declaration
with respect to meetings of holders of the Securities (as defined in the
Declaration) apply to the giving of such approval.
SECTION 9.03. NOTICES. All notices provided for in this
Guarantee shall be in writing, duly signed by the party giving such notice, and
shall be delivered, telecopied or mailed by first-class mail, as follows:
(a) if given to the Issuer, in care of the Regular Trustees at
the Issuer's mailing address set forth below (or such other address as
the Issuer may give notice):
Chemed Capital Trust
c/o Chemed Corporation
2600 Chemed Center
Cincinnati, Ohio 45202-4726
Attention: Chief Financial Officer
(b) If given to the Guarantee Trustee, at the Guarantee
Trustee's mailing address set forth below (or such other address as the
Guarantee Trustee may give notice of to the Holders):
Firstar Bank, National Association
425 Walnut Street
6th Floor
Cincinnati, OH 45202
Attention: Corporate Trust Administration
(c) If given to the Guarantor, at the Guarantor's mailing
address set forth below (or such other address as the Guarantor may
give notice of to the Holders):
Chemed Corporation
2600 Chemed Center
Cincinnati, Ohio 45202-4726
Attention: Corporate Trust Administration
(d) If given to any Holder, at the address set forth on the
books and records of the Issuer.
All such notices shall be deemed to have been given when
received in person, telecopied with receipt confirmed, or mailed by first class
mail, postage prepaid except that if a notice or other document is refused
delivery or cannot be delivered because of a changed address of which no notice
was given, such notice or other document
<PAGE> 26
21
shall be deemed to have been delivered on the date of such refusal or inability
to deliver.
SECTION 9.04. BENEFIT. This Guarantee is solely for the
benefit of the Holders and, subject to Section 3.01(a), is not separately
transferable from the Preferred Securities.
SECTION 9.05. GOVERNING LAW. THIS PREFERRED SECURITIES
GUARANTEE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF DELAWARE, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS. THE
PARTIES HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY CONSENT TO SUBMIT TO THE
EXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF DELAWARE AND OF THE UNITED
STATES DISTRICT COURTS LOCATED IN THE STATE OF DELAWARE FOR ANY LAWSUITS, CLAIMS
OR OTHER PROCEEDINGS ARISING OUT OF OR RELATING TO THIS AGREEMENT AND AGREE NOT
TO COMMENCE ANY SUCH LAWSUIT, CLAIM OR OTHER PROCEEDING EXCEPT IN SUCH COURTS.
THE PARTIES HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE ANY OBJECTION TO
THE LAYING OF VENUE OF ANY LAWSUIT, CLAIM, OR OTHER PROCEEDING ARISING OUT OF OR
RELATING TO THIS AGREEMENT IN THE COURTS OF THE STATE OF DELAWARE OR THE UNITED
STATES DISTRICT COURTS LOCATED IN THE STATE OF DELAWARE, AND HEREBY FURTHER
IRREVOCABLY AND UNCONDITIONALLY WAIVE AND AGREE NOT TO PLEAD OR CLAIM IN ANY
SUCH COURT THAT ANY SUCH LAWSUIT, CLAIM OR OTHER PROCEEDING BROUGHT IN ANY SUCH
COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
<PAGE> 27
22
THIS PREFERRED SECURITIES GUARANTEE is executed as of the day
and year first above written.
CHEMED CORPORATION, as
Guarantor,
by
--------------------------
Name: Kevin J. McNamara
Title: President
FIRSTAR BANK, NATIONAL
ASSOCIATION, as Guarantee
Trustee,
by
--------------------------
Name:
Title:
<PAGE> 1
Exhibit T3E.7
CHEMED CORPORATION AND CHEMED CAPITAL TRUST ANNOUNCE
EXTENSION OF EXCHANGE OFFER
Cincinnati, January 25--Chemed Corporation (NYSE:CHE) and Chemed Capital
Trust announced today that they have extended their offer to exchange
Convertible Trust Preferred Securities of Chemed Capital Trust for up to
2,000,000 shares of Capital Stock of Chemed Corporation until January 31, 2000
at midnight, Eastern time.
Chemed Corporation and Chemed Capital Trust also announced that they have
waived the Minimum Distribution Condition, which requires that for purposes of
listing the Convertible Trust Preferred Securities on the New York Stock
Exchange, as of the expiration date there be at least 1,000,000 shares validly
tendered, by at least 400 record or beneficial holders of Chemed shares.
Shareholders should note that, as a result of the waiver of this condition, the
Convertible Trust Preferred Securities may not be listed on the New York Stock
Exchange following the consummation of the exchange offer.
The exchange offer commenced on December 23, 1999. Approximately 562,182
Chemed shares have been tendered through the close of business on Monday,
January 24, 2000.
Chemed Corporation (www.chemed.com), headquartered in Cincinnati, is a New
York Stock Exchange-listed corporation with strategic positions in plumbing and
drain cleaning; home healthcare services; and residential appliance and
air-conditioning repair.
<PAGE> 1
Exhibit T3E.8
Company Press Release
Chemed Corporation and Chemed
Capital Trust Announce Expiration of Exchange Offer
CINCINNATI--Feb. 1, 2000--Chemed Corporation (NYSE:CHE) and Chemed Capital
Trust announced today that their offer to exchange Convertible Trust Preferred
Securities of Chemed Capital Trust for up to 2,000,000 shares of Capital Stock
of Chemed Corporation expired on January 31, 2000, at midnight, Eastern time,
and that all shares that were validly tendered and not withdrawn prior to the
expiration of the offer were accepted for exchange.
Based on preliminary estimates, when the offer expired, approximately 573,384
shares of Chemed Corporation were tendered, including approximately 1,225
shares subject to guarantee of delivery.
Chemed Corporation (www.chemed.com), headquartered in Cincinnati, is a New York
Stock Exchange-listed corporation with strategic positions in plumbing and
drain cleaning; home healthcare services; and residential appliance and
air-conditioning repair.
<PAGE> 1
Exhibit T3E.9
Company Press Release
Chemed Corporation and Chemed Capital Trust Announce Final
Results of Exchange Offer
CINCINNATI--February 7, 2000--Chemed Corporation (NYSE:CHE) and Chemed Capital
Trust announced today that pursuant to their offer to exchange Convertible
Trust Preferred Securities of Chemed Capital Trust for up to 2,0000,000 shares
of Capital Stock of Chemed Corporation which expired on January 31, 2000, at
midnight, Eastern time, 575,503 shares that were validly tendered and not
withdrawn prior to the expiration of the offer were accepted for exchange.
Chemed Corporation (www.chemed.com), headquartered in Cincinnati, is a New
York Stock Exchange-listed corporation with strategic positions in plumbing and
drain cleaning; home healthcare services; and residential appliance and
air-conditioning repair.
