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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON FEBRUARY 1, 2000
REGISTRATION NO. 333-85781
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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UNIVERSAL HEALTH SERVICES, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
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DELAWARE 23-2077891
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
</TABLE>
UNIVERSAL CORPORATE CENTER
367 SOUTH GULPH ROAD
KING OF PRUSSIA, PENNSYLVANIA 19406
(610) 768-3300
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
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ALAN B. MILLER, PRESIDENT
UNIVERSAL HEALTH SERVICES, INC.
UNIVERSAL CORPORATE CENTER
367 SOUTH GULPH ROAD
KING OF PRUSSIA, PENNSYLVANIA 19406
(610) 768-3300
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE
NUMBER, INCLUDING AREA CODE, OF AGENT FOR SERVICE)
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COPIES OF ALL COMMUNICATIONS, INCLUDING ALL COMMUNICATIONS
SENT TO THE AGENT FOR SERVICE, SHOULD BE SENT TO:
Anthony Pantaleoni, Esq.
Fulbright & Jaworski L.L.P.
666 Fifth Avenue
New York, New York 10103
(212) 318-3000
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable after the effective date of this Registration Statement.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box: [ ]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box: [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
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If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
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If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
CALCULATION OF REGISTRATION FEE
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TITLE OF EACH CLASS OF PROPOSED MAXIMUM AGGREGATE
SECURITIES TO BE REGISTERED OFFERING PRICE(1) AMOUNT OF REGISTRATION FEE
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Debt Securities.................. $500,000,000 $139,000(2)
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(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(o) under the Securities Act of 1933, as amended.
(2) Previously paid.
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THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SECTION 8(a), MAY
DETERMINE.
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<PAGE> 2
This information in this prospectus is not complete and may be changed.
We may not sell these securities until the registration statement filed
with the Securities and Exchange Commission is effective. This
prospectus is not an offer to sell these securities and it is not
soliciting an offer to buy these securities in any state where the offer
or sale is not permitted.
SUBJECT TO COMPLETION, DATED FEBRUARY 1, 2000
PROSPECTUS
UNIVERSAL HEALTH SERVICES, INC.
DEBT SECURITIES
------------------------
This prospectus describes debt securities which we may issue and sell at
various times:
- Our debt securities may be debentures, notes or other unsecured evidences
of our indebtedness;
- We may issue them in one or several series;
- The total principal amount of our debt securities to be issued under this
prospectus will be not more than $500,000,000; and
- The terms of each series of our debt securities (interest rates,
maturity, redemption provisions and other terms) will be determined at
the time of sale and will be specified in a prospectus supplement. The
prospectus supplement will be delivered together with this prospectus at
the time of the sale.
We may sell our debt securities to or through underwriters, dealers or
agents. We may also sell our debt securities directly to investors. More
information about the way we will distribute our debt securities is under the
heading "Plan of Distribution." Information about the underwriters or agents who
will participate in any particular sale of our debt securities will be in the
prospectus supplement relating to that series of our debt securities.
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NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR DETERMINED THAT
THIS PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
The date of this Prospectus is , 2000.
<PAGE> 3
We have not authorized anyone to give any information or to make any
representations concerning the offering or our debt securities except that which
is in this prospectus or in the prospectus supplement which is delivered with
this prospectus, or which is referred to under "Where You Can Find Additional
Information." If anyone gives or makes any other information or representations,
you should not rely on it. This prospectus is not an offer to sell or a
solicitation of an offer to buy any securities other than our debt securities
which are referred to in the prospectus supplement. This prospectus is not an
offer to sell or a solicitation of an offer to buy any securities other than our
debt securities in any circumstances in which an offer or solicitation is
unlawful. You should not interpret the delivery of this prospectus, or any sale
of our debt securities, as an indication that there has been no change in our
affairs since the date of this prospectus. You should be aware that information
in this prospectus may change after this date.
TABLE OF CONTENTS
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PAGE
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Where You Can Find Additional Information................... 3
Universal Health Services, Inc.............................. 4
Ratio of Earnings to Fixed Charges.......................... 4
Use of Proceeds............................................. 5
Description of Our Debt Securities.......................... 5
Plan of Distribution........................................ 10
Legal Matters............................................... 11
Experts..................................................... 11
</TABLE>
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WHERE YOU CAN FIND ADDITIONAL INFORMATION
We are subject to the informational requirements of the Securities Exchange
Act of 1934. Therefore, we file reports, proxy statements and other information
with the SEC. You can read and copy any materials we file with the SEC at the
SEC's public reference facilities at 450 Fifth Street, N.W., Washington, D.C.
20549 and in New York, New York and Chicago, Illinois. You may obtain
information on the operation of the SEC's public reference facilities by calling
the SEC at 1-800-SEC-0330. You may also obtain our SEC filings from the SEC's
Web site on the Internet that is located at http://www.sec.gov.
The SEC allows us to "incorporate by reference" much of the information we
file with them (File No. 1-10765), which means that we can disclose important
information to you by referring you to those publicly available documents. The
information that we incorporate by reference is considered to be part of this
prospectus. Because we are incorporating by reference our future filings with
the SEC, this prospectus is continually updated and those future filings may
modify or supersede some or all of the information included or incorporated in
this prospectus. This means that you must look at all of the SEC filings that we
incorporate by reference to determine if any of the statements in this
prospectus or in any document previously incorporated by reference have been
modified or superseded. This prospectus incorporates by reference the documents
listed below and any future filings we will make with the SEC under Sections
13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934 until we
terminate our offering of our debt securities:
- Our Annual Report on Form 10-K for the fiscal year ended December 31,
1998; and
- Our Quarterly Reports on Form 10-Q for the quarterly periods ended March
31, 1999, June 30, 1999 and September 30, 1999.
The information about us contained in this prospectus should be read
together with the information in the documents incorporated by reference. We
will provide to each person, including any beneficial owner, to whom this
prospectus is delivered, a copy of any or all of the information that has been
incorporated by reference in this prospectus by not delivered with this
prospectus. We will provide this information to you upon written or oral request
at no cost to you. You may request this information from us at Universal Health
Services, Inc., Universal Corporate Center, P.O. Box 61558, 367 South Gulph
Road, King of Prussia, Pennsylvania 19406-0958, Attention: Secretary, Telephone:
(610) 768-3300.
We have filed with the SEC a Registration Statement to register our debt
securities under the Securities Act of 1933. This prospectus omits certain
information contained in the Registration Statement, as permitted by SEC rules.
You may obtain copies of the Registration Statement, including exhibits, as
noted in the first paragraph above.
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UNIVERSAL HEALTH SERVICES, INC.
We own and operate acute care hospitals, behavioral health centers,
ambulatory surgery centers, radiation oncology centers and women's centers.
Presently, we operate 47 hospitals, consisting of 21 acute care hospitals and 23
behavioral health centers and three women's centers, in Arkansas, California,
the District of Columbia, Florida, Georgia, Illinois, Indiana, Louisiana,
Massachusetts, Michigan, Missouri, Nevada, New Jersey, Oklahoma, Pennsylvania,
Puerto Rico, South Carolina, Texas and Washington. As part of our Ambulatory
Treatment Centers Division, we own outright, or in partnership with physicians,
and operate or manage 24 surgery and radiation oncology centers located in 12
states and the District of Columbia.
Our hospitals provide a broad range of services, including general surgery,
internal medicine, obstetrics, emergency room care, radiology, oncology,
diagnostic care, coronary care, pediatric services and behavioral health
services.
We selectively seek opportunities to expand our base of operations by
acquiring, constructing or leasing additional hospital facilities. As a result,
we may gain access to new markets and new healthcare delivery capabilities. We
also seek to increase the operating revenues and profitability of owned
hospitals by introducing new services, improving existing services, recruiting
qualified physicians and applying financial and operational controls. We also
continue to examine our facilities and to dispose of those facilities which we
believe do not have the potential to contribute to our growth or operating
strategy.
Our principal executive offices are located at Universal Corporate Center,
367 South Gulph Road, P.O. Box 61558, King of Prussia, Pennsylvania 19406-0958.
Our telephone number is (610) 768-3300.
RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth our consolidated ratio of earnings to fixed
charges for each of the years ended December 31, 1994, 1995, 1996, 1997 and 1998
and for the nine months ended September 30, 1999.
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YEAR ENDED DECEMBER 31,
------------------------------------ NINE MONTHS ENDED
1994 1995 1996 1997 1998 SEPTEMBER 30, 1999
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Ratio of earnings to fixed charges...... 3.5 3.2 3.3 4.0 3.9 4.2
</TABLE>
For purposes of calculating these ratios, earnings represent the sum of (i)
pretax income from continuing operations before adjustment for minority
interests in consolidated subsidiaries or income or loss from equity investees,
(ii) fixed charges and (iii) amortization of capitalized interest. Fixed charges
consist of the total of (a) interest expensed and capitalized, (b) amortized
premiums, discounts and capitalized expenses related to indebtedness and (c)
estimated interest within rental expense.
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USE OF PROCEEDS
Unless otherwise provided in the prospectus supplement which accompanies
this prospectus, we intend to add the net proceeds from the sale of our debt
securities to our general funds. We expect to use the proceeds for general
corporate purposes, including working capital, capital expenditures and the
repayment of short-term borrowings. Before we use the proceeds for these
purposes, we may invest the proceeds in interest-bearing time deposits or
short-term marketable securities.
DESCRIPTION OF OUR DEBT SECURITIES
This section describes some of the general terms of our debt securities.
The prospectus supplement will describe the particular terms of the debt
securities we are offering. The prospectus supplement will also indicate the
extent, if any, to which these general terms may not apply to the debt
securities we are offering.
We will issue our debt securities under an indenture between us and Bank
One Trust Company, N.A., which is serving as trustee. The indenture is an
exhibit to the registration statement of which this prospectus is a part. We are
summarizing certain important provisions of our debt securities and the
indenture. This is not a complete description of the important terms. You should
refer to the specific terms of the indenture for a complete statement of the
terms of the indenture and our debt securities.
GENERAL
Our debt securities will be unsecured obligations of ours.
The indenture does not limit the amount of debt securities that we may
issue under the indenture, nor does it limit other debt that we may issue. We
may issue our debt securities at various times in different series, each of
which may have different terms.
We expect that the prospectus supplement relating to the particular series
of debt securities we are offering will include the following information
concerning those debt securities:
- The title of the debt securities;
- Any limit on the aggregate amount of debt securities that we may offer;
- The price at which we are offering our debt securities. We will usually
express the price as a percentage of the principal amount;
- The maturity date of our debt securities;
- The interest rate per annum on our debt securities. We may specify a
fixed rate or a variable rate, or we may offer debt securities that do
not bear interest but are sold at a substantial discount from the amount
payable at maturity;
- The date from which interest on our debt securities will accrue;
- The dates on which we will pay interest and the regular record dates for
determining who is entitled to receive the interest;
- If applicable, the dates on which or after which, and the prices at
which, we are required to redeem our debt securities or have the option
to redeem our debt securities;
- If applicable, any limitations on our right to defease our obligations
under our debt securities by depositing cash or securities;
- The amount that we would be required to pay if the maturity of our debt
securities is accelerated, if that amount is other than the principal
amount;
- Any additional restrictive covenants or other material terms relating to
our debt securities;
- Any additional events of default that will apply to our debt securities;
and
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- If we will make payments on our debt securities in any currency other
than United States dollars, the currency or composite currency in which
we will make those payments. If the currency will be determined under an
index, the details concerning such index.
PAYMENTS ON DEBT SECURITIES
We will make payments on our debt securities at the office or agency we
will maintain for that purpose (which will be the Corporate Trust Office of the
trustee in New York, New York unless we indicate otherwise in the prospectus
supplement) or at such other places and at the respective times and in the
manner as we designate in the prospectus supplement. As explained under
"Book-Entry Debt Securities" below, The Depository Trust Company or its nominee
will be the initial registered holder unless the prospectus supplement provides
otherwise.
FORM, DENOMINATIONS AND TRANSFERS
Unless otherwise indicated in the prospectus supplement:
- Our debt securities will be in fully registered form, without coupons, in
denominations of $1,000 or any multiple thereof; and
- We will not charge any fee to register any transfer or exchange of our
debt securities, except for taxes or other governmental charges (if any).
CERTAIN COVENANTS
Unless we otherwise specify in the prospectus supplement, there will not be
any covenants in the indenture or our debt securities that would protect you
against a highly leveraged or other transaction involving us that may adversely
affect you as a holder of our debt securities. If there are provisions that
offer such protection, they will be described in the prospectus supplement.
Limitations on Liens. Under the indenture, we and our Restricted
Subsidiaries (defined below) may not issue, assume or guarantee any debt for
money borrowed, which is secured by a lien on a Principal Property (defined
below) or shares of stock or indebtedness of any Restricted Subsidiary, unless
the lien similarly secures your debt securities. This restriction will not apply
to indebtedness that is secured by:
- liens existing on the date of the indenture;
- liens in favor of governmental bodies securing progress, advance or other
payments;
- liens existing on property, capital stock or indebtedness at the time of
acquisition (including acquisition through lease, merger or
consolidation);
- liens securing the payment of all or any part of the purchase price of
the acquired property or the purchase price of construction,
installation, renovation, improvement or development on or of the
acquired property or securing any indebtedness incurred prior to, at the
time of or within 360 days after the later of the acquisition, completion
of the construction, installation, renovation, improvement or development
or the commencement of full operation of the acquired property (provided
that the amount of such indebtedness does not exceed the expense incurred
to construct, install, renovate, improve or develop the acquired
property) or within 360 days after the acquisition of the capital stock
or indebtedness for the purpose of financing all or any part of the
purchase price;
- liens securing indebtedness in an aggregate amount which, at the time of
incurrence and together with all outstanding Attributable Debt (defined
below) in respect of sale and leaseback transactions where, at the time
of incurrence, we would be entitled under the indenture to create or
assume a lien on the Principal Property securing indebtedness in an
amount at least equal to the Attributable Debt in respect of that
transaction (without equally and ratably securing our debt securities
described in this prospectus), does not exceed 10% of our consolidated
net tangible assets;
- liens securing indebtedness owed to us or to a Restricted Subsidiary; and
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- any extension, renewal or replacement, in whole or in part, of any of the
liens described above.
A Restricted Subsidiary is a direct or indirect subsidiary of ours if
substantially all of its property is located in the continental United States
and if it owns any Principal Property (except a subsidiary principally engaged
in leasing or in financing receivables or overseas operations).
A Principal Property is any property, plant, equipment or facility of ours
or any of our Restricted Subsidiaries, except that any property, plant,
equipment or facility of ours or any of our Restricted Subsidiaries which does
not equal or exceed 3% of our consolidated net tangible assets shall not
constitute a Principal Property of ours unless our Board of Directors or our
management deems it to be material to us and our Restricted Subsidiaries, taken
as a whole. Principal Property shall not include accounts receivable or
inventory of ours or any of our Restricted Subsidiaries; provided, however, that
individual items of property, plant, equipment or individual facilities of ours
or any of our Restricted Subsidiaries shall not be combined in determining
whether that property, plant, equipment or facility constitutes a Principal
Property of ours, whether or not they are the subject of the same transaction or
series of transactions.
Attributable Debt means, with respect to any sale and leaseback transaction
as of any particular time, the present value (discounted at the rate of interest
implicit in the terms of the lease) of the obligations of the lessee under the
lease for net rental payments during the remaining term of the lease (including
any period for which the lease has been extended or may, at our option, be
extended).
Limitation on Sale and Leaseback Transactions. We and our Restricted
Subsidiaries may not enter into sale and leaseback transactions involving any
Principal Property unless:
- we or our Restricted Subsidiary sell that Principal Property within 360
days from the date of acquisition or completion of the construction or
commencement of full operations of that Principal Property, whichever is
later; or
- we or our Restricted Subsidiary (within 120 days after the sale) reduce
funded debt, which is not subordinated in right of payment to our debt
securities described in this prospectus, by an amount not less than the
greater of the net proceeds of the sale and leaseback transaction or the
fair value of that Principal Property.
This restriction will not prevent a sale and leaseback transaction of any
Principal Property:
- if the lease is for a period (including renewals) of not more than 36
months; or
- if we or our Restricted Subsidiary would, at the time of incurrence, be
entitled under the indenture to create or assume a lien on that Principal
Property securing indebtedness in an amount at least equal to the
Attributable Debt in respect of the sale and leaseback transaction
(without equally and ratably securing our debt securities described in
this prospectus).
Restrictions on Consolidation, Merger or Sale. We may not consolidate or
merge or sell or convey all or substantially all of our assets unless the
surviving corporation (if it is not us) is a domestic corporation and assumes
our obligations under our debt securities and the indenture and unless, under
the indenture, there is no event of default as a result of the transaction.
DEFEASANCE
The indenture includes provisions allowing defeasance that we may choose to
apply to our debt securities of any series. If we do so, we would deposit with
the trustee or another trustee money or U.S. government obligations sufficient
to make all payments on those debt securities. If we make such a deposit with
respect to your debt securities, we may elect either:
- to be discharged from all our obligations on your debt securities, except
for our obligations to register transfers and exchanges, to replace
temporary or mutilated, destroyed, lost or stolen debt securities, to
maintain an office or agency in respect of the debt securities and to
hold moneys for payment in trust; or
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- to be released from our restrictions described above relating to liens
and sale and leaseback transactions.
To establish such a trust, we must deliver to the trustee an opinion of our
counsel that the holders of our debt securities will not recognize income, gain
or loss for Federal income tax purposes as a result of such defeasance and will
be subject to Federal income tax on the same amounts, in the same manner and at
the same times as would have been the case if such defeasance had not occurred.
There may be additional provisions relating to defeasance which we will describe
in the prospectus supplement.
EVENTS OF DEFAULT, NOTICE AND WAIVER
If certain events of default by us specified in the indenture happen and
are continuing, either the trustee or the holders of 25% in principal amount of
the outstanding debt securities of a series may declare the principal and
accrued interest, if any, of all securities of that series to be due and
payable. If other specified events of default happen and are continuing, either
the trustee or the holders of 25% in principal amount of the outstanding debt
securities of all series may declare the principal and accrued interest, if any,
of all the outstanding debt securities to be due and payable.
An event of default in respect of any series of our debt securities means:
- our failure to pay any interest on that series within 30 days of when
due;
- our failure to pay any principal, sinking fund installment or analogous
obligation on that series when due;
- our failure to perform any other agreement in our debt securities of that
series or the indenture (other than an agreement relating solely to
another series of our debt securities) for 90 days after notice;
- acceleration of our indebtedness aggregating more than $20,000,000;
- our failure to discharge any judgment of $20,000,000 or more within 60
days after the judgment becomes final and nonappealable; and
- certain events of our bankruptcy, insolvency and reorganization.
Within 90 days after a default in respect of any series of our debt
securities, the trustee must give to the holders of such series notice of all
uncured and unwaived defaults by us known to it. However, except in the case of
default in payment, the trustee may withhold such notice if it in good faith
determines that withholding is in the interest of such holders. The term
"default" means, for this purpose, the happening of any event of default,
disregarding any grace period or notice requirement.
Before the trustee is required to exercise rights under the indenture at
the request of holders, it is entitled to be indemnified by such holders,
subject to its duty, during an event of default, to act with the required
standard of care.
If any event of default has occurred, the holders of a majority in
principal amount of the outstanding debt securities of any series may direct the
time, method and place of conducting proceedings for remedies available to the
trustee, or exercising any trust or power conferred on the trustee, in respect
of that series.
We must file an annual certificate with the trustee that we are in
compliance with conditions and covenants under the indenture.
The holders of a majority in principal amount of the outstanding debt
securities of a series, on behalf of the holders of all debt securities of that
series, or the holders of a majority of all outstanding debt securities voting
as a single class, on behalf of the holders of all outstanding debt securities,
may waive some past defaults or events of default, or compliance with certain
provisions of the indenture, but may not waive among other things an uncured
default in payment.
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MODIFICATION OR AMENDMENT OF THE INDENTURE
If we receive the consent of the holders of a majority in principal amount
of the outstanding debt securities affected, we may enter into supplemental
indentures with the trustee that would:
- add, change or eliminate provisions in the indenture; or
- change the rights of the holders of our debt securities.
However, unless we receive the consent of all of the affected holders, we
may not enter into supplemental indentures that would, with respect to the debt
securities of those holders:
- change the maturity;
- reduce the principal amount or any premium;
- reduce the interest rate or extend the time of payment of interest;
- reduce any amount payable on redemption or reduce the amount of the
principal of an original issue discount security that would be payable on
acceleration;
- impair or affect the right of any holder to institute suit for payment;
- change any right of the holder to require repayment; or
- reduce the requirement for majority approval of supplemental indentures.
REGARDING THE TRUSTEE
The trustee is Bank One Trust Company, N.A. The trustee is a lender to us
under our revolving credit agreement. From time to time, we may enter into other
banking relationships with the trustee.
BOOK-ENTRY DEBT SECURITIES
The prospectus supplement will indicate whether we are issuing the related
debt securities as book-entry securities. Book-entry securities of a series will
be issued in the form of one or more global notes that will be deposited with
The Depository Trust Company (DTC), New York, New York, and will evidence all of
our debt securities of that series. This means that we will not issue
certificates to each holder. We will issue one or more global securities to DTC,
which will keep a computerized record of its participants (for example, your
broker) whose clients have purchased our debt securities. The participant will
then keep a record of its clients who own our debt securities. Unless it is
exchanged in whole or in part for a security evidenced by individual
certificates, a global security may not be transferred, except that DTC, its
nominees and their successors may transfer a global security as a whole to one
another. Beneficial interests in global securities will be shown on, and
transfers of beneficial interests in global notes will be made only through,
records maintained by DTC and its participants. Each person owning a beneficial
interest in a global security must rely on the procedures of DTC and, if such
person is not a participant, on the procedures of the participant through which
such person owns its interest to exercise any rights of a holder of our debt
securities under the indenture.
The laws of some jurisdictions require that certain purchasers of
securities such as our debt securities take physical delivery of those
securities in definitive form. These limits and laws may impair your ability to
acquire or transfer beneficial interests in the global security.
We will make payments on each series of book-entry debt securities to DTC
or its nominee, as the sole registered owner and holder of the global security.
Neither we, the trustee nor any of our respective agents will be responsible or
liable for any aspect of DTC's records relating to or payments made on account
of beneficial ownership interests in a global security or for maintaining,
supervising or reviewing any of DTC's records relating to such beneficial
ownership interests.
DTC has advised us that, when it receives any payment on a global security,
it will immediately, on its book-entry registration and transfer system, credit
the accounts of participants with payments in amounts proportionate to their
beneficial interests in the global security as shown on DTC's records. Payments
by
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participants to you, as an owner of a beneficial interest in the global
security, will be governed by standing instructions and customary practices (as
is now the case with securities held for customer accounts registered in "street
name") and will be the sole responsibility of such participants.
A global security representing a series will be exchanged for certificated
debt securities of that series only if:
- DTC notifies us that it is unwilling or unable to continue as depositary
or if DTC ceases to be a clearing agency registered under the Securities
Exchange Act of 1934 and we do not appoint a successor within 90 days;
- we decide that the global security shall be exchangeable; or
- there is an event of default under the indenture or an event which with
the giving of notice or lapse of time or both would become an event of
default with respect to our debt securities represented by that global
security.
If that occurs, we will issue our debt securities of that series in certificated
form in exchange for that global security. An owner of a beneficial interest in
the global security then will be entitled to physical delivery of a certificate
for our debt securities of that series equal in principal amount to such
beneficial interest and to have those debt securities registered in its name. We
would issue the certificates for those debt securities in denominations of
$1,000 or any larger amount that is an integral multiple thereof, and we would
issue them in registered form only, without coupons.
DTC has advised us that it is a limited-purpose trust company organized
under the New York Banking Law, a "banking organization" within the meaning of
the New York Banking Law, a member of the Federal Reserve System, a "clearing
corporation" within the meaning of the New York Uniform Commercial Code, and a
"clearing agency" registered under the Securities Exchange Act of 1934. DTC was
created to hold the securities of its participants and to facilitate the
clearance and settlement of securities transactions among its participants
through electronic book-entry changes in accounts of the participants, thereby
eliminating the need for physical movement of securities certificates. DTC's
participants include securities brokers and dealers, banks, trust companies,
clearing corporations, and certain other organizations, some of whom (and/or
their representatives) own DTC. Access to DTC's book-entry system is also
available to others, such as banks, brokers, dealers and trust companies that
clear through or maintain a custodial relationship with a participant, either
directly or indirectly. The rules applicable to DTC and its participants are on
file with the SEC. No fees or costs of DTC will be charged to you.
PLAN OF DISTRIBUTION
We may sell our debt securities to or through one or more underwriters or
dealers, and also may sell our debt securities directly to other purchasers or
through agents. These firms may also act as our agents in the sale of our debt
securities. Only underwriters named in the prospectus supplement will be
considered as underwriters of our debt securities offered by the prospectus
supplement. We may distribute our debt securities at different times in one or
more transactions. We may sell our debt securities at fixed prices, which may
change, at market prices prevailing at the time of sale, at prices related to
such prevailing market prices or at negotiated prices.
In connection with the sale of our debt securities, underwriters may
receive compensation from us or from purchasers of our debt securities in the
form of discounts, concessions or commissions. Underwriters, dealers and agents
that participate in the distribution of our debt securities may be deemed to be
underwriters. Discounts or commissions they receive and any profit on their
resale of our debt securities may be considered underwriting discounts and
commissions under the Securities Act of 1933. We will identify any such
underwriter or agent, and we will describe any such compensation, in the
Prospectus Supplement.
We may agree to indemnify underwriters, dealers and agents who participate
in the distribution of our debt securities against certain liabilities,
including liabilities under the Securities Act of 1933. We may also agree to
contribute to payments which the underwriters, dealers or agents may be required
to make in respect of such liabilities. We may authorize dealers or other
persons who act as our agents to solicit offers by certain
10
<PAGE> 12
institutions to purchase our debt securities from us under contracts which
provide for payment and delivery on a future date. We may enter into these
contracts with commercial and savings banks, insurance companies, pension funds,
investment companies, educational and charitable institutions and others. If we
enter into these agreements concerning any series of our debt securities, we
will indicate that in the prospectus supplement.
In connection with an offering of our debt securities, underwriters may
engage in transactions that stabilize, maintain or otherwise affect the price of
our debt securities. Specifically, underwriters may over-allot in connection
with the offering, creating a syndicate short position in our debt securities
for their own account. In addition, underwriters may bid for, and purchase, our
debt securities in the open market to cover short positions or to stabilize the
price of our debt securities. Finally, underwriters may reclaim selling
concessions allowed for distributing our debt securities in the offering if the
underwriters repurchase previously distributed our debt securities in
transactions to cover short positions, in stabilization transactions or
otherwise. Any of these activities may stabilize or maintain the market price of
our debt securities above independent market levels. Underwriters are not
required to engage in any of these activities and may end any of these
activities at any time. Agents and underwriters may engage in transactions with,
or perform services for, us and our affiliates in the ordinary course of
business.
LEGAL MATTERS
Certain legal matters with respect to the validity of our debt securities
will be passed upon for us by Fulbright & Jaworski L.L.P., 666 Fifth Avenue, New
York, New York 10103. Anthony Pantaleoni, a director of ours who owns less than
one percent of our outstanding capital stock, is a partner of Fulbright &
Jaworski L.L.P.
EXPERTS
The consolidated financial statements and schedule of Universal Health
Services, Inc. and subsidiaries incorporated by reference in this prospectus and
elsewhere in the Registration Statement to the extent and for the periods
indicated in their reports have been audited by Arthur Andersen LLP, independent
public accountants, and are included herein in reliance upon the authority of
said firm as experts in giving said reports.
11
<PAGE> 13
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
UNIVERSAL HEALTH SERVICES, INC.
DEBT SECURITIES
------------------------
PROSPECTUS
, 2000
------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE> 14
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following is an itemized statement of all estimated amounts of all
expenses payable by the Registrant in connection with the registration of the
debt securities offered hereby, other than underwriting discounts and
commissions:
<TABLE>
<S> <C>
SEC Registration Fee........................................ $139,000
Securities rating service fee............................... 40,000
Blue Sky fees and expenses.................................. 20,000
Accountants' fees and expenses.............................. 50,000
Legal fees and expenses..................................... 100,000
Printing and engraving expenses............................. 50,000
Trustee fees................................................ 6,000
Miscellaneous............................................... 45,000
--------
Total............................................. $450,000
========
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law provides that a
corporation may indemnify directors and officers as well as other employees and
individuals against expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by such person in
connection with any threatened, pending or completed actions, suits or
proceedings in which such person is made a party by reason of such person being
or having been a director, officer, employee or agent to the Registrant. The
Delaware General Corporation Law provides that Section 145 is not exclusive of
other rights to which those seeking indemnification may be entitled under any
bylaw, agreement, vote of stockholders or disinterested directors or otherwise.
Section 7 of the Registrant's Bylaws provides for indemnification by the
Registrant of its directors, officers and employees to the fullest extent
permitted by the Delaware General Corporation Law.
The Registrant maintains standard policies of insurance under which
coverage is provided (a) to its directors and officers against loss rising from
claims made by reason of breach of duty or other wrongful act, and (b) to the
Registrant with respect to payments which may be made by the Registrant to such
officers and directors pursuant to the above indemnification provision or
otherwise as a matter of law.
ITEM 16. EXHIBITS.
<TABLE>
<C> <C> <S>
4.1 -- Form of Indenture under which our debt securities are to be
issued.
4.2 -- Form of our debt security.
5 -- Opinion of Fulbright & Jaworski L.L.P.*
12 -- Computation of Ratio of Earnings to Fixed Charges.
23.1 -- Consent of Arthur Andersen LLP.
23.2 -- Consent of Fulbright & Jaworski L.L.P. (included in Exhibit
5).*
24 -- Power of Attorney (included on signature page).*
25 -- Statement of Eligibility of the Trustee on Form T-1.
</TABLE>
* Previously filed.
II-1
<PAGE> 15
ITEM 17. UNDERTAKINGS.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment of this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20 percent change
in the maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement;
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the registration statement
of any material change to such information in the registration
statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if
the registration statement is on Form S-3 or Form S-8, and the information
required to be included in a post-effective amendment by those paragraphs
is contained in periodic reports filed with or furnished to the Commission
by the registrant pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in the registration
statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in the registration statement shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy expressed in the Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
II-2
<PAGE> 16
(d) The undersigned registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act
of 1933, the information omitted from the form of prospectus filed as part
of this registration statement in reliance upon Rule 430A and contained in
a form of prospectus filed by the registrant pursuant to Rule 424(b)(1) or
(4) or 497(h) under the Securities Act shall be deemed to be part of this
registration statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities
Act of 1933, each post-effective amendment that contains a form of
prospectus shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
II-3
<PAGE> 17
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Amendment No. 1 to
the Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in King of Prussia, Commonwealth of Pennsylvania, on
January 31, 2000.
UNIVERSAL HEALTH SERVICES, INC.
By: /s/ ALAN B. MILLER
------------------------------------
Alan B. Miller
Chairman of the Board, President
& Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Amendment No. 1 to the Registration Statement has been signed by the
following persons in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- --------- ----- ----
<S> <C> <C>
/s/ ALAN B. MILLER Chairman of the Board, President, January 31, 2000
- ------------------------------------------ Chief Executive Officer and Director
Alan B. Miller (Principal Executive Officer)
* Director January 31, 2000
- ------------------------------------------
Leatrice Ducat
Director
- ------------------------------------------
John H. Herrell
* Director January 31, 2000
- ------------------------------------------
Robert H. Hotz
* Director January 31, 2000
- ------------------------------------------
Sidney Miller
* Director January 31, 2000
- ------------------------------------------
Anthony Pantaleoni
Director
- ------------------------------------------
Joseph T. Sebastianelli
Director
- ------------------------------------------
John F. Williams, Jr.
/s/ KIRK E. GORMAN Senior Vice President, Treasurer and January 31, 2000
- ------------------------------------------ Chief Financial Officer (Principal
Kirk E. Gorman Financial Officer)
* Vice President and Controller January 31, 2000
- ------------------------------------------ (Principal Accounting Officer)
Steve G. Filton
*By: /s/ ALAN B. MILLER
- ----------------------------------------
Alan B. Miller
as Attorney-in-Fact
</TABLE>
II-4
<PAGE> 1
EXHIBIT 4.1
- --------------------------------------------------------------------------------
UNIVERSAL HEALTH SERVICES, INC.
AND
BANK ONE TRUST COMPANY, N.A., TRUSTEE
-----------------------------------------------------
INDENTURE
Dated as of ___________, 2000
- --------------------------------------------------------------------------------
<PAGE> 2
Exhibit 4.1
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
ARTICLE ONE DEFINITIONS............................................................................................... 1
SECTION 1.1 Certain Terms Defined..................................................................................... 1
ARTICLE TWO SECURITIES................................................................................................ 5
SECTION 2.1 Forms Generally........................................................................................... 5
SECTION 2.2 Form of Trustee's Certificate of Authentication........................................................... 5
SECTION 2.3 Amount Unlimited; Issuable in Series...................................................................... 5
SECTION 2.4 Authentication and Delivery of Securities................................................................. 7
SECTION 2.5 Execution of Securities................................................................................... 8
SECTION 2.6 Certificate of Authentication............................................................................. 9
SECTION 2.7 Denomination and Date of Securities; Payments of Interest................................................. 9
SECTION 2.8 Registration, Transfer and Exchange....................................................................... 9
SECTION 2.9 Mutilated, Defaced, Destroyed, Lost and Stolen Securities................................................. 11
SECTION 2.10 Cancellation of Securities; Destruction Thereof........................................................... 12
SECTION 2.11 Temporary Securities...................................................................................... 12
SECTION 2.12 CUSIP Numbers............................................................................................. 13
ARTICLE THREE COVENANTS OF THE ISSUER................................................................................... 13
SECTION 3.1 Payment of Principal and Interest......................................................................... 13
SECTION 3.2 Offices for Payments, etc................................................................................. 13
SECTION 3.3 Appointment to Fill a Vacancy in Office of Trustee........................................................ 13
SECTION 3.4 Paying Agents............................................................................................. 14
SECTION 3.5 Written Statement to Trustee.............................................................................. 14
SECTION 3.6 Limitation on Liens....................................................................................... 14
SECTION 3.7 Limitation on Sale and Leaseback.......................................................................... 15
ARTICLE FOUR SECURITYHOLDERS' LISTS AND REPORTS BY THE ISSUER AND THE TRUSTEE.......................................... 16
SECTION 4.1 Issuer to Furnish Trustee Information as to Names and Addresses of Securityholders........................ 16
SECTION 4.2 Preservation and Disclosure of Securityholders' Lists..................................................... 16
SECTION 4.3 Reports by the Issuer..................................................................................... 17
SECTION 4.4 Reports by the Trustee.................................................................................... 17
ARTICLE FIVE REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT........................................... 17
SECTION 5.1 Event of Default Defined; Acceleration of Maturity; Waiver of Default..................................... 17
SECTION 5.2 Collection of Indebtedness by Trustee; Trustee May Prove Debt............................................. 19
SECTION 5.3 Application of Proceeds................................................................................... 21
SECTION 5.4 Suits for Enforcement..................................................................................... 22
SECTION 5.5 Restoration of Rights on Abandonment of Proceedings....................................................... 22
SECTION 5.6 Limitations on Suits by Securityholders................................................................... 22
</TABLE>
-i-
<PAGE> 3
<TABLE>
<S> <C>
SECTION 5.7 Unconditional Right of Securityholders to Institute Certain Suits......................................... 22
SECTION 5.8 Powers and Remedies Cumulative; Delay or Omission Not Waiver of Default................................... 23
SECTION 5.9 Control by Securityholders................................................................................ 23
SECTION 5.10 Waiver of Past Defaults................................................................................... 23
SECTION 5.11 Trustee to Give Notice of Default, But May Withhold in Certain Circumstances.............................. 24
SECTION 5.12 Right of Court to Require Filing of Undertaking to Pay Costs.............................................. 24
ARTICLE SIX CONCERNING THE TRUSTEE.................................................................................... 24
SECTION 6.1 Duties and Responsibilities of the Trustee; During Default; Prior to Default.............................. 24
SECTION 6.2 Certain Rights of the Trustee............................................................................. 25
SECTION 6.3 Trustee Not Responsible for Recitals, Disposition of Securities or Application of Proceeds Thereof........ 26
SECTION 6.4 Trustee and Agents May Hold Securities; Collections, etc.................................................. 26
SECTION 6.5 Moneys Held by Trustee.................................................................................... 26
SECTION 6.6 Compensation and Indemnification of Trustee and Its Prior Claim........................................... 27
SECTION 6.7 Right of Trustee to Rely on Officers' Certificate, etc.................................................... 27
SECTION 6.8 Conflicting Interests..................................................................................... 27
SECTION 6.9 Persons Eligible for Appointment as Trustee............................................................... 27
SECTION 6.10 Resignation and Removal; Appointment of Successor Trustee................................................. 27
SECTION 6.11 Acceptance of Appointment by Successor Trustee............................................................ 29
SECTION 6.12 Merger, Conversion, Consolidation or Succession to Business of Trustee.................................... 29
SECTION 6.13 Preferential Collection of Claims Against the Issuer...................................................... 30
ARTICLE SEVEN CONCERNING THE SECURITYHOLDERS............................................................................ 30
SECTION 7.1 Evidence of Action Taken by Securityholders............................................................... 30
SECTION 7.2 Proof of Execution of Instruments and of Holding of Securities............................................ 31
SECTION 7.3 Holders to be Treated as Owners........................................................................... 31
SECTION 7.4 Securities Owned by Issuer Deemed Not Outstanding......................................................... 31
SECTION 7.5 Right of Revocation of Action Taken....................................................................... 31
ARTICLE EIGHT SUPPLEMENTAL INDENTURES................................................................................... 32
SECTION 8.1 Supplemental Indentures Without Consent of Securityholders................................................ 32
SECTION 8.2 Supplemental Indentures With Consent of Securityholders................................................... 33
SECTION 8.3 Effect of Supplemental Indenture.......................................................................... 34
SECTION 8.4 Documents to Be Given to Trustee.......................................................................... 34
SECTION 8.5 Notation on Securities in Respect of Supplemental Indentures.............................................. 34
ARTICLE NINE CONSOLIDATION, MERGER, SALE OR CONVEYANCE................................................................. 34
SECTION 9.1 Issuer May Consolidate, etc., on Certain Terms............................................................ 34
SECTION 9.2 Successor Corporation Substituted......................................................................... 34
SECTION 9.3 Opinion of Counsel to Trustee............................................................................. 35
</TABLE>
-ii-
<PAGE> 4
<TABLE>
<S> <C>
ARTICLE TEN SATISFACTION AND DISCHARGE OF INDENTURE; UNCLAIMED MONEYS................................................. 35
SECTION 10.1 Satisfaction and Discharge of Indenture................................................................... 35
SECTION 10.2 Application by Trustee of Funds Deposited for Payment of Securities....................................... 36
SECTION 10.3 Repayment of Moneys Held by Paying Agent.................................................................. 36
SECTION 10.4 Return of Moneys Held by Trustee and Paying Agent Unclaimed for Three Years............................... 36
ARTICLE ELEVEN REDEMPTION OF SECURITIES AND SINKING FUNDS................................................................ 36
SECTION 11.1 Applicability of Article.................................................................................. 36
SECTION 11.2 Notice of Redemption; Partial Redemptions................................................................. 37
SECTION 11.3 Payment of Securities Called for Redemption............................................................... 37
SECTION 11.4 Exclusion of Certain Securities from Eligibility for Selection for Redemption............................. 38
SECTION 11.5 Mandatory and Optional Sinking Funds...................................................................... 38
ARTICLE TWELVE DEFEASANCE................................................................................................ 40
SECTION 12.1 Applicability of Article: Issuer's Option to Effect Defeasance............................................ 40
SECTION 12.2 Defeasance and Discharge.................................................................................. 40
SECTION 12.3 Covenant Defeasance....................................................................................... 40
SECTION 12.4 Conditions to Defeasance.................................................................................. 41
ARTICLE THIRTEEN MISCELLANEOUS PROVISIONS.................................................................................. 42
SECTION 13.1 Incorporators, Stockholders, Officers and Directors of Issuer............................................. 42
SECTION 13.2 Provisions of Indenture for the Sole Benefit of Parties and Securityholders............................... 42
SECTION 13.3 Successors and Assigns of Issuer Bound by Indenture....................................................... 42
SECTION 13.4 Notices and Demands on Issuer, Trustee and Securityholders................................................ 42
SECTION 13.5 Officers' Certificates and Opinions of Counsel; Statements to Be Contained Therein........................ 43
SECTION 13.6 Payments Due on Saturdays, Sundays and Holidays........................................................... 44
SECTION 13.7 Conflict of Any Provision of Indenture with Trust Indenture Act........................................... 44
SECTION 13.8 New York Law to Govern.................................................................................... 44
SECTION 13.9 Counterparts.............................................................................................. 44
SECTION 13.10 Effect of Headings........................................................................................ 44
</TABLE>
-iii-
<PAGE> 5
CROSS REFERENCE SHEET*
Between
Provisions of Trust Indenture Act of 1939, as amended, and the
Indenture dated as of ___________, 2000 between Universal Health Services, Inc.,
Issuer, and Bank One Trust Company, N.A., Trustee:
<TABLE>
<CAPTION>
Section of the Act Section of Indenture
<S> <C>
310(a)(1) and (2).................. 6.9
310(a)(3) and (4).................. Inapplicable
310(b)............................. 6.8 and 6.10(a), (b) and (d)
310(c)............................. Inapplicable
311(a)............................. 6.13
311(b)............................. 6.13
311(c)............................. Inapplicable
312(a)............................. 4.1 and 4.2(a)
312(b)............................. 4.2(a) and (b)
312(c)............................. 4.2(c)
313(a)............................. 4.4(a)
313(b)(1).......................... Inapplicable
313(b)(2).......................... 4.4
313(c)............................. 4.4
313(d)............................. 4.4
314(a)............................. 4.3
314(b)............................. Inapplicable
314(c)(1) and (2).................. 13.5
314(c)(3).......................... Inapplicable
314(d)............................. Inapplicable
314(e)............................. 13.5
314(f)............................. Inapplicable
315(a), (c) and (d)................ 6.1
315(b)............................. 5.11
315(e)............................. 5.12
316(a)(1).......................... 5.9
316(a)(2).......................... Not required
316(a) (last sentence)............. 7.4
316(b)............................. 5.7
316(c)............................. 7.1
317(a)............................. 5.2
317(b)............................. 3.4(a) and (b)
318(a)............................. 13.7
</TABLE>
- -----------
*This Cross Reference Sheet in not part of the Indenture.
-iv-
<PAGE> 6
THIS INDENTURE, dated as of ___________, 2000 between UNIVERSAL HEALTH
SERVICES, INC., a Delaware corporation (the "Issuer"), and BANK ONE TRUST
COMPANY, N.A., a national banking association (the "Trustee").
W I T N E S S E T H:
WHEREAS, the Issuer has duly authorized the issue from time to time of
its unsecured debentures, notes and other evidences of indebtedness to be issued
in one or more series (the "Securities") up to such principal amount or amounts
as may from time to time be authorized in accordance with the terms of this
Indenture and to provide, among other things, for the authentication, delivery
and administration thereof, the Issuer has duly authorized the execution and
delivery of this Indenture; and
WHEREAS, all things necessary to make this Indenture a valid indenture
and agreement according to its terms have been done;
NOW, THEREFORE:
In consideration of the premises and the purchases of the Securities by
the holders thereof, the receipt and sufficiency of which is hereby
acknowledged, the Issuer and the Trustee mutually covenant and agree for the
equal and proportionate benefit of the respective holders from time to time of
the Securities as follows:
ARTICLE ONE
DEFINITIONS
SECTION 1.1 Certain Terms Defined. The following terms (except as
otherwise expressly provided or unless the context otherwise clearly requires)
for all purposes of this Indenture and of any indenture supplemental hereto
shall have the respective meanings specified in this Section. All other terms
used in this Indenture that are defined in the Trust Indenture Act or the
definitions of which in the Securities Act of 1933 are referred to in the Trust
Indenture Act, including terms defined therein by reference to the Securities
Act of 1933 (except as herein otherwise expressly provided or unless the context
otherwise clearly requires), shall have the meanings assigned to such terms in
said Trust Indenture Act and in said Securities Act as in force at the date of
this Indenture. All accounting terms used herein and not expressly defined shall
have the meanings assigned to such terms in accordance with generally accepted
accounting principles, and the term "generally accepted accounting principles"
means such accounting principles as are generally accepted at the time of any
computation. 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. The terms defined in this Article have
the meanings assigned to them in this Article and include the plural as well as
the singular.
"Board of Directors" means either the Board of Directors of the Issuer
or any committee of such Board duly authorized to act hereunder.
"Business Day" means, with respect to any Security, a day that in the
city (or in any of the cities, if more than one) in which amounts are payable,
as specified in the form of such Security, is not a day on which banking
institutions are authorized by law or regulation to close.
"Commission" means the Securities and Exchange Commission, as from time
to time constituted, created under the Securities Exchange Act of 1934, as
amended, or if at any time after the execution and
<PAGE> 7
delivery of this Indenture such Commission is not existing and performing the
duties now assigned to it under the Trust Indenture Act, then the body
performing such duties on such date.
"Consolidated Net Tangible Assets" means the aggregate amount of assets
after deducting therefrom (a) all current liabilities (excluding liabilities
which could be classified as long-term debt in conformity with generally
accepted accounting principles) and (b) all goodwill, trade names, trademarks,
patents, unamortized debt discount and expense and deferred charges (other than
prepaid items such as insurance, taxes, interest, commissions, rents and similar
items and tangible assets being amortized), all as set forth on the most recent
quarterly consolidated balance sheet of the Issuer and its consolidated
Subsidiaries and computed in accordance with generally accepted accounting
principles.
"Corporate Trust Office" means the office of the Trustee at which the
corporate trust business of the Trustee shall, at any particular time, be
administered, which office is, at the date as of which this Indenture is dated,
located at One Bank One Plaza, Suite 0126, Chicago, Illinois 60670-0126,
Attention: Corporate Trust Administration.
"Depositary" means, with respect to the Securities of any series
issuable or issued in whole or in part in the form of one or more Global
Securities, the Person designated as Depositary by the Issuer pursuant to
Section 2.3 until a successor Depositary shall have become such pursuant to the
applicable provisions hereof, and thereafter "Depositary" shall mean or include
each Person who is then a Depositary hereunder, and if at any time there is more
than one such Person, "Depositary" as used with respect to the Securities of any
such series shall mean the Depositary with respect to the Securities of that
series.
"Event of Default" means any event or condition specified as such in
Section 5.1.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Global Security" means a Security evidencing all or a part of a series
of Securities, issued to the Depositary for such series in accordance with
Section 2.4, and bearing the legend prescribed in Section 2.4.
"Holder," "holder of securities," "Securityholder" or other similar
terms mean the registered holder of any Security.
"Indenture" means this instrument as originally executed and delivered
or, if amended or supplemented as herein provided, as so amended or supplemented
or both, and shall include the forms and terms of particular series of
Securities established as contemplated hereunder.
"Interest" means, when used with respect to non-interest bearing
Securities, interest payable after maturity.
"Issuer" means (except as otherwise provided in Article Six) Universal
Health Services, Inc., a Delaware corporation, and, subject to Article Nine, its
successors and assigns.
"Officers' Certificate" means a certificate signed by the chairman of
the Board of Directors or any vice chairman of the Board of Directors or the
president or any vice president and by the treasurer or the secretary or any
assistant secretary of the Issuer and delivered to the Trustee. Each such
certificate shall include the statements provided for in Section 13.5.
-2-
<PAGE> 8
"Opinion of Counsel" means an opinion in writing signed by legal
counsel who may be an employee of or counsel to the Issuer and who shall be
satisfactory to the Trustee. Each such opinion shall include the statements
provided for in Section 13.5, if and to the extent required hereby.
"Original issue date" of any Security (or portion thereof) means the
earlier of (a) the date of such Security or (b) the date of any Security (or
portion thereof) for which such Security was issued (directly or indirectly) on
registration of transfer, exchange or substitution.
"Outstanding" (except as otherwise provided in Section 6.8), when used
with reference to Securities, shall, subject to the provisions of Section 7.4,
mean, as of any particular time, all Securities authenticated and delivered by
the Trustee under this Indenture, except
(a) Securities theretofore cancelled by the Trustee or delivered to the
Trustee for cancellation;
(b) Securities, or portions thereof, for the payment or redemption of
which moneys in the necessary amount shall have been deposited in trust with the
Trustee or with any paying agent (other than the Issuer) or shall have been set
aside, segregated and held in trust by the Issuer for the holders of such
Securities (if the Issuer shall act as its own paying agent); provided that if
such Securities, or portions thereof, are to be redeemed prior to the maturity
thereof, notice of such redemption shall have been given as herein provided, or
provision satisfactory to the Trustee shall have been made for giving such
notice;
(c) Securities in substitution for which other Securities shall have
been authenticated and delivered, or which shall have been paid, pursuant to the
terms of Section 2.9 (except with respect to any such Security as to which proof
satisfactory to the Trustee is presented that such Security is held by a Person
in whose hands such Security is a legal, valid and binding obligation of the
Issuer); and
(d) Except to the extent provided in Sections 12.2 and 12.3, Securities
with respect to which the Issuer has effected defeasance and/or covenant
defeasance as provided in Article Twelve.
"Person" means any individual, corporation, partnership, joint venture,
association, joint stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"principal" whenever used with reference to the Securities or any
Security or any portion thereof, shall be deemed to include "and premium, if
any."
"Principal Property" shall mean any property, plant, equipment or
facility of the Issuer or any Restricted Subsidiary, except that any property,
plant, equipment or facility of the Issuer or any Restricted Subsidiary which
does not equal or exceed 3% of the Issuer's Consolidated Net Tangible Assets
shall not constitute a Principal Property of the Issuer unless the Board of
Directors or the Issuer's management deems it to be material to the Issuer and
its Restricted Subsidiaries, taken as a whole. Principal Property shall not
include accounts receivable or inventory of the Issuer or any Restricted
Subsidiary; provided, however, that individual items of property, plant,
equipment or individual facilities of the Issuer or any Restricted Subsidiary
shall not be combined in determining whether that property, plant, equipment or
facility constitutes a Principal Property of the Issuer, whether or not they are
the subject of the same transaction or series of transactions.
"record date" has the meaning given in Section 2.7.
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"Responsible Officer" shall mean, when used with respect to the
Trustee, any officer within the corporate trust department of the Trustee,
including any vice president, assistant vice president, assistant secretary,
assistant treasurer, trust officer or any other officer of the Trustee who
customarily performs functions similar to those performed by the Persons who at
the time shall be such officers, respectively, or to whom any corporate trust
matter is referred because of such person's knowledge of and familiarity with
the particular subject and who shall have direct responsibility for the
administration of this Indenture.
"Restricted Subsidiary" shall mean any Subsidiary (i) substantially all
the property of which is located within the continental United States of America
and (ii) which owns any Principal Property; provided, however, that the term
"Restricted Subsidiary" shall not include any Subsidiary which is principally
engaged in leasing or in financing receivables or which is principally engaged
in financing the Issuer's operations outside the continental United States of
America.
"Security" or "Securities" (except as otherwise provided in Section
6.8) has the meaning stated in the first recital of this Indenture, or, as the
case may be, Securities that have been authenticated and delivered under this
Indenture.
"Subsidiary" shall mean any corporation of which stock having by the
terms thereof ordinary voting power to elect at least a majority of the board of
directors of said corporation (irrespective of whether at the time stock of any
other class or classes of such corporation shall have or may have voting power
by reason of the happening of any contingency) is at the time directly or
indirectly owned by the Issuer or by the Issuer and one or more Subsidiaries or
by one or more Subsidiaries.
"Trustee" means the Person identified as "Trustee" in the first
paragraph hereof and, subject to the provisions of Article Six, shall also
include any successor trustee.
"Trust Indenture Act" (except as otherwise provided in Sections 8.1 and
8.2) means the Trust Indenture Act of 1939 as amended by the Trust Indenture
Reform Act of 1990 and in force at the date as of which this Indenture was
originally executed.
"U.S. Government Obligations" means securities that are (x) direct
obligations of the United States of America for the payment of which its full
faith and credit is pledged or (y) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States of
America the payment of which is unconditionally guaranteed as a full faith and
credit obligation by the United States of America, which, in either case, are
not callable or redeemable at the option of the issuer thereof, and shall also
include a depository receipt issued by a bank (as defined in Section 3(a)(2) of
the Securities Act of 1933, as amended) as custodian with respect to any such
U.S. Government Obligation or a specific payment of principal of or interest on
any such U.S. Government Obligation held by such custodian for the account of
the holder of such depository receipt, provided that (except as required by law)
such custodian is not authorized to make any deduction from the amount payable
to the holder of such depository receipt from any amount received by the
custodian in respect of the U.S. Government Obligation or the specific payment
of principal of or interest on the U.S. Government Obligation evidenced by such
depository receipt.
"vice president" when used with respect to the Issuer or the Trustee,
means any vice president, whether or not designated by a number or a word or
words added before or after the title of "vice president."
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ARTICLE TWO
SECURITIES
SECTION 2.1 Forms Generally. The Securities of each series shall be
substantially in such form (including global form) (not inconsistent with this
Indenture) as shall be established by or pursuant to a resolution of the Board
of Directors or in one or more indentures supplemental hereto, in each case with
such appropriate insertions, omissions, substitutions and other variations as
are required or permitted by this Indenture and may have imprinted or otherwise
reproduced thereon such legend or legends, not inconsistent with the provisions
of this Indenture, as may be required to comply with any law or with any rules
or regulations pursuant thereto, or with any rules of any securities exchange or
to conform to general usage, all as may be determined by the officers executing
such Securities, as evidenced by their execution of the Securities.
If any Security of a series is issuable in the form of a Global
Security or Securities, each such Global Security may provide that it shall
represent the aggregate amount of Outstanding Securities from time to time
endorsed thereon and may also provide that the aggregate amount of Outstanding
Securities represented thereby may from time to time be reduced to reflect
exchanges. Any endorsement of a Global Security to reflect the amount of
Outstanding Securities represented thereby shall be made by the Trustee and in
such manner as shall be specified on such Global Security. Any instructions by
the Issuer with respect to a Global Security, after its initial issuance, shall
be in writing but need not comply with Section 13.5.
The definitive Securities shall be printed, lithographed or produced in
any other manner, all as determined by the officers executing such Securities,
as evidenced by their execution of such Securities.
SECTION 2.2 Form of Trustee's Certificate of Authentication. The
Trustee's certificate of authentication on all Securities shall be in
substantially the following form:
This is one of the Securities described in the within-mentioned
Indenture.
Dated: Bank One Trust Company, N.A.
as Trustee
By: ______________________________
Authorized Signatory
SECTION 2.3 Amount Unlimited; Issuable in Series. The aggregate
principal amount of securities which may be authenticated and delivered under
this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in or pursuant to a resolution of the Board of Directors and set
forth in an Officers' Certificate, or established in one or more indentures
supplemental hereto, prior to the issuance of Securities of any series,
(1) the title of the Securities of the series (which shall distinguish
the Securities of the series from all other Securities);
(2) any limit upon the aggregate principal amount of the Securities of
the series that may be authenticated and delivered under this Indenture (except
for Securities authenticated and delivered upon
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registration of transfer of, or in exchange for, or in lieu of, other Securities
of the series pursuant to Section 2.8, 2.9, 2.11, 5.3, 8.5 or 12.3);
(3) if other than U.S. dollars, the currency, currencies or currency
units in which the principal of, premium, if any, and interest on the Securities
of the series is payable, and the Person who shall serve as Exchange Rate Agent
for purposes of making any related calculations of the Market Exchange Rate;
(4) the date or dates on which the principal of the Securities of the
series is payable, or the method by which such date or dates will be determined
or extended;
(5) the rate or rates at which the Securities of the series shall bear
interest, if any, or the method by which such rate or rates shall be determined,
the date or dates from which such interest shall accrue, or the method by which
such date or dates shall be determined, the interest payment dates on which such
interest shall be payable and the record dates for the determination of Holders
to whom interest is payable;
(6) the place or places where the principal and any interest on
Securities of the series shall be payable (if other than as provided in Section
3.2);
(7) the price or prices at which, the period or periods within which
and the terms and conditions upon which Securities of the series may be
redeemed, in whole or in part, at the option of the Issuer, pursuant to any
sinking fund or otherwise;
(8) the obligation, if any, of the Issuer to redeem, purchase or repay
Securities of the series pursuant to any sinking fund or analogous provisions or
at the option of a Holder thereof and the price or prices at which and the
period or periods within which and the terms and conditions upon which
Securities of the series shall be redeemed, purchased or repaid, in whole or in
part, pursuant to such obligation;
(9) if other than denominations of $1,000 and any multiple thereof, the
denominations in which Securities of the series shall be issuable;
(10) if other than the principal amount thereof, the portion of the
principal amount of Securities of the series which shall be payable upon
declaration of acceleration of the maturity thereof pursuant to Section 5.1 or
provable in bankruptcy pursuant to Section 5.2;
(11) any limitations on the applicability of Section 12.2 or 12.3 to
the Securities of the series;
(12) any authenticating or paying agents, transfer agents or
registrars, if other than the Trustee, or any other agents with respect to the
Securities of such series;
(13) the coin or currency in which the Securities of that series are
denominated and, if other than the coin or currency in which the Securities of
that series are denominated, the coin or currency in which payment of the
principal of and/or interest, if any, on the Securities of such series shall be
payable;
(14) if the amount of payments of principal of and interest, if any, on
the Securities of the series may be determined with reference to an index based
on a coin or currency other than that in which the Securities of the series are
denominated, the manner in which such amounts shall be determined;
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(15) whether the Securities of such series shall be issued in whole or
in part in the form of one or more Global Securities and, in such case, the
Depositary for such Global Security or Securities and whether beneficial owners
of interests in any such Global Securities may exchange such interests for other
Securities of such series in the manner provided in Section 2.8, and the manner
and the circumstances under which and the place or places where any such
exchanges may occur if other than in the manner provided in Section 2.8, and any
other terms of the series relating to the global nature of the Securities of
such series and the exchange, registration or transfer thereof and the payment
of any principal thereof, or interest thereon; and
(16) any Events of Default with respect to the Securities of such
Series which may be in addition to, or modification or deletion of, those
provided herein, and any covenants or obligations of the Issuer to the Holders
of such Securities in addition to, or modification or deletion of, those set
forth herein;
(17) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture).
All Securities of any one series shall be substantially identical
except as to denomination and except as may otherwise be provided in or pursuant
to such resolution of the Board of Directors or in any such indenture
supplemental hereto. Except as provided in such resolution, the Securities of
any one series need not be issued at the same time and a series may be reopened
without the consent of the Holders, for issuances of additional Securities of
such series.
SECTION 2.4 Authentication and Delivery of Securities. At any time and
from time to time after the execution and delivery of this Indenture, the Issuer
may deliver Securities of any series executed by the Issuer to the Trustee for
authentication, and the Trustee shall thereupon authenticate and deliver such
Securities to or upon the written order of the Issuer, signed by both (a) the
chairman of its Board of Directors, or any vice chairman of its Board of
Directors, or its president or any vice president and (b) by its treasurer or
any assistant treasurer, without any further action by the Issuer. If any
Security of a series shall be represented by a Global Security, then, for
purposes of this Section and Section 2.11, the notation of the record owner's
interest therein upon original issuance of such Security shall be deemed to be
delivery in connection with the original issuance of each beneficial owner's
interest in such Global Security. In authenticating such Securities and
accepting the additional responsibilities under this Indenture in relation to
such Securities, the Trustee shall be entitled to receive, and (subject to
Section 6.1) shall be fully protected in relying upon:
(a) a certified copy of any resolution or resolutions of the Board of
Directors authorizing the action taken pursuant to the resolution or resolutions
delivered under clause (2) below;
(b) a copy of any resolution or resolutions of the Board of Directors
relating to such series, in each case certified by the secretary or an assistant
secretary of the Issuer;
(c) an executed supplemental indenture, if any;
(d) an Officers' Certificate setting forth the form and terms of the
Securities as required pursuant to Section 2.1 and 2.3, respectively and
prepared in accordance with Section 13.5; and
(e) an Opinion of Counsel, prepared in accordance with Section 13.5,
which shall state
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(i) if the form or forms of such Securities have been
established by or pursuant to a resolution or resolutions of the Board of
Directors or by a supplemental indenture as permitted by Section 2.1, that such
form or forms have been established in conformity with the provisions of this
Indenture;
(ii) if the terms of such Securities have been established by
or pursuant to a resolution or resolutions of the Board of Directors or by a
supplemental indenture as permitted by Section 2.3, that such terms have been
established in conformity with the provisions of this Indenture;
(iii) that such Securities, when authenticated and delivered
by the Trustee and issued by the Issuer in the manner and subject to any
conditions specified in such Opinion of Counsel, will constitute valid and
legally binding obligations of the Issuer enforceable in accordance with their
terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or affecting
creditors' rights and to general equity principles; and
(iv) such other matters as the Trustee may reasonably request.
If the Issuer shall establish pursuant to Section 2.3 that the
Securities of a series are to be issued in whole or in part in the form of one
or more Global Securities, then the Issuer shall execute and the Trustee shall,
in accordance with this Section and the authentication order of the Issuer with
respect to such series, authenticate and deliver one or more Global Securities
in temporary or permanent form that shall (i) represent and be denominated in an
aggregate amount equal to the aggregate principal amount of the Outstanding
Securities of such series to be represented by one or more Global Securities,
(ii) be registered in the name of the Depositary for such Global Security or
Securities or the nominee of such Depositary, (iii) be delivered by the Trustee
to such Depositary or pursuant to such Depositary's instruction; and (iv) bear a
legend substantially to the following effect or in other form satisfactory to
the Depositary: "Unless and until it is exchanged in whole or in part for
Securities in definitive form, this Security may not be transferred except 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 or by the
Depositary or any nominee to a successor Depositary or a nominee of any
successor Depositary."
Each Depositary designated pursuant to Section 2.3 for a Global
Security in registered form must, at the time of its designation and at all
times while it serves as a Depositary, be a clearing agency registered under the
Exchange Act and shall be eligible to serve as such under any other applicable
statute or regulation.
The Trustee shall have the right to decline to authenticate and deliver
any Securities under this Section if the Trustee, being advised by counsel,
determines that such action may not lawfully be taken by the Issuer or if the
Trustee in good faith by its board of directors or board of trustees, executive
committee, or a trust committee of directors or trustees or Responsible Officers
shall determine that such action would expose the Trustee to personal liability
to existing Holders or would affect the Trustee's rights, duties or immunities
under the Securities or this Indenture.
SECTION 2.5 Execution of Securities. The Securities shall be signed on
behalf of the Issuer by both (a) the chairman of its Board of Directors or any
vice chairman of its Board of Directors or its president or any vice president
and (b) by its treasurer or any assistant treasurer or its secretary or any
assistant secretary, under its corporate seal which may, but need not, be
attested. Such signatures may be manual or facsimile. The seal of the Issuer may
be in the form of a facsimile thereof and may be impressed, affixed, imprinted
or otherwise reproduced on the Securities. Typographical and other minor errors
or
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defects in any such reproduction of the seal or any such signature shall not
affect the validity or enforceability of any Security that has been duly
authenticated and delivered by the Trustee.
In case any officer of the Issuer who shall have signed any of the
Securities shall cease to be such officer before the Security so signed shall be
authenticated and delivered by the Trustee or disposed of by the Issuer, such
Security nevertheless may be authenticated and delivered or disposed of as
though the person who signed such Security had not ceased to be such officer of
the Issuer; and any Security may be signed on behalf of the Issuer by such
persons as, at the actual date of the execution of such Security, shall be the
proper officers of the Issuer, although at the date of the execution and
delivery of this Indenture any such person was not such an officer.
SECTION 2.6 Certificate of Authentication. Only such Securities as
shall bear thereon a certificate of authentication substantially in the form
hereinbefore recited, executed by the Trustee by the manual signature of one of
its authorized signatories, shall be entitled to the benefits of this Indenture
or be valid or obligatory for any purpose. Such certificate by the Trustee upon
any Security executed by the Issuer shall be conclusive evidence that the
Security so authenticated has been duly authenticated and delivered hereunder
and that the holder is entitled to the benefits of this Indenture.
SECTION 2.7 Denomination and Date of Securities; Payments of Interest.
The Securities shall be issuable as registered securities without coupons and in
denominations as shall be specified as contemplated by Section 2.3. In the
absence of any such specification with respect to the Securities of any series,
the Securities of such series shall be issuable in denominations of $1,000 and
any multiple thereof. The Securities shall be numbered, lettered, or otherwise
distinguished in such manner or in accordance with such plan as the officers of
the Issuer executing the same may determine with the approval of the Trustee as
evidenced by the execution and authentication thereof.
Each Security shall be dated the date of its authentication, shall bear
interest, if any, from the date and shall be payable on the dates, in each case,
which shall be specified as contemplated by Section 2.3.
The Person in whose name any Security of any series is registered at
the close of business on any record date applicable to a particular series with
respect to any interest payment date for such series shall be entitled to
receive the interest, if any, payable on such interest payment date
notwithstanding any transfer or exchange of such Security subsequent to the
record date and prior to such interest payment date, except if and to the extent
the Issuer shall default in the payment of the interest due on such interest
payment date for such series, in which case such defaulted interest shall be
paid to the Persons in whose names Outstanding Securities for such series are
registered at the close of business on a subsequent record date (which shall be
not less than five Business Days prior to the date of payment of such defaulted
interest) established by notice given by mail by or on behalf of the Issuer to
the holders of Securities not less than 15 days preceding such subsequent record
date. The term "record date" as used with respect to any interest payment date
(except a date for payment of defaulted interest) shall mean the date specified
as such in the terms of the Securities of any particular series, or, if no such
date is so specified, if such interest payment date is the first day of a
calendar month, the fifteenth day of the next preceding calendar month or, if
such interest payment date is the fifteenth day of a calendar month, the first
day of such calendar month, whether or not such record date is a Business Day.
SECTION 2.8 Registration, Transfer and Exchange. With respect to each
series of Securities, the Issuer will cause to be kept at each office or agency
to be maintained for the purpose as provided in Section 3.2 a register or
registers in which, subject to such reasonable regulations as it may prescribe,
it will
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provide for the registration and transfer thereof as in this Article provided.
Such register shall be in written form in the English language or in any other
form capable of being converted into such form within a reasonable time. In the
event that such registers are not maintained by the Trustee, at all reasonable
times such register or registers shall be open for inspection by the Trustee.
Upon due presentation for registration of transfer of any Security of
any series at any such office or agency to be maintained for the purpose as
provided in Section 3.2, the Issuer shall execute and the Trustee shall
authenticate and deliver in the name of the transferee or transferees a new
Security or Securities of the same series in authorized denominations for a like
aggregate principal amount.
Notwithstanding any other provision of this Section, unless and until
it is exchanged in whole or in part for Securities in definitive form, a Global
Security representing all or a portion of the Securities of a series may not be
transferred except as a whole by the Depositary for such series to a nominee of
such Depositary or by a nominee of such Depositary to such Depositary or another
nominee of such Depositary or by such Depositary or any such nominee to a
successor Depositary for such series or a nominee of such successor Depositary.
Any Security or Securities of any series (other than a Global Security,
except as set forth herein) may be exchanged for a Security or Securities of the
same series in other authorized denominations, in an equal aggregate principal
amount. Securities of any series to be exchanged shall be surrendered at any
office or agency to be maintained by the Issuer for the purpose as provided in
Section 3.2, and the Issuer shall execute and the Trustee shall authenticate and
deliver in exchange therefor the Security or Securities of the same series which
the Securityholder making the exchange shall be entitled to receive, bearing
numbers not contemporaneously outstanding.
If at any time the Depositary for the Securities of a series notifies
the Issuer that it is unwilling or unable to continue as Depositary for the
Securities of such series or if at any time the Depositary for the Securities of
such series shall no longer be eligible under Section 2.4, the Issuer shall
appoint a successor Depositary with respect to the Securities of such series. If
a successor Depositary for the Securities of such series is not appointed by the
Issuer within 90 days after the Issuer receives such notice or becomes aware of
such ineligibility, the Issuer's election pursuant to Section 2.3(15) shall no
longer be effective with respect to the Securities of such series and the Issuer
will execute, and the Trustee, upon receipt of an order of the Issuer for the
authentication and delivery of definitive Securities of such series, will
authenticate and deliver Securities of such series in definitive form in the
aggregate principal amount equal to the principal amount of the Global Security
or Securities representing such series in exchange for such Global Security or
Securities.
The Issuer may at any time and in its sole discretion determine that
the Securities of any series issued in the form of one or more Global Securities
shall no longer be represented by such Global Security or Securities. In the
event of such a determination by the Issuer or if an Event of Default has
occurred and is continuing and the beneficial owners representing a majority in
principal amount of the applicable series of Securities represented by one or
more Global Securities advise the Depositary to cease acting as depositary for
such Global Security or Securities, the Issuer will execute, and the Trustee,
upon receipt of an order of the Issuer for the authentication and delivery of
definitive Securities of such series, will authenticate and deliver Securities
of such series in definitive form in an aggregate principal amount equal to the
principal amount of the Global Security or Securities representing such series
in exchange for such Global Security or Securities.
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If specified by the Issuer pursuant to Section 2.3 with respect to a
series of Securities, the Depositary for such series of Securities may surrender
a Global Security for such series of Securities in exchange in whole or in part
for the Securities of such series in definitive form on such terms as are
acceptable to Issuer and such Depositary. Thereupon, the Issuer shall execute,
and the Trustee shall authenticate and deliver, without service charge:
(1) to each Person specified by such Depositary a new Security or
Securities of the same series, of any authorized denomination as requested by
such Person in aggregate principal amount equal to and in exchange for such
Person's beneficial interest in the Global Security; and
(2) to such Depositary a new Global Security in a denomination equal to
the difference, if any, between the principal amount of the surrendered Global
Security and the aggregate principal amount of Securities delivered to Holders
thereof.
Upon the exchange of the Global Security for Securities in definitive
form, such Global Security shall be cancelled by the Trustee. Securities issued
in exchange for a Global Security pursuant to this Section shall be registered
in such names and in such authorized denominations as the Depositary for such
Global Security, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee. The Trustee shall deliver
such Securities to the Persons in whose names such Securities are so registered.
All Securities presented for registration of transfer, exchange,
redemption or payment shall (if so required by the Issuer) be duly endorsed by,
or be accompanied by a written instrument or instruments of transfer in form
satisfactory to the Issuer and the Security registrar duly executed by, the
holder or his attorney duly authorized in writing.
The Issuer may require payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in connection with any exchange or
registration of transfer of Securities. No service charge shall be made for any
such transaction.
The Issuer shall not be required to exchange or register a transfer of
(a) any Securities of any series for a period of 15 days next preceding the date
of selection of Securities of such series to be redeemed, or (b) any Securities
selected, called or being called for redemption except, in the case of any
Security where public notice has been given that such Security is to be redeemed
in part, the portion thereof not so to be redeemed.
All Securities issued upon any transfer or exchange of Securities shall
be valid obligations of the Issuer, evidencing the same debt, and entitled to
the same benefits under this Indenture, as the Securities surrendered upon such
transfer or exchange.
SECTION 2.9 Mutilated, Defaced, Destroyed, Lost and Stolen Securities.
In case any temporary or definitive Security shall become mutilated, defaced or
be destroyed, lost or stolen, the Issuer in its discretion may execute, and upon
the written request of any officer of the Issuer, the Trustee shall authenticate
and deliver, a new Security of the same series, bearing a number not
contemporaneously outstanding, in exchange and substitution for the mutilated or
defaced Security, or in lieu of and substitution for the Security so destroyed,
lost or stolen. In every case the applicant for a substitute Security shall
furnish to the Issuer and to the Trustee and any agent of the Issuer or the
Trustee such security or indemnity as may be required by them to indemnify and
defend and to save each of them harmless and, in every case of
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destruction, loss or theft, evidence to their satisfaction of the destruction,
loss or theft of such Security and of the ownership thereof.
Upon the issuance of any substitute Security, the Issuer 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. In case any Security
which has matured or is about to mature or has been called for redemption in
full shall become mutilated or defaced or be destroyed, lost or stolen, the
Issuer may, instead of issuing a substitute Security, pay or authorize the
payment of the same (without surrender thereof except in the case of a mutilated
or defaced Security), if the applicant for such payment shall furnish to the
Issuer and to the Trustee and any agent of the Issuer or the Trustee such
security or indemnity as any of them may require to save each of them harmless,
and, in every case of destruction, loss or theft, the applicant shall also
furnish to the Issuer and the Trustee and any agent of the Issuer or the Trustee
evidence to their satisfaction of the destruction, loss or theft of such
Security and of the ownership thereof.
Every substitute Security of any series issued pursuant to the
provisions of this Section by virtue of the fact that any such Security is
destroyed, lost or stolen shall constitute an additional contractual obligation
of the Issuer, 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 (but
shall be subject to all the limitations of rights set forth in) this Indenture
equally and proportionately with any and all other Securities of such series
duly authenticated and delivered hereunder. All Securities shall be held and
owned upon the express condition that, to the extent permitted by law, the
foregoing provisions are exclusive with respect to the replacement or payment of
mutilated, defaced or destroyed, lost or stolen Securities and shall preclude
any and all other rights or remedies notwithstanding any law or statute existing
or hereafter enacted to the contrary with respect to the replacement or payment
of negotiable instruments or other securities without their surrender.
SECTION 2.10 Cancellation of Securities; Destruction Thereof. Unless
otherwise provided with respect to any series of Securities, all Securities
surrendered for payment, redemption, registration of transfer or exchange, or
for credit against any payment in respect of a sinking or analogous fund, if
surrendered to the Issuer or any agent of the Issuer or the Trustee, shall be
delivered to the Trustee for cancellation or, if surrendered to the Trustee,
shall be cancelled by it; and no Securities shall be issued in lieu thereof
except as expressly permitted by any of the provisions of this Indenture. The
Trustee shall cancel Securities held by it and deliver a certificate of
cancellation to the Issuer at the Issuer's written direction. If the Issuer
shall acquire any of the Securities, such acquisition shall not operate as a
redemption or satisfaction of the indebtedness represented by such Securities
unless and until the same are delivered to the Trustee for cancellation.
SECTION 2.11 Temporary Securities. Pending the preparation of a
permanent Global Security or Securities or definitive Securities for any series,
the Issuer may execute and the Trustee shall authenticate and deliver temporary
Securities for such series or one or more temporary Global Securities (printed,
lithographed, typewritten or otherwise reproduced, in each case in form
satisfactory to the Trustee). Temporary Securities of any series shall be
issuable as registered Securities without coupons, of any authorized
denomination, and substantially in the form of the definitive Securities or
permanent Global Security, as the case may be, of such series but with such
omissions, insertions and variations as may be appropriate for temporary
Securities, all as may be determined by the Issuer with the concurrence of the
Trustee. Temporary Securities may contain such reference to any provisions of
this Indenture as may be appropriate. Every temporary Security shall be executed
by the Issuer and be authenticated by the Trustee upon the same conditions and
in substantially the same manner, and with like effect, as the definitive
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Securities. Without unreasonable delay the Issuer shall execute and shall
furnish a permanent Global Security or Securities or definitive Securities of
such series and thereupon temporary Securities of such series may be surrendered
in exchange therefor without charge at each office or agency to be maintained by
the Issuer for that purpose pursuant to Section 3.2, and the Trustee shall
authenticate and deliver in exchange for such temporary Securities of such
series a like aggregate principal amount of permanent global securities or
definitive Securities of the same series of authorized denominations. Until so
exchanged, the temporary Securities of any series shall be entitled to the same
benefits under this Indenture as permanent global securities or definitive
Securities of such series.
SECTION 2.12 CUSIP Numbers. The Issuer 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. The Issuer will
promptly notify the Trustee of any change in the "CUSIP" numbers.
ARTICLE THREE
COVENANTS OF THE ISSUER
SECTION 3.1 Payment of Principal and Interest. The Issuer covenants and
agrees for the benefit of the Holders of each series of Securities that it will
duly and punctually pay or cause to be paid the principal of, and interest on,
each of the Securities of such series at the office or agency of the Issuer
maintained for such purpose pursuant to Section 3.2 or at such other place or
places, at the respective times and in the manner provided in such Securities.
Unless otherwise specified with respect to the Securities of any series in
accordance with Section 2.3, at the option of the Issuer, each installment on
any such series may be paid (i) by mailing a check for such interest, payable to
or upon the written order of the Person entitled thereto pursuant to Section
2.7, to the address of such Person as it appears on the Security register or
(ii) by wire transfer to an account maintained by the payee and located inside
the United States.
SECTION 3.2 Offices for Payments, etc. So long as any of the Securities
remain outstanding, the Issuer will maintain the following for each series: an
office or agency (a) where the Securities may be presented for payment, (b)
where the Securities may be presented for registration of transfer and for
exchange as in this Indenture provided and (c) where notices and demands to or
upon the Issuer in respect of the Securities or of this Indenture may be served.
The Issuer will give to the Trustee written notice of the location of any such
office or agency and of any change of location thereof. Unless otherwise
specified in accordance with Section 2.3, the Issuer hereby appoints the Trustee
as paying agent and registrar and designates the corporate trust office of Bank
One Trust Company, N.A., 14 Wall Street, 8th Floor, New York, New York, 10005,
as the office to be maintained by it for each such purpose. In case the Issuer
shall fail to so designate or maintain any such office or agency or shall fail
to give such notice of the location or any change in the location thereof,
presentations and demands may be made and notices may be served at the Corporate
Trust Office.
SECTION 3.3 Corporate Existence. Subject to Article 9, the Company
will do or cause to be done all things necessary to preserve and keep in full
force and effect its corporate existence and the corporate, partnership or
other existence of each Subsidiary of the Company in accordance with the
respective organizational documents of each such Subsidiary and the rights
(charter and statutory) and material franchises of the Company and its
Subsidiaries; provided, however, that the Company shall not be required to
preserve any such right or franchise, or the corporate existence of any
Subsidiary, if the Board of Directors or management of the Company or such
Subsidiary shall determine that the preservation thereof is no longer
desirable in the conduct of business of the Company and its Subsidiaries,
taken as a whole.
SECTION 3.4 Appointment to Fill a Vacancy in Office of Trustee. The
Issuer, whenever necessary to avoid or fill a vacancy in the office of Trustee,
will appoint, in the manner provided in Section 6.10, a Trustee, so that there
shall at all times be a Trustee with respect to each series of Securities
hereunder.
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SECTION 3.5 Paying Agents. Whenever the Issuer shall appoint a paying
agent other than the Trustee with respect to the Securities of any series, it
will cause such paying agent to execute and deliver to the Trustee an instrument
in which such agent shall agree with the Trustee, subject to the provisions of
this Section,
(a) that it will hold all sums received by it as such agent for the
payment of the principal of or interest on the Securities of such series
(whether such sums have been paid to it by the Issuer or by any other obligor on
the Securities of such series) in trust for the benefit of the holders of the
Securities of such series or of the Trustee,
(b) that it will give the Trustee notice of any default by the Issuer
(or by any other obligor on the Securities of such series) to make any payment
of the principal of or interest on the Securities of such series when the same
shall be due and payable, and
(c) at any time during the continuance of such default, upon written
request of the Trustee, forthwith pay to the Trustee all sums so held in trust
by such Paying Agent.
The Issuer will, on or prior to each due date of the principal of or interest on
the Securities of such series, deposit with the paying agent a sum sufficient to
pay such principal or interest so becoming due, and (unless such paying agent is
the Trustee) the Issuer will promptly notify the Trustee of any failure to take
such action.
If the Issuer shall act as its own paying agent with respect to the
Securities of any series, it will, on or before each due date of the principal
of or interest on the Securities of such series, set aside, segregate and hold
in trust for the benefit of the holders of the Securities of such series a sum
sufficient to pay such principal or interest so becoming due. The Issuer will
promptly notify the Trustee of such action.
Anything in this Section to the contrary notwithstanding, the Issuer
may at any time, for the purpose of obtaining a satisfaction and discharge with
respect to one or more or all series of Securities hereunder, or for any other
reason, pay or cause to be paid to the Trustee all sums held in trust for any
such series by the Issuer or any paying agent hereunder, as required by this
Section, such sums to be held by the Trustee upon the trusts herein contained.
Anything in this Section to the contrary notwithstanding, the agreement
to hold sums in trust as provided in this Section is subject to the provisions
of Sections 10.3 and 10.4.
SECTION 3.6 Written Statement to Trustee. The Issuer will deliver to
the Trustee on or before April 15 in each year, a brief certificate from its
principal executive, accounting or financial officer (which need not comply with
Section 13.5), as to his or her knowledge of the Issuer's compliance with all
conditions and covenants in this Indenture (without regard to any period of
grace or requirement of notice provided under this Indenture).
SECTION 3.7 Limitation on Liens. So long as the Securities of any
series are outstanding, the Issuer will not, nor will it permit any Restricted
Subsidiary to, issue, assume or guarantee any debt for money borrowed
(hereinafter in this Article Three referred to as "Debt"), which is secured by a
mortgage, security interest, pledge, lien or other encumbrance (mortgages,
security interests, pledges, liens and other encumbrances being hereinafter
called "Lien" or "Liens") upon any Principal Property of the Issuer or any
Restricted Subsidiary or upon any shares of stock or indebtedness of any
Restricted Subsidiary (whether such Principal Property, shares of stock or
indebtedness is now owned or hereafter acquired) without in any such case
effectively providing concurrently with the issuance, assumption or guaranty of
any such Debt that the Securities (together with, if the Issuer shall so
determine, any other indebtedness of or guaranteed by the Issuer or such
Restricted Subsidiary ranking equally with the Securities and then existing or
thereafter
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created) shall be secured equally and ratably with such Debt; provided, however,
that the foregoing restrictions shall not apply to Debt secured by
(i) Liens existing on the date of the Indenture;
(ii) Liens in favor of governmental bodies securing progress,
advance or other payments;
(iii) Liens existing on property, stock or indebtedness at the
time of acquisition (including acquisition through lease, merger or
consolidation);
(iv) Liens securing the payment of all or any part of the purchase
price of the acquired property or the purchase price of construction,
installation, renovation, improvement or development thereon or thereof or to
secure any indebtedness incurred prior to, at the time of or within 360 days
after the later of the acquisition, completion of such construction,
installation, renovation, improvement or development or the commencement of full
operation of such property, provided that the amount of such indebtedness does
not exceed the expense incurred to construct, install, renovate, improve or
develop the acquired property, or within 360 days after the acquisition of such
stock or indebtedness for the purpose of financing all or any part of the
purchase price thereof;
(v) Liens securing indebtedness in an aggregate amount which,
at the time of incurrence and together with all outstanding Attributable Debt
(as defined below) in respect of sale and leaseback transactions permitted under
clause (y) in the "Limitation on Sale and Leaseback" covenant, does not exceed
10% of the Issuer's Consolidated Net Tangible Assets;
(vi) Liens securing indebtedness owed to the Issuer or any
Restricted Subsidiary; and
(vii) any extension, renewal or replacement (or successive
extensions, renewals or replacements) in whole or in part of any Liens referred
to in the foregoing clauses (i) to (vi), inclusive; provided, however, that
such extension, renewal or replacement of such Lien is limited to all or any
part of the same property, stock or indebtedness that secured the Lien extended,
renewed or replaced (plus improvements on such property), and that such secured
indebtedness at such time is not increased.
The term "Attributable Debt" shall mean, at the time of determination,
the present value (discounted at the interest rate implicit in the terms of the
lease) of the obligations of a lessee for net rental payments during the
remaining term of any lease entered into in connection with a transaction
contemplated by Section 3.8 (including any period for which such lease has been
extended).
SECTION 3.8 Limitation on Sale and Leaseback. So long as the Securities
of any series are outstanding, the Issuer will not, nor will it permit any
Restricted Subsidiary to, enter into any arrangement with any Person providing
for the leasing by the Issuer or any Restricted Subsidiary of any Principal
Property owned by the Issuer or any Restricted Subsidiary, whether such
Principal Property is now owned or hereafter acquired, which property has been
or is to be sold or transferred by the Issuer or such Restricted Subsidiary to
such Person, unless:
(a) such Principal Property is sold within 360 days from the date of
acquisition, or completion of the construction, or commencement of full
operations, of such Principal Property, whichever is later; or
(b) the Issuer or such Restricted Subsidiary, within 120 days after
such sale or transfer, applies or causes to be applied to the retirement of
Funded Debt (as defined below) of the Issuer or any Restricted
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Subsidiary (other than Funded Debt of the Issuer which by its terms or the terms
of the instrument pursuant to which it was issued is subordinate in right of
payment to the Securities) an amount not less than the greater of (i) the net
proceeds of the sale of such Principal Property or (ii) the fair value (as
determined in any manner approved by the Board of Directors) of such Principal
Property.
The provisions of this covenant shall not prevent the sale and
leaseback of any Principal Property (x) if the lease entered into by the Issuer
or such Restricted Subsidiary in connection therewith is for a period, including
renewals, of not more than 36 months or (y) if the Issuer or such Restricted
Subsidiary would, at the time of entering into such sale and leaseback
transaction, be entitled, without equally and ratably securing the Securities,
to create or assume a Lien on such Principal Property securing indebtedness in
an amount at least equal to the Attributable Debt in respect of such sale and
leaseback transaction pursuant to the provisions of Section 3.6(v).
The term "Funded Debt" shall mean all indebtedness maturing one year or
more from the date of the creation thereof, all indebtedness directly or
indirectly renewable or extendible, at the option of the debtor, by its terms or
by the terms of any instrument or agreement relating thereto, to a date one year
or more from the date of the creation thereof, and all indebtedness under a
revolving credit or similar agreement obligating the lender or lenders to extend
credit over a period of one year or more, even though such indebtedness may also
constitute short-term borrowing.
ARTICLE FOUR
SECURITYHOLDERS' LISTS AND REPORTS BY THE
ISSUER AND THE TRUSTEE
SECTION 4.1 Issuer to Furnish Trustee Information as to Names and
Addresses of Securityholders. The Issuer covenants and agrees that it will
furnish or cause to be furnished to the Trustee a list in such form as the
Trustee may reasonably require of the names and addresses of the holders of the
Securities of each series:
(a) semiannually and not more than 15 days after each record date for
the payment of interest on such Securities, as hereinabove specified, as of such
record date and on dates to be determined pursuant to Section 2.3 for
non-interest bearing securities in each year, and
(b) at such other times as the Trustee may request in writing, within
30 days after receipt by the Issuer of any such request as of a date not more
than 15 days prior to the time such information is furnished, provided that if
and so long as the Trustee shall be the Security registrar for such series, such
list shall not be required to be furnished.
SECTION 4.2 Preservation and Disclosure of Securityholders' Lists. (a)
The Trustee shall preserve, in as current a form as is reasonably practicable,
all information as to the names and addresses of the holders of each series of
Securities contained in the most recent list furnished to it as provided in
Section 4.1 or maintained by the Trustee in its capacity as Security registrar
for such series, if so acting. The Trustee may destroy any list furnished to it
as provided in Section 4.1 upon receipt of a new list so furnished.
(b) The rights of Holders of Securities of any series to communicate
with other Holders of Securities of such series 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.
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(c) Each and every holder of Securities, by receiving and holding the
same, agrees with the Issuer and the Trustee that neither the Issuer nor the
Trustee nor any agent of the Issuer or the Trustee shall be held accountable by
reason of the disclosure of any such information as to the names and addresses
of the holders of Securities made pursuant to the Trust Indenture Act.
SECTION 4.3 Reports by the Issuer. The Issuer 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 the
Trust Indenture 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.
SECTION 4.4 Reports by the Trustee. (a) The Trustee shall transmit to
Holders and other persons such reports concerning the Trustee and its actions
under this Indenture as may be required pursuant to the Trust Indenture Act on
or before July 15 in each year that such report is required, such reports to be
dated as of the immediately preceding May 15.
(b) A copy of each such report shall, at the time of such transmission
to Securityholders, be furnished to the Issuer and be filed by the Trustee with
each stock exchange upon which the Securities of any applicable series are
listed and also with the Commission. The Issuer agrees to notify the Trustee
with respect any series when and as the Securities of such series become
admitted to trading on any national securities exchange.
ARTICLE FIVE
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
SECTION 5.1 Event of Default Defined; Acceleration of Maturity; Waiver
of Default. "Event of Default" with respect to Securities of any series,
wherever used herein, means each one of the following events which shall have
occurred and be continuing (whatever the reason for such Event of Default and
whether it shall be voluntary or involuntary or be effected by operation of law
or pursuant to any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body):
(a) default in the payment of any installment of interest upon any of
the Securities of such series as and when the same shall become due and payable,
and continuance of such default for a period of 30 days; or
(b) default in the payment of all or any part of the principal of any
of the Securities of such series as and when the same shall become due and
payable either at maturity, upon redemption, by declaration or otherwise; or
(c) default in the payment of all or any part of any sinking fund
installment or other similar obligation as and when the same shall become due
and payable by the terms of the Securities of such series; or
(d) default in the performance, or breach, of any covenant or warranty
of the Issuer in respect of the Securities of such series (other than a covenant
or warranty in respect of the Securities of such series
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a default in whose performance or whose breach is elsewhere in this Section
specifically dealt with), and continuance of such default or breach for a period
of 90 days after there has been given, by registered or certified mail, to the
Issuer by the Trustee or to the Issuer and the Trustee by the Holders of at
least 25% in principal amount of the Outstanding Securities of all series
affected thereby, a written notice specifying such default or breach and
requiring it to be remedied and stating that such notice is a "Notice of
Default" hereunder or, if there is a judicial or administrative proceeding
pending at any time during the above-referenced 90-day period in which one of
the disputed issues relates to whether or not there was a default or breach, for
a period of 90 days after the final resolution of whether or not there was a
default or breach; or
(e) acceleration of indebtedness of the Issuer or any Restricted
Subsidiary, under the terms of the instruments evidencing such indebtedness,
aggregating more than $20,000,000 at the time outstanding; or
(f) judgments for the payment of more than $20,000,000 at the time
outstanding rendered against the Issuer or any Restricted Subsidiary and not
discharged within 60 days after such judgment becomes final and nonappealable;
or
(g) a court having jurisdiction in the premises shall enter a decree or
order for relief in respect of the Issuer in an involuntary case under any
applicable bankruptcy, insolvency or other similar law now or hereafter in
effect, or appointing a receiver, liquidator, assignee, custodian, trustee or
sequestrator (or similar official) of the Issuer or for any substantial part of
its property or ordering the winding up or liquidation of its affairs, and such
decree or order shall remain unstayed and in effect for a period of 60
consecutive days; or
(h) the Issuer shall commence a voluntary case under any applicable
bankruptcy, insolvency or other similar law now or hereafter in effect, or
consent to the entry of an order for relief in an involuntary case under any
such law, or consent to the appointment of or taking possession by a receiver,
liquidator, assignee, custodian, trustee or sequestrator (or similar official)
of the Issuer or for any substantial part of its property, or make any general
assignment for the benefit of creditors, or
(i) any other Event of Default provided in the supplemental indenture
or resolution of the Board of Directors under which such series of Securities is
issued or in the form of Security for such series.
If an Event of Default described in clauses (a), (b), (c) or (d) above
(if the Event of Default under clause (d) is with respect to less than all
series of Securities then Outstanding) occurs and is continuing, then, and in
each and every such case, unless the principal of all of the Securities of such
series shall have already become due and payable, either the Trustee or the
holders of not less than 25% in aggregate principal amount of the Securities of
such series then outstanding hereunder (each such series voting as a separate
class) by notice in writing to the Issuer (and to the Trustee if given by
Securityholders), may declare the entire principal of all Securities of such
series and the interest accrued thereon, if any, to be due and payable
immediately, and upon any such declaration the same shall become immediately due
and payable. If an Event of Default described in clause (d) (if the Event of
Default under clause (d) is with respect to all series of Securities then
Outstanding), (e) or (f) occurs and is continuing, then and in each and every
such case, unless the principal of all the Securities shall have already become
due and payable, either the Trustee or the Holders of not less than 25% in
aggregate principal amount of all the Securities then Outstanding hereunder
(treated as one class), by notice in writing to the Issuer (and to the Trustee
if given by Securityholders), may declare the entire principal of all the
Securities then outstanding and interest accrued thereon, if any, to be
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due and payable immediately, and upon any such declaration the same shall become
immediately due and payable.
The foregoing provisions, however, are subject to the condition that
if, at any time after the principal of the Securities of any series (or of all
the Securities, as the case may be) shall have been so declared due and payable,
and before any judgment or decree for the payment of the moneys due shall have
been obtained or entered as hereinafter provided, the Issuer shall pay or shall
deposit with the Trustee a sum sufficient to pay all matured installments of
interest upon all the Securities of such series (or of all the Securities, as
the case may be) and the principal of any and all Securities of such series (or
of all the Securities, as the case may be) which shall have become due otherwise
than by acceleration (with interest upon such principal and, to the extent that
payment of such interest is enforceable under applicable law, on overdue
installments of interest, at the same rate as the rate of interest specified in
the Securities of such series to the date of such payment or deposit) and such
amount as shall be sufficient to cover reasonable compensation to the Trustee,
its agents, attorneys and counsel, and all other expenses and liabilities
incurred, and all advances made, by the Trustee except as a result of negligence
or bad faith, and if any and all Events of Default under the Indenture, other
than the non-payment of the principal of Securities which shall have become due
by acceleration, shall have been cured, waived or otherwise remedied as provided
herein--then and in every such case the holders of a majority in aggregate
principal amount of all the Securities of such series, each series voting as a
separate class (or of all the Securities, as the case may be, voting as a single
class) then Outstanding, by written notice to the Issuer and to the Trustee, may
waive all defaults with respect to such series (or with respect to all the
Securities, as the case may be) and rescind and annul such declaration and its
consequences, but no such waiver or rescission and annulment shall extend to or
shall affect any subsequent default or shall impair any right consequent
thereon.
SECTION 5.2 Collection of Indebtedness by Trustee; Trustee May Prove
Debt. The Issuer covenants that (a) in case default shall be made in the payment
of any installment of interest on any of the securities of any series when such
interest shall have become due and payable, and such default shall have
continued for a period of 30 days or (b) in case default shall be made in the
payment of all or any part of the principal of any of the Securities of any
series when the same shall have become due and payable, whether upon maturity of
the Securities of such series or upon any redemption or by declaration or
otherwise--then, upon demand of the Trustee, the Issuer will pay to the Trustee
for the benefit of the Holders of the Securities of such series the whole amount
that then shall have become due and payable on all Securities of such series for
principal or interest, as the case may be (with interest to the date of such
payment upon the overdue principal and, to the extent that payment of such
interest is enforceable under applicable law, on overdue installments of
interest at the same rate as the rate of interest specified in the Securities of
such series); and in addition thereto, such further amount as shall be
sufficient to cover the costs and expenses of collection, including reasonable
compensation to the Trustee and each predecessor Trustee, their respective
agents, attorneys and counsel, and any expenses and liabilities incurred, and
all advances made, by the Trustee and each predecessor Trustee except as a
result of its negligence or bad faith.
Until such demand is made by the Trustee, the Issuer may pay the
principal of and interest on the Securities of any series to the registered
holders, whether or not the principal of and interest on the Securities of such
series be overdue.
In case the Issuer shall fail forthwith to pay such amounts upon such
demand, the Trustee, in its own name and as trustee of an express trust, shall
be entitled and empowered to institute any action or proceedings at law or in
equity for the collection of the sums so due and unpaid, and may prosecute any
such action or proceedings to judgment or final decree, and may enforce any such
judgment or final decree against the
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<PAGE> 25
Issuer or other obligor upon such Securities and collect in the manner provided
by law out of the property of the Issuer or other obligor upon such Securities,
wherever situated, the moneys adjudged or decreed to be payable.
In case there shall be pending proceedings relative to the Issuer or
any other obligor upon the Securities under Title 11 of the United States Code
or any other applicable Federal or state bankruptcy, insolvency or other similar
law, or in case a receiver, assignee or trustee in bankruptcy or reorganization,
liquidator, sequestrator or similar official shall have been appointed for or
taken possession of the Issuer or its property or such other obligor, or in case
of any other comparable judicial proceedings relative to the Issuer or other
obligor upon the Securities of any series, or to the creditors or property of
the Issuer or such other obligor, the Trustee, irrespective of whether the
principal of any Securities shall then be due and payable as therein expressed
or by declaration or otherwise and irrespective of whether the Trustee shall
have made any demand pursuant to the provisions of this Section, shall be
entitled and empowered, by intervention in such proceedings or otherwise:
(a) to file and prove a claim or claims for the whole amount of
principal and interest owing and unpaid in respect of the Securities of any
series, and to file such other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee (including any claim for
reasonable compensation to the Trustee and each predecessor Trustee, and their
respective agents, attorneys and counsel, and for reimbursement of all expenses
and liabilities incurred, and all advances made, by the Trustee and each
predecessor Trustee, except as a result of negligence or bad faith) and of the
Securityholders allowed in any judicial proceedings relative to the Issuer or
other obligor upon the Securities of any series, or to the creditors or property
of the Issuer or such other obligor,
(b) unless prohibited by applicable law and regulations, to vote on
behalf of the holders of the Securities of any series in any election of a
trustee or a standby trustee in arrangement, reorganization, liquidation or
other bankruptcy or insolvency proceedings or person performing similar
functions in comparable proceedings, and
(c) to collect and receive any moneys or other property payable or
deliverable on any such claims, and to distribute all amounts received with
respect to the claims of the Securityholders and of the Trustee on their behalf;
and any trustee, receiver, or liquidator, custodian or other similar official is
hereby authorized by each of the Securityholders to make payments to the
Trustee, and, in the event that the Trustee shall consent to the making of
payments directly to the Securityholders, to pay to the Trustee such amounts as
shall be sufficient to cover reasonable compensation to the Trustee, each
predecessor Trustee and their respective agents, attorneys and counsel, and all
other expenses and liabilities incurred, and all advances made, by the Trustee
and each predecessor Trustee except as a result of negligence or bad faith and
all other amounts due to the Trustee or any predecessor Trustee pursuant to
Section 6.6.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or vote for or accept or adopt on behalf of any
Securityholder any plan of reorganization, arrangement, adjustment or
composition affecting the Securities of any series or the rights of any Holder
thereof, or to authorize the Trustee to vote in respect of the claim of any
Securityholder in any such proceeding except, as aforesaid, to vote for the
election of a trustee in bankruptcy or similar person.
All rights of action and of asserting claims under this Indenture, or
under any of the Securities, may be enforced by the Trustee without the
possession of any of the Securities or the production thereof on any trial or
other proceedings relative thereto, and any such action or proceedings
instituted by the Trustee shall
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be brought in its own name as trustee of an express trust, and any recovery of
judgment, subject to the payment of the expenses, disbursements and compensation
of the Trustee, each predecessor Trustee and their respective agents and
attorneys, shall be for the ratable benefit of the holders of the Securities in
respect of which such action was taken.
In any proceedings brought by the Trustee (and also any proceedings
involving the interpretation of any provision of this Indenture to which the
Trustee shall be a party) the Trustee shall be held to represent all the holders
of the Securities in respect to which such action was taken, and it shall not be
necessary to make any holders of such Securities parties to any such
proceedings.
SECTION 5.3 Application of Proceeds. Any moneys collected by the
Trustee pursuant to this Article in respect of any series shall be applied in
the following order at the date or dates fixed by the Trustee and, in case of
the distribution of such moneys on account of principal or interest, upon
presentation of the several Securities in respect of which monies have been
collected and stamping (or otherwise noting) thereon the payment, or issuing
Securities of such series in reduced principal amounts in exchange for the
presented Securities of like series if only partially paid, or upon surrender
thereof if fully paid:
First: To the payment of all amounts due the Trustee under Section 6.6;
Second: To the payment of any other costs and expenses applicable to
such series in respect of which monies have been collected;
Third: In case the principal of the Securities of such series in
respect of which moneys have been collected shall not have become and be then
due and payable, to the payment of interest on the Securities of such series in
default in the order of the maturity of the installments of such interest, with
interest (to the extent that such interest has been collected by the Trustee)
upon the overdue installments of interest at the same rate as the rate of
interest specified in such Securities, such payments to be made ratably to the
persons entitled thereto, without discrimination or preference;
Fourth: In case the principal of the Securities of such series in
respect of which moneys have been collected shall have become and shall be then
due and payable, to the payment of the whole amount then owing and unpaid upon
all the Securities of such series for principal and interest, with interest upon
the overdue principal, and (to the extent that such interest has been collected
by the Trustee) upon overdue installments of interest at the same rate as the
rate of interest specified in the Securities of such series; and in case such
moneys shall be insufficient to pay in full the whole amount so due and unpaid
upon the Securities of such series, then to the payment of such principal and
interest, without preference or priority of principal over interest, or of
interest over principal, or of any installment of interest over any other
installment of interest, or of any Security of such series over any other
Security of such series, ratably to the aggregate of such principal and accrued
and unpaid interest; and
Fifth: To the payment of the remainder, if any, to the Issuer or any
other person lawfully entitled thereto.
SECTION 5.4 Suits for Enforcement. In case an Event of Default has
occurred, has not been waived and is continuing, the Trustee may in its
discretion proceed to protect and enforce the rights vested in it by this
Indenture by such appropriate judicial proceedings as the Trustee shall deem
most effectual to protect and enforce any of such rights, either at law or in
equity or in bankruptcy or otherwise, whether for the specific enforcement of
any covenant or agreement contained in this Indenture or in aid of the exercise
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of any power granted in this Indenture or to enforce any other legal or
equitable right vested in the Trustee by this Indenture or by law.
SECTION 5.5 Restoration of Rights on Abandonment of Proceedings. In case
the Trustee shall have proceeded to enforce any right under this Indenture and
such proceedings shall have been discontinued or abandoned for any reason, or
shall have been determined adversely to the Trustee, then and in every such
case the Issuer, the Trustee and the Securityholders shall be restored
respectively to their former positions and rights hereunder, and all rights,
remedies and powers of the Issuer, the Trustee and the Securityholders shall
continue as though no such proceedings had been taken.
SECTION 5.6 Limitations on Suits by Securityholders. No holder of any
Security of any series shall have any right by virtue or by availing of any
provision of this Indenture to institute any action or proceeding at law or in
equity or in bankruptcy or otherwise upon or under or with respect to this
Indenture, or for the appointment of a trustee, receiver, liquidator, custodian
or other similar official or for any other remedy hereunder, unless such holder
previously shall have given to the Trustee written notice of default and of the
continuance thereof, as hereinbefore provided, and unless also the holders of
not less than 25% in aggregate principal amount of the Securities of such series
then outstanding shall have made written request upon the Trustee to institute
such action or proceeding in its own name as trustee hereunder and shall have
offered to the Trustee such reasonable indemnity as it may require against the
costs, expenses and liabilities to be incurred therein or thereby and the
Trustee for 60 days after its receipt of such notice, request and offer of
indemnity shall have failed to institute any such action or proceeding and no
direction inconsistent with such written request shall have been given to the
Trustee pursuant to Section 5.9; it being understood and intended, and being
expressly covenanted by the taker and Holder of every Security with every other
taker and Holder and the Trustee, that no one or more Holders of Securities of
any series shall have any right in any manner whatever by virtue or by availing
of any provision of this Indenture to affect, disturb or prejudice the rights of
any other such Holder of Securities, or to obtain or seek to obtain priority
over or preference to any other such Holder or to enforce any right under this
Indenture, except in the manner herein provided and for the equal, ratable and
common benefit of all Holders of Securities of the applicable series. For the
protection and enforcement of the provisions of this Section, each and every
Securityholder and the Trustee shall be entitled to such relief as can be given
either at law or in equity.
SECTION 5.7 Unconditional Right of Securityholders to Institute Certain
Suits. Notwithstanding any other provision in this Indenture and any provision
of any Security, the right of any Holder of any Security to receive payment of
the principal of and interest on such Security on or after the respective due
dates expressed in such Security, or to institute suit for the enforcement of
any such payment on or after such respective dates, shall not be impaired or
affected without the consent of such Holder.
SECTION 5.8 Powers and Remedies Cumulative; Delay or Omission Not
Waiver of Default. Except as provided in Section 5.6, no right or remedy herein
conferred upon or reserved to the Trustee or to the Securityholders 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.
No delay or omission of the Trustee or of any Securityholder to
exercise any right or power accruing upon any Event of Default occurring and
continuing as aforesaid shall impair any such right or power or shall be
construed to be a waiver of any such Event of Default or an acquiescence
therein; and, subject to Section
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5.6, every power and remedy given by this Indenture or by law to the Trustee or
to the Securityholders may be exercised from time to time, and as often as shall
be deemed expedient, by the Trustee or by the Securityholders.
SECTION 5.9 Control by Securityholders. The Holders of a majority in
aggregate principal amount of the Securities of each series affected (with each
series voting as a separate class) at the time Outstanding 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 with respect to the Securities of such series by this Indenture;
provided that such direction shall not be otherwise than in accordance with law
and the provisions of this Indenture and provided further that (subject to the
provisions of Section 6.1) the Trustee shall have the right to decline to follow
any such direction if the Trustee, being advised by counsel, shall determine
that the action or proceeding so directed may not lawfully be taken or if the
Trustee in good faith by its board of directors, the executive committee, or a
trust committee of directors or Responsible Officers of the Trustee shall
determine that the action or proceedings so directed would involve the Trustee
in personal liability or if the Trustee in good faith shall so determine that
the actions or forebearances specified in or pursuant to such direction would be
unduly prejudicial to the interests of Holders of the Securities of all series
so affected not joining in the giving of said direction, it being understood
that (subject to Section 6.1) the Trustee shall have no duty to ascertain
whether or not such actions or forebearances are unduly prejudicial to such
Holders.
Nothing in this Indenture shall impair the right of the Trustee in its
discretion to take any action deemed proper by the Trustee and which is not
inconsistent with such direction or directions by Securityholders.
SECTION 5.10 Waiver of Past Defaults. Prior to the declaration of the
acceleration of the maturity of the Securities of any series as provided in
Section 5.1, the Holders of a majority in aggregate principal amount of the
Securities of such series at the time Outstanding may on behalf of the Holders
of all the Securities of such series waive any past default or Event of Default
described in clause (c) of Section 5.1 (or, in the case of an event specified in
clause (d) of Section 5.1 which relates to less than all series of Securities
then Outstanding, the Holders of a majority in aggregate principal amount of the
Securities then outstanding affected thereby (each series voting as a separate
class) may waive any such default or Event of Default, or, in the case of an
event specified in clause (d) (if the Event of Default under clause (d) relates
to all series of Securities then Outstanding), (e) or (f) of Section 5.1 the
Holders of Securities of a majority in principal amount of all the Securities
then Outstanding (voting as one class) may waive any such default or Event of
Default), and its consequences except a default in respect of a covenant or
provision hereof which cannot be modified or amended without the consent of the
Holder of each Security affected.
Upon any such waiver, such default shall cease to exist and be deemed
to have been cured and not to have occurred, and any Event of Default arising
therefrom shall be deemed to have been cured, and not to have occurred for every
purpose of this Indenture, and the Issuer, the Trustee and the Holders of the
Securities of such series shall be restored to their former positions and rights
hereunder, respectively; but no such waiver shall extend to any subsequent or
other default or Event of Default or impair any right consequent thereon.
SECTION 5.11 Trustee to Give Notice of Default, But May Withhold in
Certain Circumstances. The Trustee shall transmit to the Securityholders of any
series, as the names and addresses of such Holders appear on the registry books,
notice by mail of all defaults which have occurred with respect to such series,
such notice to be transmitted within 90 days after the occurrence thereof,
unless such defaults shall have been
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cured before the giving of such notice (the term "default" or "defaults" for the
purposes of this Section being hereby defined to mean any event or condition
which is, or with notice or lapse of time or both would become, an Event of
Default); provided that, except in the case of default in the payment of the
principal of, interest on, or any sinking fund installment or other similar
obligation with respect to, any of the Securities of such series, the 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 or
trustees and/or Responsible Officers of the Trustee in good faith determines
that the withholding of such notice is in the interests of the Securityholders
of such series.
SECTION 5.12 Right of Court to Require Filing of Undertaking to Pay
Costs. All parties to this Indenture agree, and each Holder of any Security by
his acceptance thereof shall be deemed to have agreed, that any court may in its
discretion require, 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, the filing by any party litigant in such suit of an
undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party litigant; but the
provisions of this Section shall not apply to any suit instituted by the
Trustee, to any suit instituted by any Holder, or group of Holders, holding in
the aggregate more than 10% in principal amount of the Outstanding Securities of
all series (or, if the matter in issue does not relate to all series of
Securities, then the Holders of 10% in principal amount of the Outstanding
Securities of all series to which such issue relates), treated as a single
class, or to any suit instituted by any Securityholder for the enforcement of
the payment of the principal of or interest on any Security on or after the due
date expressed in such Security.
ARTICLE SIX
CONCERNING THE TRUSTEE
SECTION 6.1 Duties and Responsibilities of the Trustee; During Default;
Prior to Default. With respect to the Holders of any series of Securities issued
hereunder, the Trustee, prior to the occurrence of an Event of Default with
respect to the Securities of a particular series and after the curing or waiving
of all Events of Default which may have occurred with respect to such series,
undertakes to perform such duties and only such duties as are specifically set
forth in this Indenture. In case an Event of Default with respect to the
Securities of a series has occurred (which has not been cured or waived) 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 man would exercise or use under the circumstances in the conduct of his
own affairs.
No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act or its own willful misconduct, except that
(a) prior to the occurrence of an Event of Default with respect to the
Securities of any series and after the curing or waiving of all such Events of
Default with respect to such series which may have occurred:
(i) the duties and obligations of the Trustee with respect to
the Securities of any Series shall be determined solely by the express
provisions of this Indenture, and the Trustee shall not be liable except for the
performance of such duties and obligations as are specifically set forth in this
Indenture, and no implied covenants or obligations shall be read into this
Indenture against the Trustee; and
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(ii) in the absence of bad faith on the part of the Trustee,
the Trustee may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon any statements, certificates
or opinions furnished to the Trustee and conforming to the requirements of this
Indenture; but in the case of any such statements, certificates or opinions
which by any provision hereof are specifically required to be furnished to the
Trustee, the Trustee shall be under a duty to examine the same to determine
whether or not they conform to the requirements of this Indenture;
(b) the Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer or Responsible Officers of the Trustee,
unless it shall be proved that the Trustee was negligent in ascertaining the
pertinent facts; and
(c) the 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 pursuant to Section 5.9 relating to the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or exercising
any trust or power conferred upon the Trustee, under this Indenture.
None of the provisions contained in this Indenture shall require the
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, if there shall be reasonable ground for believing that the
repayment of such funds or adequate indemnity against such liability is not
reasonably assured to it.
The provisions of this Section 6.1 are in furtherance of and subject to
Sections 315 and 316 of the Trust Indenture Act.
SECTION 6.2 Certain Rights of the Trustee. In furtherance of and
subject to the Trust Indenture Act and subject to Section 6.1:
(a) the Trustee may rely and shall be protected in acting or refraining
from acting upon any resolution, Officers' Certificate or any other certificate,
statement, instrument, opinion, report, notice, request, consent, order, bond,
debenture, note, coupon, security 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, direction, order or demand of the Issuer mentioned
herein shall be sufficiently evidenced by an Officers' Certificate (unless other
evidence in respect thereof be herein specifically prescribed); and any
resolution of the Board of Directors may be evidenced to the Trustee by a copy
thereof certified by the secretary or an assistant secretary of the Issuer;
(c) the Trustee may consult with counsel of its selection and any
advice or Opinion of Counsel 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 of
Counsel;
(d) the Trustee shall be under no obligation to exercise any of the
trusts or powers vested in it by this Indenture with the request, order or
direction of any of the Securityholders pursuant to the provisions of this
Indenture, unless such Securityholders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and liabilities
which might be incurred therein or thereby;
(e) the Trustee shall not be liable for any action taken or omitted by
it in good faith and believed by it to be authorized or within the discretion,
rights or powers conferred upon it by this Indenture;
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(f) prior to the occurrence of an Event of Default hereunder and after
the curing or waiving of all Events of Default, 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, consent,
order, approval, appraisal, bond, debenture, note, coupon, security, or other
paper or document unless requested in writing to do so by the holders of not
less than a majority in aggregate principal amount of the Securities of all
series affected then outstanding; provided that, if the payment within a
reasonable time to the Trustee of the costs, expenses or liabilities likely to
be incurred by it in the making of such investigation is, in the opinion of the
Trustee, not reasonably assured to the Trustee by the security afforded to it by
the terms of this Indenture, the Trustee may require reasonable indemnity
against such expenses or liabilities as a condition to proceeding; the
reasonable expenses of every such investigation shall be paid by the Issuer or,
if paid by the Trustee or any predecessor trustee, shall be repaid by the Issuer
upon demand; and
(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 not regularly in its employ and the Trustee shall not be responsible
for any misconduct or negligence on the part of any such agent or attorney
appointed with due care by it hereunder.
SECTION 6.3 Trustee Not Responsible for Recitals, Disposition of
Securities or Application of Proceeds Thereof. The recitals contained herein and
in the Securities, except the Trustee's certificates of authentication, shall be
taken as the statements of the Issuer, and the Trustee assumes no responsibility
for the correctness of the same. The Trustee makes no representation as to the
validity or sufficiency of his Indenture or of the Securities. The Trustee shall
not be accountable for the use or application by the Issuer of any of the
Securities or of the proceeds thereof.
SECTION 6.4 Trustee and Agents May Hold Securities; Collections, etc.
The Trustee or any agent of the Issuer or the Trustee, in its individual or any
other capacity, may become the owner or pledgee of Securities with the same
rights it would have if it were not the Trustee or such agent and, subject to
Sections 6.8 and 6.13, if operative, may otherwise deal with the Issuer and
receive, collect, hold and retain collections from the Issuer with the same
rights it would have if it were not the Trustee or such agent.
SECTION 6.5 Moneys Held by Trustee. Subject to the provisions of
Section 10.4 hereof, all moneys received by the Trustee shall, until used or
applied as herein provided, be held in trust for the purposes for which they
were received, but need not be segregated from other funds except to the extent
required by mandatory provisions of law. Neither the Trustee nor any agent of
the Issuer or the Trustee shall be under any liability for interest on any
moneys received by it hereunder.
SECTION 6.6 Compensation and Indemnification of Trustee and Its Prior
Claim. The Issuer covenants and agrees to pay to the Trustee from time to time,
and the Trustee shall be entitled to, such compensation (which shall not be
limited by any provision of law in regard to the compensation of a trustee of an
express trust) to be agreed to in writing by the Trustee and the Issuer, and the
Issuer covenants and agrees to pay or reimburse the Trustee and each predecessor
Trustee upon its request for all reasonable expenses, disbursements and advances
incurred or made by or on behalf of it in accordance with any of the provisions
of this Indenture (including (i) the reasonable compensation and the expenses
and disbursements of its counsel and of all agents and other persons not
regularly in its employ and (ii) interest at the prime rate on any disbursements
and advances made by the Trustee and not paid by the Issuer within 5 days after
receipt of an invoice for such disbursement or advance) except any such expense,
disbursement or advance as may arise from its negligence or bad faith. The
Issuer also covenants to indemnify the Trustee and each predecessor Trustee for,
and to hold it harmless against, any loss, liability or expense incurred without
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negligence or bad faith on its part, arising out of or in connection with the
acceptance or administration of this Indenture or the trusts hereunder and its
duties hereunder, including the costs and expenses of defending itself against
or investigating any claim of liability in the premises. The obligations of the
Issuer under this Section to compensate and indemnify the Trustee and each
predecessor Trustee and to pay or reimburse the Trustee and each predecessor
Trustee for expenses, disbursements and advances shall constitute additional
indebtedness hereunder and shall survive the satisfaction and discharge of this
Indenture. Such additional indebtedness shall be a senior claim to that of the
Securities upon all property and funds held or collected by the Trustee as such,
except funds held in trust for the benefit of the holders of particular
Securities, and the Securities are hereby subordinated to such senior claim. The
provisions of this Section shall survive the termination of this Indenture.
SECTION 6.7 Right of Trustee to Rely on Officers' Certificate, etc.
Subject to Sections 6.1 and 6.2, whenever in the administration of the trusts of
this Indenture the Trustee shall deem it necessary or desirable that a matter be
proved or established prior to taking or suffering or omitting any action
hereunder, such matter (unless other evidence in respect thereof be herein
specifically prescribed) may, in the absence of negligence or bad faith on the
part of the Trustee, be deemed to be conclusively proved and established by an
Officers' Certificate delivered to the Trustee, and such certificate, in the
absence of negligence or bad faith on the part of the Trustee, shall be full
warrant to the Trustee for any action taken, suffered or omitted by it under the
provisions of this Indenture upon the faith thereof.
SECTION 6.8 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 by, and subject to the provisions of, the Trust Indenture Act.
SECTION 6.9 Persons Eligible for Appointment as Trustee. The Trustee
for each series of Securities hereunder shall at all times be a corporation or
banking association having a combined capital and surplus of at least
$50,000,000. If such corporation or banking association publishes reports of
condition at least annually, pursuant to law or to the requirements of the
aforesaid supervising or examining authority, then for the purposes of this
Section, 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. In case at any time the Trustee shall cease to be
eligible in accordance with the provisions of this Section, the Trustee shall
resign immediately in the manner and with the effect specified in Section 6.10.
SECTION 6.10 Resignation and Removal; Appointment of Successor Trustee.
(a) The Trustee, or any trustee or trustees hereafter appointed, may at any time
resign with respect to one or more or all series of Securities by giving written
notice of resignation to the Issuer and by mailing notice thereof by first class
mail to Holders of the applicable series of Securities at their last addresses
as they shall appear on the Security register. Upon receiving such notice of
resignation, the Issuer shall promptly appoint a successor trustee or trustees
with respect to the applicable series by written instrument in duplicate,
executed by authority of the Board of Directors, one copy of which instrument
shall be delivered to the resigning Trustee and one copy to the successor
trustee or trustees. If no successor trustee shall have been so appointed with
respect to any series and have accepted appointment within 30 days after the
mailing of such notice of resignation, the resigning trustee may petition any
court of competent jurisdiction for the appointment of a successor trustee, or
any Securityholder who has been a bona fide Holder of a Security or Securities
of the applicable series for at least six months may, subject to the provisions
of Section 5.12, on behalf of himself and all others similarly situated,
petition any such court for the appointment of a successor trustee. Such court
may thereupon, after such notice, if any, as it may deem proper and prescribe,
appoint a successor trustee.
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(b) In case at any time any of the following shall occur:
(i) the Trustee shall fail to comply with the provisions of
Section 6.8 with respect to any series of Securities after written request
therefor by the Issuer or by any Securityholder who has been a bona fide Holder
of a Security or Securities of such series for at least six months; or
(ii) the Trustee shall cease to be eligible in accordance with
the provisions of Section 6.9 and shall fail to resign after written request
therefor by the Issuer or by any Securityholder; or
(iii) the Trustee shall become incapable of acting with
respect to any series of Securities, or shall be adjudged a bankrupt or
insolvent, or a receiver or liquidator 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; or
(iv) the Issuer shall determine that the Trustee has failed to
perform its obligations under this Indenture in any material respect;
then, in any such case, the Issuer may remove the Trustee with respect to the
applicable series of Securities and appoint a successor trustee for such series
by written instrument, in duplicate, executed by order of the Board of Directors
of the Issuer, one copy of which instrument shall be delivered to the Trustee so
removed and one copy to the successor trustee, or, subject to the provisions of
Section 5.12, any Securityholder who has been a bona fide Holder of a Security
or Securities of such series 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 with
respect to such series. Such court may thereupon, after such notice, if any, as
it may deem proper and prescribe, remove the Trustee and appoint a successor
trustee. If no successor trustee shall have been appointed with respect to any
series and have accepted appointment within 30 days after a notice of removal
has been given, the removed trustee may petition a court of competent
jurisdiction for the appointment of a successor trustee.
(c) The Holders of a majority in aggregate principal amount of the
Securities of each series at the time outstanding may at any time remove the
Trustee with respect to Securities of such series and appoint a successor
trustee with respect to the Securities of such series by delivering to the
Trustee so removed, to the successor trustee so appointed and to the Issuer the
evidence provided for in Section 7.1 of the action in that regard taken by the
Securityholders.
(d) Any resignation or removal of the Trustee with respect to any
series and any appointment of a successor trustee with respect to such series
pursuant to any of the provisions of this Section 6.10 shall become effective
upon acceptance of appointment by the successor trustee as provided in Section
6.11.
SECTION 6.11 Acceptance of Appointment by Successor Trustee. Any
successor trustee appointed as provided in Section 6.10 shall execute and
deliver to the Issuer and to its predecessor trustee an instrument accepting
such appointment hereunder, and thereupon the resignation or removal of the
predecessor trustee with respect to all or any applicable series shall become
effective and such successor trustee, without any further act, deed or
conveyance, shall become vested with all rights, powers, duties and obligations
with respect to such series of its predecessor hereunder, with like effect as if
originally named as trustee for such series hereunder; but, nevertheless, on the
written request of the Issuer or of the successor trustee, upon payment of its
charges then unpaid, the trustee ceasing to act shall, subject to Section 10.4,
pay over to the successor trustee all moneys at the time held by it hereunder
and shall execute and deliver an
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instrument transferring to such successor trustee all such rights, powers,
duties and obligations. Upon request of any such successor trustee, the Issuer
shall execute any and all instruments in writing for more fully and certainly
vesting in and confirming to such successor trustee all such rights and powers.
Any trustee ceasing to act shall, nevertheless, retain a prior claim upon all
property or funds held or collected by such trustee to secure any amounts then
due it pursuant to the provisions of Section 6.6.
If a successor trustee is appointed with respect to the Securities of
one or more (but not all) series, the Issuer, the predecessor trustee and each
successor trustee with respect to the Securities of any applicable series shall
execute and deliver an indenture supplemental hereto which shall contain such
provisions as shall be deemed necessary or desirable to confirm that all the
rights, powers, trusts and duties of the predecessor trustee with respect to the
Securities of any series as to which the predecessor trustee is not retiring
shall continue to be vested in the predecessor trustee, and shall add to or
change any of the provisions of this Indenture as shall be necessary to provide
for or facilitate the administration of the trusts hereunder by more than one
trustee, it being understood that nothing herein or in such supplemental
indenture shall constitute such trustees co-trustees of the same trust and that
each such trustee shall be trustee of a trust or trusts under separate
indentures.
No successor trustee with respect to any series of Securities shall
accept appointment as provided in this Section 6.11 unless at the time of such
acceptance such successor trustee shall be qualified under the provisions of
Section 6.8 and eligible under the provisions of Section 6.9.
Upon acceptance of appointment by any successor trustee as provided in
this Section 6.11, the Issuer shall mail notice thereof by first class mail to
the Holders of Securities of any series for which such successor trustee is
acting as trustee at their last addresses as they shall appear in the Security
register. If the acceptance of appointment is substantially contemporaneous with
the resignation, then the notice called for by the preceding sentence may be
combined with the notice called for by Section 6.10. If the Issuer fails to mail
such notice within ten days after acceptance of appointment by the successor
trustee, the successor trustee shall cause such notice to be mailed at the
expense of the Issuer.
SECTION 6.12 Merger, Conversion, Consolidation or Succession to
Business of Trustee. Any corporation or banking association into which the
Trustee may be merged or converted or with which it may be consolidated, or any
corporation or banking association resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any corporation or
banking association succeeding to all or substantially all of the corporate
trust business of the Trustee, shall be the successor of the Trustee hereunder,
provided that such corporation or banking association shall be qualified under
the provisions of Section 6.8 and eligible under the provisions of Section 6.9,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto, anything herein to the contrary notwithstanding. In
case at the time such successor to the Trustee shall succeed to the trusts
created by this Indenture any of the Securities of any series shall have been
authenticated but not delivered, any such successor to the Trustee may adopt the
certificate of authentication of any predecessor Trustee and deliver such
Securities so authenticated; and, in case at that time any of the Securities of
any series shall not have been authenticated, any successor to the Trustee may
authenticate such Securities either in the name of any predecessor hereunder or
in the name of the successor Trustee; and in all such cases such certificate
shall have the full force which it is anywhere in the Securities of such series
or in this Indenture provided that the certificate of the Trustee shall have;
provided, that the right to adopt the certificate of authentication of any
predecessor Trustee or to authenticate Securities of any series in the name of
any predecessor Trustee shall apply only to its successor or successors by
merger, conversion or consolidation.
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SECTION 6.13 Preferential Collection of Claims Against the Issuer. The
Trustee shall comply with the provisions of Section 311 of the Trust Indenture
Act.
ARTICLE SEVEN
CONCERNING THE SECURITYHOLDERS
SECTION 7.1 Evidence of Action Taken by Securityholders. Any request,
demand, authorization, direction, notice, consent, waiver or other action
provided by this Indenture to be given or taken by a specified percentage in
principal amount of the Securityholders of any or all series may be embodied in
and evidenced by one or more instruments of substantially similar tenor signed
by such specified percentage of Securityholders in person or by agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee. Proof of execution of any instrument or of a writing appointing
any such agent shall be sufficient for any purpose of this Indenture and
(subject to Sections 6.1 and 6.2) conclusive in favor of the Trustee and the
Issuer, if made in the manner provided in this Article.
If the Issuer shall solicit from the Securityholders any request,
demand, authorization, direction, notice, consent, waiver or other act of the
Securityholders, the Issuer may, at its option, by a resolution of the Board of
Directors, fix in advance a record date for the determination of Securityholders
entitled to give such request, demand, authorization, direction, notice,
consent, waiver or other act, but the Issuer shall have no obligation to do so.
If such a record date is fixed, such request, demand, authorization, direction,
notice, consent, waiver or other act may be given before or after such record
date, but only the Securityholders of record at the close of business on such
record date shall be deemed to be Securityholders for the purposes of
determining whether Securityholders of the requisite proportion of Outstanding
Securities have authorized or agreed or consented to such request, demand,
authorization, direction, notice, consent, waiver or other act, and for that
purpose the Outstanding Securities shall be computed as of such record date;
provided that no such authorization, agreement or consent by the Securityholders
on such record date shall be deemed effective unless it shall become effective
pursuant to the provisions of this Indenture not later than six months after the
record date.
If any Security of a series is issuable in the form of a Global
Security or Securities, the Depositary therefor may grant proxies and otherwise
authorize participants to give or take any request, demand, authorization,
direction, notice, consent, waiver or other action which the Holder of such
Security is entitled to grant or take under this Indenture.
SECTION 7.2 Proof of Execution of Instruments and of Holding of
Securities. Subject to Sections 6.1 and 6.2, the execution of any instrument by
a Securityholder or his agent or proxy may be proved in accordance with such
reasonable rules and regulations as may be prescribed by the Trustee or in such
manner as shall be satisfactory to the Trustee. The holding of Securities shall
be proved by the Security register or by a certificate of the registrar thereof.
SECTION 7.3 Holders to be Treated as Owners. The Issuer, the Trustee
and any agent of the Issuer or the Trustee may deem and treat the Person in
whose name any Security shall be registered upon the Security register for such
series as the absolute owner of such Security (whether or not such Security
shall be overdue and notwithstanding any notation of ownership or other writing
thereon) for the purpose of receiving payment of or on account of the principal
of and, subject to the provisions of this Indenture, interest on such Security
and for all other purposes; and neither the Issuer nor the Trustee nor any agent
of the Issuer
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or the Trustee shall be affected by any notice to the contrary. All such
payments so made to any such Person, or upon his order, shall be valid, and, to
the extent of the sum or sums so paid, effectual to satisfy and discharge the
liability for moneys payable upon any such Security.
None of the Issuer, the Trustee any paying agent, or the Security
Registrar will have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership
interests of a Global Security or for maintaining, supervising or reviewing any
records relating to such beneficial ownership interests.
SECTION 7.4 Securities Owned by Issuer Deemed Not Outstanding. In
determining whether the Holders of the requisite aggregate principal amount of
Outstanding Securities of any or all series have concurred in any direction,
consent or waiver under this Indenture, Securities which are owned by the Issuer
or any other obligor on the Securities with respect to which such determination
is being made or by any Person directly or indirectly controlling or controlled
by or under direct or indirect common control with the Issuer or any other
obligor on the Securities with respect to which such determination is being made
shall be disregarded and deemed not to be Outstanding for the purpose of any
such determination, except that for the purpose of determining whether the
Trustee shall be protected in relying on any such direction, consent or waiver
only Securities which the Trustee knows are so owned shall be so disregarded.
Securities so owned which have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the satisfaction of the Trustee the
pledgee's right so to act with respect to such Securities and that the pledgee
is not the Issuer or any other obligor upon the Securities or any Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with the Issuer or any other obligor on the Securities. In case
of a dispute as to such right, the advice of counsel shall be full protection in
respect of any decision made by the Trustee in accordance with such advice. Upon
request of the Trustee, the Issuer shall furnish to the Trustee promptly an
Officers' Certificate listing and identifying all Securities, if any, known by
the Issuer to be owned or held by or for the account of any of the
above-described Persons; and, subject to Sections 6.1 and 6.2, the Trustee shall
be entitled to accept such Officers' Certificate as conclusive evidence of the
facts therein set forth and of the fact that all Securities not listed therein
are Outstanding for the purpose of any such determination.
SECTION 7.5 Right of Revocation of Action Taken. At any time prior to
(but not after) the evidencing to the Trustee, as provided in Section 7.1, of
the taking of any action by the Holders of the percentage in aggregate principal
amount of the Securities of any or all series, as the case may be, specified in
this Indenture in connection with such action, any Holder of a Security the
serial number of which is shown by the evidence to be included among the serial
numbers of the Securities the Holders of which have consented to such action
may, by filing written notice at the Corporate Trust Office and upon proof of
holding as provided in this Article, revoke such action so far as concerns such
Security. Except as aforesaid any such action taken by the Holder of any
Security shall be conclusive and binding upon such Holder and upon all future
Holders and owners of such Security and of any Securities issued in exchange or
substitution therefor, irrespective of whether or not any notation in regard
thereto is made upon any such Security. Any action taken by the Holders of the
percentage in aggregate principal amount of the Securities of any or all series,
as the case may be, specified in this Indenture in connection with such action
shall be conclusively binding upon the Issuer, the Trustee and the Holders of
all the Securities affected by such action.
ARTICLE EIGHT
SUPPLEMENTAL INDENTURES
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SECTION 8.1 Supplemental Indentures Without Consent of Securityholders.
The Issuer, when authorized by a resolution of its Board of Directors, and the
Trustee may from time to time and at any time enter into an indenture or
indentures supplemental hereto (which shall conform to the provisions of the
Trust Indenture Act as in force at the date of the execution thereof) for one or
more of the following purposes:
(a) to convey, transfer, assign, mortgage or pledge to the Trustee as
security for the Securities of one or more series any property or assets;
(b) to evidence the succession of another corporation to the Issuer, or
successive successions, and the assumption by the successor corporation of the
covenants, agreements and obligations of the Issuer pursuant to Article Nine;
(c) to add to the covenants of the Issuer such further covenants,
restrictions, conditions or provisions as its Board of Directors and the Trustee
shall consider to be for the protection of the Holders of Securities, and to
make the occurrence, or the occurrence and continuance, of a default in any such
additional covenants, restrictions, conditions or provisions an Event of Default
permitting the enforcement of all or any of the several remedies provided in
this Indenture as herein set forth; provided, that in respect of any such
additional covenant, restriction, condition or provision such supplemental
indenture may provide for a particular period of grace after default (which
period may be shorter or longer than that allowed in the case of other defaults)
or may provide for an immediate enforcement upon such an Event of Default or may
limit the remedies available to the Trustee upon such an Event of Default or may
limit the right of the Holders of a majority in aggregate principal amount of
the Securities of such series to waive such an Event of Default;
(d) to cure any ambiguity or to correct or supplement any provision
contained herein or in any supplemental indenture which may be defective or
inconsistent with any other provision contained herein or in any supplemental
indenture; or to make such other provisions in regard to matters or questions
arising under this Indenture or under any supplemental indenture as the Board of
Directors may deem necessary or desirable and which shall not adversely affect
the interests of the Holders of the Securities;
(e) to establish the form or terms of Securities of any series as
permitted by Sections 2.1 and 2.3, including, without limitation, any terms
relating to the issuance, exchange, registration or transfer of Securities
issued in whole or in part in the form of one or more global Securities and the
payment of any principal thereof, or interest or premium, if any, thereon; and
(f) to evidence and provide for the acceptance of appointment hereunder
by a successor trustee with respect to the Securities of one or more series and
to add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one trustee, pursuant to the requirements of Section
6.11.
The Trustee is hereby authorized to join with the Issuer in the
execution of any such supplemental indenture, to make any further appropriate
agreements and stipulations which may be therein contained and to accept the
conveyance, transfer, assignment, mortgage or pledge of any property thereunder,
but the Trustee 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.
Any supplemental indenture authorized by the provisions of this Section
may be executed without the consent of the Holders of any of the Securities at
the time outstanding, notwithstanding any of the provisions of Section 8.2.
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SECTION 8.2 Supplemental Indentures With Consent of Securityholders.
With the consent (evidenced as provided in Article Seven) of the Holders of not
less than a majority in aggregate principal amount of the Securities at the time
outstanding of all series affected by such supplemental indenture (voting as one
class), the Issuer, when authorized by a resolution of its Board of Directors,
and the Trustee may, from time to time and at any time, enter into an indenture
or indentures supplemental hereto (which shall conform to the provisions of the
Trust Indenture Act as in force at the date of execution thereof) for the
purpose of adding any provisions to or changing in any manner or eliminating any
of the provisions of this Indenture or of any supplemental indenture or of
modifying in any manner the rights of the Holders of the Securities of each such
series; provided, that no such supplemental indenture shall (a) change the final
maturity of any Security, or reduce the principal amount thereof, or reduce the
rate or extend the time of payment of interest thereon, or reduce any amount
payable on redemption thereof or reduce the amount of the principal of an
Original Issue Discount Security that could be due and payable upon an
acceleration of the maturity thereof pursuant to Section 5.1 or the amount
thereof provable in bankruptcy pursuant to Section 5.2, or impair or affect the
right of any Securityholder to institute suit for the payment thereof or, if the
Securities provide therefor, any right of repayment at the option of the
Securityholder without the consent of the Holder of each Security so affected,
or (b) reduce the aforesaid percentage of Securities of any series, the consent
of the Holders of which is required for any such supplemental indenture, without
the consent of the Holders of each Security so affected.
Upon the request of the Issuer, accompanied by a copy of a resolution
of the Board of Directors certified by the secretary or an assistant secretary
of the Issuer authorizing the execution of any such supplemental indenture, and
upon the filing with the Trustee of evidence of the consent of Securityholders
as aforesaid and other documents, if any, required by Section 7.1, the Trustee
shall join with the Issuer in the execution of such supplemental indenture
unless such supplemental indenture affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise, in which case the Trustee may in
its discretion, but shall not be obligated to, enter into such supplemental
indenture.
It shall not be necessary for the consent of the Securityholders under
this Section to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such consent shall approve the
substance thereof.
Promptly after the execution by the Issuer and the Trustee of any
supplemental indenture pursuant to the provisions of this Section, the Issuer
shall mail a notice thereof by first class mail to the Holders of Securities of
each series affected thereby at their addresses as they shall appear on the
registry books of the Issuer, setting forth in general terms the substance of
such supplemental indenture. Any failure of the Issuer to mail such notice, or
any defect therein, shall not, however, in any way impair or affect the validity
of any such supplemental indenture.
SECTION 8.3 Effect of Supplemental Indenture. Upon the execution of any
supplemental indenture pursuant to the provisions hereof, this Indenture shall
be and be deemed to be modified and amended in accordance therewith and the
respective rights, limitations of rights, obligations, duties and immunities
under this Indenture of the Trustee, the Issuer and the Holders of Securities of
each series affected thereby shall thereafter be determined, exercised and
enforced hereunder subject in all respects to such modifications and amendments,
and all the terms and conditions of any such supplemental indenture shall be and
be deemed to be part of the terms and conditions of this Indenture for any and
all purposes.
SECTION 8.4 Documents to Be Given to Trustee. The Trustee, subject to
the provisions to Sections 6.1 and 6.2, shall be provided an Officers'
Certificate and an Opinion of Counsel as conclusive
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evidence that any supplemental indenture executed pursuant to this Article 8
complies with the applicable provisions of this Indenture and is authorized or
permitted by this Indenture.
SECTION 8.5 Notation on Securities in Respect of Supplemental
Indentures. Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to the provisions of this
Article may bear a notation in form approved by the Trustee for such series as
to any matter provided for by such supplemental indenture. If the Issuer or the
Trustee shall so determine, new Securities of any series so modified as to
conform, in the opinion of the Trustee and the Board of Directors, to any
modification of this Indenture contained in any such supplemental indenture may
be prepared and executed by the Issuer, authenticated by the Trustee and
delivered in exchange for the Securities of such series then outstanding.
ARTICLE NINE
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 9.1 Issuer May Consolidate, etc., on Certain Terms. The Issuer
covenants that it will not merge or consolidate with any other corporation or
sell or convey all or substantially all of its assets to any Person, unless (i)
either the Issuer shall be the continuing corporation, or the successor
corporation or the Person which acquires by sale or conveyance substantially all
of the assets of the Issuer (if other than the Issuer) shall be a corporation
organized under the laws of the United States of America or any State thereof
and shall expressly assume the due and punctual payment of the principal of and
interest on all the Securities, according to their tenor, and the due and
punctual performance and observance of all of the covenants and conditions of
this Indenture to be performed or observed by the Issuer, by supplemental
indenture satisfactory to the Trustee, executed and delivered to the Trustee by
such corporation, and (ii) the Issuer or such successor corporation, as the case
may be, shall not, immediately after such merger or consolidation, or such sale
or conveyance, be in default in the performance of any such covenant or
condition.
SECTION 9.2 Successor Corporation Substituted. In case of any such
consolidation, merger, sale or conveyance, and following such an assumption by
the successor corporation, such successor corporation shall succeed to and be
substituted for the Issuer, with the same effect as if it had been named herein.
Such successor corporation may cause to be signed, and may issue either in its
own name or in the name of the Issuer prior to such succession any or all of the
Securities issuable hereunder which theretofore shall not have been signed by
the Issuer and delivered to the Trustee; and, upon the order of such successor
corporation instead of the Issuer and subject to all the terms, conditions and
limitations in this Indenture prescribed, the Trustee shall authenticate and
shall deliver any Securities which previously shall have been signed and
delivered by the officers of the Issuer to the Trustee for authentication, and
any Securities which such successor corporation thereafter shall cause to be
signed and delivered to the Trustee for that purpose. All of the Securities so
issued shall in all respects have the same legal rank and benefit under this
Indenture as the Securities theretofore or thereafter issued in accordance with
the terms of this Indenture as though all of such Securities had been issued at
the date of the execution hereof.
In case of any such consolidation, merger, sale, lease or conveyance
such changes in phraseology and form (but not in substance) may be made in the
Securities thereafter to be issued as may be appropriate.
In the event of any such sale or conveyance (other than a conveyance by
way of lease) the Issuer or any successor corporation which shall theretofore
have become such in the manner described in this Article
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shall be discharged from all obligations and covenants under this Indenture and
the Securities and may be liquidated and dissolved.
SECTION 9.3 Opinion of Counsel to Trustee. The Trustee, subject to the
provisions of Sections 6.1 and 6.2, shall be provided an Opinion of Counsel and
an Officer's Certificate, prepared in accordance with Section 13.5, as
conclusive evidence that any such consolidation, merger, sale, lease or
conveyance, and any such assumption, and any such liquidation or dissolution,
complies with the applicable provisions of this Indenture.
ARTICLE TEN
SATISFACTION AND DISCHARGE OF INDENTURE;
UNCLAIMED MONEYS
SECTION 10.1 Satisfaction and Discharge of Indenture. If at any time
(a) the Issuer shall have paid or caused to be paid the principal of and
interest on all the Securities of any series outstanding hereunder (other than
Securities which have been destroyed, lost or stolen and which have been
replaced or paid as provided in Section 2.9) as and when the same shall have
become due and payable, or (b) the Issuer shall have delivered to the Trustee
for cancellation all Securities of any series theretofore authenticated (other
than any Securities of such series which shall have been destroyed, lost or
stolen and which shall have been replaced or paid as provided in Section 2.9) or
(c) (i) all the securities of such series not theretofore delivered to the
Trustee for cancellation shall have become due and payable, or are by their
terms to become due and payable within one year or are to be called for
redemption within one year under arrangements satisfactory to the Trustee for
the giving of notice of redemption, and (ii) the Issuer shall have irrevocably
deposited or caused to be deposited with the Trustee as trust funds the entire
amount in cash (other than moneys repaid by the Trustee or any paying agent to
the Issuer in accordance with Section 10.4) sufficient to pay at maturity or
upon redemption all Securities of such series (other than any Securities of such
series which shall have been destroyed, lost or stolen and which shall have been
replaced or paid as provided in Section 2.9) not theretofore delivered to the
Trustee for cancellation, including principal and interest due or to become due
to such date of maturity as the case may be, and if, in any such case, the
Issuer shall also pay or cause to be paid all other sums payable hereunder by
the Issuer with respect to Securities of such series, then this Indenture shall
cease to be of further effect with respect to Securities of such series (except
as to (i) rights of registration of transfer and exchange, and the Issuer's
right of optional redemption, (ii) substitution of mutilated, defaced,
destroyed, lost or stolen Securities, (iii) rights of holders to receive
payments of principal thereof and interest thereon and remaining rights of the
holders to receive mandatory sinking fund payments, if any, (iv) the rights,
obligations and immunities of the Trustee hereunder and (v) the rights of the
Securityholders of such series as beneficiaries hereof with respect to the
property so deposited with the Trustee payable to all or any of them), and the
Trustee, on demand of the Issuer accompanied by an Officers' Certificate and an
Opinion of Counsel and at the cost and expense of the Issuer, shall execute
proper instruments acknowledging such satisfaction of and discharging this
Indenture with respect to such series; provided, that the rights of Holders of
the Securities to receive amounts in respect of principal of and interest on the
Securities held by them shall not be delayed longer than required by
then-applicable mandatory rules or policies of any securities exchange upon
which the Securities are listed. The Issuer agrees to reimburse the Trustee for
any costs or expenses thereafter reasonably and properly incurred and to
compensate the Trustee for any services thereafter reasonably and properly
rendered by the Trustee in connection with this Indenture or the Securities of
such series.
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SECTION 10.2 Application by Trustee of Funds Deposited for Payment of
Securities. Subject to Section 10.4, all moneys deposited with the Trustee
pursuant to Section 10.1, all money and U.S. Government Obligations deposited
with the Trustee pursuant to Section 12.4 and all money received by the Trustee
in respect of U.S. Government Obligations deposited with the Trustee pursuant to
Section 12.4 shall be held in trust and applied by it to the payment, either
directly or through any paying agent (including the Issuer acting as its own
paying agent), to the Holders of the particular Securities of such series for
the payment or redemption of which such moneys have been deposited with the
Trustee, of all sums due and to become due thereon for principal and interest or
to make mandatory sinking fund payments or analogous payments as contemplated by
Section 12.4; but such money need not be segregated from other funds except to
the extent required by law.
SECTION 10.3 Repayment of Moneys Held by Paying Agent. In connection
with the satisfaction and discharge of this Indenture with respect to Securities
of any series, all moneys then held by any paying agent under the provisions of
this Indenture with respect to such series of Securities shall, upon demand of
the Issuer, be repaid to it or paid to the Trustee and thereupon such paying
agent shall be released from all further liability with respect to such moneys.
SECTION 10.4 Return of Moneys Held by Trustee and Paying Agent
Unclaimed for Three Years. Any moneys deposited with or paid to the Trustee or
any paying agent for the payment of the principal of or interest on any Security
of any series and not applied but remaining unclaimed for three years after the
date upon which such principal or interest shall have become due and payable,
shall, upon the written request of the Issuer and unless otherwise required by
mandatory provisions of applicable escheat or abandoned or unclaimed property
law, be repaid to the Issuer by the Trustee for such series or such paying
agent, and the Holder of the Security of such series shall, unless otherwise
required by mandatory provisions of applicable escheat or abandoned or unclaimed
property laws, thereafter look only to the Issuer for any payment which such
Holder may be entitled to collect, and all liability of the Trustee or any
paying agent with respect to such moneys shall thereupon cease.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES AND SINKING FUNDS
SECTION 11.1 Applicability of Article. The provisions of this Article
shall be applicable to the Securities of any series which are redeemable before
their maturity or to any sinking fund for the retirement of Securities of a
series except as otherwise specified as contemplated by Section 2.3 for
Securities of such series.
SECTION 11.2 Notice of Redemption; Partial Redemptions. Notice of
redemption to the Holders of Securities of any series to be redeemed as a whole
or in part at the option of the Issuer shall be given by mailing notice of such
redemption by first class mail, postage prepaid, at least 30 days and not more
than 60 days prior to the date fixed for redemption to such Holders of
Securities of such series at their last addresses as they shall appear upon the
registry books. Any notice which is mailed in the manner herein provided shall
be conclusively presumed to have been duly given, whether or not the Holder
receives the notice. Failure to give notice by mail, or any defect in the
notice, to the Holder of any Security of a series designated for redemption as a
whole or in part shall not affect the validity of the proceedings for the
redemption of any other Security of such series.
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The notice of redemption to each such Holder shall specify the
principal amount of each Security of such series held by such Holder to be
redeemed, the date fixed for redemption, the redemption price, the place or
places of payment, that payment will be made upon presentation and surrender of
such Securities, that such redemption is pursuant to the mandatory or optional
sinking fund, or both, if such be the case, that interest accrued to the date
fixed for redemption will be paid as specified in such notice and that on and
after said date interest thereon or on the portions thereof to be redeemed will
cease to accrue. In case any Security of a series is to be redeemed in part only
the notice of redemption shall state the serial number of the Security and the
portion of the principal amount thereof to be redeemed and shall state that on
and after the date fixed for redemption, upon surrender of such Security, a new
Security or Securities of such series in principal amount equal to the
unredeemed portion thereof will be issued.
The notice of redemption of Securities of any series to be redeemed at
the option of the Issuer shall be given by the Issuer or, at the Issuer's
request, by the Trustee in the name and at the expense of the Issuer.
At least one Business Day prior to the redemption date specified in the
notice of redemption given as provided in this Section, the Issuer will deposit
with the Trustee or with one or more paying agents (or, if the Issuer is acting
as its own paying agent, set aside, segregate and hold in trust as provided in
Section 3.4) an amount of money sufficient to redeem on the redemption date all
the Securities of such series so called for redemption at the appropriate
redemption price, together with accrued interest to the date fixed for
redemption. If less than all the outstanding Securities of a series are to be
redeemed, the Issuer will deliver to the Trustee at least 70 days (or shorter
period satisfactory to the Trustee) prior to the date fixed for redemption an
Officers' Certificate stating the aggregate principal amount of Securities to be
redeemed.
If less than all the Securities of a series are to be redeemed, the
Trustee shall select, in such manner as it shall deem appropriate and fair,
Securities of such series to be redeemed in whole or in part. Securities may be
redeemed in part in multiples equal to the minimum authorized denomination for
Securities of such series or any multiple thereof. The Trustee shall promptly
notify the Issuer in writing of the serial numbers of the Securities of such
series selected for redemption and, in the case of any Securities of such series
selected for partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise requires, all
provisions relating to the redemption of Securities of any series shall relate,
in the case of any Security redeemed or to be redeemed only in part, to the
portion of the principal amount of such Security which has been or is to be
redeemed.
SECTION 11.3 Payment of Securities Called for Redemption. If notice of
redemption had been given as above provided, the Securities or portions of
Securities specified in such notice shall become due and payable on the date and
at the place stated in such notice at the applicable redemption price, together
with interest accrued to the date fixed for redemption, and on and after said
date (unless the Issuer shall default in the payment of such Securities at the
redemption price, together with interest accrued to said date) interest on the
Securities or portions of Securities so called for redemption shall cease to
accrue and, except as provided in Sections 6.5 and 10.4, such Securities shall
cease from and after the date fixed for redemption to be entitled to any benefit
or security under this Indenture, and the Holders thereof shall have no right in
respect of such Securities except the right to receive the redemption price
thereof and unpaid interest to the date fixed for redemption. On presentation
and surrender of such Securities at a place of payment specified in said notice,
said Securities or the specified portions thereof shall be paid and redeemed by
the Issuer at the applicable redemption price, together with interest accrued
thereon to the date fixed for redemption; provided that any semiannual payment
of interest becoming due on the date fixed for redemption shall be payable to
the Holders of such Securities registered as such on the relevant record date
subject to the terms and provisions of Section 2.7 hereof.
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If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal shall, until paid or duly
provided for, bear interest from the date fixed for redemption at the rate of
interest borne by the Security.
Upon presentation of any Security redeemed in part only, the Issuer
shall execute and the Trustee shall authenticate and deliver to or on the order
of the Holder thereof, at the expense of the Issuer, a new Security or
Securities of such series, of authorized denominations, in principal amount
equal to the unredeemed portion of the Security so presented.
SECTION 11.4 Exclusion of Certain Securities from Eligibility for
Selection for Redemption. Securities shall be excluded from eligibility for
selection for redemption if they are identified by registration and certificate
number in a written statement signed by an authorized officer of the Issuer and
delivered to the Trustee at least 40 days (or shorter period satisfactory to the
Trustee) prior to the last date on which notice of redemption may be given as
being owned of record and beneficially by, and not pledged or hypothecated by
either (a) the Issuer or (b) an entity specifically identified in such written
statement directly or indirectly controlling or controlled by or under direct or
indirect common control with the Issuer.
SECTION 11.5 Mandatory and Optional Sinking Funds. The minimum amount
of any sinking fund payment provided for by the terms of Securities of any
series is herein referred to as a "mandatory sinking fund payment", and any
payment in excess of such minimum amount provided for by the terms of Securities
of any series is herein referred to as an "optional sinking fund payment." The
date on which a sinking fund payment is to be made is herein referred to as the
"sinking fund payment date."
In lieu of making all or any part of any mandatory sinking fund payment
with respect to any series of Securities in cash, the Issuer may at its option
(a) deliver to the Trustee Securities of such series theretofore purchased or
otherwise acquired (except upon redemption pursuant to the mandatory sinking
fund) by the Issuer or receive credit for Securities of such series (not
previously so credited) theretofore purchased or otherwise acquired (except as
aforesaid) by the Issuer and delivered to the Trustee for cancellation pursuant
to Section 2.10, (b) receive credit for optional or mandatory sinking fund
payments (not previously so credited) made pursuant to this Section, or (c)
receive credit for Securities of such series (not previously so credited)
redeemed by the Issuer through any optional redemption provision contained in
the terms of such series. Securities so delivered or credited shall be received
or credited by the Trustee at the sinking fund redemption price specified in
such Securities.
On or before the sixtieth day (or shorter period satisfactory to the
Trustee) next preceding each sinking fund payment date for any series, the
Issuer will deliver to the Trustee a written statement (which need not contain
the statements required by Section 13.5) signed by an authorized officer of the
Issuer (a) specifying the portion of the mandatory sinking fund payment to be
satisfied by payment of cash and the portion to be satisfied by credit of
Securities of such series, (b) stating that none of the Securities of such
series has theretofore been so credited, (c) stating that no defaults in the
payment of interest or Events of Default with respect to such series have
occurred (which have not been waived or cured) and are continuing and (d)
stating whether or not the Issuer intends to exercise its right to make an
optional sinking fund payment with respect to such series and, if so, specifying
the amount of such optional sinking fund payment which the Issuer intends to pay
on or before the next succeeding sinking fund payment date. Any Securities of
such series to be credited and required to be delivered to the Trustee in order
for the Issuer to be entitled to credit therefor as aforesaid which have not
theretofore been delivered to the Trustee shall be delivered for cancellation
pursuant to Section 2.10 to the Trustee with such written statement (or
reasonably promptly thereafter if acceptable to the Trustee). Such written
statement shall be irrevocable and upon its receipt by
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the Trustee the Issuer shall become unconditionally obligated to make all the
cash payments or payments therein referred to, if any, on or before the next
succeeding sinking fund payment date. Failure of the Issuer, on or before any
such sixtieth day, to deliver such written statement and Securities specified in
this paragraph, if any, shall not constitute a default but shall constitute, on
and as of such date, the irrevocable election of the Issuer (i) that the
mandatory sinking fund payment for such series due on the next succeeding
sinking fund payment date shall be paid entirely in cash without the option to
deliver or credit Securities of such series in respect thereof and (ii) that the
Issuer will make no optional sinking fund payment with respect to such series as
provided in this Section.
If the sinking fund payment or payments (mandatory or optional or both)
to be made in cash on the next succeeding sinking fund payment date plus any
unused balance of any preceding sinking fund payments made in cash shall exceed
$50,000 (or a lesser sum if the Issuer shall so request) with respect to the
Securities of any particular series, such cash shall be applied on the next
succeeding sinking fund payment date to the redemption of Securities of such
series at the sinking fund redemption price together with accrued interest to
the date fixed for redemption. If such amount shall be $50,000 or less and the
Issuer makes no such request then it shall be carried over until a sum in excess
of $50,000 is available. The Trustee shall select, in the manner provided in
Section 11.2, for redemption on such sinking fund payment date a sufficient
principal amount of Securities of such series to absorb said cash, as nearly as
may be, and shall (if requested in writing by the Issuer) inform the Issuer of
the serial numbers of the Securities of such series (or portions thereof) so
selected. Securities of any series which are (a) owned by the Issuer or an
entity known by the Trustee to be directly or indirectly controlling or
controlled by or under direct or indirect common control with the Issuer, as
shown by the Security register, and not known to the Trustee to have been
pledged or hypothecated by the Issuer or any such entity or (b) identified in an
Officers' Certificate delivered to the Trustee at least 60 days prior to the
sinking fund payment date as being beneficially owned by, and not pledged or
hypothecated by, the Issuer or an entity directly or indirectly controlling or
controlled by or under direct or indirect common control with the Issuer shall
be excluded from Securities of such series eligible for selection for
redemption. The Trustee, in the name and at the expense of the Issuer (or the
Issuer, if it shall so request the Trustee in writing) shall cause notice of
redemption of the Securities of such series to be given in substantially the
manner provided in Section 11.2 (and with the effect provided in Section 11.3)
for the redemption of Securities of such series in part at the option of the
Issuer. The amount of any sinking fund payments not so applied or allocated to
the redemption of Securities of such series shall be added to the next cash
sinking fund payment for such series and, together with such payment, shall be
applied in accordance with the provisions of this Section. Any and all sinking
fund moneys held on the stated maturity date of the Securities of any particular
series (or earlier, if such maturity is accelerated), which are not held for the
payment or redemption of particular Securities of such series shall be applied,
together with other moneys, if necessary, sufficient for the purpose, to the
payment of the principal of, and interest on, the Securities of such series at
maturity.
At least one Business Day before each sinking fund payment date, the
Issuer shall pay to the Trustee in cash or shall otherwise provide for the
payment of all interest accrued to the date fixed for redemption on Securities
to be redeemed on such sinking fund payment date.
The Trustee shall not redeem or cause to be redeemed any Securities of
a series with sinking fund moneys or mail any notice of redemption of Securities
for such series by operation of the sinking fund during the continuance of a
default in payment of interest on such Securities or of any Event of Default
except that, where the mailing of notice of redemption of any Securities shall
theretofore have been made, the Trustee shall redeem or cause to be redeemed
such Securities, provided that it shall have received from the Issuer a sum
sufficient for such redemption. Except as aforesaid, any moneys in the sinking
fund for such series at
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the time when any such default or Event of Default shall occur, and any moneys
thereafter paid into the sinking fund, shall, during the continuance of such
default or Event of Default, be deemed to have been collected under Article Five
and held for the payment of all such Securities. In case such Event of Default
shall have been waived as provided in Section 5.10 or the default cured on or
before the sixtieth day preceding the sinking fund payment date in any year,
such moneys shall thereafter be applied on the next succeeding sinking fund
payment date in accordance with this Section to the redemption of such
Securities.
ARTICLE TWELVE
DEFEASANCE
SECTION 12.1 Applicability of Article: Issuer's Option to Effect
Defeasance. Except to the extent otherwise provided pursuant to Section 2.3 in
respect of either or both of (a) defeasance of the Securities of a series under
Section 12.2 or (b) covenant defeasance of the Securities of a series under
Section 12.3, then the provisions of such Section or Sections, as the case may
be, together with the other provisions of this Article Twelve, shall be
applicable to the Securities of such series, and the Issuer may at its option by
resolution of the Board of Directors, at any time, with respect to the
Securities of such series, elect to have either Section 12.2 (if applicable) or
Section 12.3 (if applicable) be applied to the Outstanding Securities of such
series upon compliance with the conditions set forth below in this Article
Twelve.
SECTION 12.2 Defeasance and Discharge. Upon the Issuer's exercise of
the above option applicable to this Section, the Issuer shall be deemed to have
been discharged from its obligations with respect to the Outstanding Securities
of such series on the date the conditions set forth below are satisfied
(hereinafter, "defeasance"). For this purpose, such defeasance means that the
Issuer shall be deemed to have paid and discharged the entire indebtedness
represented by the Outstanding Securities of such series and to have satisfied
all its other obligations under such Securities and this Indenture insofar as
such Securities are concerned (and the Trustee, at the expense of the Issuer,
shall execute proper instruments acknowledging the same), except for the
following which shall survive until otherwise terminated or discharged
hereunder: (A) the rights of Holders of Outstanding Securities of such series to
receive solely from the trust fund described in Section 12.4 and as more fully
set forth in such Section, payments in respect of the principal of and interest
on such Securities when such payments are due, (B) the Issuer's obligations with
respect to such Securities under Sections 2.8, 2.9, 2.11, 3.2 and 3.4, (C) the
rights, powers, trusts, duties, and immunities of the Trustee hereunder and (D)
this Article Twelve. Subject to compliance with this Article Twelve, the Issuer
may exercise its option under this Section 12.2 notwithstanding the prior
exercise of its options under Section 12.3 with respect to Securities of such
series.
SECTION 12.3 Covenant Defeasance. Upon the Issuer's exercise of the
above option applicable to this Section, the Issuer shall be released from its
obligations under Sections 3.6 and 3.7 (and under other covenants which may be
specified in respect of such Securities pursuant to Section 2.3(16)) with
respect to the Outstanding Securities of such series on and after the date the
conditions set forth below are satisfied (hereinafter, "covenant defeasance").
For this purpose, such covenant defeasance means that, with respect to the
Outstanding Securities of such series, the Issuer may omit to comply with and
shall have no liability in respect of any term, condition or limitation set
forth in any such Section, whether directly or indirectly by reason of any
reference elsewhere herein to any such Section or by reason of any reference in
any such Section to any other provision herein or in any other document, but the
remainder of this Indenture and such Securities shall be unaffected thereby.
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SECTION 12.4 Conditions to Defeasance. The following shall be the
conditions to application of either Section 12.2 or Section 12.3 to the
Outstanding Securities of such series:
(a) the Issuer shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee satisfying the requirements of
Section 6.9 who shall agree to comply with the provisions of this Article Twelve
applicable to it) as trust funds in trust for the purpose of making the
following payments, specifically pledged as security for, and dedicated solely
to, the benefit of the Holders of such Securities, (i) money in an amount, or
(ii) U.S. Government Obligations which through the scheduled payment of
principal and interest in respect thereof in accordance with their terms will
provide, not later than one day before the due date of any payment referred to
in this subparagraph (a) money in an amount, or (iii) a combination thereof,
sufficient, in the opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to the
Trustee, to pay and discharge, and which shall be applied by the Trustee (or
other qualifying trustee) to pay and discharge, (A) the principal of and each
installment of principal of and interest on the Outstanding Securities of such
series on the date that such principal or installment of principal or interest
is due and payable and (B) any mandatory sinking fund payments or analogous
payments applicable to the Outstanding Securities of such series on the day on
which such payments are due and payable in accordance with the terms of this
Indenture and of such Securities.
(b) No Event of Default or event with which notice or lapse of time or
both would become an Event of Default with respect to the Securities of such
series shall have occurred and be continuing on the date of such deposit or, at
any time during the period ending on the 91st day after the date of such deposit
or, if longer, ending on the day following the expiration of the longest
preference period applicable to the Issuer under any applicable bankruptcy,
insolvency or similar law in respect of such deposit (it being understood that
this condition shall not be deemed satisfied until the expiration of such
period).
(c) Such defeasance or covenant defeasance shall not cause the Trustee
for the Securities of such series to have a conflicting interest as defined in
Section 6.8 and for purposes of the Trust Indenture Act with respect to any
securities of the Issuer.
(d) Such defeasance or covenant defeasance shall not result in a breach
or violation of, or constitute a default under, this Indenture or any other
agreement or instrument to which the Issuer is a party or by which it is bound.
(e) Such defeasance or covenant defeasance shall not cause any
Securities of such series then listed on any registered national securities
exchange under the Exchange Act to be delisted.
(f) In the case of an election under Section 12.2, the Issuer shall
have delivered to the Trustee an Opinion of Counsel stating that (x) the Issuer
has received from, or there has been published by, the Internal Revenue Service
a ruling, or (y) since the date of this Indenture there has been a change in the
applicable Federal income tax law, in either case to the effect that, and based
thereon such opinion shall confirm that, the Holders of the Outstanding
Securities of such series will not recognize income, gain or loss for Federal
income tax purposes as a result of such defeasance and will be subject to
Federal income tax on the same amounts, in the same manner and at the same time
as would have been the case if such defeasance had not occurred.
(g) In the case of an election under Section 12.3, the Issuer shall
have delivered to the Trustee an Opinion of Counsel to the effect that the
Holders of the Outstanding Securities of such series will not recognize income,
gain or loss for Federal income tax purposes as a result of such covenant
defeasance and
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will be subject to Federal income tax on the same amounts, in the same manner
and at the same times as would have been the case if such covenant defeasance
had not occurred.
(h) Such defeasance or covenant defeasance shall be effected in
compliance with any additional terms, conditions or limitations which may be
imposed on the Issuer in connection therewith pursuant to Section 2.3.
(i) The Issuer shall have delivered to the Trustee an Officers
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for relating to either the defeasance under Section 12.2 or
the covenant defeasance under Section 12.3 (as the case may be) have been
complied with.
(j) Such defeasance or covenant defeasance shall not result in the
trust arising from such deposit constituting an investment company within the
meaning of the Investment Company Act of 1940, as amended, unless such trust
shall be registered under such Act or exempt from registration thereunder.
ARTICLE THIRTEEN
MISCELLANEOUS PROVISIONS
SECTION 13.1 Incorporators, Stockholders, Officers and Directors of
Issuer. Exempt from Individual Liability. No recourse under or upon any
obligation, covenant or agreement contained in this Indenture, or in any
Security, or because of any indebtedness evidenced thereby, shall be had against
any incorporator, as such, or against any past, present or future stockholder,
officer or director, as such, of the Issuer or of any successor, either directly
or through the Issuer or any successor, under any rule of law, statute or
constitutional provision or by the enforcement of any assessment or by any legal
or equitable proceeding or otherwise, all such liability being expressly waived
and released by the acceptance of the Securities by the holders thereof and as
part of the consideration for the issue of the Securities.
SECTION 13.2 Provisions of Indenture for the Sole Benefit of Parties
and Securityholders. Nothing in this Indenture or in the Securities, expressed
or implied, shall give or be construed to give to any person, firm or
corporation, other than the parties hereto, any Paying Agent, and their
successors and the Holders of the Securities, any legal or equitable right,
remedy or claim under this Indenture or under any covenant or provision herein
contained, all such covenants and provisions being for the sole benefit of the
parties hereto and their successors and of the Holders of the Securities.
SECTION 13.3 Successors and Assigns of Issuer Bound by Indenture. All
the covenants, stipulations, promises and agreements in this Indenture contained
by or in behalf of the Issuer shall bind its successors and assigns, whether so
expressed or not.
SECTION 13.4 Notices and Demands on Issuer, Trustee and
Securityholders. Any notice or demand which any provision of this Indenture is
required or permitted to be given or served by the Trustee or by the Holders of
Securities to or on the Issuer may be given or served by being deposited postage
prepaid, first class mail (except as otherwise specifically provided herein)
addressed (until another address of the Issuer is filed by the Issuer with the
Trustee) to Universal Health Services, Inc., Universal Corporate Center, 367
South Gulph Road, King of Prussia, Pennsylvania 19406, Attention: Secretary. Any
notice, direction, request or demand by the Issuer or any Securityholder to or
upon the Trustee shall be deemed to have been sufficiently given or made, for
all purposes, if given or made at the Corporate Trust Office, when received by
the Trustee.
Where this Indenture provides for notice to Holders, such notice shall
be sufficiently given (unless otherwise herein expressly provided) if in writing
and mailed, first class postage prepaid, to each Holder entitled thereto, at his
last address as it appears in the Security register. In any case where notice to
Holders
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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. 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 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 or irregularities in regular
mail service, it shall be impracticable to mail notice to the Issuer and
Securityholders when such notice is required to be given pursuant to any
provision of this Indenture, then any manner of giving such notice as shall be
satisfactory to the Trustee shall be deemed to be a sufficient giving of such
notice.
SECTION 13.5 Officers' Certificates and Opinions of Counsel; Statements
to Be Contained Therein. Upon any application or demand by the Issuer to the
Trustee to take any action under any of the provisions of this Indenture, the
Issuer shall furnish to the Trustee an Officers' Certificate stating that all
conditions precedent provided for in this Indenture relating to the proposed
action have been complied with and an Opinion of Counsel stating that in the
opinion of such counsel all such conditions precedent have been complied with,
except that in the case of any such application or demand as to which the
furnishing of such documents is specifically required by any provision of this
Indenture relating to such particular application or demand, no additional
certificate or opinion need be furnished.
Each certificate or opinion provided for in this Indenture and
delivered to the Trustee with respect to compliance with a condition or covenant
provided for in this Indenture shall include (a) a statement that the person
making such certificate or opinion has read such covenant or condition, (b) 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, (c) a statement that, in the opinion of such person, he has made such
examination or investigation as is necessary to enable him 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 or not, in the opinion of such
person, such condition or covenant has been complied with.
Any certificate, statement or opinion of an officer of the Issuer may
be based, insofar as it relates to legal matters, upon a certificate or opinion
of or representations by counsel, unless such officer knows that the certificate
or opinion or representations with respect to the matters upon which his
certificate, statement or opinion may be based as aforesaid are erroneous, or in
the exercise of reasonable care should know that the same are erroneous. Any
certificate, statement or opinion of counsel may be based, insofar as it relates
to factual matters, information with respect to which is in the possession of
the Issuer, upon the certificate, statement or opinion of or representations by
an officer of officers of the Issuer, unless such counsel knows that the
certificate, statement or opinion or representations with respect to the matters
upon which his certificate, statement or opinion may be based as aforesaid are
erroneous, or in the exercise of reasonable care should know that the same are
erroneous.
Any certificate, statement or opinion of an officer of the Issuer or of
counsel may be based, insofar as it relates to accounting matters, upon a
certificate or opinion of or representations by an accountant or firm of
accountants in the employ of the Issuer, unless such officer or counsel, as the
case may be, knows that the certificate or opinion or representations with
respect to the accounting matters upon which his certificate, statement or
opinion may be based as aforesaid are erroneous, or in the exercise of
reasonable care should know that the same are erroneous.
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<PAGE> 49
Any certificate or opinion of any independent firm of public
accountants filed with the Trustee shall contain a statement that such firm is
independent.
SECTION 13.6 Payments Due on Saturdays, Sundays and Holidays. If the
date of maturity of interest on or principal of the Securities of any series or
the date fixed for redemption or repayment of any such Security shall not be a
Business Day, then payment of interest or principal need not be made on such
date, but may be made on the next succeeding Business Day, with the same force
and effect as if made on the date of maturity or the date fixed for redemption,
and no interest shall accrue for the period after such date.
SECTION 13.7 Conflict of Any Provision of Indenture 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 without such limitation, qualification or
conflict, 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 excluded, as the case may be.
SECTION 13.8 New York Law to Govern. This Indenture and each Security
shall be deemed to be a contract under the laws of the State of New York, and
for all purposes shall be construed in accordance with the laws of such State,
except as may otherwise be required by mandatory provisions of law.
SECTION 13.9 Counterparts. This Indenture may be executed in any number
of counterparts, each of which shall be an original; but such counterparts shall
together constitute but one and the same instrument.
SECTION 13.10 Effect of Headings. The Article and Section headings
herein and the Table of Contents are for convenience only and shall not affect
the construction hereof.
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<PAGE> 50
IN WITNESS WHEREOF, the parties hereto have caused this Indenture, to
be duly executed, and their respective corporate seals to be hereunto affixed
and attested, all as of the date first above written.
UNIVERSAL HEALTH SERVICES, INC.
By: _______________________________
[CORPORATE SEAL] Name:
Title:
Attest:
By: _______________________________
Name:
Title: Secretary
BANK ONE TRUST COMPANY, N.A.
as Trustee
By: _______________________________
Name:
Title:
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<PAGE> 1
EXHIBIT 4.2
[FORM OF FACE OF [SECURITY]]
[GLOBAL SECURITY]
Unless and until this Security is exchanged in whole or in part for
Securities in definitive form, this Security may not be transferred except as a
whole by The Depository Trust Company, a New York corporation ("DTC" or the
"Depositary"), to a nominee of DTC or by a nominee of DTC to DTC or another
nominee of DTC or by DTC or any nominee to a successor Depositary or a nominee
of any successor Depositary. Unless this certificate is presented by an
authorized representative of DTC to the Issuer or its agent for registration of
transfer, exchange or payment, and any certificate issued is registered in the
name of Cede & Co. or in 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.]
UNIVERSAL HEALTH SERVICES, INC. [title of Security]
Principal Amount $_____________ CUSIP No._______________
UNIVERSAL HEALTH SERVICES, INC., a Delaware corporation (the
"Issuer"), for value received, hereby promises to pay to [Cede & Co.] or
registered assigns, at the agency of the Issuer in the City of New York, New
York, the principal sum of _______________________ DOLLARS on _______________,
in immediately available funds in such coin or currency of the United States of
America as at the time of payment shall be legal tender for the payment of
public and private debts, and to pay interest, semiannually on _______________
and ________________ of each year (each, an "Interest Payment Date"),
commencing, on said principal sum at said office or agency, in like coin or
currency, at the rate per annum specified in the title of this [Security], from
the most recent Interest Payment Date to which interest has been paid or, if no
interest has been paid, from ______________, until payment of said principal sum
has been made or duly provided for; provided, that payment of interest may be
made at the option of the Issuer by check mailed to the address of the person
entitled thereto as such address shall appear on the [Security] register. The
amount of interest payable on any interest Payment Date shall be computed on the
basis of a 360-day year of twelve 30-day months. Each payment of interest in
respect of an Interest Payment Date shall include interest accrued through the
day prior to such Interest Payment Date. The interest so payable on any Interest
Payment Date will, subject to certain exceptions provided in the Indenture
referred to on the reverse hereof, be paid to the person in whose name this
[Security] is registered at the close of business on the _____________ or
_____________, as the case may be, which shall be a Business Day next preceding
such Interest Payment Date.
Reference is made to the further provisions of this [Security] set
forth on the reverse hereof. Such further provisions shall for all purposes have
the same effect as though fully set forth at this place.
This [Security] shall not be valid or become obligatory for any purpose
until the certificate of authentication hereon shall have been signed by the
Trustee under the Indenture referred to on the reverse hereof.
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<PAGE> 2
IN WITNESS WHEREOF, Universal Health Services, Inc. has caused this
instrument to be signed by facsimile by its duly authorized officers and has
caused a facsimile of its corporate seal to be affixed hereunto or imprinted
hereon.
UNIVERSAL HEALTH SERVICES, INC.
[SEAL]
By:_______________________________________
By:_______________________________________
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<PAGE> 3
[FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
This is one of the Securities described in the within-mentioned Indenture.
Dated:___________________ BANK ONE TRUST COMPANY, N.A.
as Trustee
By:________________________________
Authorized Signatory
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<PAGE> 4
[FORM OF REVERSE OF SECURITY]
UNIVERSAL HEALTH SERVICES, INC. [Title of Security]
This [Security] is one of a duly authorized issue of unsecured debentures, notes
or other evidence of indebtedness of the Issuer (hereinafter called the
"Securities") of the series hereinafter specified, all issued or to be issued
under and pursuant to an indenture dated as of ______________ , 2000 (herein
called the "Indenture"), duly executed and delivered by the Issuer to Bank One
Trust Company, N.A., as Trustee (herein called the "Trustee"), to which
Indenture and all indentures supplemental thereto reference is hereby made for a
description of the rights, limitations of rights, obligations, duties and
immunities thereunder of the Trustee, the Issuer and the holders of the
Securities. The Securities may be issued in one or more series, which different
series may be issued in various aggregate principal amounts, may mature at
different times, may bear interest (if any) at different rates, may be subject
to different redemption provisions (if any), may be subject to different
sinking, purchase or analogous funds (if any) and may otherwise vary as in the
Indenture provided. This [Security] is one of a series designated as the %
[Securities] due of the Issuer, limited in aggregate principal amount to $
(herein called the "[Securities]").
[The [Securities] will not be redeemable prior to .][The
[Securities] may be redeemed at the option of the Issuer as a whole, or from
time to time in part, in the amount of $ or any multiple thereof, on any date
after and prior to maturity, upon mailing a notice of such redemption not less
than 30 nor more than 60 days prior to the date fixed for redemption to the
Holders of [Securities] at their last registered addresses, all as further
provided in the Indenture, at the following redemption prices (expressed in
percentages of the principal amount) together in each case with accrued interest
to the date fixed for redemption:
If redeemed on or before , %, and if redeemed during the
twelve-month period beginning ,
<TABLE>
<CAPTION>
Year Percentage Year Percentage
---- ---------- ---- ----------
<S> <C> <C> <C>
</TABLE>
and thereafter at 100% of their principal amount.]
In case an Event of Default with respect to the [Securities] shall have
occurred and be continuing, the principal hereof may be declared, and upon such
declaration shall become, due and payable, in the manner, with the effect and
subject to the conditions provided in the Indenture.
The Indenture contains provisions permitting the Issuer and the
Trustee, with the consent of the Holders of not less than a majority in
aggregate principal amount of the Securities at the time Outstanding (as defined
in the Indenture) of all series to be affected (voting as one class), evidenced
as in the Indenture provided, to execute supplemental indentures adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Indenture or of any supplemental indenture or modifying in any manner the
rights of the Holders of the Securities of each such series; provided, however,
that no such
-4-
<PAGE> 5
supplemental indenture shall (i) change the final maturity of any Security, or
reduce the principal amount thereof or any premium thereon, or reduce the rate
or extend the time of payment of any interest thereon, or reduce any amount
payable on redemption thereof or reduce the amount of the principal of an
Original Issue Discount Security (as defined in the Indenture) payable upon
acceleration thereof or the amount thereof provable in bankruptcy, or impair or
affect the rights of any Holder to institute suit for the payment thereof, or,
if the Securities provide therefor, any right of repayment at the option of the
Holder, without the consent of the Holder of each Security so affected, or (ii)
reduce the aforesaid percentage of Securities, the Holders of which are required
to consent to any such supplemental indenture, without the consent of the Holder
of each Security affected. It is also provided in the Indenture that, with
respect to certain defaults or Events of Default regarding the Securities of any
series, prior to any declaration accelerating the maturity of such Securities,
the Holders of a majority in aggregate principal amount Outstanding of the
Securities of such series (or, in the case of certain defaults or Events of
Default, all or certain series of the Securities) may on behalf of the Holders
of all the Securities of such series (or all or certain series of the
Securities, as the case may be) waive any such past default or Event of Default
and its consequences. The preceding sentence shall not, however, apply to a
default in the payment of the principal of or premium, if any, or interest on
any of the Securities. Any such consent or waiver by the Holder of this
[Security] (unless revoked as provided in the Indenture) shall be conclusive and
binding upon such Holder and upon all future Holders and owners of this
[Security] and any [Securities] which may be issued in exchange or substitution
herefor, irrespective of whether or not any notation thereof is made upon this
[Security] or such other [Securities].
No reference herein to the Indenture and no provision of this
[Security] or of the Indenture shall alter or impair the obligation of the
Issuer, which is absolute and unconditional, to pay the principal of and any
premium and interest on this [Security] in the manner, at the respective times,
at the rate and in the coin or currency herein prescribed.
The [Securities] are issuable only in registered form, without coupons,
in denominations of $1,000 and any integral multiple thereof, and in book-entry
form. The [Securities] may be represented by one or more Global Securities
(each, a "Global [Security]") deposited with the Depositary and registered in
the name of the nominee of the Depositary, with certain limited exceptions. So
long as the Depositary or any successor Depositary or its nominee is the
registered Holder of a Global [Security], such successor Depositary or such
nominee, as the case may be, will be considered the sole owner or Holder of the
[Securities] represented by such Global [Security] for all purposes under the
Indenture and the [Securities]. Beneficial interest in the [Securities] will be
evidenced only by, and transfer thereof will be effected only through, records
maintained by DTC and its participants. Except as provided below, an owner of a
beneficial interest in a Global [Security] will not be entitled to have
[Securities] represented by such Global [Security] registered in such owner's
name, will not receive or be entitled to receive physical delivery of the
[Securities] in certificated form and will not be considered the owner or Holder
thereof under the Indenture.
No Global [Security] may be transferred except as a whole by such
Depositary to a nominee of such Depositary or by a nominee of such Depositary to
such Depositary or another nominee of such Depositary or by such Depositary or
any such nominee to a successor Depositary for such series or a nominee of such
successor Depositary. Global [Securities] are exchangeable for certificated
[Securities] only if (x) the Depositary notifies the Issuer that it is unwilling
or unable to continue as Depositary for such Global [Securities] or if at any
time the Depositary ceases to be a clearing agency registered under the Exchange
Act and the Issuer fails within 90 days thereafter to appoint a successor
Depositary, (y) the Issuer in its sole discretion determines that such Global
[Securities] shall be so exchangeable or (z) there shall have occurred and be
continuing an Event of Default or an event which with the giving of notice or
lapse of time or both would constitute an Event of Default with respect to the
[Securities] represented by such Global [Securities]. In such event, the Issuer
will issue [Securities] in certificated form in exchange for such Global
[Securities]. In any such instance, an owner of a beneficial interest in the
Global [Securities] will be entitled to physical delivery in certificated form
of [Securities] equal in principal amount to such beneficial interest and to
have such [Securities] registered in its name. [Securities] so issued in
certificated form will be issued in denominations of $1,000 or any integral
multiple thereof, and will be issued in registered form only, without coupons.
-5-
<PAGE> 6
The Issuer, the Trustee and any authorized agent of the Issuer or the
Trustee may deem and treat the registered Holder hereof as the absolute owner of
this [Security] (whether or not this [Security] shall be overdue and
notwithstanding any notation of ownership or other writing hereon), for the
purpose of receiving payment of, or on account of, the principal hereof and
premium, if any, and subject to the provisions on the face hereof, interest
hereon, and for all other purposes, and neither the Issuer nor the Trustee nor
any authorized agent of the Issuer or the Trustee shall be affected by any
notice to the contrary.
No recourse under or upon any obligation, covenant or agreement of the
Issuer in the Indenture or any indenture supplemental thereto or in any
[Security], or because of the creation of any indebtedness represented thereby,
shall be had against incorporator, stockholder, officer or director, as such, of
the Issuer or of any successor corporation, either directly or through the
Issuer or any successor corporation, under any rule of law, statute or
constitutional provision or by the enforcement of any assessment or by any legal
or equitable proceeding or otherwise, all such liability being expressly waived
and released by the acceptance hereof and as part of the consideration for the
issue hereof.
The acceptance of this [Security] shall be deemed to constitute the
consent and agreement of the Holder hereof to all of the terms and provisions of
the Indenture. Terms used herein which are defined in the Indenture shall have
the respective meanings assigned thereto in the Indentures.
THE INDENTURE AND THE [SECURITIES] SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO
CONFLICTS OF LAW PRINCIPLES THEREOF.
-6-
<PAGE> 1
EXHIBIT 12
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
FOR THE YEARS ENDED 1994 THROUGH 1998 AND NINE MONTHS ENDED SEPTEMBER 30, 1999
(Dollar amounts in thousands)
<TABLE>
<CAPTION>
NINE
MONTHS
ENDED
YEARS ENDED DECEMBER 31, SEPTEMBER 30,
---------------------------------------------------- ------------
1994 1995 1996 1997 1998 1999
---------------------------------------------------- ------------
<S> <C> <C> <C> <C> <C> <C>
Earnings:
Income before minority
interests and income taxes $ 46,332 $ 52,402 $ 78,857 $106,174 $132,095 $107,427
Fixed charges 18,246 23,805 34,974 34,961 45,357 33,715
Amortization of capitalized
interest -- -- -- 28 110 83
---------------------------------------------------- --------
$ 64,578 $ 76,207 $113,831 $141,163 $177,562 $141,225
==================================================== ========
Fixed charges:
Interest expense, including
capitalized interest $ 6,541 $ 12,062 $ 22,231 $ 21,782 $ 29,717 $ 21,452
Interest portion of lease/rental
expense 11,012 11,171 11,658 11,927 14,592 11,541
Amortization of debt issuance
costs 693 572 1,085 1,252 1,048 722
---------------------------------------------------- --------
$ 18,246 $ 23,805 $ 34,974 $ 34,961 $ 45,357 $ 33,715
==================================================== ========
Ratio of earnings to fixed charges 3.5 3.2 3.3 4.0 3.9 4.2
</TABLE>
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this Registration Statement of our report dated February 11, 1999
included in Universal Health Services, Inc.'s Form 10-K for the year ended
December 31, 1998 and to all references to our Firm included in this
Registration Statement.
Philadelphia, Pennsylvania /s/ Arthur Andersen LLP
January 31, 2000
<PAGE> 1
EXHIBIT 25
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305(b)(2)
----------------------------
BANK ONE TRUST COMPANY, NATIONAL ASSOCIATION
(EXACT NAME OF TRUSTEE AS SPECIFIED IN ITS CHARTER)
A NATIONAL BANKING ASSOCIATION 31-0838515
(I.R.S. EMPLOYER
IDENTIFICATION NUMBER)
100 EAST BROAD STREET, COLUMBUS, OHIO 43271-0181
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
BANK ONE TRUST COMPANY, N.A.
100 EAST BROAD STREET
COLUMBUS, OHIO 43271-0181
ATTN: LINDA J. PATTERSON, SENIOR MANAGING DIRECTOR, (614) 248-5193
(NAME, ADDRESS AND TELEPHONE NUMBER OF AGENT FOR SERVICE)
-----------------------------
UNIVERSAL HEALTH SERVICES, INC.
(EXACT NAME OF OBLIGOR AS SPECIFIED IN ITS CHARTER)
DELAWARE 23-2077891
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
367 SOUTH GULPH ROAD 19406
KING OF PRUSSIA, PENNSYLVANIA (ZIP CODE)
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES)
DEBT SECURITIES
(TITLE OF INDENTURE SECURITIES)
<PAGE> 2
ITEM 1. GENERAL INFORMATION. FURNISH THE FOLLOWING INFORMATION AS TO
THE TRUSTEE:
(a) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING
AUTHORITY TO WHICH IT IS SUBJECT.
Comptroller of Currency, Washington, D.C.; Federal Deposit
Insurance Corporation, Washington, D.C.; The Board of
Governors of the Federal Reserve System, Washington D.C.
(b) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST
POWERS.
The trustee is authorized to exercise corporate trust powers.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR. IF THE OBLIGOR IS AN AFFILIATE
OF THE TRUSTEE, DESCRIBE EACH SUCH AFFILIATION.
No such affiliation exists with the trustee.
ITEM 16. LIST OF EXHIBITS. LIST BELOW ALL EXHIBITS FILED AS A PART
OF THIS STATEMENT OF ELIGIBILITY.
1. A copy of the articles of association of the trustee now
in effect.
2. A copy of the certificate of authority of the trustee to
commence business.
3. A copy of the authorization of the trustee to exercise
corporate trust powers.
4. A copy of the existing by-laws of the trustee.
5. Not Applicable.
6. The consent of the trustee required by Section 321(b) of
the Act.
7. A copy of the latest report of condition of the trustee
published pursuant to law or the requirements of its
supervising or examining authority.
8. Not Applicable.
<PAGE> 3
9. Not Applicable.
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, Bank One Trust Company, National Association, a
national banking association organized and existing under the laws of
the United States of America, has duly caused this Statement of
Eligibility to be signed on its behalf by the undersigned, thereunto
duly authorized, all in the City of Chicago and State of Illinois, on
the 20th day of January, 2000.
BANK ONE TRUST COMPANY, NATIONAL ASSOCIATION,
TRUSTEE
BY /S/ SANDRA L. CARUBA
--------------------
SANDRA L. CARUBA
VICE PRESIDENT
<PAGE> 4
EXHIBIT 1
A COPY OF THE ARTICLES OF ASSOCIATION OF THE
TRUSTEE NOW IN EFFECT
AMENDED AND RESTATED
ARTICLES OF ASSOCIATION
OF
BANK ONE TRUST COMPANY, NATIONAL ASSOCIATION
FIRST. The title of this Association shall be BANK ONE TRUST COMPANY, NATIONAL
ASSOCIATION.
SECOND. The main office of the Association shall be in the City of Columbus,
County of Franklin, State of Ohio.
The business of the Association will be limited to the fiduciary powers and the
support of activities incidental to the exercise of those powers. The
Association will not expand or alter its business beyond that stated in this
article without the prior approval of the Comptroller of the Currency.
THIRD. The Board of Directors of this Association shall consist of not less than
five nor more than twenty-five persons, the exact number to be fixed and
determined from time to time by resolution of a majority of the full Board of
Directors or by resolution of a majority of the shareholders at any annual or
special meeting thereof. Each director shall own common or preferred stock of
the Association, or of a holding company owning the Association, with an
aggregate par, fair market or equity value of not less than $1,000, as of either
(i) the date of purchase, (ii) the date the person became a director, or (iii)
the date of that person's most recent election to the Board of Directors,
whichever is more recent. Any combination of common or preferred stock of the
Association or holding company may be used.
Any vacancy in the Board of Directors may be filled by action of a majority of
the remaining directors between meetings of shareholders. The Board of Directors
may not increase the number of directors between meetings of shareholders to a
number which: (1) exceeds by more than two the number of directors last elected
by shareholders where the number was 15 or less; or (2) exceeds by more than
four the number of directors last elected by shareholders where the number was
16 or more, but in no event shall the number of directors exceed 25.
Terms of directors, including directors selected to fill vacancies, shall expire
at the next regular meeting of shareholders at which directors are elected,
unless the directors resign or are removed from office.
Despite the expiration of a director's term, the director shall continue to
serve until his or her successor is elected and qualifies or until there is a
decrease in the number of directors and his or her position is eliminated.
Honorary or advisory members of the Board of Directors, without voting power or
power of final decision in matters concerning the business of the Association,
may be appointed by resolution of a majority of the full Board of Directors, or
by resolution of shareholders at
<PAGE> 5
any annual or special meeting. Honorary or advisory directors shall not be
counted to determine the number of directors of the Association or the presence
of a quorum in connection with any board action, and shall not be required to
own qualifying shares.
FOURTH. There shall be an annual meeting of the shareholders to elect directors
and transact whatever other business may be brought before the meeting. It shall
be held at the main office or any other convenient place the Board of Directors
may designate, on the day of each year specified therefor in the Bylaws or, if
that day falls on a legal holiday in the state in which the Association is
located, on the next following banking day. If no election is held on the day
fixed or in the event of a legal holiday on the following banking day, an
election may be held on any subsequent day within 60 days of the day fixed, to
be designated by the Board of Directors or, if the directors fail to fix the
day, by shareholders representing two-thirds of the shares issued and
outstanding. In all cases at least 10 days advance notice of the meeting shall
be given to the shareholders by first class mail.
In all elections of directors, the number of votes each common shareholder may
cast will be determined by multiplying the number of shares such shareholder
owns by the number of directors to be elected. Those votes may be cumulated and
cast for a single candidate or may be distributed among two or more candidates
in the manner selected by the shareholder. On all other questions, each common
shareholder shall be entitled to one vote for each share of stock held by such
shareholder. If the issuance of preferred stock with voting rights has been
authorized by a vote of shareholders owning a majority of the common stock of
the association, preferred shareholders will have cumulative voting rights and
will be included within the same class as common shareholders, for purposes of
elections of directors.
A director may resign at any time by delivering written notice to the Board of
Directors, its chairperson, or to the Association, which resignation shall be
effective when the notice is delivered unless the notice specifies a later
effective date.
A director may be removed by shareholders at a meeting called to remove him or
her, when notice of the meeting stating that the purpose or one of the purposes
is to remove him or her is provided, if there is a failure to fulfill one of the
affirmative requirements for qualification, or for cause, provided, however,
that a director may not be removed if the number of votes sufficient to elect
him or her under cumulative voting is voted against his or her removal.
FIFTH. The authorized amount of capital stock of this Association shall be
eighty thousand shares of common stock of the par value of ten dollars ($10.00)
each; but said capital stock may be increased or decreased from time to time,
according to the provisions of the laws of the United States.
No holder of shares of the capital stock of any class of the Association shall
have any preemptive or preferential right of subscription to any shares of any
class of stock of the Association, whether now or hereafter authorized, or to
any obligations convertible into stock of the Association, issued or sold, nor
any right of subscription to any thereof other than such, if any, as the Board
of Directors, in its discretion, may from time to time determine and at such
price as the Board of Directors may from time to time fix. Unless otherwise
specified in the Articles of Association or required by law, (1) all matters
requiring shareholder action, including amendments to the Articles of
Association, must be approved by shareholders owning a majority voting interest
in the outstanding voting stock, and (2) each shareholder shall be entitled to
one vote per share.
<PAGE> 6
Unless otherwise specified in the Articles of Association or required by law,
all shares of voting stock shall be voted together as a class on any matters
requiring shareholder approval. If a proposed amendment would affect two or more
classes or series in the same or a substantially similar way, all the classes or
series so affected must vote together as a single voting group on the proposed
amendment.
Shares of the same class or series may be issued as a dividend on a pro rata
basis and without consideration. Shares of another class or series may be issued
as share dividends in respect of a class or series of stock if approved by a
majority of the votes entitled to be cast by the class or series to be issued
unless there are no outstanding shares of the class or series to be issued.
Unless otherwise provided by the Board of Directors, the record date for
determining shareholders entitled to a share dividend shall be the date the
Board of Directors authorizes the share dividend.
Unless otherwise provided in the Bylaws, the record date for determining
shareholders entitled to notice of and to vote at any meeting is the close of
business on the day before the first notice is mailed or otherwise sent to the
shareholders, provided that in no event may a record date be more than 70 days
before the meeting.
If a shareholder is entitled to fractional shares pursuant to preemptive rights,
a stock dividend, consolidation or merger, reverse stock split or otherwise, the
Association may: (a) issue fractional shares or; (b) in lieu of the issuance of
fractional shares, issue script or warrants entitling the holder to receive a
full share upon surrendering enough script or warrants to equal a full share;
(c) if there is an established and active market in the Association's stock,
make reasonable arrangements to provide the shareholder with an opportunity to
realize a fair price through sale of the fraction, or purchase of the additional
fraction required for a full share; (d) remit the cash equivalent of the
fraction to the shareholder; or (e) sell full shares representing all the
fractions at public auction or to the highest bidder after having solicited and
received sealed bids from at least three licensed stock brokers, and distribute
the proceeds pro rata to shareholders who otherwise would be entitled to the
fractional shares. The holder of a fractional share is entitled to exercise the
rights for shareholder, including the right to vote, to receive dividends, and
to participate in the assets of the Association upon liquidation, in proportion
to the fractional interest. The holder of script or warrants is not entitled to
any of these rights unless the script or warrants explicitly provide for such
rights. The script or warrants may be subject to such additional conditions as:
(1) that the script or warrants will become void if not exchanged for full
shares before a specified date; and (2) that the shares for which the script or
warrants are exchangeable may be sold at the option of the Association and the
proceeds paid to scriptholders.
The Association, at any time and from time to time, may authorize and issue debt
obligations, whether or not subordinated, without the approval of the
shareholders. Obligations classified as debt, whether or not subordinated, which
may be issued by the Association without the approval of shareholders, do not
carry voting rights on any issue, including an increase or decrease in the
aggregate number of the securities, or the exchange or reclassification of all
or part of securities into securities of another class or series.
SIXTH. The Board of Directors shall appoint one of its members president of this
Association, and one of its members chairperson of the board and shall have the
power to appoint one or more vice presidents, a secretary who shall keep minutes
of the directors'
<PAGE> 7
and shareholders' meetings and be responsible for authenticating the records of
the Association, and such other officers and employees as may be required to
transact the business of this Association. A duly appointed officer may appoint
one or more officers or assistant officers if authorized by the Board of
Directors in accordance with the Bylaws. The Board of Directors shall have the
power to:
(1) Define the duties of the officers, employees, and agents of the
Association.
(2) Delegate the performance of its duties, but not the responsibility for
its duties, to the officers, employees, and agents of the Association.
(3) Fix the compensation and enter into employment contracts with its
officers and employees upon reasonable terms and conditions consistent
with applicable law.
(4) Dismiss officers and employees.
(5) Require bonds from officers and employees and to fix the penalty
thereof.
(6) Ratify written policies authorized by the Association's management or
committees of the board.
(7) Regulate the manner in which any increase or decrease of the capital of
the Association shall be made, provided that nothing herein shall
restrict the power of shareholders to increase or decrease the capital
of the association in accordance with law, and nothing shall raise or
lower from two-thirds the percentage for shareholder approval to
increase or reduce the capital.
(8) Manage and administer the business and affairs of the Association.
(9) Adopt initial Bylaws, not inconsistent with law or the Articles of
Association, for managing the business and regulating the affairs of
the Association.
(10) Amend or repeal Bylaws, except to the extent that the Articles of
Association reserve this power in whole or in part to shareholders.
(11) Make contracts.
(12) Generally perform all acts that are legal for a Board of Directors to
perform.
SEVENTH. The Board of Directors shall have the power to change the location of
the main office of this Association to any other place within the limits of the
City of Columbus, State of Ohio, without the approval of the shareholders; and
shall have the power to change the location of the main office of this
Association to any other place outside the limits of the City of Columbus, State
of Ohio, but not more than thirty miles beyond such limits, with the affirmative
vote of shareholders owning two-thirds of the stock of the Association, subject
to receipt of a certificate of approval from the Comptroller of the Currency.
The Board of Directors shall have the power to establish or change the location
of any branch or branches of the Association to any other location permitted
under applicable law without the approval of the shareholders, subject to
approval by the Office of the Comptroller of the Currency. The Board of
Directors shall have the power to establish or change the location of any
nonbranch office or facility of the Association without the approval of the
shareholders.
<PAGE> 8
EIGHTH. The corporate existence of this Association shall continue until
termination according to the laws of the United States.
NINTH. The Board of Directors of this Association, or any shareholders owning,
in the aggregate, not less than 20 percent of the stock of this Association, may
call a special meeting of shareholders at any time. Unless otherwise provided by
the Bylaws or the laws of the United States, or waived by shareholders, a notice
of the time, place, and purpose of every annual and special meeting of the
shareholders shall be given by first-class mail, postage prepaid, mailed at
least 10, and no more than 60, days prior to the date of the meeting to each
shareholder of record at his/her address as shown upon the books of this
Association. Unless otherwise provided by the Bylaws, any action requiring
approval of shareholders must be effected at a duly called annual or special
meeting.
TENTH. The Association shall provide indemnification as set forth below:
Every person who is or was a Director, officer or employee of the Association or
of any other corporation which he served as a Director, officer or employee at
the request of the Association as part of his regularly assigned duties may be
indemnified by the Association in accordance with the provisions of this Article
against all liability (including, without limitation, judgments, fines,
penalties, and settlements) and all reasonable expenses (including, without
limitation, attorneys' fees and investigative expenses) that may be incurred or
paid by him in connection with any claim, action, suit or proceeding, whether
civil, criminal or administrative (all referred to hereafter in this Article as
"Claims") or in connection with any appeal relating thereto in which he may
become involved as a party or otherwise or with which he may be threatened by
reason of his being or having been a Director, officer or employee of the
Association or such other corporation, or by reason of any action taken or
omitted by him in his capacity as such Director, officer or employee, whether or
not he continues to be such at the time such liability or expenses are incurred;
provided that nothing contained in this Article shall be construed to permit
indemnification of any such person who is adjudged guilty of, or liable for,
willful misconduct, gross neglect of duty or criminal acts, unless, at the time
such indemnification is sought, such indemnification in such instance is
permissible under applicable law and regulations, including published rulings of
the Comptroller of the Currency or other appropriate supervisory or regulatory
authority; and provided further that there shall be no indemnification of
Directors, officers, or employees against expenses, penalties, or other payments
incurred in an administrative proceeding or action instituted by an appropriate
regulatory agency which proceeding or action results in a final order assessing
civil money penalties or requiring affirmative action by an individual or
individuals in the form of payments to the Association.
Every person who may be indemnified under the provisions of this Article and who
has been wholly successful on the merits with respect to any Claim shall be
entitled to indemnification as of right. Except as provided in the preceding
sentence, any indemnification under this Article shall be at the sole discretion
of the Board of Directors and shall be made only if the Board of Directors or
the Executive Committee acting by a quorum consisting of Directors who are not
parties to such Claim shall find or if independent legal counsel (who may be the
regular counsel of the Association) selected by the Board of Directors or
Executive Committee whether or not a disinterested quorum exists shall render
their opinion that in view of all of the circumstances then surrounding the
Claim, such indemnification is equitable and in the best interests of the
Association. Among the circumstances to be taken into consideration in arriving
at such a finding or
<PAGE> 9
opinion is the existence or non-existence of a contract of insurance or
indemnity under which the Association would be wholly or partially reimbursed
for such indemnification, but the existence or non-existence of such insurance
is not the sole circumstance to be considered nor shall it be wholly
determinative of whether such indemnification shall be made. In addition to such
finding or opinion, no indemnification under this Article shall be made unless
the Board of Directors or the Executive Committee acting by a quorum consisting
of Directors who are not parties to such Claim shall find or if independent
legal counsel (who may be the regular counsel of the Association) selected by
the Board of Directors or Executive Committee whether or not a disinterested
quorum exists shall render their opinion that the Directors, officer or employee
acted in good faith in what he reasonably believed to be the best interests of
the Association or such other corporation and further in the case of any
criminal action or proceeding, that the Director, officer or employee reasonably
believed his conduct to be lawful. Determination of any Claim by judgment
adverse to a Director, officer or employee by settlement with or without Court
approval or conviction upon a plea of guilty or of nolo contendere or its
equivalent shall not create a presumption that a Director, officer or employee
failed to meet the standards of conduct set forth in this Article. Expenses
incurred with respect to any Claim may be advanced by the Association prior to
the final disposition thereof upon receipt of an undertaking satisfactory to the
Association by or on behalf of the recipient to repay such amount unless it is
ultimately determined that he is entitled to indemnification under this Article.
The rights of indemnification provided in this Article shall be in addition to
any rights to which any Director, officer or employee may otherwise be entitled
by contract or as a matter of law. Every person who shall act as a Director,
officer or employee of this Association shall be conclusively presumed to be
doing so in reliance upon the right of indemnification provided for in this
Article.
ELEVENTH. These Articles of Association may be amended at any regular or special
meeting of the shareholders by the affirmative vote of the holders of a majority
of the stock of this Association, unless the vote of the holders of a greater
amount of stock is required by law, and in that case by the vote of the holders
of such greater amount. The Association's Board of Directors may propose one or
more amendments to the Articles of Association for submission to the
shareholders.
<PAGE> 10
EXHIBIT 2
A COPY OF THE CERTIFICATE OF AUTHORITY OF THE
TRUSTEE TO COMMENCE BUSINESS
CERTIFICATE
I, John D. Hawke, Jr., Comptroller of the Currency, do hereby certify that:
1. The Comptroller of the Currency, pursuant to Revised Statutes 324, et seq.,
as amended, 12 U.S.C. 1, et seq., as amended, has possession, custody and
control of all records pertaining to the chartering of all National Banking
Associations.
2. "Bank One Trust Company, National Association," Columbus, Ohio, (Charter No.
16235) is a National Banking Association formed under the laws of the United
States and is authorized thereunder to transact the business of banking on the
date of this Certificate.
IN TESTIMONY WHEREOF, I have hereunto
subscribed my name and caused my seal of
office to be affixed to these presents at the
Treasury Department in the City of
Washington and District of Columbia, this
15th day of September, 1999.
/s/ John D. Hawke, Jr.
----------------------
Comptroller of the Currency
Comptroller of the Currency
<PAGE> 11
EXHIBIT 3
A COPY OF THE AUTHORIZATION OF THE TRUSTEE
TO EXERCISE CORPORATE TRUST POWERS
CERTIFICATE
I, John D. Hawke, Jr., Comptroller of the Currency, do hereby certify that:
1. The Comptroller of the Currency, pursuant to Revised Statutes 324, et seq.,
as amended, 12 U.S.C. 1, et seq., as amended, has possession, custody and
control of all records pertaining to the chartering of all National Banking
Associations.
2. "Bank One Trust Company, National Association," Columbus, Ohio, (Charter No.
16235) was granted, under the hand and seal of the Comptroller, the right to act
in all fiduciary capacities authorized under the provisions of the Act of
Congress approved September 28, 1962, 76 Stat. 668, 12 U.S.C. 92a, and that the
authority so granted remains in full force and effect on the date of this
Certificate.
IN TESTIMONY WHEREOF, I have hereunto
subscribed my name and caused my seal of
office to be affixed to these presents at the
Treasury Department in the City of
Washington and District of Columbia, this
15th day of September, 1999.
/s/ John D. Hawke, Jr.
----------------------
Comptroller of the Currency
<PAGE> 12
EXHIBIT 4
A COPY OF THE EXISTING BY-LAWS OF THE TRUSTEE
BANK ONE TRUST COMPANY, NATIONAL ASSOCIATION
BY-LAWS
ARTICLE I
MEETINGS OF SHAREHOLDERS
SECTION 1.01. ANNUAL MEETING. The regular annual meeting of the shareholders of
the Bank for the election of Directors and for the transaction of such business
as may properly come before the meeting shall be held at its main office, or
other convenient place duly authorized by the Board of Directors, on the same
day upon which any regular or special Board meeting is held from and including
the first Monday of January to, and including, the fourth Monday of February of
each year, or on the next succeeding banking day, if the day fixed falls on a
legal holiday. If from any cause, an election of Directors is not made on the
day fixed for the regular meeting of the shareholders or, in the event of a
legal holiday, on the next succeeding banking day, the Board of Directors shall
order the election to be held on some subsequent day, as soon thereafter as
practicable, according to the provisions of law; and notice thereof shall be
given in the manner herein provided for the annual meeting. Notice of such
annual meeting shall be given by or under the direction of the Secretary, or
such other officer as may be designated by the Chief Executive Officer, by
first-class mail, postage prepaid, to all shareholders of record of the Bank at
their respective addresses as shown upon the books of the Bank mailed not less
than ten days prior to the date fixed for such meeting.
SECTION 1.02. SPECIAL MEETINGS. A special meeting of the shareholders of the
Bank may be called at any time by the Board of Directors or by any three or more
shareholders owning, in the aggregate, not less than ten percent of the stock of
the Bank. Notice of any special meeting of the shareholders called by the Board
of Directors, stating the time, place and purpose of the meeting, shall be given
by or under the direction of the Secretary, or such other officer as is
designated by the Chief Executive Officer, by first-class mail, postage prepaid,
to all shareholders of record of the Bank at their respective addresses as shown
upon the books of the Bank mailed not less than ten days prior to the date fixed
for such meeting. Any special meeting of shareholders shall be conducted and its
proceedings recorded in the manner prescribed in these By-Laws for annual
meetings of shareholders.
SECTION 1.03. SECRETARY OF MEETING OF SHAREHOLDERS. The Board of Directors may
designate a person to be the secretary of the meeting of shareholders. In the
absence of a presiding officer, as designated by these By-Laws, the Board of
Directors may designate a person to act as the presiding officer. In the event
the Board of Directors fails to designate a person to preside at a meeting of
shareholders and a secretary of such meeting, the shareholders present or
represented shall elect a person to preside and a person to serve as secretary
of the meeting. The secretary of the meeting of shareholders shall cause the
returns made by the judges of election and other proceedings to be recorded in
the minute books of the Bank. The presiding officer shall notify the
Directors-elect of their election and to meet forthwith for the organization of
the new Board of Directors. The minutes of the meeting shall be signed by the
presiding officer and the secretary designated for the meeting.
<PAGE> 13
SECTION 1.04. JUDGES OF ELECTION. The Board of Directors may appoint as many as
three shareholders to be judges of the election, who shall hold and conduct the
same, and who shall, after the election has been held, notify, in writing over
their signatures, the secretary of the meeting of shareholders of the result
thereof and the names of the Directors elected; provided, however, that upon
failure for any reason of any judge or judges of election, so appointed by the
Directors, to serve, the presiding officer of the meeting shall appoint other
shareholders or their proxies to fill the vacancies. The judges of election, at
the request of the chairman of the meeting, shall act as tellers of any other
vote by ballot taken at such meeting, and shall notify, in writing over their
signature, the secretary of the Board of Directors of the result thereof.
SECTION 1.05. PROXIES. In all elections of Directors, each shareholder of
record, who is qualified to vote under the provisions of Federal Law, shall have
the right to vote the number of shares of record in such shareholder's name for
as many persons as there are Directors to be elected, or to cumulate such shares
as provided by Federal Law. In deciding all other questions at meetings of
shareholders, each shareholder shall be entitled to one vote on each share of
stock of record in such shareholder's name. Shareholders may vote by proxy duly
authorized in writing. All proxies used at the annual meeting shall be secured
for that meeting only, or any adjournment thereof, and shall be dated, if not
dated by the shareholder, as of the date of the receipt thereof. No officer or
employee of this Bank may act as proxy.
SECTION 1.06. QUORUM. Holders of record of a majority of the shares of the
capital stock of the Bank, eligible to be voted, present either in person or by
proxy, shall constitute a quorum for the transaction of business at any meeting
of shareholders, but shareholders present at any meeting and constituting less
than a quorum may, without further notice, adjourn the meeting from time to time
until a quorum is obtained. A majority of the votes cast shall decide every
question or matter submitted to the shareholders at any meeting, unless
otherwise provided by law or by the Articles of Association.
ARTICLE II
DIRECTORS
SECTION 2.01. QUALIFICATIONS. Each Director shall have the qualifications
prescribed by law. No person elected as a Director may exercise any of the
powers of office until such Director has taken the oath of such office.
SECTION 2.02. VACANCIES. Directors of the Bank shall hold office for one year or
until their successors are elected and qualified. Any vacancy in the Board shall
be filled by appointment of the remaining Directors, and any Director so
appointed shall hold office until the next election.
SECTION 2.03. ORGANIZATION MEETING. The Directors elected by the shareholders
shall meet for organization of the new Board of Directors at the time and place
fixed by the presiding officer of the annual meeting. If at the time fixed for
such meeting there is no quorum present, the Directors in attendance may adjourn
from time to time until a quorum is obtained. A majority of the number of
Directors elected by the shareholders shall constitute a quorum for the
transaction of business.
<PAGE> 14
SECTION 2.04. REGULAR MEETINGS. The regular meetings of the Board of Directors
shall be held at such date, time and place as the Board may previously
designate, or should the Board fail to so designate, at such date, time and
place as the Chairman of the Board, Chief Executive Officer, or President may
fix. Whenever a quorum is not present, the Directors in attendance shall adjourn
the meeting to a time not later than the date fixed by the By-Laws for the next
succeeding regular meeting of the Board. Members of the Board of Directors may
participate in such meetings through use of conference telephone or similar
communications equipment, so long as all members participating in such meetings
can hear one another.
SECTION 2.05. SPECIAL MEETINGS. Special meetings of the Board of Directors shall
be held at the call of the Chairman of the Board, Chief Executive Officer, or
President, or at the request of two or more Directors. Any special meeting may
be held at such place and at such time as may be fixed in the call. Written or
oral notice shall be given to each Director not later than the day next
preceding the day on which the special meeting is to be held, which notice may
be waived in writing. The presence of a Director at any meeting of the Board of
Directors shall be deemed a waiver of notice thereof by such Director. Whenever
a quorum is not present, the Directors in attendance shall adjourn the special
meeting from day to day until a quorum is obtained. Members of the Board of
Directors may participate in such meetings through use of conference telephone
or similar communications equipment, so long as all members participating in
such meetings can hear one another.
SECTION 2.06. QUORUM. A majority of the Directors shall constitute a quorum at
any meeting, except when otherwise provided by law; but a lesser number may
adjourn any meeting, from time-to-time, and the meeting may be held, as
adjourned, without further notice. When, however, less than a quorum as herein
defined, but at least one-third and not less than two of the authorized number
of Directors are present at a meeting of the Directors, business of the Bank may
be transacted and matters before the Board approved or disapproved by the
unanimous vote of the Directors present.
SECTION 2.07. COMPENSATION. Each member of the Board of Directors shall receive
such fees for attendance at Board and Board committee meetings and such fees for
service as a Director, irrespective of meeting attendance, as from time to time
are fixed by resolution of the Board; provided, however, that payment hereunder
shall not be made to a Director for meetings attended and/or Board service which
are not for the Bank's sole benefit and which are concurrent and duplicative
with meetings attended or Board service for an affiliate of the Bank for which
the Director receives payment; and provided further that fees hereunder shall
not be paid in the case of any Director in the regular employment of the Bank or
of one of its affiliates. Each member of the Board of Directors, whether or not
such Director is in the regular employment of the Bank or of one of its
affiliates, shall be reimbursed for travel expenses incident to attendance at
Board and Board committee meetings.
SECTION 2.08. EXECUTIVE COMMITTEE. There may be a standing committee of the
Board of Directors known as the Executive Committee which shall possess and
exercise, when the Board is not in session, all the powers of the Board that may
lawfully be delegated. The Executive Committee shall consist of at least three
Board members, one of whom shall be the Chairman of the Board, Chief Executive
Officer or the President. The other members of the Executive Committee shall be
appointed by the Chairman of the Board, the Chief Executive Officer, or the
President, with the approval of the Board, and who shall continue as members of
the Executive Committee until their successors are
<PAGE> 15
appointed, provided, however, that any member of the Executive Committee may be
removed by the Board upon a majority vote thereof at any regular or special
meeting of the Board. The Chairman, Chief Executive Officer, or President shall
fill any vacancy in the Executive Committee by the appointment of another
Director, subject to the approval of the Board of Directors. The Executive
Committee shall meet at the call of the Chairman, Chief Executive Officer, or
President or any two members thereof at such time or times and place as may be
designated. In the event of the absence of any member or members of the
Executive Committee, the presiding member may appoint a member or members of the
Board to fill the place or places of such absent member or members to serve
during such absence. Two members of the Executive Committee shall constitute a
quorum. When neither the Chairman of the Board, the Chief Executive Officer, nor
President are present, the Executive Committee shall appoint a presiding
officer. The Executive Committee shall report its proceedings and the action
taken by it to the Board of Directors.
SECTION 2.09. OTHER COMMITTEES. The Board of Directors may appoint such special
committees from time to time as are in its judgment necessary in the interest of
the Bank.
ARTICLE III
OFFICERS, MANAGEMENT STAFF AND EMPLOYEES
SECTION 3.01. OFFICERS AND MANAGEMENT STAFF.
(a) The executive officers of the Bank shall include a Chairman of the Board,
Chief Executive Officer, President, Chief Financial Officer, Secretary, Security
Officer, and may include one or more Senior Managing Directors or Managing
Directors. The Chairman of the Board, Chief Executive Officer, President, any
Senior Managing Director, any Managing Director, Chief Financial Officer,
Secretary, and Security Officer shall be elected by the Board. The Chairman of
the Board, Chief Executive Officer, and the President shall be elected by the
Board from their own number. Such officers as the Board shall elect from their
own number shall hold office from the date of their election as officers until
the organization meeting of the Board of Directors following the next annual
meeting of shareholders, provided, however, that such officers may be relieved
of their duties at any time by action of the Board of Directors, in which event
all the powers incident to their office shall immediately terminate. The
Chairman of the Board, Chief Executive Officer, or the President shall preside
at all meetings of shareholders and meetings of the Board of Directors.
(b) The management staff of the Bank shall include officers elected by the
Board, officers appointed by the Chairman of the Board, the Chief Executive
Officer, the President, any Senior Managing Director, any Managing Director, the
Chief Financial Officer, and such other persons in the employment of the Bank
who, pursuant to authorization by a duly authorized officer of the Bank, perform
management functions and have management responsibilities. Any two or more
offices may be held by the same person except that no person shall hold the
office of Chairman of the Board, Chief Executive Officer and/or President and at
the same time also hold the office of Secretary.
(c) Except as provided in the case of the elected officers who are members of
the Board, all officers and employees, whether elected or appointed, shall hold
office at the pleasure of the Board. Except as otherwise limited by law or these
By-Laws, the Board assigns to the Chairman of the Board, the Chief Executive
Officer, the President, any Senior Managing Director, any Managing Director, the
Chief Financial Officer, and/or each of their respective designees the authority
to control all personnel, including elected and appointed officers
<PAGE> 16
and employees of the Bank, to employ or direct the employment of such officers
and employees as he or she may deem necessary, including the fixing of salaries
and the dismissal of such officers and employees at pleasure, and to define and
prescribe the duties and responsibilities of all officers and employees of the
Bank, subject to such further limitations and directions as he or she may from
time to time deem appropriate.
(d) The Chairman of the Board, the Chief Executive Officer, the President, any
Senior Managing Director, any Managing Director, the Chief Financial Officer,
and any other officer of the Bank, to the extent that such officer is authorized
in writing by the Chairman of the Board, the Chief Executive Officer, the
President, any Senior Managing Director, any Managing Director, or the Chief
Financial Officer may appoint persons other than officers who are in employment
of the Bank to serve in management positions and in connection therewith, the
appointing officer may assign such title, salary, responsibilities and functions
as are deemed appropriate, provided, however, that nothing contained herein
shall be construed as placing any limitation on the authority of the Chairman of
the Board, the Chief Executive Officer, the President, any Senior Managing
Director, any Managing Director, or the Chief Financial Officer as provided in
this and other sections of these By-Laws.
(e) The Senior Managing Directors and the Managing Directors of the Bank shall
have general and active authority over the management of the business of the
Bank, shall see that all orders and resolutions of the Board of Directors are
carried into effect, and shall do or cause to be done all things necessary or
proper to carry on the business of the Bank in accordance with provisions of
applicable law and regulations. Each Senior Managing Director and Managing
Director shall perform all duties incident to his or her office and such other
and further duties, as may from time to time be required by the Chief Executive
Officer, the President, the Board of Directors, or the shareholders. The
specification of authority in these By-Laws wherever and to whomever granted
shall not be construed to limit in any manner the general powers of delegation
granted to a Senior Managing Director or a Managing Director in conducting the
business of the Bank. In the absence of a Senior Managing Director or a Managing
Director, such officer as is designated by the Senior Managing Director or the
Managing Director shall be vested with all the powers and perform all the duties
of the Senior Managing Director or the Managing Director as defined by these
By-Laws.
(f) Each Managing Director who is assigned oversight of one or more trust
service offices shall appoint a management committee known as the Investment
Management and Trust Committee consisting of the Managing Director of the trust
service offices and at least three other members who shall be capable and
experienced officers of the Bank appointed from time to time by the Managing
Director and who shall continue as members of the Investment Management and
Trust Committee until their successors are appointed, provided, however, that
any member of the Investment Management and Trust Committee may be removed by
the Managing Director as provided in this and other sections of these By-Laws.
The Managing Director shall fill any vacancy in the Investment Management and
Trust Committee by the appointment of another capable and experienced officer of
the Bank. Each Investment Management and Trust Committee shall meet at such
date, time and place as the Managing Director shall fix. In the event of the
absence of any member or members of the Investment Management and Trust
Committee, the Managing Director may, in his or her discretion, appoint another
officer of the Bank to fill the place or places of such absent member or members
to serve during such absence. A majority of each Investment Management and Trust
Committee shall constitute a quorum. Each Investment Management and Trust
Committee shall carry out the policies of the Bank, as adopted by
<PAGE> 17
the Board of Directors, which shall be formulated and executed in accordance
with State and Federal Law, Regulations of the Comptroller of the Currency, and
sound fiduciary principles. In carrying out the policies of the Bank, each
Investment Management and Trust Committee is hereby authorized to establish
management teams whose duties and responsibilities shall be specifically set
forth in the policies of the Bank. Each such management team shall report such
proceedings and the actions taken thereby to the Investment Management and Trust
Committee. Each Managing Director shall then report such proceedings and the
actions taken thereby to the Board of Directors.
SECTION 3.02. POWERS AND DUTIES OF MANAGEMENT STAFF. Pursuant to the fiduciary
powers granted to this Bank under the provisions of Federal Law and Regulations
of the Comptroller of the Currency, the Chairman of the Board, the Chief
Executive Officer, the President, the Senior Managing Directors, the Managing
Directors, the Chief Financial Officer, and those officers so designated and
authorized by the Chairman of the Board, the Chief Executive Officer, the
President, the Senior Managing Directors, the Managing Directors, or the Chief
Financial Officer are authorized for and on behalf of the Bank, and to the
extent permitted by law, to make loans and discounts; to purchase or acquire
drafts, notes, stocks, bonds, and other securities for investment of funds held
by the Bank; to execute and purchase acceptances; to appoint, empower and direct
all necessary agents and attorneys; to sign and give any notice required to be
given; to demand payment and/or to declare due for any default any debt or
obligation due or payable to the Bank upon demand or authorized to be declared
due; to foreclose any mortgages; to exercise any option, privilege or election
to forfeit, terminate, extend or renew any lease; to authorize and direct any
proceedings for the collection of any money or for the enforcement of any right
or obligation; to adjust, settle and compromise all claims of every kind and
description in favor of or against the Bank, and to give receipts, releases and
discharges therefor; to borrow money and in connection therewith to make,
execute and deliver notes, bonds or other evidences of indebtedness; to pledge
or hypothecate any securities or any stocks, bonds, notes or any property real
or personal held or owned by the Bank, or to rediscount any notes or other
obligations held or owned by the Bank, whenever in his or her judgment it is
reasonably necessary for the operation of the Bank; and in furtherance of and in
addition to the powers hereinabove set forth to do all such acts and to take all
such proceedings as in his or her judgment are necessary and incidental to the
operation of the Bank.
SECTION 3.03. SECRETARY. The Secretary or such other officers as may be
designated by the Chief Executive Officer shall have supervision and control of
the records of the Bank and, subject to the direction of the Chief Executive
Officer, shall undertake other duties and functions usually performed by a
corporate secretary. Other officers may be designated by the Secretary as
Assistant Secretary to perform the duties of the Secretary.
SECTION 3.04. EXECUTION OF DOCUMENTS. Any member of the Bank's management staff
or any employee of the Bank designated as an officer on the Bank's payroll
system is hereby authorized for and on behalf of the Bank to sell, assign,
lease, mortgage, transfer, deliver and convey any real or personal property,
including shares of stock, bonds, notes, certificates of indebtedness (including
the assignment and redemption of registered United States obligations) and all
other forms of intangible property now or hereafter owned by or standing in the
name of the Bank, or its nominee, or held by the Bank as collateral security, or
standing in the name of the Bank, or its nominee, in any fiduciary capacity or
in the name of any principal for whom this Bank may now or hereafter be acting
under a power of attorney or as agent, and to execute and deliver such partial
releases from any discharges or assignments of mortgages and assignments or
surrender of insurance
<PAGE> 18
policies, deeds, contracts, assignments or other papers or documents as may be
appropriate in the circumstances now or hereafter held by the Bank in its own
name, in a fiduciary capacity, or owned by any principal for whom this Bank may
now or hereafter be acting under a power of attorney or as agent; provided,
however, that, when necessary, the signature of any such person shall be
attested or witnessed in each case by another officer of the Bank. Any member of
the Bank's management staff or any employee of the Bank designated as an officer
on the Bank's payroll system is hereby authorized for and on behalf of the Bank
to execute any indemnity and fidelity bonds, trust agreements, proxies or other
papers or documents of like or different character necessary, desirable or
incidental to the appointment of the Bank in any fiduciary capacity, the conduct
of its business in any fiduciary capacity, or the conduct of its other banking
business; to sign and issue checks, drafts, orders for the payment of money and
certificates of deposit; to sign and endorse bills of exchange, to sign and
countersign foreign and domestic letters of credit, to receive and receipt for
payments of principal, interest, dividends, rents, fees and payments of every
kind and description paid to the Bank, to sign receipts for money or other
property acquired by or entrusted to the Bank, to guarantee the genuineness of
signatures on assignments of stocks, bonds or other securities, to sign
certifications of checks, to endorse and deliver checks, drafts, warrants,
bills, notes, certificates of deposit and acceptances in all business
transactions of the Bank; also to foreclose any mortgage, to execute and deliver
receipts for any money or property; also to sign stock certificates for and on
behalf of this Bank as transfer agent or registrar, and to authenticate bonds,
debentures, land or lease trust certificates or other forms of security issued
pursuant to any indenture under which this Bank now or hereafter is acting as
trustee or in any other fiduciary capacity; to execute and deliver various forms
of documents or agreements necessary to effectuate certain investment strategies
for various fiduciary or custody customers of the Bank, including, without
limitation, exchange funds, options, both listed and over-the-counter,
commodities trading, futures trading, hedge funds, limited partnerships, venture
capital funds, swap or collar transactions and other similar investment vehicles
for which the Bank now or in the future may deem appropriate for investment of
fiduciary customers or in which non-fiduciary customers may direct investment by
the Bank.
Without limitation on the foregoing, the Chief Executive Officer, Chairman of
the Board, or President of the Bank shall have the authority from time to time
to appoint officers of the Bank as Vice President for the sole purpose of
executing releases or other documents incidental to the conduct of the Bank's
business in any fiduciary capacity where required by state law or the governing
document. In addition, other persons in the employment of the Bank or its
affiliates may be authorized by the Chief Executive Officer, Chairman of the
Board, President, Senior Managing Directors, Managing Directors, or Chief
Financial Officer to perform acts and to execute the documents described in the
paragraph above, subject, however, to such limitations and conditions as are
contained in the authorization given to such person.
SECTION 3.05. PERFORMANCE BOND. All officers and employees of the Bank shall be
bonded for the honest and faithful performance of their duties for such amount
as may be prescribed by the Board of Directors.
ARTICLE IV
STOCKS AND STOCK CERTIFICATES
SECTION 4.01. STOCK CERTIFICATES. The shares of stock of the Bank shall be
<PAGE> 19
evidenced by certificates which shall bear the signature of the Chairman of the
Board, the Chief Executive Officer, or the President (which signature may be
engraved, printed or impressed), and shall be signed manually by the Secretary,
or any other officer appointed by the Chief Executive Officer for that purpose.
In case any such officer who has signed or whose facsimile signature has been
placed upon such certificate shall have ceased to be such officer before such
certificate is issued, it may be issued by the Bank with the same effect as if
such officer had not ceased to be such at the time of its issue. Each such
certificate shall bear the corporate seal of the Bank, shall recite on its face
that stock represented thereby is transferable only upon the books of the Bank
when properly endorsed and shall recite such other information as is required by
law and deemed appropriate by the Board. The corporate seal may be facsimile
engraved or printed.
SECTION 4.02. STOCK ISSUE AND TRANSFER. The shares of stock of the Bank shall be
transferable only upon the stock transfer books of the Bank and, except as
hereinafter provided, no transfer shall be made or new certificates issued
except upon the surrender for cancellation of the certificate or certificates
previously issued therefor. In the case of the loss, theft, or destruction of
any certificate, a new certificate may be issued in place of such certificate
upon the furnishing of an affidavit setting forth the circumstances of such
loss, theft, or destruction and indemnity satisfactory to the Chairman of the
Board, the Chief Executive Officer, or the President. The Board of Directors or
the Chairman of the Board, Chief Executive Officer, or the President may
authorize the issuance of a new certificate therefor without the furnishing of
indemnity. Stock transfer books, in which all transfers of stock shall be
recorded, shall be provided. The stock transfer books may be closed for a
reasonable period and under such conditions as the Board of Directors may at any
time determine, for any meeting of shareholders, the payment of dividends or any
other lawful purpose. In lieu of closing the transfer books, the Board of
Directors may, in its discretion, fix a record date and hour constituting a
reasonable period prior to the day designated for the holding of any meeting of
the shareholders or the day appointed for the payment of any dividend, or for
any other purpose at the time as of which shareholders entitled to notice of and
to vote at any such meeting or to receive such dividend or to be treated as
shareholders for such other purpose shall be determined, and only shareholders
of record at such time shall be entitled to notice of or to vote at such meeting
or to receive such dividends or to be treated as shareholders for such other
purpose.
ARTICLE V
MISCELLANEOUS PROVISIONS
SECTION 5.01. SEAL. The seal of the Bank shall be circular in form with "SEAL"
in the center, and the name "BANK ONE TRUST COMPANY, NA" located clockwise
around the upper half of the seal.
SECTION 5.02. MINUTE BOOK. The organization papers of this Bank, the Articles of
Association, the returns of judges of elections, the By-Laws and any amendments
thereto, the proceedings of all regular and special meetings of the shareholders
and of the Board of Directors, and reports of the committees of the Board of
Directors shall be recorded in the minute books of the Bank. The minutes of each
such meeting shall be signed by the presiding officer and attested by the
secretary of the meeting.
SECTION 5.03. CORPORATE POWERS. The corporate existence of the Bank shall
continue until terminated in accordance with the laws of the United States. The
purpose of the Bank shall be to carry on the general business of a commercial
bank trust
<PAGE> 20
department and to engage in such activities as are necessary, incident, or
related to such business. The Articles of Association of the Bank shall not be
amended, or any other provision added elsewhere in the Articles expanding the
powers of the Bank, without the prior approval of the Comptroller of the
Currency.
SECTION 5.04. AMENDMENT OF BY-LAWS. The By-Laws may be amended, altered or
repealed, at any regular or special meeting of the Board of Directors, by a vote
of a majority of the Directors.
As amended April 24, 1991 Section 3.01 (Officers and Management Staff)
Section 3.02 (Chief Executive Officer)
Section 3.03 (Powers and Duties of Officers and
Management Staff)
Section 3.05 (Execution of Documents)
As amended January 27, 1995 Section 2.04 (Regular Meetings)
Section 2.05 (Special Meetings)
Section 3.01(f) (Officers and Management Staff)
Section 3.03(e) (Powers and Duties of Officers and
Management Staff)
Section 5.01 (Seal)
Amended and restated in its entirety effective May 1, 1996
As amended August 1, 1996 Section 2.09 (Trust Examining Committee)
Section 2.10 (Other Committees)
As amended October 16, 1997 Section 3.01 (Officers and Management Staff)
Section 3.02 (Powers and Duties of Officers and
Management Staff)
Section 3.04 (Execution of Documents)
As amended January 1, 1998 Section 1.01 (Annual Meeting)
EXHIBIT 6
THE CONSENT OF THE TRUSTEE REQUIRED
BY SECTION 321(b) OF THE ACT
January 20, 2000
<PAGE> 21
Securities and Exchange Commission
Washington, D.C. 20549
Ladies and Gentlemen:
In connection with the qualification of an indenture between Universal Health
Services, Inc. and Bank One Trust Company, National Association, as Trustee, the
undersigned, in accordance with Section 321(b) of the Trust Indenture Act of
1939, as amended, hereby consents that the reports of examinations of the
undersigned, made by Federal or State authorities authorized to make such
examinations, may be furnished by such authorities to the Securities and
Exchange Commission upon its request therefor.
Very truly yours,
BANK ONE TRUST COMPANY, NATIONAL ASSOCIATION
BY: /S/ SANDRA L. CARUBA
--------------------
SANDRA L. CARUBA
VICE PRESIDENT
<PAGE> 22
EXHIBIT 7
Legal Title of Bank: Bank One Trust Company, NA
Address: 100 Broad Street
City, State Zip: Columbus, OH 43271
FDIC Certificate No.: 0/3/6/1/8
Call Date: 12/31/98 ST-BK: 17-1630 FFIEC 032
Page RC-1
CONSOLIDATED REPORT OF CONDITION FOR INSURED COMMERCIAL AND STATE-CHARTERED
SAVINGS BANKS FOR DECEMBER 31, 1998
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, report the amount outstanding of the last business day of the
quarter.
SCHEDULE RC--BALANCE SHEET
<TABLE>
<CAPTION>
DOLLAR AMOUNTS IN THOUSANDS C300
RCON BIL MIL THOU ---------
------------------
<S> <C> <C> <C>
ASSETS
1. Cash and balances due from depository institutions (from Schedule RC-A): RCON
----
a. Noninterest-bearing balances and currency and coin(1) ..................... 0081 159,911 1.a
b. Interest-bearing balances(2)............................................... 0071 16,874 1.b
2. Securities
a. Held-to-maturity securities(from Schedule RC-B, column A)................. 1754 0 2.a
b. Available-for-sale securities (from Schedule RC-B, column D)............... 1773 7,403 2.b
3. Federal funds sold and securities purchased under agreements to
resell ....................................................................... 1350 576,473 3.
4. Loans and lease financing receivables: RCON
----
a. Loans and leases, net of unearned income (from Schedule RC-C).............. 2122 32,603 4.a
b. LESS: Allowance for loan and lease losses.................................. 3123 10 4.b
c. LESS: Allocated transfer risk reserve...................................... 3128 0 4.c
RCON
d. Loans and leases, net of unearned income, allowance, and reserve ----
(item 4.a minus 4.b and 4.c)............................................. 2125 32,593 4.d
5. Trading assets (from Schedule RD-D)...................................... 3545 0 5.
6. Premises and fixed assets (including capitalized leases) ................ 2145 18,685 6.
7. Other real estate owned (from Schedule RC-M) ............................ 2150 0 7.
8. Investments in unconsolidated subsidiaries and associated companies
(from Schedule RC-M)..................................................... 2130 0 8.
9. Customers' liability to this bank on acceptances outstanding ............ 2155 0 9.
10. Intangible assets (from Schedule RC-M)................................... 2143 31,392 10.
11. Other assets (from Schedule RC-F)........................................ 2160 127,322 11.
12. Total assets (sum of items 1 through 11)................................. 2170 970,653 12.
</TABLE>
- ----------
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
<PAGE> 23
Legal Title of Bank: Bank One Trust Company, N.A.
Address: 100 East Broad Street
City, State Zip: Columbus, OH 43271
FDIC Certificate No.: 0/3/6/1/8
Call Date: 12/31/98 ST-BK: 171630 FFIEC 032
Page RC-2
SCHEDULE RC-CONTINUED
<TABLE>
<CAPTION>
DOLLAR AMOUNTS IN
THOUSANDS
---------
<S> <C> <C> <C>
LIABILITIES
13. Deposits: RCON
a. In domestic offices (sum of totals of columns A and C ----
from Schedule RC-E, part 1)............................................. 2200 802,791 13.a
(1) Noninterest-bearing(1).............................................. 6631 727,720 13.a1
(2) Interest-bearing.................................................... 6636 75,071 13.a2
b. In foreign offices, Edge and Agreement subsidiaries, and
IBFs (from Schedule RC-E, part II)...
(1) Noninterest bearing.................................................
(2) Interest-bearing....................................................
14. Federal funds purchased and securities sold under agreements
to repurchase: ............................................................ RCFD 2800 0 14
15. a. Demand notes issued to the U.S. Treasury ............................... RCON 2840 0 15.a
b. Trading Liabilities(from Schedule RC-D)................................. RCFD 3548 0 15.b
16. Other borrowed money: RCON
----
a. With original maturity of one year or less.............................. 2332 0 16.a
b. With original maturity of more than one year............................ A547 0 16.b
c. With original maturity of more than three years ........................ A548 0 16.c
17. Not applicable
18. Bank's liability on acceptance executed and outstanding ................... 2920 0 18.
19. Subordinated notes and debentures.......................................... 3200 0 19.
20. Other liabilities (from Schedule RC-G)..................................... 2930 64,642 20.
21. Total liabilities (sum of items 13 through 20)............................. 2948 867,433 21.
22. Not applicable
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus.............................. 3838 0 23.
24. Common stock............................................................... 3230 800 24.
25. Surplus (exclude all surplus related to preferred stock)................... 3839 35,157 25.
26. a. Undivided profits and capital reserves.................................. 3632 67,207 26.a
b. Net unrealized holding gains (losses) on available-for-sale
securities.............................................................. 8434 56 26.b
27. Cumulative foreign currency translation adjustments ....................... 3284 0 27.
28. Total equity capital (sum of items 23 through 27).......................... 3210 103,220 28.
29. Total liabilities, limited-life preferred stock, and equity
capital (sum of items 21, 22, and 28)...................................... 3300 970,653 29.
</TABLE>
<PAGE> 24
Memorandum
To be reported only with the March Report of Condition.
1. = Indicate in the box at the right the number of the statement below that
best describes the most comprehensive level of auditing work performed
for the bank by independent external Number auditors as of any date
during 1996 RCFD 6724 N/A
--------------------
M.1.
1 = Independent audit of the bank conducted in accordance with generally
accepted auditing standards by a certified public accounting firm which
submits a report on the bank
2 = Independent audit of the bank's parent holding company conducted in
accordance with generally accepted auditing standards by a certified
public accounting firm which submits a report on the consolidated
holding company (but not on the bank separately)
3 = Directors' examination of the bank conducted in accordance with
generally accepted auditing standards by a certified public accounting
firm (may be required by state chartering authority)
4. = Directors' examination of the bank performed by other external auditors
(may be required by state chartering authority)
5 = Review of the bank's financial statements by external auditors
6 = Compilation of the bank's financial statements by external auditors
7 = Other audit procedures (excluding tax preparation work)
8 = No external audit work
(1) Includes total demand deposits and noninterest-bearing time and savings
deposits.
